                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 08-4303
                                  _____________

                               TIMOTHY HANSON,
                                       Appellant

                                        v.

        SUPERINTENDENT MARTIN L. DRAGOVICH; *TOM CORBETT,
               ATTORNEY GENERAL OF PENNSYLVANIA
                   *(Pursuant to Rule 43(c), F. R. A. P.)
                            ______________

 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
                   DISTRICT OF PENNSYLVANIA
                  (D.C. Civ. Action No. 02-cv-00069)
                District Judge: Honorable Kim R. Gibson
                            ______________

                            Argued on October 20, 2010
                                ______________

     Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges

                         (Opinion Filed: February 1, 2011)

Bruce A. Antokwiak, Esquire (argued)
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15282
           Counsel for Appellant

Trudy G. Lumadue, Esquire (argued)
Office of District Attorney
230 East Market Street
Clearfield, PA 16830
          Counsel for Appellees
                                        1
                                     ______________

                                        OPINION
                                     ______________

GREENAWAY, JR., Circuit Judge

       Timothy Hanson (―Tim‖) appeals the Memorandum Order of the United States

District Court for the Western District of Pennsylvania adopting the Magistrate Judge‘s

Report and Recommendation (―R&R‖) and ordering that Tim‘s petition seeking the

issuance of a writ of habeas corpus be denied. The Court determined that Tim was not

denied effective assistance of counsel. Tim argues that the Court‘s determination was

based on an unreasonable application of the law and on an unreasonable determination of

the facts in evidence. For the following reasons, we will affirm.

                                   I. BACKGROUND

       We write solely for the benefit of the parties and recount only the essential facts.

       On the afternoon of December 24, 1987, Tim (then fifteen years old), his older

brother, Tom Hanson (―Tom‖) (then twenty years old), and Tom‘s girlfriend, Betty Jo

Wootan1 (―Betty Jo‖) (then sixteen years old), were at the Hanson family‘s house. David

Smith, Tom‘s friend, came to the front door of the house as Tim, Tom, and Betty Jo sat in

the living room. David was told to go to the back door, by the kitchen, because the front

door was stuck. When David went to the kitchen and walked into the house, he was shot

and killed by a single gunshot from a shotgun that Tom owned. Tim, Tom, and Betty Jo
1
 As a result of a plea bargain that dismissed charges of interference with the custody of
children and corruption of minors, Tom had pled guilty to, and was on probation for,
disorderly conduct.
                                              2
left the house and walked or ran back and forth between the woods and the house several

times. Other Hanson family members arrived at the house shortly after the shooting and

contacted local authorities. Helen, a sibling of Tim and Tom, also came to the Hanson

house. Betty Jo left the scene through the woods and did not return that day.

Pennsylvania State Troopers arrived and Tom and Tim came out of the woods and met

with the troopers.

       After being advised of his Miranda rights, Tim told a trooper that he had been

trying to fix the shotgun when it fired accidentally. Tim did not agree to have his hands

tested to determine whether he had fired a gun recently. Tom told the troopers that Tim

shot David and he allowed testing of his hands to determine whether he had fired a gun

recently. The test indicated that the levels of chemicals present on his hands were

insignificant. Tom also had a burn or mark on the right side of his face that, at trial, the

Commonwealth argued was the result of Tom‘s proximity to Tim‘s gunshot blast.

       Tim was arrested that same day, December 24, 1987, and charged with criminal

homicide, in violation of 18 Pa. C.S. § 2501A. F. Cortez Bell and Christopher Shaw of

the Clearfield County public defender‘s office were appointed to represent Tim. Judge

John K. Reilly, Jr. denied counsel‘s motion to certify Tim as a juvenile. He was tried as

an adult.

       Tom and Betty Jo testified at trial that Tom opened the back door for David and

that Tim loaded Tom‘s shotgun, then went into the kitchen, and fired a single shot past

Tom and at David, killing David. Tom and Betty Jo also testified that Tim took David‘s

glasses and ran into the woods. Tom and Betty Jo said they chased Tim after he ran into
                                              3
the woods and they tried to convince Tim to go back to the house and report the matter.

