                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-1997

Frey v. Fulcomer
Precedential or Non-Precedential:

Docket 95-9007




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Recommended Citation
"Frey v. Fulcomer" (1997). 1997 Decisions. Paper 287.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/287


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Filed December 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 95-9007

RODERICK HERMAN FREY
Appellant

v.

THOMAS A. FULCOMER, Warden,
State Correctional Institution at Huntingdon

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 89-cv-04248)

Argued: December 17, 1996

Before: BECKER, ROTH, and McKEE, Circuit Judges.

(Filed December 30, 1997)
       ROBERT B. DUNHAM, ESQUIRE
        (ARGUED)
       Center for Legal Education
       Advocacy & Defense Assistance
       437 Chestnut Street
       Suite 501
       Philadelphia, PA 19106

       LOUIS M. NATALI, JR., ESQUIRE
        (ARGUED)
       Temple University Law School
       1719 North Broad Street
       Philadelphia, PA 19122

       PENN B. GLAZIER, ESQUIRE
       625 West Chestnut Street
       P.O. Box 1387
       Lancaster, PA 17608-1387

       Attorneys for Appellant

       JOSEPH C. MADENSPACHER,
        ESQUIRE
       District Attorney
       JOHN A. KENNEFF, ESQUIRE
        (ARGUED)
       First Assistant District Attorney
       Office of the District Attorney
       50 North Duke Street
       Lancaster County Courthouse
       Lancaster, PA 17602

       Attorneys for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Roderick Frey, who was convicted by
a Pennsylvania state court jury of murder in thefirst degree
and was sentenced to death, from a final order of the
district court denying his petition for a writ of habeas
corpus. Frey's appeal requires us to consider whether the
jury charge at the penalty phase of his trial violated the

                                  2
Eighth Amendment as construed in Mills v. Maryland, 486
U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433
(1990). These cases hold that a death sentence should be
vacated if the jury, upon receiving the judge's instructions,
may have thought that it could only consider those
mitigating factors which it unanimously found to exist.
Because we conclude that the charge was reasonably likely
to have had that effect, we will reverse the order of the
district court and direct it to grant a conditional writ of
habeas corpus permitting Pennsylvania to conduct a new
sentencing proceeding or to sentence Frey to life
imprisonment.

I. Facts and Procedural History

The following are the basic background facts. A fuller
factual history is set forth in our opinion on Frey's previous
appeal on different issues, see Frey v. Fulcomer, 974 F.2d
348, 351-56 (3d Cir. 1992) ("Frey I").

Roderick and Barbara Frey were married in 1956. By
1979, they were experiencing difficulty in their marriage
and spoke of divorce. Financial difficulties and the death of
their son in an automobile accident two years earlier had
contributed to their marital discord. Frey apparently also
had engaged in extramarital affairs. Frey worked as a truck
driver for the Turkey Hill dairy chain. His job brought him
into contact with Charles Zehring, the manager of a Turkey
Hill convenience store, whom the Pennsylvania Supreme
Court later described as suffering from mental illnesses,
including paranoid schizophrenia. See Commonwealth v.
Frey, 475 A.2d 700, 702 (1984). By mid-1979, Frey had
begun discussing with Zehring his marital difficulties, as
well as his concerns about the financial strain that would
be caused by a divorce. Zehring suggested as a solution
that Frey arrange to have Mrs. Frey killed in a manner that
made her death appear accidental.

In October 1979, Barbara Frey sued Frey for divorce, and
he moved out of their home. Around the same time, Frey
and Zehring finalized an arrangement whereby Frey agreed
to pay Zehring five thousand dollars to kill his wife. Frey
financed the deal by borrowing the money from Barbara
against their expected property settlement.

                                  3
On November 8, 1979, Frey arranged to meet Barbara
early in the morning at the Turkey Hill convenience store
where she worked. Frey then passed along information to
Zehring about her schedule and likely route to the store. In
the meantime, Zehring, in exchange for five hundred
dollars, enlisted the assistance of Richard Heberlig. Though
Heberlig was initially led to believe that he would only be
assaulting the intended victim, he became aware, on the
morning of November 8, that murder was in fact planned.

Zehring and Heberlig set out at four a.m. on November 8
to locate and kill Barbara Frey. Posing as police officers,
they pulled her car over to the side of the road and
approached her. Their plan at that point was to beat Mrs.
Frey into unconsciousness and then stage an auto accident
as their cover. When she did not lose consciousness,
Heberlig panicked and shot her in the chest. After the
shooting, they moved Mrs. Frey's car to a nearbyfield
where they failed in an attempt to set the car onfire. Frey
subsequently paid Zehring the balance of the money he
owed for the contract killing.

