                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-1999

Buehl v. Vaughn
Precedential or Non-Precedential:

Docket 97-1241




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Filed January 20, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1241

ROGER PETER BUEHL,
       Appellant,

v.

DONALD VAUGHN, SUPERINTENDENT OF SCI-
GRATERFORD; THE DISTRICT ATTORNEY FOR
MONTGOMERY COUNTY; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil Action No. 95-cv-05917)
(District Judge: Honorable John J. Padova)

Argued January 28, 1998

Before: MANSMANN, COWEN, and ALITO, Circuit Judges

(Opinion filed: January 20, 1999)

       David Rudovsky (Argued)
       Kairys, Rudovsky, Epstein,
        Messing & Rau
       924 Cherry Street, Suite 500
       Philadelphia, PA 19107
        Attorney for Appellant
       Mary MacNeil Killinger (Argued)
       Executive Assistant District Attorney
       Chief, Appellate Division
       District Attorney's Office
       Montgomery County Courthouse
       Norristown, PA 19404
        Attorney for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Roger Peter Buehl appeals the denial of his petition for a
writ of habeas corpus. Convicted in state court for a triple
homicide, Buehl claims that his due process rights were
violated and that he received ineffective assistance of
counsel at trial and on direct appeal. Because we conclude
that Buehl's due process rights were not violated and that
his ineffective assistance claims fail to meet the standard of
Strickland v. Washington, 466 U.S. 668 (1984), we affirm
the judgment of the District Court.

I.

On July 16, 1982, police found the bodies of Courtland
Gross, his wife Alexandra Gross, and their housekeeper
Catherine VanderVeur shot to death at the Gross estate in
Montgomery County, Pennsylvania. The police determined
that the murders had occurred in the afternoon or early
evening of July 15. The killings appeared to have been
carried out as part of a robbery, since drawers had been
pulled out of cabinets in several rooms and a cloth covering
a safe in the basement had been pulled aside to reveal the
dial and handles. The safe was unopened.

The victims at the Gross residence had been shot with
.380 caliber bullets, and the police recovered six .380
caliber cartridge casings from the rooms in which the
victims were found. The police found Mr. Gross's body near
the top of a flight of steps that led to the cellar. He had
been shot in the right foot, the abdomen, and the cheek.
Mrs. Gross had been shot in the elbow and the eye. Mrs.

                               2
VanderVeur, who was found tied to a chair in a bedroom,
had been shot once in the head. There were no
eyewitnesses to these murders, but the Commonwealth
assembled the following circumstantial evidence against
Buehl.

In June 1982, an acquaintance of Buehl's named Francis
Kelly purchased a .380 caliber Walther PPK handgun. Kelly
test-fired the gun at a junkyard on or about June 7.1 In
August, after the murders of the Gross household, Kelly
returned to the junkyard with a police officer who retrieved
two .380 shell casings for ballistics analysis. This analysis
revealed that the shell casings from the junkyard were fired
from the gun used in the murders at the Gross estate.

On July 7, Joseph Dwyer stole a red Buick Skylark in the
City of Philadelphia. Dwyer damaged the Buick's front left
tire and lost the tire's hubcap, and he then sold the car to
Kelly the next day. On July 10, Kelly lent both the Walther
PPK handgun and the Buick to Buehl. Dwyer saw Buehl in
possession of the PPK and the Buick that same day. Buehl
told Dwyer that he intended to commit robberies on Pine
Street in Philadelphia and in Montgomery County, where he
would force people to "open the safe." Buehl invited Dwyer
to help in these robberies, but Dwyer declined.

On July 13, Buehl purchased 50 cartridges of
ammunition for the PPK at Pearson's Sporting Goods Store.
Because Buehl initially purchased ammunition that was
incompatible with the PPK, he exchanged his original
purchase for compatible ammunition and received a credit
slip in the amount of $4.50. Buehl signed the form required
to buy the ammunition, but his signature was illegible. The
store's assistant manager therefore asked for Buehl's
driver's license and printed Buehl's name on the form. This
manager later identified Buehl as the man who purchased
the ammunition.