They testified that Tim told Helen he would pay her if she drove him to Florida. Tom

and Betty Jo said that they did not know why Tim shot David.

       At trial, Tim told his counsel, and testified to, a different account of the events

than the one he had told the troopers the day of the shooting — he now said that Tom had

accidentally shot David during a prank.2 Tim stated that, when David arrived, Tim went

with Tom and Betty Jo into the bedroom and they saw, through the bedroom window,

that David was at the door. According to Tim, Tom suggested they play ―a little joke‖ on

David — that Tom would scare him with the shotgun. Tim testified that he opened the

door for David and Tom came into the kitchen with the shotgun. Although Tom intended

to scare David as a prank, Tim stated that he thought the shotgun ―went off‖ accidentally.

(App. at 611a.) Tim testified that, on the walks into the woods after the shooting, Tom

had convinced him to take responsibility for the shooting because, as a juvenile, Tim

would be treated more leniently. Tim said he had lied to the troopers on the day David

was killed when he said the gun went off accidentally as he was cleaning it.




2
  During cross-examination at trial, Tim testified that he first told defense attorneys this
new account during the second day of trial. (App. at 638a; 642a; 647a–48a.) Defense
counsel repeatedly tried to help Tim remember that he told them on the first day of trial.
(App. at 647a–48a.) Defense counsel also cross-examined Tom on the first day of trial in
a manner indicating that the theory of the case at that time was consistent with Tim‘s new
account. (App. at 171a (defense counsel asked Tom if he had ―fired that gun,‖ if he was
sure he ―didn‘t tell Tim to take the rap‖ because Tim was a juvenile).) Tim now claims
that he was confused about the days and that he told his trial counsel the account of
events that he testified to before any testimony began on the first day of trial.
(Appellant‘s Br. 52–53.)
                                              4
          Janet Lindberg, Tim‘s sister, and Bertha Hanson, Tim‘s mother, testified that they

heard Tom tell Betty Jo, ―if I go down, you‘re going down, too, Bitch.‖ (App. at 653a;

659a.) Tim‘s mother also testified that, on the night of the shooting, Tom told her that

he, not Tim, had shot David.

          The jury returned a verdict of murder in the first degree. On January 17, 1989,

Tim received a sentence of life imprisonment without the possibility of parole.

          In 1993, after his appeal was dismissed because his court-appointed attorneys had

failed to make the necessary filings, Tim filed a pro se Post Conviction Relief Act

(―PCRA‖) petition to have his appellate rights reinstated. An evidentiary hearing was

held and Tim‘s PCRA petition was granted — his appellate rights were reinstated. On

November 18, 1999, the Court of Common Pleas of Clearfield County, Pennsylvania

issued an Opinion and Order dismissing Tim‘s petition under the PCRA and denying all

relief.

          Pursuant to 28 U.S.C. § 2254, Tim filed a timely, counseled habeas corpus petition

to the United States District Court on February 25, 2002. Magistrate Judge Keith A.

Pesto was assigned the matter and issued his R&R denying the habeas petition on

September 12, 2008 — more than six years after the petition was filed.3 Tim‘s objections

to the R&R were summarily denied by the District Court. Further, the District Court

denied Tim‘s Certificate of Appealability (―COA‖) on September 29, 2008.

          Although Tim sought relief on a number of grounds related to ineffective


3
  We are aware of no justification for the shocking delay of over six years between the
filing of the habeas corpus petition and the issuance of the Magistrate Judge‘s R&R.
                                               5
assistance of counsel, we granted a COA only on the claims arising from: defense

counsel soliciting, and failing to object to, Trooper Brown‘s testimony regarding Tim‘s

invocation of his rights to silence and counsel; defense counsel stipulating to evidence

regarding Tim‘s juvenile proceedings; defense counsel soliciting testimony from David‘s

girlfriend, Sara Brant; and defense counsel failing to object to testimony of David‘s mom,

Linda Pollard. We denied the request for a COA on all other issues presented in the

request.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court exercised jurisdiction over Tim‘s petition seeking the issuance

of a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. We have jurisdiction to review

the District Court‘s denial of the writ, pursuant to 28 U.S.C. § 2253.4

       When reviewing a district court decision regarding a petition for a writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254, we must ―apply the same standards as the

District Court, as mandated by the Antiterrorism and Effective Death Penalty Act of

1996‖ (―AEDPA‖). Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005). Section 2254(d)

provides that, where, as here, a habeas petitioner‘s claim was adjudicated on the merits in

a state court proceeding, a federal court may grant a habeas corpus petition only if the

petitioner establishes that the state court proceedings:

              (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
4
 Although Appellant presents arguments regarding his trial counsel‘s failure to object to
cross-examination questions asked of Tim, our limited COA does not include this issue.