Barbara Frey's body was discovered by a passerby later
that morning. On December 6, 1979, Frey confessed to the
murder. Zehring and Heberlig were subsequently arrested,
and all three men were charged with murder and
conspiracy. Zehring and Heberlig pled guilty and received
sentences of life imprisonment.

Despite an earlier confession, which he later recanted,
Frey opted to stand trial before a jury. The defense called as
a witness a psychologist who testified to Frey's low-to-
normal IQ, his basically submissive personality, his
minimal tendency to defend himself, and his risk averse
nature. The defense proceeded to argue that Zehring had
threatened Frey, and that Frey had paid Zehring the five
thousand dollars as extortion money in an effort to protect
his family. The jury was apparently unconvinced by the
story, for it found Frey guilty of murder in thefirst degree.

A sentencing hearing followed immediately. After counsel
for both Frey and the Commonwealth had presented their
arguments, the court instructed the jurors on how they
were to assess the evidence before them in order to decide

                                4
whether Frey was to be sentenced to life imprisonment or
to death. Part of that deliberative process involved
consideration of the aggravating and mitigating
circumstances in Frey's case, and the state trial judge gave
the following instruction:

       [T]he verdict must be a sentence of death if the jury
       unanimously finds at least one aggravating
       circumstance and no mitigating circumstance, or if the
       jury unanimously finds one or more aggravating
       circumstances which outweigh any mitigating
       circumstances. The verdict must be a sentence of life
       imprisonment in all other cases.

App. at 286.

The judge then told the jury that there was only one
relevant aggravating circumstance (contract murder) but
that there were six possible mitigating circumstances:
Frey's lack of prior convictions; the influence of mental
disturbance; impairment of the ability to appreciate the
criminality of the act; youth or advanced age; duress or
substantial domination by another person; and any other
circumstances that they, as jurors, would consider relevant.
Finally, the judge instructed the jury that the
Commonwealth must prove aggravating circumstances
beyond a reasonable doubt, but that the defense need only
prove mitigating circumstances by a preponderance of the
evidence.

On May 15, 1989, after five and one-half hours of
deliberation, the jury returned a sentence of death.
Following his sentencing, Frey retained new counsel and
appealed his conviction and sentence to the Pennsylvania
Supreme Court, which affirmed. See Commonwealth v.
Frey, 475 A.2d 700 (1984). In that appeal Frey raised
several arguments, including a claim that his sentence was
disproportionate relative to the life sentences given to his
accomplices. The Pennsylvania Supreme Court held that
the cases of Zehring and Heberlig were not "similar" for
purposes of the proportionality review required by 42 Pa.
Cons. Stat. Ann. S 9711(h)(3)(iii) (Purdon 1982).

In July 1984, Frey petitioned for relief under
Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons.

                               5
Stat. Ann. S 9543(3)(xiii) (Purdon 1982) alleging exculpatory
after-discovered evidence -- statements made by Zehring
while in prison evidencing Zehring's domination of Frey.
The Court of Common Pleas denied Frey's motion, and the
Pennsylvania Supreme Court affirmed. See Commonwealth
v. Frey, 517 A.2d 1265 (1986). The Supreme Court held
that Frey could have elicited this evidence during the guilt
phase of the trial, and, at all events, that a different verdict
was unlikely.

Frey again petitioned under Pennsylvania's Post
Conviction Hearing Act on various other theories, including
ineffective assistance of counsel. Both the Court of
Common Pleas and the Pennsylvania Supreme Court
rejected Frey's claims, holding, inter alia, that Frey had
suffered no prejudice from his counsel's failure to
accurately state the law regarding mitigating circumstances
to the jury at sentencing. See Commonwealth v. Frey, 554
A.2d 27 (1989). In this petition Frey also contended that
the jury charge at the penalty phase of his trial violated
Mills. This argument was also rejected. See 554 A.2d at 30-
31.

