                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-31-2006

Medina v. DiGuglielmo
Precedential or Non-Precedential: Precedential

Docket No. 05-3147




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Medina v. DiGuglielmo" (2006). 2006 Decisions. Paper 486.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/486


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                    PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ____________

                 No. 05-3147
                ____________

               JOSE MEDINA

                      v.

        DAVID DIGUGLIELMO;
   THE DISTRICT ATTORNEY OF THE
     COUNTY OF PHILADELPHIA;
   THE ATTORNEY GENERAL OF THE
      STATE OF PENNSYLVANIA,
                         Appellants
            ____________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
     D.C. Civil Action No. 04-cv-00128
         (Honorable Anita B. Brody)
                ____________

            Argued April 27, 2006
              Before: SCIRICA, Chief Judge,
          NYGAARD and ALARCÓN,* Circuit Judges.

                  (Filed August 31, 2006)

Thomas W. Dolgenos, Esquire (Argued)
J. Hunter Bennett, Esquire
Ronald Eisenberg, Esquire
Arnold H. Gordon, Esquire
Lynne Abraham, Esquire
Office of District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499
       Counsel for Appellants

Shannon S. Quill, Esquire (Argued)
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51st Floor
Philadelphia, PA 19103
       Counsel for Appellee




      *
       The Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.

                             2
                        ____________

                 OPINION OF THE COURT
                      ____________

ALARCÓN, Circuit Judge.
       David Diguglielmo, the District Attorney of the County
of Philadelphia, and the Attorney General of the State of
Pennsylvania (“the Commonwealth”) appeal from the order
granting habeas corpus relief to state prisoner Jose Medina
pursuant to 28 U. S. C. § 2254(a) (1994).
        Mr. Medina was convicted in a Commonwealth Court of
first degree murder and sentenced to life imprisonment. In
ruling on his federal habeas corpus petition, the District Court
concluded that Mr. Medina’s trial counsel provided ineffective
assistance because he failed to object to the competency of a
twelve-year old witness. The District Court concluded that the
state court’s decision upholding Mr. Medina’s conviction was
an unreasonable application of clearly established federal law.
       The Commonwealth contends that the District Court
“erred in concluding that every reasonable attorney would have
challenged Marcos Toro’s competency at trial.”1 It also
maintains that Mr. Medina “was not prejudiced by counsel’s
decision not to challenge Marcos’s competency.” We will

       1
      The witness indicated at trial that he also was known as
“Michael.”

                               3
reverse the District Court’s order because Mr. Medina has failed
to demonstrate that he was prejudiced by his trial counsel’s
failure to object to Marcos Toro’s competency.
                               I
                               A
        At the preliminary hearing in this matter, Marcos Toro
testified that during the evening of October 18, 1991, he and his
ten-year old brother Hector encountered Mr. Medina in a
“Chinese store” at Cambria Street and Mascher Street in
Philadelphia. Mr. Medina was known as “Harry.” Both boys
were familiar with Mr. Medina because he was a friend of their
older brother. They saw him on a daily basis. Marcos Toro had
known Mr. Medina since he was five years old.
        Mr. Medina showed the boys a long-bladed “Rambo”
knife. Hector testified that Mr. Medina “was drunk and he said
‘Today I am going to kill somebody with this knife.’” The boys
then left the “Chinese store” and went to their home, which was
one block away. A short time later, Marcos Toro heard Mr.
Medina shouting that he was owed forty dollars. Marcos Toro
testified that he saw Mr. Medina stab William Bogan in the
heart with the same knife he had seen earlier.
        On cross-examination, however, Marcos Toro testified
that he did not see Mr. Medina stab Mr. Bogan. Instead, he
stated that his brother told him he saw the assault. On redirect
examination, Assistant District Attorney (“ADA”) Ann Ponterio
questioned Marcus Toro as follows:

                               4
      Q. Before we came in here today, the defendant’s
      sister and mother came up to speak to you; right?”
      A. Yes.
      Q. And they made you nervous, didn’t they?
      A. (Witness shakes head)
      Q. Did you tell me they scared you?
      A. Yes.
      Q. They are here in the courtroom and they are
      staring in your direction [from the] back row?
      A. A-huh.
      Q. Are [sic] do they make you nervous now that
      you are binding your hands?
      A. (Witness shakes head)
      ADA Ponterio: [Indicate nodding his head up and down.]
       Following this colloquy, Judge Charles J. Margiotti
ordered the removal of Mr. Medina’s family from the
courtroom. After the family was removed, ADA Ponterio
continued her redirect examination. In response to her
questions, Marcos Toro testified that he saw Mr. Medina stab
Mr. Bogan once and then dig through his pockets.
       On recross-examination, defense counsel, O. Robert
Silverstein, asked Marcos Toro whether he saw Mr. Medina stab
Mr. Bogan. Marcos Toro replied: “Yes.”
      ADA Ponterio then questioned Marcos Toro as follows:
      Q. Now, is what you are telling the judge the
      truth?