After Buehl purchased ammunition for the PPK, he used
the Buick and the gun to rob the Good Scents Shop on Pine
Street in Philadelphia. During the robbery, Buehl shot
Nathan Cohn in the ankle and exclaimed: "I'm not playing
_________________________________________________________________

1. All of the dates mentioned are in 1982.

                               3
around." As Buehl left the store, he told an employee: "If
anybody comes out here, I'll blow your eyes out." Buehl was
observed leaving the store and driving away in the Buick.
Buehl admitted to this robbery, and a ballistics analysis
determined that the shell casings ejected from the PPK at
the store were fired in the same gun as that used at the
junkyard and the Gross residence.

On July 15 at around 2:00 p.m., David Mazzocco
witnessed a red car that was missing its front left hubcap
driving slowly down Berks Road in Worcester Township.
Around this same time, Richard Kirkpatrick returned home
to find a red Buick Skylark parked in the driveway of his
home on Berks Road. When he entered his home,
Kirkpatrick was accosted by a man with a pistol. This
gunman told Kirkpatrick: "I've shot two other people. I'll
shoot you also. I'll start with your leg and work up." He also
warned Kirkpatrick: "I'm not fooling." The robber took
jewelry from Kirkpatrick's house and fled. Kirkpatrick
initially identified a photograph of someone other than
Buehl as the robber and made no identification at Buehl's
trial. However, on the same day as the Kirkpatrick robbery,
Buehl sold jewelry stolen from the Kirkpatrick home to a
jeweler in Philadelphia. Moreover, a ballistics expert
determined that the .380 cartridge casings found at the
Kirkpatrick home came from the gun that was fired at the
junkyard, the Pine Street robbery, and the Gross residence.

The Kirkpatrick home is less than a half hour away by
car from the Gross residence. At approximately 2:30 p.m.
on July 15, an elderly woman wearing a straw hat and a
flowered dress bought a box of Domino powdered sugar at
the Liberty Bell Meat Market near the Gross residence.
When the police discovered Mrs. Gross's body at her home,
she was wearing a flowered dress, and a straw hat was
found near her head. A box of Domino sugar was in a paper
bag with the receipt on the kitchen counter. Catherine
Fitzgerald, who cleaned house for the Gross family, testified
that Mrs. Gross always put groceries away as soon as she
came home.

Between 3:30 and 4:00 p.m. on July 15, Buehl arrived at
Joseph LaMotte's office in an agitated state and asked if he
could borrow LaMotte's gray Datsun because he had "just

                               4
pulled a job" and "had to go back and wipe off the
fingerprints." Buehl told LaMotte that he could not drive
the red Buick because he was afraid of being stopped by
the police. When LaMotte refused to loan Buehl his car,
Buehl said: "Look, this is my life we're talking about. I just
wasted three people and I want your car." LaMotte noticed
that Buehl had a gun in his waistband and asked where
Buehl had gotten it. Buehl replied that he had obtained it
from Kelly. LaMotte loaned Buehl his car but said that he
needed it back at about 5:00 p.m. Buehl told LaMotte that
he would be driving to Conshohocken. A police officer
testified at trial that the Conshohocken exit of the
Schuylkill Expressway is about 1.5 miles from the Gross
residence. The officer also testified that it was possible to
drive from the Gross residence to LaMotte's office in 36
minutes, observing all speed limits. At about 4:45 p.m.,
Buehl called LaMotte to say that he was on the way back.
At about 5:00 p.m., a witness near the Gross residence
observed a small gray car that appeared to be a Datsun
speeding toward the expressway. Buehl returned to meet
LaMotte near his office between 5:00 and 5:30 p.m. Buehl
still had a pistol in his waistband. LaMotte and Buehl then
picked up Mary Treat, who testified that Buehl looked
nervous.

On July 17, Buehl called LaMotte from Atlantic City and
asked him about "any big burglaries or anything on the
news." When LaMotte said that he didn't remember any
such news, Buehl said: "Think. It's important." LaMotte
then inquired whether Buehl knew anything about an
attempted burglary in which three people were killed, but
Buehl did not answer.