His state court remedies exhausted, Frey then turned to
federal court. In March 1991, he filed a petition for a writ
of habeas corpus, 28 U.S.C. S 2254 (1988), in the District
Court for the Eastern District of Pennsylvania. Although the
district court denied the petition with respect to all guilt
phase issues, it found that Frey had received ineffective
assistance of counsel at the penalty phase and was
prejudiced thereby, and that the court had improperly
admitted certain testimony at that stage of the proceedings
as well.1 Accordingly, the district court granted Frey a writ
of habeas corpus, without prejudice to the Commonwealth's
right to resentence Frey to life imprisonment, or
alternatively, to conduct further proceedings.
_________________________________________________________________

1. The testimony at issue involved Sharon Bowers, an acquaintance of
Frey's. Although not appearing at the guilt phase of the trial, Bowers
testified at the sentencing phase that Frey complained often of his
problems with Mrs. Frey, and that on one occasion in May or June of
1979 Frey told Bowers that "I would kill the son of a bitch [sic] if I
knew
I could get away with it."

                               6
The Commonwealth appealed to this court, and on July
10, 1991, we vacated the district court's grant of habeas
corpus relief. See Frey I. We held that although
performance of defendant's trial counsel was deficient at
the penalty stage, habeas relief was not appropriate under
the test of Strickland v. Washington, 466 U.S. 668 (1984),
since it was not reasonably probable that the jury would
have sentenced Frey to life imprisonment rather than death
had Frey been afforded effective assistance of counsel.2 We
also held that Frey was not denied due process by the
admission of the Bowers' testimony. We remanded the
matter for further reconsideration of other issues raised by
Frey's habeas petition. In October 1995, after an additional
hearing and supplemental briefing, the district court denied
the petition.

Frey now appeals the order of the district court denying
his petition for habeas corpus relief, raising a host of legal
issues. However, as noted in the margin, only the question
whether the jury charge at the penalty phase impermissibly
required the jury to unanimously find the existence of
mitigating circumstances in violation of the Eighth
Amendment warrants extended discussion.3 Our review of
this legal issue is plenary. See Frey I, 974 F.2d at 356.
_________________________________________________________________

2. As part of his alleged deficient performance at the penalty phase,
Frey's counsel had based his arguments to the jury on a Pennsylvania
death penalty statute that had been held unconstitutional three years
earlier, largely because the statute improperly restricted the defendant's
ability to argue mitigating circumstances to the jury. See Frey I, 974
F.2d at 350. We found that this was not prejudicial error in part because
the trial judge properly instructed the jury as to which aggravating and
mitigating factors to consider, as well as how the jury should balance
those factors. See id. at 351. Although we stated at that time that the
court "carefully" instructed the jury, and that the judge read "proper
instructions" on how to weigh the aggravating and mitigating factors, the
question whether the jury charge itself violated Mills-McKoy was not
before us at that time and thus those earlier remarks are not controlling
here.

3. Frey advances four other bases for relief. First, he once again raises
an ineffective assistance of counsel claim. We considered this claim in
Frey I, and determined that Frey was not prejudiced by the failings of his
attorney. See supra note 2. But Frey now argues that O'Neal v.

                               7
II. The Jury Charge

Frey challenges his sentence on the ground that the jury
charge at the penalty phase of his trial violated the Eighth
_________________________________________________________________

McAninch, ___ U.S. ___, 115 S.Ct. 992 (1995) creates a new standard for
review of ineffective assistance of counsel claims and thus requires this
court to reconsider the matter. We find this contention without merit
and decline to reconsider Frey's ineffective assistance of counsel claim.
In brief, O'Neal does not change the standard applicable to these types
of claims; instead, it only requires that when a court is in "grave doubt"
about the likely effect of an error on a jury's verdict, that court should
not treat that error as harmless. See id. at 994; see also Yohn v. Love,
76 F.3d 508, 522 (3d Cir. 1996)(construing O'Neal). Even assuming that
this case would trigger an O'Neal analysis, this court did not indicate at
any point in its prior opinion that it was in grave doubt about Frey's
claim. Indeed, in Frey I we stated that counsel's "shortcomings, though
highly unfortunate, have not undermined [our] confidence in the
outcome." 974 F.2d at 369 (internal quotations omitted). O'Neal would
not command a different result.

Second, Frey argues that the state trial court erred when it failed to
instruct the jury that the defendant's age could be considered as a
mitigating circumstance, in violation of both 42 Pa. Cons. Stat.
S 9711(e)(4) (Purdon 1982), which provides that age can be a mitigating
circumstance, and the Eighth Amendment. We find this argument to
lack merit, and agree with the Pennsylvania Supreme Court which stated
that, whereas youth and old age could be considered a mitigating
circumstance, middle age -- Frey was 42 at the time he committed the
crime -- could not. At all events, we note that the jury instructions
clearly indicated to the jurors that they could consider any
circumstances that they felt were relevant as mitigating evidence.