                             5
       A. Yes.
       Q. Do you know the difference between the truth
       and a lie?
Before the witness could answer the question, Judge Margiotti
stated: “I am satisfied he is precocious. He is a very bright
boy.”
        Mr. Silverstein did not move for a competency hearing
based on Marcos Toro’s age, or his inconsistent responses to the
questions posed during direct and cross-examination, nor did he
object to Judge Margiotti’s sua sponte finding that Marcos Toro
was “precocious.”2 Judge Margiotti determined that the
Commonwealth had presented a prima facie case. He ordered
that Mr. Medina be held for trial.
                               B
       Mr. Medina was represented at his trial by Edward Daly.
Judge Juanita Kidd Stout presided over the trial. Before the jury
was sworn in, Assistant District Attorney Carol Sweeney
informed the court in an in-chambers conference as follows:
             Today, he and his brother Hector, Michael
       now being 12, Hector now being 11, were sitting
       in the anteroom looking, in my opinion,

       2
       When pertaining to a person, the term “precocious” is
defined in the Oxford English Dictionary as follows:
“Prematurely developed in some faculty or proclivity.” Oxford
English Dictionary (2d ed. 1989).

                               6
      somewhat nervous about testifying as you might
      expect from children, but composed and under
      control until the defendant’s family arrived and
      when his mother, meaning the defendant’s
      mother, walked by and sat in the courtroom and
      the defendant’s sister and when the defendant’s
      brother, I believe it is his brother, a young man
      about the same age began milling around in the
      area outside the anteroom.
              Michael Toro began to cry, and really lost
      his composure and said he was very nervous
      about testifying. The impression I got from the
      police that is, what I was supposedly told by the
      police and the officers are right here to relate to it,
      that is he is afraid to testify, his family fears some
      kind of retaliation. I am not saying they were
      justified in fearing that. I am not asking for any
      instruction. There has been no problem, but I ask
      you, during Michael’s testimony and possibly
      during Hector, although Hector was not an
      emotional person, Michael was, to ask the
      defendant’s family to remain outside.
      Judge Stout asked Mr. Daly if he had seen Marcos Toro
cry. Mr. Daly replied: “I saw the child cry this morning.” Mr.
Daly stated further that he had no objection to excluding Mr.
Medina’s family. He also noted that “they would be sequestered
anyway” because they would be testifying during the trial.


                                7
Judge Stout granted the motion.
       ADA Sweeney began her direct examination of Marcos
Toro by questioning him about his age and whether he knew the
difference between telling the truth and telling a lie as follows:
       Q. How old are you?
       A. 12.
       Q. What grade are you in?
       A. Five.
       Q. You are in the fifth grade. Is that right?
       A. Yes.
       Q. Do you know what it means to tell the truth?
       A. Yes.
       Q. What does it mean?
       A. (No response.)
       Q. Let me ask it the other way. Do you know
       what it means to tell a lie?
       A. No.
       Q. Do you know the difference between telling
       the truth and telling a lie?
       A. No.
       Q. You just told the jury and the judge when you
       put your hand on the Bible you were going to tell
       the truth?
       A. Truth.
       Q. What does the truth mean?
       THE COURT: First of all, let’s sit up straight and
       take your hand down. What happens to you if you


                                8
    tell a lie?
    (No response.)
    THE COURT: What happens to you? Take your
    hand down and look at me. Tell me what will
    happen to you if you tell a lie?
    (No response.)
BY MS. SWEENEY:
    Q. Do you want to be here, Marcos? I said, do
    you want to be here?
    A. No.
    MR. DALY: I object.
    THE COURT: Overruled.
BY MS. SWEENEY:
    Q. Are you afraid?
    MR. DALY: Objection, Your Honor?
    THE COURT: Overruled.
    THE WITNESS: Yes.
    THE COURT: Now, listen, take your hand down.
    MR. DALY: Your Honor will note my objection
    for the record.
    THE COURT: Your objection is well noted.
    Sit up straight: Pretend you are at home or at
    school, or someplace and talk to us just like you
    would talk to the teacher.
    Now, let’s start over again.
    Tell me what will happen to you if you tell a lie?
    What would the teacher – what would your
    mother do to you? What would your father do to


                             9
    you? What would happen to you[?]
BY MS. SWEENEY:
    Q. Marcos, you have to give an answer if you
    know the answer. What would happen to you if
    you tell a lie? Do you get rewarded?
    A. No.
    Q. Do you get a prize for telling a lie?
    A. No.
    Q. Do you get in trouble for telling a lie?
    A. Yes.
    Q. What about when you tell the truth? If you
    tell the truth, is that a good thing to do?
    A. No.
    THE COURT: It is not good to tell the truth?
    THE WITNESS: Yes.
    THE COURT: Now, sit up straight and hold your
    head up.
    MS. SWEENEY: Sit back. Nobody is going to
    hurt you. Sit back. If you want some water, if
    you want a kleenex or if you say, “Boy, I need a
    break.” you just let us know. All right?
    THE WITNESS: Yes.
BY MS. SWEENEY:
    Q. We want you to tell the truth about what you
    may have seen and heard about a year ago
    involving the white dude. Do you know what I
    am talking about?
    A. No.


                            10
       MR. DALY: I object to the leading nature of the
       question.
       THE COURT: Overruled.
       You don’t know what she is talking about?
       THE WITNESS: No.
       THE COURT: All right.
        After hearing the testimony quoted above, Mr. Daly did
not object on competency grounds. ADA Sweeney proceeded
with her direct examination. Marcos Toro testified that he saw
Mr. Medina in a “Chinese store.” He stated he had known Mr.
Medina since he was five years old. He had seen Mr. Medina
every day in the neighborhood. When asked to tell the jury
“[w]hat happened after Mr. Medina entered the store,” Marcos
Toro did not answer. ADA Sweeney then requested a sidebar
conference, which was granted. She informed Judge Stout that
ADA Ponterio had handled the preliminary hearing and knew
the witness better than she did. ADA Sweeney requested that
ADA Ponterio question Marcos Toro. Judge Stout replied: “If
he testified at the [preliminary] hearing and you have the notes,3