On that same day, Buehl met a man named Duon Miller
in Atlantic City. Miller noticed that Buehl had in his
possession a gold money clip engraved with the image of St.
Christopher. Mrs. Gross carried a gold money clip with
such an engraving, but it was missing after her murder.
Miller testified that Buehl told him that he had killed people
with a PPK and had thrown it into a lake or river. Buehl
asked Miller if he had ever heard of the Gross family, and
he offered Miller the gold St. Christopher money clip. Miller
testified that he and Buehl argued about money and that

                               5
Buehl threatened to "get his PPK and come back and blow
[Miller] away."

Peter Ross met Buehl on July 19 in the Tropicana Hotel
in Atlantic City. Ross observed Buehl arguing with Miller
and threatening to kill him with a PPK. Buehl told Ross
that he had Miller's vehicle registration and thus could
track Miller down and kill him. Buehl also told Ross that he
had killed people before, and he asked if Ross wanted him
to kill anyone.

Buehl was arrested on July 30, 1982 for burglary. At the
time of his arrest, Buehl had in his possession the credit
slip from Pearson's Sporting Goods Store; a paper with
Miller's name, address and phone number; and Miller's
vehicle registration. A police officer testified at trial that,
while Buehl was being transferred to Broadmeadows
prison, Buehl asked one of the detectives if the police could
match shell casings.

Based on this evidence, Buehl was convicted of thefirst
degree murder of Mr. and Mrs. Gross and Mrs. VanderVeur,2
and he was sentenced to death. The Pennsylvania Supreme
Court affirmed Buehl's conviction on direct review.
Commonwealth v. Buehl, 508 A.2d 1167 (Pa. 1986). Buehl
then filed a petition under the Pennsylvania Post Conviction
Relief Act (PCRA), which was denied by the state trial court.
The Supreme Court of Pennsylvania affirmed the trial
court's decision. Commonwealth v. Buehl, 658 A.2d 771 (Pa.
1995). Thereafter, Buehl filed a petition for a writ of habeas
corpus in federal court, seeking relief with respect to both
the guilt and penalty phases of the state proceedings. The
District Court granted habeas relief with respect to the
penalty phase of Buehl's trial and ordered a new penalty
hearing. The Commonwealth did not appeal that ruling.
However, the District Court denied Buehl's petition insofar
as it sought a new trial on the guilt phase of the state
proceedings, and Buehl then took the present appeal.
_________________________________________________________________

2. He was also convicted of several lesser offenses.

                               6
II.

A. Buehl's ineffective assistance of counsel claims. We
turn first to Buehl's contention that his Sixth Amendment
rights were violated because his trial and appellate counsel
were ineffective. Because Buehl filed his federal habeas
petition prior to the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), this case
must be decided under the law as it existed before the
AEDPA became effective. See Lindh v. Murphy, 117 S. Ct.
2059, 2068 (1997) (stating that the AEDPA's amendments
to Chapter 153 of Title 28 generally apply only to cases filed
after the AEDPA became effective); Death Row Prisoners of
Pennsylvania v. Ridge, 106 F.3d 35 (3d Cir. 1997)
(concluding that Pennsylvania is not an "opt-in" state for
purposes of the AEDPA and that therefore the AEDPA's
amendments to Chapter 154 of Title 28 do not apply to
habeas petitions in capital cases from Pennsylvania). Under
that law, ineffective assistance of counsel claims present
mixed questions of law and fact. See Berryman v. Morton,
100 F.3d 1089, 1095 (3d Cir. 1996); McAleese v.
Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993). State court
findings of fact are presumed correct if they are fairly
supported by the record, see 28 U.S.C. S 2254(d) (1994);
Berryman, 100 F.3d at 1094, but "[a]n effectiveness claim
require[s] the application of a legal standard to the
historical-fact determinations," and thus the ultimate
question whether counsel was effective is a uniquely legal
conclusion subject to de novo review. See id. at 1095
(quoting Townsend v. Sain, 372 U.S. 293, 310 n.6 (1963));
United States v. Cleary, 46 F.3d 307, 309-10 (3d Cir.), cert.
denied, 516 U.S. 890 (1995).

We review a claim of ineffective assistance of counsel
under the two-pronged test announced in Strickland v.
Washington, supra. Under that standard, the defendant
must first show that his counsel's performance was so
deficient that it fell below an objective standard of
reasonableness under prevailing professional norms. 466
U.S. at 688. "This 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. In evaluating counsel's

                               7
performance, we are "highly deferential" and "indulge a
strong presumption" that, under the circumstances,
counsel's challenged actions "might be considered sound
. . . strategy." Id. at 689; see also Sistrunk v. Vaughn, 96
F.3d 666, 670 (3d Cir. 1996). Because counsel is afforded
a wide range within which to make decisions without fear
of judicial second-guessing, we have cautioned that it is
"only the rare claim of ineffectiveness of counsel that
should succeed under the properly deferential standard to
be applied in scrutinizing counsel's performance." United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).