                                              6
              (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). We must presume that the state court‘s findings of fact are correct

unless the findings are not fairly supported by the record or the petitioner rebuts the

presumption of correctness with clear and convincing evidence. Jacobs, 395 F.3d at 99

(citing 28 U.S.C. § 2254 (e)(1)); Meyers v. Gillis, 142 F.3d 664, 667 (3d Cir. 1998).

       A state court decision is contrary to clearly established federal law if it reaches a

―‗conclusion opposite to that reached by [the Supreme] Court on a question of law or if

the state court decides a case differently than [the Supreme] Court has on a set of

materially indistinguishable facts.‘‖ Marshall v. Hendricks, 307 F.3d 36, 51 (3d Cir.

2002) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision is

an unreasonable application of clearly established federal law if the court ―identifies the

correct governing legal rule from the Supreme Court‘s cases but unreasonably applies it

to the facts of the particular case,‖ ―unreasonably extends a legal principle from the

Supreme Court‘s precedent to a new context where it should not apply,‖ or ―unreasonably

refuses to extend that principle to a new context where it should apply.‖ Gattis v. Snyder,

278 F.3d 222, 228 (3d Cir. 2002) (citing Williams, 529 U.S. at 407). ―To find a state

court‘s application of Supreme Court precedent ‗unreasonable,‘ the state court decision

must be ‗more than incorrect or erroneous‘; it must have been ‗objectively

unreasonable.‘‖ Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Wiggins

v. Smith, 539 U.S. 510, 520 (2003)).


                                              7
                                      III. ANALYSIS

       For AEDPA purposes, the clearly established federal law for ineffective assistance

of counsel claims is the two-prong test in Strickland v. Washington, 466 U.S. 668, 687

(1984).

                First, the defendant must show that counsel's performance
                was deficient. This requires showing that counsel made errors
                so serious that counsel was not functioning as the ―counsel‖
                guaranteed the defendant by the Sixth Amendment. Second,
                the defendant must show that the deficient performance
                prejudiced the defense. This requires showing that counsel‘s
                errors were so serious as to deprive the defendant of a fair
                trial, a trial whose result is reliable.

Id.5

       To establish deficiency in counsel performance, a defendant must show that

counsel‘s performance ―fell below an objective standard of reasonableness.‖ Id. at 688.

Our scrutiny of counsel‘s performance must be highly deferential and we must make

every effort ―to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel‘s challenged conduct, and to evaluate the conduct from

counsel‘s perspective at the time.‖ Id. at 689. There is a strong presumption that

counsel‘s performance is within the wide range of reasonable assistance and the

defendant must overcome the assumption that the challenged action might be sound trial

strategy. Id.




5
 Our analysis of the deficiency and prejudice prongs does not have to proceed in any
specific order; it is likely often ―easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice.‖ Strickland, 466 U.S. at 697.
                                              8
       To show prejudice, a defendant must demonstrate that the act or omission

―actually had an adverse effect on the defense.‖ Id. at 693. According to Strickland,

              The 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. We must consider the totality of the evidence because ―a verdict or conclusion

only weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.‖ Id. at 696.

       Showing that counsel‘s performance was deficient ―requires showing that counsel

made errors so serious that counsel was not functioning as the ‗counsel‘ guaranteed the

defendant by the Sixth Amendment.‖ Id. at 687 (emphasis added). Thus, deficiency may

be assessed by considering multiple alleged errors together, rather than requiring that any

single error render counsel ineffective. Similarly, showing that the deficient performance

prejudiced the defendant ―requires showing that counsel‘s errors were so serious as to

deprive the defendant of a fair trial.‖ Id. (emphasis added). This language implies that,

while each alleged error may not individually be prejudicial to the defense, the errors

may be prejudicial when combined. Id.