Third, Frey raises a claim regarding the alleged after acquired
evidence. He submits that statements made by Zehring after Frey's
sentencing was complete constitute after acquired evidence and thus
merit a new sentencing hearing. Because we conclude that Frey's death
sentence must be vacated and remand the matter for further
proceedings, we need not reach this issue. Frey will have the opportunity
to offer Zehring's statements as evidence. Should a question of
admissibility arise in connection with these statements, that
determination will be properly made by the trial court in the first
instance.

Finally, Frey challenges the constitutionality of Pennsylvania's
proportionality review under the 14th Amendment. For the same reason,
we do not reach the merits of this issue. See infra at note 7.

                               8
Amendment as construed by the Supreme Court in Mills v.
Maryland, 486 U.S. 367 (1988) and McKoy v. North
Carolina, 494 U.S. 433 (1990). More specifically, Frey
contends that the charge impermissibly led members of the
jury to believe that a particular mitigating circumstance
could not be considered unless there was unanimous
agreement regarding proof of that circumstance.

The Commonwealth counters that there is "no likelihood
that a reasonable juror could have concluded that they
were prohibited from considering the mitigating evidence
that they found to exist and that was supported by proof of
a preponderance of the evidence," and thus, the
Commonwealth argues, the trial court's charge did not
suffer from the deficiencies animating Mills and McKoy. In
addition, the Commonwealth contends that we considered
the same issue in Zettlemoyer v. Fulcomer, 923 F.2d 284
(3d Cir. 1991), and that our approval of the jury charge in
that case should control our decision here.4
_________________________________________________________________

4. We note at the outset that Frey's Mills challenge might be subject to
the bar on retroactive application of new legal rules to cases on
collateral
review announced in Teague v. Lane, 489 U.S. 288 (1989)(plurality
opinion). Under Teague, a case that announces a new legal rule after the
defendant's conviction became final should not be applied retroactively
unless the rule falls within one of Teague's narrow exceptions. See also
Sawyer v. Smith, 497 U.S. 227 (1990). Whether Teague would bar
retroactive application of Mills is a close and difficult question upon
which the circuits are split. Compare Williams v. Dixon, 961 F.2d 448,
459 (4th Cir. 1992)(holding that Mills survives Teague bar), with Miller
v.
Lockhart, 65 F.3d 676, 685-86 (8th Cir. 1995)(holding that Mills
challenge is subject to Teague bar), and Nethery v. Collins, 993 F.2d
1154, 1162 (5th Cir. 1993)(same). We have not previously taken a
definitive position on this debate. In Zettlemoyer we were confronted with
this precise issue; although we decided to reach the merits of the Mills
claim in that case, we did not expressly hold whether Mills falls outside
the Teague bar. See 923 F.2d at 306 n.19. We also note that the district
court for the District of Delaware, in a brief but thoughtful opinion, has
concluded that Mills does not announce a"new rule" for Teague
purposes. See DeShields v. Snyder, 829 F. Supp. 676, 687-88 (D. Del.
1993) (Farnan, J.).

At all events, we do not reach this issue here, as the Commonwealth
has failed to raise it in its brief, and thus we deem the issue waived.
See
Williams, 961 F.2d at 459 (finding waiver). We therefore proceed to the
merits.

                               9
A. The Mills-McKoy-Boyde Standard

Under the Supreme Court's current construction of the
Eighth Amendment, the sentencer in a death penalty case
must be permitted to consider all relevant mitigating
evidence that the defendant proffers as counseling less
than a sentence of death. Eddings v. Oklahoma, 455 U.S.
104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978).
Accordingly, it is well established that the sentencer cannot
be precluded from considering any such evidence. Skipper
v. South Carolina, 476 U.S. 1 (1986); Eddings, 455 U.S. at
114. The source of this preclusion is irrelevant; whether its
source is statutory (Lockett), the sentencing court (Eddings),
or an evidentiary ruling (Skipper), the result is the same.

In Mills, the Supreme Court relied on these precedents to
conclude that a death sentence should be vacated if there
is a substantial probability that reasonable jurors, upon
receiving the judge's instructions and attempting to
complete the verdict form based on those instructions, may
have thought that they could only consider those mitigating
factors which they unanimously found to exist. Put
differently, if the jurors were led to believe that they
could not each individually consider certain mitigating
circumstances because there was not unanimous
agreement as to the existence of those circumstances, then
"some jurors were prevented from considering factors which
may call for a less severe penalty, and petitioner's sentence
cannot stand." Id. at 376 (internal citations omitted). See
also Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-07 (1991)
(discussing Mills).