       3
        In Pennsylvania, the transcript from a pretrial hearing in
municipal court is referred to as “notes from an examination.”
See, e.g., 42 Pa. Cons. Stat. § 5917 (2000) (providing that
“[w]henever any person has been examined as a witness, . . . in
any criminal proceeding conducted in or before a court of
record, and the defendant has been present and has had an
opportunity to examine or cross-examine, if such witness
afterwards dies, . . . or if he becomes incompetent to testify for

                               11
I think he can be declared an unavailable witness.” Mr. Daly
objected to permitting a second lawyer to continue the direct
examination of Marcos Toro. ADA Sweeney then requested the
Court’s permission to seat ADA Ponterio at counsel table.
Judge Stout inquired whether the prosecutor could put on
another witness. ADA Sweeney replied: “He won’t be any
better tomorrow.” Judge Stout permitted ADA Ponterio to sit at
counsel table.
        ADA then resumed her examination. Marcos Toro
testified that Mr. Medina showed him and Hector Toro a
“Rambo” knife. After leaving the “Chinese store,” Marcos Toro
went home. He testified that he saw Mr. Medina stab a white
man in the chest. He also testified that he did not see “anyone
go over to the white man after he fell down.”
       When ADA Sweeney showed Marcos Toro a copy of his
interview with the police, she was asked if he could read.
Marcos Toro did not reply. When Marcos Toro was asked if he
signed the statement, he replied that he signed his name on
every page. ADA Sweeney asked Marcos Toro to read the
statement. Judge Stout then declared a five-minute recess.
       After the jury left the courtroom, ADA Sweeney asked
Marcos Toro if he was okay. The witness shook his head and
went to the men’s room. ADA Sweeney asked a police officer


any legally sufficient reason properly proven, notes of his
examination shall be competent evidence upon a subsequent
trial of the same criminal issue” (emphasis added)).

                              12
to go into the men’s room and then report on Marcos Toro’s
status.
       Judge Stout stated that she had asked a court attache to
try to get a doctor to examine Marcos Toro, but none was
available. Judge Stout then directed that 911 be called. Judge
Stout reconvened the trial after thirty-five minutes.
        Marcos Toro testified that he heard the white man state:
“I will pay you tomorrow. I will pay you tomorrow.” After the
white man fell on the ground, the witness saw Mr. Medina
digging in the victim’s pockets.
       Mr. Daly’s cross-examination of Marcos Toro consisted
primarily of reading Marcos Toro’s inconsistent testimony at the
preliminary hearing, as demonstrated by the following:
       Q. Do you remember this question: “In fact, you
       didn’t see Harry stab the guy. Did you? Do you
       remember that question?”
       A. Yes.
       Q. Your answer: “My brother did.” Do you
       remember that answer?”
       A. Yes.
       Q. Do you remember this question: “Your
       brother did and you were only telling us what
       your brother told you is that right?”
       And your answer: “Yes.” The answer is “Huh-huh.”
       A. Yes.
       Q. Do you remember that question and that


                              13
      answer?
      A. Yes.
      Q. Do you remember this question: “And you
      didn’t eyewitness Harry do anything. Right? Am
      I correct? You have to say yes or no.”
      And your answer: “Yes.”
      A. Yes.
      Q. And you only assumed that because you saw
      the knife at the restaurant. Is that right?
      A. Yes.
      Q. And you answered: “Uh-uh.”
       Later, in his cross-examination, Mr. Daly asked Marcos
Toro the following questions:
      Q. And when [Mr. Silverstein] asked you that
      question, remember we went over here, when he
      asked you, “You only assumed that because you
      saw the knife in the restaurant. Is that right?”
      A. Yes.
      Q. And when he asked you the question,
      “Everything you said about Harry stabbing the
      white dude is either something that your brother
      told you or you made up because you figured he
      did it because he had a knife. Right?
      A. Yes.
      Q. When he asked you that question, you were
      telling the truth. Weren’t you?
      A. Yes.


                             14
      Q. And it is not your intention, never was, to tell
      a lie. Was it?
      A. No.
      Q. And you believed at the time you were talking
      to the police that you were helping them?
      A. Yes.
      Q. Yes?
      A. Yes.
      Q. And what you told the defense attorney at the
      time was the truth. Wasn’t it?
      A. Yes.
      Q. You thought from seeing the knife earlier that
      Harry must have down [sic] it?
      A. Yes.
      Q. As you told the defense attorney, in fact, you
      didn’t see it. Did you?
      A. Yes.
     On redirect examination, ADA Sweeney questioned
Marcos Toro in the following manner:
      Q.   Did you make this up?
      A.   No.
      Q.   Did you see this stabbing?
      A.   Yes.
      Q.   Who stabbed the white dude?
      A.   Harry.
       Mr. Daly didn’t ask any further questions, nor did he
request that the Court determine whether Marcos Toro’s