If a defendant succeeds in establishing that his or her
counsel's performance was deficient, the defendant must
then 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." Strickland, 466 U.S. at 687. To
satisfy this test, it must be shown 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. Both prongs of the Strickland test
must be met before the defendant may obtain relief. United
States v. Nino, 878 F.2d 101, 103-104 (3d Cir. 1989).

B. Trial counsel's alleged failure to request a limiting
instruction. Buehl's first Sixth Amendment claim is that his
trial counsel was constitutionally ineffective in failing to
request a limiting instruction with respect to certain "other
crimes" evidence. The Commonwealth introduced evidence
of the Pine Street and Kirkpatrick robberies to identify
Buehl as the killer,3. and at this stage, Buehl does not
maintain that the admission of this evidence to establish
identity was improper. Buehl contends, however, that his
trial attorney was ineffective because he neglected to
request a limiting instruction. The District Court assumed
that Buehl's trial counsel failed to request a limiting
_________________________________________________________________

3. Buehl argues that his trial attorney was ineffective in failing to
object
to inadmissible evidence regarding other crimes and bad acts. We
address this argument separately in part III of this opinion.

                               8
instruction and stated that this failure was a "serious lapse
in . . . assistance." Buehl v. Vaughn, No. 95-5917, slip op.
at 37 (E.D. Pa. Dec. 31, 1996). However, the District Court
concluded that Buehl did not receive ineffective assistance
of counsel because his defense was not sufficiently
prejudiced to satisfy the second prong of the Strickland test.
The Court stated that "the evidence of [Buehl's] guilt was so
strong that it rendered any such error harmless and[thus]
there was no prejudice." Id.

As noted above, the first issue in analyzing Buehl's
ineffectiveness claim is whether his trial counsel's
performance fell outside the wide bounds of reasonably
competent assistance. When evidence of a defendant's other
crimes is introduced to show identity, there is"sometimes
. . . a substantial danger of unfair prejudice" because the
jury may consider the evidence as proof of bad character or
propensity to commit the crime charged. United States v.
Murray, 103 F.3d 310, 316 (3d Cir. 1997), cert. denied, 119
S. Ct. 254 (1998). To alleviate this risk, counsel may
request a cautionary instruction. See generally Lesko v.
Owens, 881 F.2d 44, 55 (3d Cir. 1989), cert . denied, 493
U.S. 1036 (1990). In some circumstances, such an
instruction may be strongly advisable; in others, counsel
may reasonably conclude that it is strategically preferable
to omit such a request since the instruction might have the
undesired effect of highlighting the other crimes evidence.

In this case, there has been some uncertainty throughout
Buehl's post-trial litigation as to whether his trial attorney
did in fact request a limiting instruction. As the District
Court noted, the Court of Common Pleas, in ruling on
Buehl's PCRA petition, stated that Buehl's lawyer requested
a limiting instruction with regard to the Pine Street and
Kirkpatrick robberies but that the trial court inadvertently
neglected to give one. See Buehl v. Vaughn, No. 95-5917,
slip op. at 37 & n.7 (E.D. Pa. Dec. 31, 1996). The District
Court, however, assumed that the Court of Common Pleas
was in error on this point because, when the Pennsylvania
Supreme Court reviewed the Court of Common Pleas'
decision on appeal, the Justices appeared to take it for
granted that Buehl's trial counsel had not sought such an
instruction. See id.

                               9
From our review of the record, we conclude that Buehl's
trial counsel did in fact request that the trial judge caution
the jury about the proper use of the evidence in question.
The record contains a colloquy between trial counsel and
the court that was conducted in chambers following the
jury charge. In that discussion, Buehl's counsel complained
that he had previously asked the court "to instruct the jury
that [the murders at the Gross estate] have nothing to do
with [the robberies at] Worchester Township or Pine Street"
but that the court neglected to give this instruction. Joint
App. at 180-81. The judge responded that he realized that
he had "not restricted [the jury's] purview to the homicides
of the Grosses." Id. at 181. This colloquy is somewhat
confusing because it refers to a request that Buehl's
counsel apparently made in an unrecorded pre-instruction
conference and because the objection was bound up with a
discussion of a separate issue, i.e., whether the judge's
charge had improperly implied to the jury that the
homicides legally qualified as murders. Nevertheless, we
believe that the record shows that Buehl's counsel did in
fact request that the trial judge instruct the jury on the
proper use of the evidence of Buehl's other crimes.4 The
_________________________________________________________________