The "intuitively disturbing" hypothetical scenario which
Mills precludes is the following: All 12 jurors agree that
some mitigating circumstances are present, and that those
mitigating circumstances outweigh any aggravating
circumstances. But since the jury cannot unanimously
agree that the same mitigating circumstances are present,
they would not be permitted to engage in any deliberation
on the appropriateness of death versus life imprisonment.
See Mills, 486 U.S. at 374. Moreover, since Eighth
Amendment jurisprudence requires that each sentencer be
permitted to consider all mitigating circumstances, the Mills
Court did not require proof of actual confusion. The Court

                               10
reasoned that "[t]he possibility that a single juror could
block such consideration [of a mitigating circumstance],
and consequently require the jury to impose the death
penalty, is one we dare not risk." Id. at 384. Thus, the
Court required proof of only a substantial probability of
confusion on this element of the charge.

Two years later, the Court reaffirmed the importance of
Mills in McKoy v. North Carolina, 494 U.S. 433 (1990). In
McKoy, the trial court similarly instructed the jury that it
must unanimously find the existence of any mitigating
circumstances in order to weigh those circumstances in the
sentencing determination. Attempting to distinguish itself
from the Maryland statute at issue in Mills, North Carolina
argued that its death penalty sentencing scheme allowed
the jury to recommend life imprisonment even if had found
no mitigating circumstances. Id. at 438. The Court
determined that this distinction did not cure the
constitutional defect. Id. at 439. In sum, the essential
holding of Mills-McKoy is simply that one juror cannot
prevent the others from giving effect to mitigating evidence,
regardless of whether the imposition of a life sentence
depends on the existence of such evidence. See id. at 440.

Finally, in 1990, the Court clarified the legal standard for
the review of jury instructions when the claim is that the
instruction is ambiguous and open to an erroneous
interpretation (as was the case in Mills). In Boyde v.
California, 494 U.S. 370, 380 (1990), the Court held that
the proper standard in these cases is "whether there is a
reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence." We note
that the difference between the standard of review originally
outlined in Mills and the standard ultimately adopted in
Boyde is not purely semantic. Under the Mills "substantial
probability" standard our focus was directed to how a single
hypothetical juror might have reacted to the erroneous
instruction. Under the Boyde standard, we are told by the
Court, our focus should be on the reasonable likelihood
that the entire jury applied the instruction in an improper
manner. See Boyde, 494 U.S. at 380. Thus, while our
inquiry is directed toward whether the Frey instruction

                                11
suffers from the same type of defect discussed in Mills (i.e.
that the instruction could be read to require a unanimous
finding of mitigating circumstances), our standard is that of
Boyde, not Mills. See Zettlemoyer, 923 F.2d at 307.

B. The Zettlemoyer Charge

We have had occasion to apply the Mills-McKoy-Boyde
analysis to a similar case. In Zettlemoyer, supra, we
considered the propriety of the following instruction (which
we set forth at length for purposes of comparison):

       Again, if you find unanimously, beyond a reasonable
       doubt, the aggravating circumstance that I have
       mentioned, . . . that is an aggravating circumstance.

       . . .

       [Y]ou are obligated by your oath of office to fix the
       penalty at death if you unanimously agree and find
       beyond a reasonable doubt that there is an aggravating
       circumstances (sic) and either no mitigating
       circumstance or that the aggravating circumstance
       outweighs any mitigating circumstances.

923 F.2d at 307-08. We found that this instruction was not
faulty under Mills. See id. at 308. We placed emphasis on
the "if you unanimously agree and find" language
reproduced above, and reasoned that it meant "only that
the jury's ultimate conclusion must be unanimous, not that
each interim step in its deliberations be unanimous." Id.

In other words, we found that the word "unanimously" in
the latter part of the jury charge only modified the word
"agree" in the sense that the instruction was reasonably
likely to have been understood by the jury to have meant
something akin to: you must fix the penalty at death if you
unanimously agree to the ultimate conclusion that either
there is an aggravating circumstance and no mitigating
circumstances or that the aggravating circumstance
outweighs any mitigating circumstances. Accordingly, we
concluded that the fact that the jury "must unanimously
agree that the aggravating must outweigh the mitigating is
not the same as unanimously agreeing that a mitigating
factor exists." Id.