                              15
testimony should be excluded because he was not a competent
witness.
       Mr. Medina was found guilty of first degree murder,
robbery, and possessing instruments of crime in connection with
the death of Mr. Bogan. The jury deadlocked during the penalty
phase. Judge Stout sentenced Mr. Medina to life imprisonment.
                              II
                              A
       On his direct appeal before the Pennsylvania Superior
Court, Mr. Medina argued:
      (1) the trial court erred by permitting the
      testimony of two pre-teenage boys; (2) his
      counsel rendered ineffective assistance because he
      did not seek a pre-trial determination of the boys’
      competency to testify and did not object to their
      competency during the trial; and (3) the evidence
      was insufficient and the verdict was against the
      weight of the evidence.
Commonwealth v. Medina, No. 3885, slip op. at 1 (Pa. Super.
Ct. Aug. 31, 1995). The Superior Court held the evidence was
sufficient to sustain the conviction. Id. at 19. The Superior
Court summarized the evidence as follows:
      In addition to the identification testimony given
      by Michael Toro, there was circumstantial
      evidence tending to connect appellant with the

                              16
       homicide. Not only was appellant present at or
       near the scene of the stabbing, but he had in his
       possession a knife similar to that used by the
       killer and had previously vowed to use it to kill
       somebody. Finally, there was testimony that he
       had been observed going through the victim’s
       pockets after the stabbing. Thus, even though the
       offending knife had not been found and despite
       the sometimes less than positive identification by
       Michael Toro, a jury, having found the
       Commonwealth’s evidence credible, could find
       beyond a reasonable doubt that appellant was the
       killer.
Id. at 19-20.
       The Superior Court also held “there is at least arguable
merit to appellant’s contention that his trial counsel was
ineffective for failing to object to the competency of the
juvenile, Michael Toro.” Id. at 20. The Superior Court
remanded “for an evidentiary hearing on appellant’s claim that
he received ineffective assistance of counsel.” Id. at 24. The
Superior Court instructed that “[i]f trial counsel’s assistance is
found to be effective, the judgment of sentence may be
reimposed. If counsel’s assistance was ineffective, however, a
new trial must be granted.” Id.
                               B
       At the November 22, 1995 evidentiary hearing before


                               17
Judge Stout, ADA Sweeney called Mr. Daly as a witness. Mr.
Daly testified that he did not object to Michael Toro’s
competency at trial because, after reviewing the transcript of the
preliminary hearing, he concluded that Michael Toro was
competent and “decided to wait until the trial to see the
demeanor of his brother.” He explained: “I ran down the
criteria that one considers in looking at the competency of a
witness.” Mr. Daly testified as follows:
       Well, the individual, did he perceive something;
       yes, he saw something that was there; did he
       recall it; he could recall it; did he have the
       necessary communicative skills; yes, he did; was
       there any question, did it appear that he
       understood the oath that he was taking; yes, he
       appeared to understand the oath.
When asked about the advisability of requesting a competency
hearing during trial. Mr. Daly answered as follows:
       Well, I decided that the individual appeared to me
       to be competent, and based on the strategy that I
       wished to use, that is the fact that Michael Toro,
       in his preliminary hearing notes, seemed to flip-
       flop, I wanted to have him on the stand to see
       whether or not he would do the same, which I
       believed that he, based on the notes testimony,
       that he would, and he flip-flopped in front of the
       jury at that time.


                               18
ADA Sweeney then asked Mr. Daly: “What was your strategy
designed to do at trial, in terms of cross-examination of Michael
and Hector Toro?” Mr. Daly answered: “[M]y strategy was if
we had Michael Toro up on the stand, to use the preliminary
hearing notes against Michael Toro, in order to show the jury
that at a prior hearing he had flip-flopped on what he said that
he saw.” Mr. Daly also stated that the strategy appeared to
work:
       During the trial, the strategy appeared to work,
       because Michael Toro, in fact, when the
       prosecution, that is yourself, asked Michael Toro
       a question, he went with the prosecution.
       However, when I went up and cross-examined
       him, he went for the defense, that is, he didn’t see
       what he supposedly saw. When you stood up
       again, he said yes, he had seen it. So, it was
       bouncing back and forth, and I thought, at that
       time, the bouncing back and forth was doing what
       I wanted it to do, that is creating a reasonable
       doubt.
       After the evidentiary hearing, Judge Stout indicated she
intended to deny Mr. Medina’s claim of ineffective assistance of
counsel. The docket contains a hand written entry that states:
“THE DEFENSE MOTION FOR INEFFECTIVE ASSISTANCE OF
COUNSEL IS DENIED. THE DEFENDANT IS GRANTED THIRTY (30)
DAYS TO APPEAL TO THE SUPERIOR COURT.” This entry was
signed, “Stout” below the words “BY THE COURT.” However,


                               19
no order was entered by Judge Stout denying the motion. After
Judge Stout’s death, Judge Legrome D. Davis, now a federal
district court judge, issued an order denying Mr. Medina’s
motion on October 10, 1997.
                              C
       In Mr. Medina’s second direct appeal, the Court of
Common Pleas concluded: “[I]t cannot grant defendant relief
simply because hindsight reveals that trial counsel’s tactical
decision that the witness was competent and that he would be
able to discredit him through cross examination was in error.”
Commonwealth v. Medina, No. 1080, slip op. at 4 (Pa. Ct. of
C.P. Feb. 7, 2000). The Superior Court affirmed that decision
on February 16, 2001. Commonwealth v. Medina, No. 3132
EDA 1999, slip op. at 3 (Pa. Super. Ct. Feb. 16, 2001) (holding
that “[c]ounsel's strategy, while arguably the wrong one in
hindsight, was not lacking in a reasonable basis designed to
further appellant's interest.”).
                              D
       Mr. Medina filed for relief pursuant to the Post
Conviction Relief Act on December 11, 2001. His petition was
dismissed by the trial court. The Superior Court affirmed that
dismissal on September 17, 2003. Commonwealth v. Medina,
835 A.2d 833 (Pa. Super. Ct. 2003). On December 16, 2003, the
Supreme Court of Pennsylvania denied Mr. Medina’s Petition
for Allowance of Appeal. He then initiated this proceeding
pursuant to 28 U.S.C. § 2254.