4. Buehl's counsel requested that the court address his objections by
cautiously instructing the jury in a way that would avoid "highlighting"
the court's alleged errors. Joint App. 181. The court's clarifying
instruction stated:

       If I inadvertently used any loaded nouns, pronouns or adjectives
let
       me caution you that all the charges surround incidents alleged to
       have occurred on 7/15/82 at 1230 Arrowmink Road, the residence
       of Mr. and Mrs. Courtland Gross and Catherine VanderVeur. The
       charges arise out of the alleged three killings and with respect to
the
       responsibility, degree and proof of these alleged crimes are for
you,
       the jury, as fact finders and are to be determined from the
evidence
       and the evidence alone. Any language by me or counsel referring to
       these incidents are terms used by me or counsel, and are not to
       infringe on your fact finding function in any way whatsoever.

Joint App. at 184-85.

This instruction only briefly cautioned the jury to focus on the killings
at the Gross residence and not any acts committed elsewhere. However,
Buehl has taken the position that his counsel never requested a limiting
instruction; he has not argued that his counsel was ineffective for
failing
10
trial judge responded to this objection by giving a brief
supplementary instruction that Buehl has not challenged in
this appeal.

As stated above, when a state prisoner's habeas petition
alleging ineffective assistance of counsel is considered
under pre-AEDPA law, state court findings of fact made in
the course of determining the ineffectiveness claim are
subject to deference so long as they are fairly supported by
the record. See, e.g., Berryman, 100 F.3d at 1094-95. Here,
although the Pennsylvania Supreme Court stated that
Buehl's counsel failed to request a cautionary instruction,
the Court did not discuss the record or acknowledge that
the Court of Common Pleas had found that trial counsel
made such a request, see Buehl, 658 A.2d at 777-79, and
our review of the record convinces us that the Pennsylvania
Supreme Court's contrary statement is not fairly supported
by the record. Accordingly, since the record reveals that
Buehl's counsel did request a limiting instruction and that
the trial court was aware of his request, we reject Buehl's
argument that his counsel was ineffective for failing to
request an instruction.

Moreover, even if the manner in which trial counsel
handled the issue of the limiting instruction fell below Sixth
Amendment standards, we agree with the District Court's
conclusion that Buehl cannot satisfy Strickland's prejudice
prong. See Buehl, No. 95-5917, slip op. at 37, 54-59 (E.D.
Pa. Dec. 31, 1996).5 In view of the magnitude of the

(Text continued on page 13)
_________________________________________________________________

to object to this remedial instruction. Moreover, given counsel's
reasonable concern that the court not highlight the evidence of other
crimes or the court's use of the term "murders," the failure to object to
the instruction would not fall outside the wide bounds of professionally-
competent assistance.

5. Noting that "[t]he verdict in this case had overwhelming support," the
District Court summarized the evidence as follows:

       Petitioner admitted to having committed the robbery at the Good
       Scents Shop with a Walther PPK, and the bullet casings found at
       that site were fired from the same gun that was used in crimes two
       days later at the Kirkpatrick residence and the Gross estate. On
the
       day of the Good Scents Shop robbery, Petitioner purchased
       ammunition for the Walther at a sporting goods shop.

                                11
         On the afternoon of the murders, Petitioner came to Joseph
         LaMotte's office asking to borrow LaMotte's car. He told LaMotte he
         had "just pulled a job" and "had to go back and wipe off the
         fingerprints." When LaMotte refused his request, Petitioner said,
         "Look, this is my life we're talking about. I just wasted three
people
         and I want your car." LaMotte noticed that Petitioner had a gun in
         the waistband of his jeans. LaMotte lent Petitioner his car, a
small
         grey Datsun, and told him he needed the car back about 5:00 p.m.
         A car matching the description of the one LaMotte lent Petitioner
         was seen speeding from the direction of the Gross estate toward the
         direction of the expressway to Philadelphia at about 5:00 p.m. on
         the day of the murders. Petitioner returned LaMotte's car between
         5:15 and 5:30.