       Our standard of review is ―doubly deferential‖ because both AEDPA and

Strickland are highly deferential standards. Knowles v. Mirzayance, --- U.S. ----, ----,

129 S. Ct. 1411, 1420 (2009).

       To evaluate whether the Pennsylvania Superior Court‘s rejection of Tim‘s claim

either is contrary to, or involved an objectively unreasonable application of, Strickland,
                                             9
we begin by determining whether the standard employed by the state court is ―contrary

to,‖ or contradicted by, Strickland. The Superior Court‘s test presumes that trial counsel

was effective and, to rebut that presumption, the petitioner must show:

              (1) that the claim is of arguable merit; (2) that counsel had no
              reasonable strategic basis for his or her action or inaction;
              and, (3) that, but for the errors and omissions of counsel,
              there is a reasonable probability that the outcome of the
              proceedings would have been different.

(App. at 1163a (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)).) The

Superior Court‘s presumption is the same as the presumption in Strickland and the

Superior Court divides Strickland‘s two prongs into three prongs. Thus, the Superior

Court‘s standard is substantively identical to Strickland and is not contrary to Strickland.

See Werts v. Vaughn, 228 F.3d 178, 202–04 (3d Cir. 2000) (holding that a Pennsylvania

state court applying the Pennsylvania ineffective assistance of counsel standard did not

contradict Strickland).

       Next, we determine whether the Superior Court‘s application of the law was

―objectively unreasonable.‖ Wiggins, 539 U.S. at 520.

     A.       Invocation of rights to silence and counsel

       Tim claims ineffective assistance of counsel occurred during testimony regarding

his invocation of his rights to silence and counsel. At trial, after Trooper Brown

(―Brown‖) explained that he had tested Tom‘s hands for gunshot residue on the day of

the shooting, the Commonwealth asked why Tim‘s hands were not tested for gunshot

residue. Brown responded, ―he said that he wasn‘t going to permit it, to say anything to

us, and he requested his attorney.‖ (App. at 552a.) Defense counsel did not object and
                                             10
direct examination of Brown ended soon after Brown gave this testimony. On cross-

examination of Brown, defense counsel stated, ―[i]n relationship to what you just said, it

sounds to me like Mr. Hanson exercised his Miranda rights, for his right to speak to an

attorney before talking to you, et cetera; is that right?‖ (App. at 553a.) Tim claims that

his counsel was ineffective when neither of them objected to the Commonwealth‘s

questions and when defense counsel mentioned Tim‘s invocation of his Miranda rights.

                  1. Refusing the gunshot residue test

       The court was not objectively unreasonable in concluding that defense counsel‘s

failure to object during Brown‘s testimony was not an error so serious as to render

counsel‘s performance deficient. The trooper testified that Tim did not have his hands

tested because ―he said he wasn‘t going to permit it.‖ (App. at 552a.) Under Supreme

Court and Pennsylvania precedent, the testimony that Tim did not permit a gunshot

residue test does not implicate Tim‘s right to silence because the admission into evidence

of a defendant‘s refusal to submit to a physical test does not offend the right against self-

incrimination under the Fifth Amendment. See South Dakota v. Neville, 459 U.S. 553,

564 (1983); Commonwealth v. Monahan, 549 A.2d 231, 235–36 (Pa. 1988).

                  2. Invoking right to silence

       After being asked why the gunshot residue test was not conducted on Tim‘s hands,

Brown answered that Tim said ―he wasn‘t going to . . . say anything to us, and he

requested his attorney.‖ (App. at 552a.) Because Brown‘s statement was an unsolicited

passing reference to Tim‘s invocation of his rights, the Commonwealth‘s question is not

inherently objectionable. Even if counsel was deficient in not objecting and not moving
                                             11
for a mistrial, the Superior Court‘s finding that this testimony did not result in actual

prejudice is not objectively unreasonable.

       Shortl y before invoking his rights to silence and to an attorney, Tim confessed to

troopers that he was holding the shotgun when it went off. Because Tim had already

confessed, the jury would have no reason to assume Tim‘s silence demonstrated guilt.