                              20
        In his pro se brief for habeas corpus relief filed pursuant
to 28 U.S.C. § 2254(a), Mr. Medina raised six claims. Medina
v. Diguglielmo, 373 F. Supp. 2d 526, 538 n.6 (E.D. Pa. 2005).
His first three claims alleged “ineffectiveness of trial counsel for
failing to object to the competency of the Toro brothers.” Id. at
538. His fourth claim alleged ineffectiveness of counsel for
“failing to introduce medical evidence establishing that Medina
was incapable of acting in the manner described at trial.” Id.
Mr. Medina alleged, in his fifth claim, that “the trial court
rendered his trial counsel ineffective by admonishing counsel in
front of the jury and that appellate counsel was ineffective for
failing to raise this issue.” Id. In his sixth claim, Mr. Medina
contended that “the prosecution made improper remarks in its
closing argument by vouching for the Commonwealth’s
witnesses and that appellate counsel was ineffective for failing
to raise the issue.” Id.
       Mr. Medina’s appointed counsel characterized the pro se
petition as containing five claims:
       (1) ineffective assistance of trial counsel for
       failing to object to the competency of the Toro
       brothers, (2) violation of Medina’s federal due
       process rights when the trial court failed to
       conduct a sua sponte inquiry into the competency
       of the Toro brothers; (3) ineffective assistance of
       trial counsel for failing to introduce medical
       records; (4) ineffective assistance of counsel for
       failing to object to improper prosecutorial


                                21
       remarks; and (5) ineffective assistance of trial and
       appellate counsel in relation to the trial court’s
       admonishments of trial counsel in front of the
       jury.
Id. at 538 n.6.
       The District Court noted, however, that the Magistrate
Judge’s Report and Recommendation (“R&R”) “disregards his
pro se claim that the trial court violated his due process rights
when it failed to conduct a sua sponte inquiry into the
competency of the Toro brothers.” Id. Because “[t]he parties
did not object to the Magistrate Judge’s characterization of
Medina’s claims in their objections, and Medina actually
adopted [the Magistrate Judge’s] characterization of his claims
in his objections to the R&R,” the District Court did not
consider whether the failure of the trial court to conduct a sua
sponte competency hearing violated due process. Id.
       Pursuant to Rule 8(b) of the Rules Governing Section
2254 Cases, a district court is not required to determine de novo
whether a magistrate judge erred in failing to consider a claim
in his or her report and recommendation if no objection was
made by a party on that ground. In his brief before this Court,
Mr. Medina does not contend that his federal due process rights
were violated by the failure of the trial court to conduct a sua
sponte hearing regarding the competency of the Toro brothers.
Furthermore, Mr. Medina did not file a protective cross-appeal
challenging the failure of the District Court to consider his
federal due process claims. See Henderson v. Carlson, 812 F.2d

                               22
874, 877-79 (3d Cir. 1987) (holding that “the failure of a party
to object to a magistrate’s legal conclusions may result in the
loss of the right to de novo review” in the district court – but not
in the loss of the statutory right to appellate review).
Accordingly, we conclude that this claim has been abandoned or
forfeited.
       The District Court entered a final order on June 2, 2005,
granting Mr. Medina’s petition for habeas corpus relief. It
concluded that the state court’s dismissal of his claim that his
trial counsel was ineffective for failing to object to the
competency of Marcos Toro was an unreasonable application of
clearly established federal law. Medina, 373 F. Supp. 2d at 549.
The District Court also concluded that the failure of Mr.
Medina’s trial counsel to object on competency grounds was
prejudicial because “[a]bsent Marcos’s testimony, there is a
reasonable probability that the jury would have a reasonable
doubt regarding Medina’s guilt.” Id. at 552.
       The Commonwealth has timely appealed. This Court has
jurisdiction over this appeal pursuant to 28 U.S.C.§ 1291 (1993)
and § 2253(c)(i)(A) (Supp. 2006).
                                III
                                 A
        The Commonwealth contends that the District Court
erred in concluding that Mr. Daly’s representation was
ineffective for failing to challenge Marcos Toro’s competency
to testify.

                                23
      An application for a writ of habeas corpus on
      behalf of a person in custody pursuant to the
      judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on
      the merits in State court proceedings unless the
      adjudication of the claim—
             (1) resulted in a decision that was
             contrary to, or involved an
             unreasonable application of, clearly
             established Federal law, as
             determined by the Supreme Court
             of the United States; or
             (2) resulted in a decision that was
             based on an unreasonable
             determination of the facts in light
             of the evidence presented in the
             State court proceeding.
28 U.S.C. § 2254(d) (Supp. 2005).
      The Supreme Court instructed in Williams v. Taylor, 529
U.S. 362 (2000) that
      [u]nder the “contrary to” clause, a federal habeas
      court may grant the writ if the state court arrives
      at a conclusion opposite to that reached by this
      Court on a question of law or if the state court
      decides a case differently than this Court has on a
      set of materially indistinguishable facts. Under
      the “unreasonable application” clause, a federal