                               12
This interpretation of the court's "agree and find"
language was further suggested by other statements earlier
in the Zettlemoyer jury charge. For example, the trial court
had previously instructed the jury that:

       If you find that aggravating circumstance and find no
       mitigating circumstances or if you find that the
       aggravating circumstance which I mentioned to you
       outweighs any mitigating circumstance you find, your
       verdict must be the death penalty. If, on the other
       hand, you find that the Commonwealth has not proven
       an aggravating circumstance beyond a reasonable
       doubt or if they have, that the mitigating
       circumstances outweight (sic) the aggravating
       circumstances, then you must bring in a verdict of life
       imprisonment.

This instruction basically repeats the information presented
to the jury in the instruction discussed above. It is notable,
however, that this instruction provides the jury with the
same decision calculus without the use of the term
"unanimously". Additionally, this instruction refers to
aggravating circumstances outweighing "any mitigating
circumstance you may find". Taken together, this language
supports our conclusion that Zettlemoyer's later use of the
term "unanimously" in the jury charge could not be said to
support a reasonable likelihood that the jury believed it
must unanimously agree on the existence of mitigating
circumstances.

C. The Frey Charge

We turn to the jury instruction in the present case. The
trial court charged:

       Members of the jury, you must now decide whether
       this defendant should be sentenced to death or life
       imprisonment. The sentence will depend upon your
       findings concerning aggravating and mitigating
       circumstances. The Crimes Code provides that the
       verdict must be a sentence of death if the jury
       unanimously finds at least one aggravating
       circumstance and no mitigating circumstance, or if the
       jury unanimously finds one or more aggravating
       circumstances which outweigh any mitigating

                               13
       circumstances. The verdict must be a sentence of life
       imprisonment in all other cases.

       . . .

       Remember that your verdict must be a sentence of
       death if you unanimously find at least one aggravating
       circumstances (sic) and no mitigating circumstances,
       or if you unanimously find one or more aggravating
       circumstances which outweigh any mitigating
       circumstances. In all other cases, your verdict must be
       a sentence of life imprisonment.

App. at 286-89. Although similar in many respects to the
charge at issue in Zettlemoyer, there is also a significant
and distinguishing dissimilarity here.

As noted above, the determinative question for our
purposes is what the jury could have understood the
charge to mean, and whether it is reasonably likely that
that understanding would have precluded the jurors'
independent consideration of any mitigating circumstances.
Specifically, we must determine whether it is reasonably
likely that the jury could have understood the charge to
require unanimity in consideration of mitigating evidence.
We need not determine whether the jurors did, in fact,
understand the charge to require unanimity in
consideration of mitigating evidence -- only whether it was
reasonably likely. See Boyde, 494 U.S. at 380; Mills, 486
U.S. at 384.

Examining the language of the jury charge, we must
answer in the affirmative. First and foremost, read in its
entirety, the relevant portion of the jury charge emphasizes
the importance of a unanimous finding, using the phrase
frequently and in close proximity to -- within seven words
of -- the mitigating circumstances clause. We rescribe the
relevant portion of the sentence: "if the jury unanimously
finds at least one aggravating circumstance and no
mitigating circumstance. . . ." Considering this close
proximity -- the clause is, to the ear and to the mind, one
sound bite -- it is quite possible that a juror would,
regardless of other qualifying language, believe that
mitigating circumstances had to be found unanimously.

                               14
This conclusion is not inconsistent with our holding in
Zettlemoyer (where the separation was by seventeen words,
and not one sound bite). Moreover, as noted above, we
found the Zettlemoyer instruction to require unanimity in
the ultimate conclusion, and not in the interim findings
leading to that conclusion. See Zettlemoyer, 923 F.2d at
308. This was because the Zettlemoyer trial court used the
term "unanimously" to modify only the term "agree" in the
subsequent phrase "agree and find". In the present case,
the court did not instruct the jury to "fix the penalty at
death if you unanimously agree and find...," but rather
instructed them to so fix that sentence "if the jury
unanimously finds" (emphasis added). Thus, the unanimity
language in the Frey charge could only modify the term
"find," and hence the jury could reasonably have believed
that unanimity was required in both its ultimate and
interim conclusions, especially given the close proximity we
have described. This possibility, not present in Zettlemoyer,
violates Mills.5

Other parts of the Frey charge were more likely to
increase the confusion rather than lessen it. As in
Zettlemoyer, the Frey trial court made a point of instructing
the jury on the relevant burdens of proof relating to both
aggravating and mitigating circumstances. The court
stated:
_________________________________________________________________