The abundance of other evidence of Tim‘s guilt, including Tom‘s and Betty Jo‘s

testimony, Tim‘s initial statement to the troopers, and the results of Tom‘s gunshot

residue test, make it reasonable to conclude that the outcome of the trial would have been

the same even without this alleged error. Thus, the court was not objectively

unreasonable by concluding that the prejudice prong was not met.

       Additionally, the court was not objectively unreasonable in finding that defense

counsel‘s performance was not deficient when counsel referenced and solicited testimony

regarding Tim‘s invocation of his right to remain silent. On cross-examination of a

witness who referred to Tim‘s invocation of his rights to silence and counsel, Tim‘s

counsel said, in part, ―it sounds to me like Mr. Hanson exercised his Miranda rights, or

his right to speak to an attorney before talking to you, et cetera; is that right?‖ (App. at

553a.) Trial counsel stated that he referred to Tim‘s invocation of his rights ―to convey

that [Tim] exercising his constitutional rights was a proper and common thing to do‖ ―in

an effort to minimize any negative inference.‖ (App. at 1152a.)

       After Trooper Brown responded to the question, defense counsel asked, ―[h]ad

Corporal Wrable already spoken to [Tim], however, if you know, prior to your arrival?‖

(App. at 553a.) This second cross-examination question shows the broader context of the
                                              12
question regarding Tim‘s invocation of his Miranda rights. Defense counsel was likely

trying to emphasize that Tim had already been cooperative and made a statement to the

troopers prior to invoking his right to silence. Moreover, it is reasonable for a court to

conclude that the statements on direct examination regarding Tim‘s invocation were

unsolicited passing references. On these facts, a court could reasonably conclude that

Tim‘s defense counsel‘s reference to the invocation could be a strategic choice that fell

within the wide range of reasonable and effective assistance of counsel.

       Because the court was not objectively unreasonable in finding that Tim did not

establish error regarding his counsel‘s reference to his invocation, we need not reach the

issue of prejudice.

     B.       Stipulation to evidence regarding Tim’s juvenile proceedings6

       During Tom‘s testimony at trial, Tom testified that, before the shooting, he was

talking to Tim about ―turning himself in‖ to ―the law.‖ (App. at 76a.) Defense counsel

made no objection. Next, the Commonwealth asked why Tim and Tom were discussing

Tim turning himself in. Defense counsel objected.7 The Commonwealth asked no

further questions about Tim‘s juvenile proceedings during Tom‘s testimony.

       Later on during the trial, defense counsel stipulated to reading certain statements

that specific state troopers would have testified to and introduced into evidence, had they

indeed testified. Specifically, defense counsel stipulated to testimony that would have
6
  Although both Appellant and Appellees refer to this issue as a stipulation to admit
Tim‘s ―juvenile record,‖ there was no juvenile record admitted into evidence under this
stipulation.
7
  There is a dispute regarding whether the objection was overruled or sustained, which we
need not resolve now.
                                             13
been given by Sergeant Smeal — that visitation records at the Clearfield County Jail

indicated that Helen Gallaher, Tim‘s sister, visited Tim at the jail six times from 1987 to

1988. Defense counsel also stipulated to testimony that would have been given by

Trooper Zimmerman — that he had gone to the Hanson home twice in December 1987,

looking for Tim because Tim, on December 2, 1987, had left a juvenile facility where he

had been placed the previous day by court order as a result of a separate juvenile charge

that was irrelevant to the instant case.8

       Appellant claims that defense counsel stipulating to these statements regarding

Tim‘s juvenile proceedings was deficient performance of counsel that prejudiced the

defense even though Tom had already testified without objection, prior to the stipulation,

regarding Tim potentially turning himself in to the law. Appellant‘s COA did not claim

ineffective assistance of counsel due to defense counsel‘s failure to object to Tom‘s first

reference to Tim turning himself in to the law.