                              24
       habeas court may grant the writ if the state court
       identifies the correct governing legal principle
       from this Court's decisions but unreasonably
       applies that principle to the facts of the prisoner's
       case.
Id. at 412-13. For the writ to issue, the state court’s application
of federal law must be objectively unreasonable. Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003).
        Claims of ineffective assistance of counsel are evaluated
pursuant to the standard enunciated in Strickland v. Washington,
466 U.S. 668 (1984). The standard has two components. “First,
the defendant must show that counsel’s performance was
deficient.” Id. at 687. “When a convicted defendant complains
of the ineffectiveness of counsel’s assistance, the defendant
must show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 687-88. “Second, the
defendant must show that the deficient performance prejudiced
the defense.” Id. at 687. Regarding prejudice, a “defendant
must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. at 694.
       “Of course, the state of the law is central to an evaluation
of counsel's performance at trial. A reasonably competent
attorney patently is required to know the state of the applicable
law.” Everett v. Beard, 290 F.3d 500, 509 (3d Cir. 2002),

                                25
abrogated on other grounds, Priester v. Vaughn, 382 F.3d 394
(3d Cir. 2004). “[A] criminal defendant may demonstrate that
his representation was constitutionally inadequate by proving .
. . that his attorney’s performance was deficient, i.e.,
unreasonable under prevailing professional standards . . . .”
United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005).
        The law of Pennsylvania concerning the competency of
a witness under fourteen years of age was clearly established
long before the trial in this matter in Rosche v. McCoy, 156 A.2d
307 (Pa. 1959). See Everett, 290 F.3d at 510 (discussing status
of state law at the time of trial, to evaluate competency of
attorney). In Rosche, the Pennsylvania Supreme Court held that
“[c]ompetency is the rule and incompetency the exception. The
burden to show incompetency lies upon the party who asserts
it.” Id. at 309 (internal citations omitted) (emphasis added). In
Rosche, the Court set forth the rule that must be applied
regarding “[t]he question of persons said to be mentally
immature due to infancy.” Id. at 310. “[C]ompetency is
presumed where the child is more than 14 years of age. Under
14 there must be a judicial inquiry as to mental capacity, which
must be more searching in proportion to chronological
immaturity.” Id.
      The Court in Rosche instructed that the following factors
must be applied in determining competency:
       [t]here must be (1) such capacity to communicate,
       including as it does both an ability to understand
       questions and to frame and express intelligent

                               26
       answers, (2) mental capacity to observe the
       occurrence itself and the capacity of remembering
       what it is that [the child] is called to testify about
       and (3) a consciousness of the duty to speak the
       truth.
Id.
       Although Rosche required a judicial inquiry as to mental
capacity for a child under fourteen years of age, the burden to
disprove competency here rested on the defendant. Trial
counsel was ineffective in not requesting a judicial inquiry into
competency.
       Mr. Daly attempted to justify his failure to object to
Marcos Toro’s competency on the basis that he concluded the
child was competent after reading the transcript of his testimony
from the preliminary hearing. Mr. Daly did not move for a
competency hearing after Marcos Toro testified that he did not
know the difference between telling the truth and telling a lie.
This response should have alerted Mr. Daly that because of his
immaturity, Marcos Toro lacked “a consciousness of the duty to
speak the truth.” Id.
       Mr. Daly’s excuse for failing to seek a competency
hearing during the trial because he “decided that the individual
appeared to me to be competent” is baffling. We agree with the
District Court that Mr. Daly’s performance was objectively
unreasonable under the professional standards applicable to
lawyers who practice in Pennsylvania courts.


                                27
       Mr. Daly also justified his failure to object to Marcos
Toro’s competency based on his trial strategy of raising a
reasonable doubt by demonstrating that Marcos Toro was not a
credible witness because he “flip flopped” in his testimony at
the preliminary hearing regarding whether he saw Mr. Medina
stab the victim depending on which lawyer asked the question.
Mr. Daly’s alternative decision not to challenge Marcos Toro’s
competency because he wanted to discredit the child’s testimony
on cross-examination was also objectively unreasonable under
prevailing professional performance standards in Pennsylvania.
In Commonwealth v. Mangini, 425 A.2d 734 (Pa. 1981), which
was decided eleven years before the trial in this matter, the
Supreme Court of Pennsylvania held that a defense counsel’s
performance under virtually identical circumstances was
ineffective. Id. at 737. In Mangini, trial counsel failed to object
to a witness’s competency because he chose to discredit him
through cross-examination.          In concluding counsel’s
performance was ineffective, the Pennsylvania Supreme Court
reasoned as follows:
       This was not a case where counsel had two
       alternatives that were contradictory or mutually
       exclusive.     In such a case counsel must
       necessarily choose one or the other alternative.
       This case presents, instead, the situation where
       counsel had two alternatives, both of which are
       available to him. . . . If he succeeded in
       [disqualifying the witness], there would be no
       need to pursue the less certain method of

                                28
       discrediting the witness on cross. . . . There is no
       reasonable basis under these circumstances, for,
       [sic] deliberately eschewing one weapon (out of
       two available) when both can be used.
Id. (quoting Superior Court).
        Mr. Medina’s trial counsel’s failure to object to Marcos
Toro’s competency, under these circumstances, as required by
Rosche and Mangini, fell below an objective standard of
reasonableness. See also Kimmelman v. Morrison, 477 U.S.
365, 386-387 (1986) (deficient performance of Strickland prong
satisfied where counsel failed to file a suppression motion due
to his ignorance of discovery rules); Everett, 290 F.3d at 500,
513-14, (counsel ineffective for failing to object to jury
instruction due to lack of knowledge of applicable law).
       The Pennsylvania Superior Court failed to cite Rosche or
Mangini in holding that Mr. Daly’s strategy “while arguably the
wrong one in hindsight, was not lacking in a reasonable basis.”
Commonwealth v. Medina, No. 3132 EDA 1999, slip op. at 3
(Pa. Super. Ct., Feb. 16, 2001). This ruling was an objectively
unreasonable application of the Supreme Court’s decision in
Strickland because it failed to consider prevailing professional
standards.
                                B
      We also reject the Commonwealth’s contention that
counsel’s failure to challenge Marcos Toro’s competency was
reasonable because Judge Margiotti “ruled that Marcos was