5. Moreover, at no point did the Frey state trial judge make a statement
clarifying each juror's right to consider mitigating evidence absent the
agreement of fellow jurors, a factor noted in Kubat v. Thieret, 867 F.2d
351, 373 (7th Cir. 1989) ("Kubat's jurors were never expressly informed
in plain and simple language that if even one juror believed that the
death penalty should not be imposed, Robert Kubat would not be
sentenced to death."); see also Kordenbrock v. Scroggy, 919 F.2d 1091,
1110 (6th Cir. 1990) (en banc) ("Because the jurors in this case were told
that aggravating factors had to be unanimous, but were not told exactly
what role mitigating factors play, it would have been reasonable for them
to assume that mitigating factors had to be found unanimously as
well."). While the absence of such an express statement is not
dispositive, for such absence was not discussed in Zettlemoyer (which
post-dated both Kubat and Kordenbrock), we reference these cases to
suggest one means by which the trial court could have clarified its
instructions for the jury. The adoption by Pennsylvania of a uniform
verdict slip, see infra at 17, supports this view.

                               15
       Now, the Commonwealth has the burden of proving
       aggravating circumstances beyond a reasonable doubt.
       . . . The defendant has the burden of proving mitigating
       circumstances but only by a preponderance of the
       evidence. This is a lesser burden of proof than beyond
       a reasonable doubt. . . . All the evidence from both
       sides, including the evidence you heard earlier during
       the trial in chief, as to aggravating or mitigating
       circumstances, is important and appropriate for you to
       consider.

App. at 288. It is what is not said here that is significant.
Unlike Zettlemoyer, where the court specifically instructed
the jury that aggravating circumstances must be proven
"unanimously, beyond a reasonable doubt," the trial court
here did not stress that the different burdens that attach
to aggravating and mitigating circumstances also
entail different unanimity requirements. A lay jury might
plausibly conclude, therefore, that aggravating and
mitigating circumstances must be discussed and
unanimously agreed to, as is typically the case when
considering whether a burden of proof has been met. Such
an understanding, however, is plainly inconsistent with the
requirements of Mills, and adds to our concern that the jury
could have understood the charge to require unanimity in
consideration of mitigating evidence.

In sum, we find that, in light of the emphasis placed in
this charge on unanimous findings, its close proximity to
the "mitigating circumstance" language, and the manner in
which this charge deviates from the Zettlemoyer charge, it
was reasonably likely that the jury could have believed that
it was required to find the existence of mitigating
circumstances unanimously before those circumstances
could be considered in its deliberations. For that reason,
the charge violates Mills.

D. The Verdict Slip

The Commonwealth correctly notes in its brief that the
verdict slip used in Zettlemoyer was substantially the same
as the verdict slip used in the present case. We also
recognize that the court's charge in this case tracked the
language set forth in that verdict slip. However, as noted

                               16
above, the text of the charge in Zettlemoyer differed
significantly from the one in the present case. Since
Zettlemoyer considered the verdict form and the court's
instructions as a whole in reaching its decision, see
Zettlemoyer, 923 F.2d at 308 n.22, and since the charge
here was significantly different, the discussion in
Zettlemoyer regarding the propriety of the verdict slip is not
controlling.

Moreover, as we noted in Zettlemoyer, subsequent to
Frey's trial Pennsylvania adopted a uniform verdict slip for
capital sentencing cases which expressly aims to eliminate
the type of ambiguity at issue here. See Pa. R. Crim. P. 358A.6
While both Mills and Zettlemoyer expressed a hesitancy to
"infer too much about the prior verdict form from the . . .
well-meant efforts to remove ambiguity from the State's
capital sentencing scheme," Mills also noted and inferred
from such changes "at least some concern . . . that juries
could misunderstand the previous instructions as to
unanimity and the consideration of mitigating evidence by
individual jurors." Mills, 486 U.S. at 382. Although joint
consideration of the constitutionally permissible jury charge
and the verdict form in Zettlemoyer led us to the conclusion
_________________________________________________________________

6. The revised instruction provides, in part:

       B. The findings on which the sentence of death is based are (check
       one):

       __1. At least one aggravating circumstance and no mitigating
       circumstance.

            The aggravating circumstance(s) unanimously found (is)(are):

            . . .

       __2. One or more aggravating circumstances which outweigh(s) any
       mitigating circumstance(s).

            The aggravating circumstance(s) unanimously found (is)(are):

            . . .