       The Superior Court was not objectively unreasonable in concluding that entering

into this stipulation was not deficient performance. Prior to the stipulation, the court had

allowed testimony regarding Tim running from the house after the shooting, pursuant to

Pennsylvania Rule of Evidence 404(b), and the court had informed the jury that Tim‘s

flight could be evidence of his consciousness of guilt. The court found that defense


8
  Defense counsel stipulated to testimony that would have been given by other troopers,
but this other evidence is not related to Tim‘s juvenile proceedings and is not at issue on
appeal. Defense counsel stipulated that Trooper Davidson would testify that he had been
to the Hanson home twenty-three times during 1987 because he was looking for Carl
Hanson, Jr., Tim‘s brother, on unrelated charges and that Trooper Davidson usually heard
voices coming from inside the home, but nobody would answer the door for him.
                                             14
counsel entering into the stipulation was a strategic choice to explain that Tim went into

the woods after the shooting, not because he was the shooter, but because he did not want

to be detained due to his juvenile proceedings.

       Tim asserts that defense counsel objecting to the questions regarding his juvenile

proceedings during Tom‘s testimony demonstrates that stipulating to the admission of

similar testimony later was ineffective assistance of counsel. The Magistrate Judge

opined that this shift in strategy could be explained by defense counsel not learning of

Tom‘s new account of events until the second day of trial, which was after Tom‘s

testimony. Even though Tim‘s counsel was aware of his new description of the shooting

shortly before Tom testified on the first day of trial, defense counsel might not have had

sufficient time to develop, or act according to, the new theory of the case during Tom‘s

testimony.

       Alternatively, defense counsel could have made a strategic decision to object to

Tom‘s testimony while later stipulating to testimony regarding similar topics.9 Tim‘s

counsel could have stipulated to the additional information as part of a strategic decision

because Tom‘s testimony that he talked to Tim about Tim ―turning himself in‖ to ―the

law‖ was already in evidence and because it is likely that the evidence in the stipulation

would have been admitted under Pennsylvania Rule of Evidence 404(b). Evidence of

criminal charges, crimes, wrongs, or acts can be admissible for the limited purpose of



9
  Defense counsel may have objected to similar testimony from Tom because Tom may
have testified to incriminating facts or statements made by Tim that were not included in
the testimony to which defense counsel later stipulated.
                                             15
establishing motive. See Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002);

Commonwealth v. Glover, 286 A.2d 349, 351 (Pa. 1972).

       Under Pennsylvania Rule of Evidence 404(b), character evidence is inadmissible

to prove conduct, but other crimes, wrongs, or acts can be admissible under certain

exceptions. 404(b) provides:

              (1) Evidence of other crimes, wrongs, or acts is not
              admissible to prove the character of a person in order to show
              action in conformity therewith.
              (2) Evidence of other crimes, wrongs, or acts may be
              admitted for other purposes, such as proof of motive,
              opportunity, intent, preparation, plan, knowledge . . . .
              (3) Evidence of other crimes wrongs, or acts proffered under
              subsection (b)(2) of this rule may be admitted in a criminal
              case only upon a showing that the probative value of the
              evidence outweighs its potential for prejudice.

PA. R.E. 404(b). This evidence regarding Tim‘s juvenile proceedings would likely have

been admissible under Pennsylvania Rule of Evidence 404(b).10 Tim argues that defense

counsel‘s failure to request a limiting instruction for this evidence was deficient

performance of counsel. However, the statement was merely that Tim had ―a separate

juvenile charge, that juvenile charge having nothing to do with the case,‖ so it is unlikely

that this statement would unduly prejudice Tim‘s defense or lead a jury to make improper

conclusions regarding character in a murder trial.

       Because the state court‘s decision regarding the stipulation was not objectively

unreasonable, we need not inquire into prejudice. Even if defense counsel did not
10
  Although Tim claims that this evidence would be prohibited by 42 Pa. C.S.A. § 6354,
the disposition of a child may be used against the child ―in a criminal proceeding, if the
child was adjudicated delinquent for an offense, the evidence of which would be
admissible if committed by an adult.‖ 42 Pa. C.S.A. § 6354(b)(4).
                                             16
stipulate to the admission of the juvenile proceedings, the fact that the evidence was

likely admissible to prove motive and that Tom testified to talking with Tim about Tim

―turning himself in‖ to ―the law‖ would have made it reasonable for the state court to

conclude that the trial result would have been the same, even without the stipulation.11

        C.     Testimony of Sara Brant

         At trial, the Commonwealth asked Tom about a statement he allegedly made to

David, David‘s girlfriend (Sara Brant), and David‘s mother (Linda Pollard). Defense

counsel objected to the question. Outside of the jury‘s presence, the Commonwealth

stated that they were trying to introduce statements Tom allegedly made. Specifically,

his statement that, if he and Tim thought ―pigs‖ were at their door, ―they‖ would shoot.