                                29
competent.” (Appellant’s Reply Br. at 8.)
        It is quite true that Judge Margiotti stated that he was
satisfied that Marcos Toro was “precocious” and did not permit
the child to respond to the prosecutor’s question: “Do you know
the difference between the truth and a lie.” Under Rosche, a
Pennsylvania court must conduct a searching inquiry of the
mental capacity of a child under fourteen. Rosche, 156 A.2d at
310. The record does not reflect that a searching inquiry was
conducted by Judge Margiotti before he concluded that Marcos
Toro was “precocious.”
        Judge Margiotti’s conclusion was unsupported by any
findings. Furthermore, when Marcos Toro was asked at trial
whether he knew the difference between telling the truth and
telling a lie, he testified that he did not know the difference.
This response would have caused a reasonably competent
lawyer to assert that a hearing should be conducted to determine
whether Marcos Toro was competent to testify as a witness.
                              IV
       We next consider whether Mr. Medina has demonstrated
that “but for counsel’s unprofessional errors, there is a
reasonable probability that the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The
prosecution presented strong circumstantial evidence of Mr.
Medina’s guilt. Even without the testimony of Marcos Toro,
there was more than sufficient evidence to convict Mr. Medina.
       First, Hector Toro testified as follows. He was seven

                              30
years old when he first met Mr. Medina. On October 18, 1991,
Mr. Medina was carrying a “Rambo” knife that was about a total
of thirteen inches long, with approximately a five-inch handle.
He said: “Today I’m going to kill somebody with this knife.”
Hector Toro had seen Mr. Medina on almost a daily basis for
several years. Thus, mistaken identity was not a viable defense.
Hector Toro and his brother stayed in the “Chinese store” about
fifteen minutes after encountering Mr. Medina. After they left
to return home, Hector Toro heard a noise. He ran a half a block
and saw a man lying on the ground.4
      Maria Caraballo also testified as a prosecution witness.
Her home was a few houses away from the residence of Marcos

       4
        At the outset of Hector Toro’s testimony the prosecutor
asked him how old he was. He replied: “Eleven.” The
prosecutor then asked him to define the words “truth” and a
“lie,” and to explain what happened to persons who tell a lie.
The witness defined a lie as follows: “When you don’t see or
you see when you see nothing and you tell then you see it.” Mr.
Daly did not request a competency hearing regarding Hector
Toro’s competency.
        The Magistrate Judge stated in his report and
recommendation that there was no basis to question Hector
Toro’s competency. Mr. Medina’s habeas corpus counsel did
not object to this finding. The District Court adopted Judge
Hart’s finding on the competency of Hector Toro. No issue has
been raised in this appeal concerning Hector Toro’s
competency.

                              31
and Hector Toro. As she was seated on her steps sewing at 9:15
p.m. or 9:30 p.m., she saw a white man run down the street
holding his chest. She followed him to render aid but did not
find him.
       When she returned to her home, she saw Mr. Medina
bending over a car. He appeared to be looking for something
under the car. A woman came up to Mr. Medina and held him
down. He appeared to be mad. She tried to calm him. Ms.
Caraballo saw Mr. Medina get “loose from the lady.” She then
heard a boy say they found a dead person at the corner. Ms.
Carabello went to the corner and recognized Mr. Bogan as the
man who ran past her.
       Next, Police Officer Robert Fetters testified that he and
his partner were working in plain clothes in an unmarked car
looking for a crime in progress. Officer Fetters and his partner
had received a report of “a hospital case and person with a
knife” wearing a white sweatshirt near the location where Mr.
Bogan was killed. At about 9:34 p.m., Officer Fetters saw Mr.
Medina at the nearby intersection of Mutter and Cambria,
wearing a white sweatshirt. Officer Fetters stopped Mr. Medina
and frisked him. He was unarmed.
       After two minutes, the officers released Mr. Medina
because there was no evidence of a “hospital case” or a person
with a knife. During the brief detention, Mr. Medina asked the
officers why they had stopped him. They explained that they
had a report of a man in a white sweatshirt. He volunteered that
he had money in his hand because he was putting it in a birthday

                              32
card for a friend’s daughter. Mr. Medina walked away with
three males who had been standing on the corner. Mr. Medina
walked with them to a bar at Mutter and Cambria. Officer
Fetters proceeded to the nearby intersection of Hope and
Gurney, where he saw a police vehicle and a rescue unit.
Officer Fetters then saw a man lying in the street.
       Officer Fetters and his partner went back to the bar at
Mutter and Cambria. When they entered, they saw Mr. Medina.
Mr. Medina had taken off his white sweatshirt. He had rolled it
up in a ball in his hand. There were no bloodstains on the
sweatshirt. The jury could have reasonably inferred from the
removal of the sweatshirt, however, that he was attempting to
avoid detection by officers investigating the police report of a
“hospital case” and a man in a white sweatshirt carrying a knife.
       Additionally, Police Officer Thomas Grieco testified that
he and his partner responded to a police dispatcher call in the
vicinity of Hope and Gurney Streets in Philadelphia. He
searched for a weapon or other evidence on Mutter Street. A
group of young boys, including Marcos and Hector Toro
assisted his search by pointing out a trail of blood. With their
assistance, Officer Grieco found Mr. Bogan’s body.
       Next, Police Officer Eugene Harris testified that as he
and his partner were proceeding west on Gurney Street, they
were confronted by a group of young males, including Marcos
and Hector Toro. They stopped his police vehicle and told him
there was a man lying on the sidewalk between Hope and Front
Streets. Mr. Bogan was lying face down. Officer Harris took