            The mitigating circumstance(s) found by one or more of us
            (is)(are):

           . . . .

Pa. R. Crim. P. 358A (emphasis added).

                               17
that the amended form was not necessary to prevent a
reasonable likelihood of jury error, such is not the case
here. While we express no opinion on the constitutional
necessity of any particular amendment to the verdict form,
we do believe that the instruction and the verdict form in
the present case taken as a whole are insufficient (and that
use of the amended form may cure the defect).

E. Conclusion

Though we recognize that the interpretation offered by
the Commonwealth is plausible, instructed by the teachings
of Mills and its progeny that "[t]he possibility that a single
juror could block such consideration [of a mitigating
circumstance], and consequently require the jury to impose
the death penalty, is one we dare not risk," id. at 384, we
conclude that the charge in this case was ambiguous,
reasonably likely to confuse the jury, and thus in error.
Because we find that the jury could have understood
the charge to preclude consideration of mitigating
circumstances that were not agreed to by all twelve jurors,
and because that creates a risk that the death penalty was
imposed in spite of "factors which may call for a less severe
penalty," we must direct vacatur of Frey's sentence. See id.
at 376. We do so, however, without prejudice to
Pennsylvania's right to sentence Frey to life imprisonment
or to conduct a new sentencing hearing in a manner not
inconsistent with this opinion.7
_________________________________________________________________

7. As noted supra, Frey also contends that habeas corpus relief is
appropriate on the grounds that the Pennsylvania Supreme Court's
proportionality review was procedurally and substantively inadequate,
and therefore in violation of Frey's due process rights. The
Commonwealth rejoins that the proportionality review statute, 42 Pa.
Cons. Stat. Ann. S 9711(h)(3)(iii), does not create any cognizable liberty
interest, and therefore cannot ground a due process claim. On this point
it relies on Greenholtz v. Inmates of the Nebraska Penal and Correctional
Complex, 442 U.S. 1 (1979), and its progeny. In general, the Greenholtz
line of decisions stands for the proposition that state-created liberty
interests will be found when the state (1) establishes substantive
predicates to guide official decisionmaking, and (2) uses explicit
mandatory language in its regulations directing the decisionmaker to
reach a particular outcome if the substantive predicates are present. See
Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461-63

                               18
The order of the district court will be reversed with
instructions to grant the writ of habeas corpus
conditionally, with the proviso that Pennsylvania shall,
within 120 days, conduct a new sentencing hearing in a
manner not inconsistent with this opinion, or sentence Frey
to life imprisonment.
_________________________________________________________________

(1989). The Commonwealth maintains that the proportionality review
mandated by the Pennsylvania Supreme Court does not meet this
standard.

We note, however, that it is uncertain whether the United States
Supreme Court would follow this approach, or indeed, how it would rule
on this issue. Accord Ellis v. District of Columbia, 84 F.3d 1413, 1417
(D.C. Cir. 1996) (noting uncertainty regarding Supreme Court doctrine
on state-created liberty interests). This is because the recent decision
in
Sandin v. Conner, -- U.S. --, 115 S.Ct. 2293 (1995), while not overruling
any prior cases, see id. at 2300 n.5, sharply criticizes and effectively
abandons the Court's prior methodology (as articulated in cases such as
Greenholtz) for determining the existence of a statutory liberty interest
in
the prisoner's rights context. See Ellis, 84 F.3d at 1417-18. Sandin holds
that state-created liberty interests will be limited to "freedom from
restraint which . . . nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison
life." Sandin, 115 S.Ct. at 2300. While this is undoubtedly a departure
from Greenholtz, Thompson, et al., it is unclear exactly how radical a
shift the Court intended to spur. See Sandin, 115 S.Ct. at 2306 (Breyer,
J., dissenting). And it is still uncertain how broadly this circuit and
others will construe Sandin's reasoning.

It seems apparent that Sandin was concerned quite specifically with
the problem of prison administration and the interest of the states in the
effective control of inmates. Those interests are not at issue here, and
so
it may be that Sandin's new approach will not apply. See Ellis, 84 F.3d
at 1418. Indeed, even the Greenholtz-Thompson line of cases did not
directly deal with the type of liberty interest alleged here, and it may
be
that both Sandin and Greenholtz will prove to be imperfect analogies. At
all events, this close and difficult legal problem was not adequately
briefed before us, and, since we will vacate Frey's sentence and permit
Pennsylvania to conduct a new hearing, and potentially a new
proportionality review, we need not reach this issue at this time.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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