(App. at 117a–20a.) The Court declined to admit the statement because it was hearsay

unless Tim, not Tom, had made the statement. (App. at 120a.) The Commonwealth

tried, once again, to ask Tom about the statement. Defense counsel objected and, after a

sidebar, Tom denied making the alleged statement to Linda Pollard. Defense counsel

called Sara Brant and solicited testimony from her regarding the same statement. She

said that she heard Tom tell David the day before the shooting that David, ―better make

sure that they knew who he was when he came or else they‘d shoot.‖ (App. at 592a–

93a.)

         The Superior Court was not objectively unreasonable when it found that defense

counsel soliciting this testimony from Sara Brant was not deficient performance. The


11
  On direct examination, defense counsel solicited testimony from Tim regarding his
―burglary charge‖ and Tim leaving the juvenile facility. (App. at 597a.)
                                            17
Court found that trial counsel had a ―reasonable strategic basis‖ for this decision; trial

counsel testified that the testimony fit into Tim‘s defense theory. (App. at 1165a.)

Although Tim argues that this testimony fit the Commonwealth‘s theory and not the

defense theory, it is not objectively unreasonable to conclude that defense counsel might

have reasonably chosen to use the testimony ―to show that it was more plausible for Tom

to be the shooter because he was the person who‖ stated that ―we‘d shoot.‖ (App. at

1165a–66a.) That defense counsel objected to the Commonwealth‘s earlier attempts to

solicit similar testimony from Tom does not make counsel‘s subsequent solicitation of

this testimony unreasonable.

       Because the Superior Court was not objectively unreasonable in finding that this

solicitation of testimony was not error, we need not inquire into prejudice.

      D.       Testimony of Linda Pollard

       During the direct examination of Linda Pollard, David‘s mother, the

Commonwealth solicited testimony that David had a child ―on the way‖ and that David

had planned to marry Sara Brant. (App. at 417a.) Defense counsel did not object. Tim

argues that the lack of objection deprived him of his Sixth Amendment right to counsel.

       The state court was not objectively unreasonable in finding that the failure to

object did not prejudice Tim‘s defense. Even though this testimony was arguably

irrelevant, Tim did not demonstrate that these statements were ―so serious as to deprive

the defendant of a fair trial‖ or that, but for the failure to object, the result of the

proceeding would have been different. Strickland, 466 U.S. at 687.


                                                18
       Because the state court was not objectively unreasonable in reaching its

conclusion regarding prejudice on this concern, we need not inquire into whether defense

counsel was deficient.



     E.       The aggregated alleged deficiencies

       Finally, Tim argues that the state court unreasonably concluded that counsel‘s

errors, in the aggregate, were prejudicial under Strickland.12 This argument is foreclosed

by the fact that, with the potential exception of the testimony of Linda Pollard, we have

upheld the state court‘s findings that counsel‘s performance was not otherwise deficient.

Here, counsel‘s alleged errors, individually or collectively, do not amount to a

constitutional violation.

                                   IV. CONCLUSION

       For the reasons set forth above, we will affirm.




12
   The language of Strickland implies that, while alleged errors may not individually be
deficient performance of counsel or prejudicial to the defense, the errors may be deficient
performance of counsel or prejudicial when combined. See Strickland, 466 U.S. at 687
(referring to analyzing errors, in plural, in the standard for ineffective assistance of
counsel — showing that counsel‘s performance was deficient ―requires showing that
counsel made errors so serious that counsel was not functioning as the ‗counsel‘
guaranteed the defendant by the Sixth Amendment,‖ and showing the deficient
performance prejudiced the defendant ―requires showing that counsel‘s errors were so
serious as to deprive the defendant of a fair trial‖ (emphasis added)).
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