                               33
Mr. Bogan’s pulse. He had none. Mr. Bogan’s pockets were
pulled out on both sides. He did not have a wallet, and there
was no money in his clothing. His driver’s license was lying on
the small of his back.
        Officer Harris’s partner summoned a rescue unit. The
unit arrived in approximately five minutes. After a search of the
area, the officers did not find Mr. Bogan’s wallet or the murder
weapon.
       Finally, Edwin Lieberman, the Assistant Medical
Examiner in the County of Philadelphia, testified he performed
the autopsy on the body of Mr. Bogan. Mr. Bogan died of a
single stab wound to the front of the left side of his chest just
above his left nipple. The depth of the stab wound into Mr.
Bogan’s heart was six inches. The witness opined that the
wound was caused by a single edge knife that was
approximately six inches in length. Just above the wound site,
Dr. Lieberman found a triangular-shaped abrasion which could
have resulted from inserting the knife all the way up to the
handle. A jury could have concluded that Dr. Lieberman’s
testimony regarding the length of the blade corroborated Hector
Toro’s estimation of the blade’s length.
        Ephraim Torres was the only defense witness. He
testified that he had known Mr. Medina for two years prior to
October 18, 1991. Mr. Torres invited Mr. Medina to come to
Philadelphia to attend a birthday party for the witness’s
daughter. Mr. Torres also testified that Mr. Medina previously
had lived on Mutter Street right by Cambria Street before

                               34
moving to Reading seven or eight months before the birthday of
the witness’s daughter. Mr. Torres testified that Mr. Medina had
a very good reputation “as a peaceful, law-abiding citizen.”
Counsel stipulated that if Mr. Medina’s mother were called as
a witness she would testify that her son had a reputation for
being a peaceful and law-abiding citizen.
        When informed that Mr. Medina would not testify, Judge
Stout advised him that he had a constitutional right to take the
stand and testify. Mr. Medina testified that his decision not to
testify was voluntary.
       The District Court concluded that “[w]ithout Marcos’s
testimony there is a reasonable probability that the jury would
not have convicted Medina. Marcos was the only witness at
trial who testified to seeing the actual stabbing.” Medina, 373
F. Supp. 2d at 551. In so ruling, the District Court overlooked
the impact of the other witnesses’ testimony. Hector Toro’s
testimony and the other circumstantial evidence presented by the
Commonwealth support a reasonable inference that Mr. Medina
carried out his threat to kill someone that day with his “Rambo”
knife.
       The trial court instructed the jury that “[e]ven though
proof beyond a reasonable doubt of the identity of the defendant
as the person who committed the crime is essential to
conviction, direct evidence of identity is not necessary and a
defendant may be convicted merely on circumstantial evidence.”
The trial court also instructed the jury that it “may take into
consideration [a witness’s] prior inconsistent statement and

                              35
testimony, if any, both as substantive evidence to prove the truth
of the matter asserted in the statements and as affecting [the
witness’s] credibility.” The jury was further admonished that
“[t]he mere existence of conflict in the prosecutor’s evidence is
not fatal to its case because the Commonwealth is not bound by
everything its witnesses say, and you the jury can believe all,
part or none of the testimony.”
       Mr. Daly skillfully demonstrated to the jury through his
cross-examination that Marcos Toro was not a credible witness
because there were serious conflicts in his testimony. In his
argument, Mr. Daly pointed out to the jury that “[t]he only
testimony you heard stating that the defendant in this case
stabbed him came from Marcos Toro, Michael Toro, the second
young man that testified, and that, ladies and gentlemen is not
to be believed.” Mr. Daly pointed out to the jury that Marcos
Toro’s testimony went “[b]ack and forth.” When the prosecutor
questioned the witness, he testified: “I did see it.” When cross-
examined, however, Marcos Toro testified: “No, I didn’t see it.
Thus, Marcos Toro’s testimony was clearly damaging to the
prosecution’s case because he admitted under oath that he did
not see Mr. Medina stab the victim, and that his brother, and not
he, had witnessed the crime.
       To find Mr. Medina guilty beyond a reasonable doubt,
however, the jury was free to disregard Marcos Toro’s
testimony and to rely on the circumstantial evidence of guilt
presented by the other witnesses. Because of the strength of the
circumstantial evidence, including Mr. Medina’s statement to


                               36
Hector Toro that he was going to kill someone with the knife in
his possession a few minutes before Mr. Bogan was found
stabbed to death nearby, we are persuaded that Mr. Daly’s
deficient performance was not prejudicial.
                              V
        We will affirm the District Court’s determination that
Mr. Daly’s performance in failing to request a competency
hearing outside the presence of the jury was ineffective. We
will reverse the District Court’s Order granting habeas corpus
relief because we have concluded that Mr. Medina was not
prejudiced by his trial counsel’s performance.




                              37