         There was evidence linking Petitioner to the robbery at the
         Kirkpatrick residence, which was committed on the same afternoon
         as the murders at the Gross estate and with the same gun. The day
         of the robbery at the Good Scents Shop, Petitioner told LaMotte he
         was driving a red Buick, and LaMotte saw the car from his office
         window. A red Buick Skylark had been stolen several days before
         the robbery at the Good Scents Shop; at the time it was recovered,
         it had a missing left front hubcap. A similar car had been seen
near
         the Good Scents Shop at the time of the robbery there. A witness
         saw a man he later identified as Petitioner run from the area of
the
         Good Scents Shop at the time of the robbery and speed away in a
         red Buick Skylark. The man, whom the witness later identified as
         Petitioner, was carrying a shopping bag. A similar red car, missing
         a left front hubcap, was also seen on Kirkpatrick's street and a
red
       Skylark was seen at the Kirkpatrick residence at about the time of
       the robbery there. Items stolen at the Kirkpatrick and Gross
       residences were linked to Petitioner. The evening of the robbery at
       the Kirkpatrick residence, Petitioner sold some jewelry to a
jeweler
       in Philadelphia, and most of it was later identified as having been
       stolen in the robbery at the Kirkpatricks' residence. A gold St.
       Christopher money clip that Mrs. Gross always used was missing
       when her body was found. Duon Miller testified that Petitioner had
       tried to give him a gold St. Christopher money clip, that he had
       refused, but that he later found the clip in his car and put it in
his
       brief case. Another witness, Eros Peter Simone, saw such a money
       clip in Miller's briefcase in Zurich some days later.

         There were similarities in the crimes committed at the Good Scents
         Shop, the Kirkpatrick residence, and the Gross estate. In all
three,
         robbery appeared to be the motive, the same gun was used, and in
12
evidence that the Commonwealth presented, Buehl cannot
show that the absence of a limiting instruction deprived
him a "a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687.

It is firmly established that a court must consider the
strength of the evidence in deciding whether the Strickland
prejudice prong has been satisfied. In Strickland, the
Supreme Court emphasized that "a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury." Id. at 695. This is
necessary because Strickland's prejudice prong requires a
court to determine whether there is a reasonable
probability that, but for counsel's errors, the result of the
trial would have been different. See Flamer v. Delaware, 68
F.3d 710, 728, 730 (3d Cir. 1995) (citing Lockhart v.
Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 842 (1993);
Strickland, 466 U.S. at 695, 104 S.Ct. at 2068), cert.
denied, 516 U.S. 1088 (1996); Todaro v. Fulcomer, 944 F.2d
1079, 1085 (3d Cir. 1991). A court simply cannot make this
determination without considering the strength of the
evidence against the accused. As the Supreme Court stated
in Strickland, "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."
Strickland, 466 U.S. at 696. We note that every other
circuit has also recognized that, in analyzing Strickland's
prejudice prong, a court must consider the magnitude of
the evidence against the defendant. See, e.g., Huffington v.
Nuth, 140 F.3d 572, 578 (4th Cir.), cert. denied, 119 S. Ct.
444 (1998); Totten v. Merkle, 137 F.3d 1172, 1175 (9th Cir.
1998); United States v. Ortiz, 136 F.3d 161, 166-67 (D.C.
Cir. 1998); United States v. Prows, 118 F.3d 686, 692-93
(10th Cir. 1997); Hays v. Alabama, 85 F.3d 1492, 1496
(11th Cir. 1996), cert. denied, 117 S.Ct. 1262 (1997); United
_________________________________________________________________

       the first two robberies, there was substantial evidence that the
same
       car was used. In all three, the robber shot or threatened to shoot
       someone in the leg or foot, and there was evidence of a plan of
       shooting a victim first in a lower limb and working up to the head
       or eye. In addition, there were numerous other more minor items of
       evidence that further strengthened the prosecution's case.

Buehl, No. 95-5917, slip op. at 37, 54-59 (E.D. Pa. Dec. 31, 1996).

                               13
States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996); Scarpa
v. DuBois, 38 F.3d 1, 16 (1st Cir. 1994), cert. denied, 513
U.S. 1129 (1995); United States v. Royal, 972 F.2d 643, 650
(5th Cir. 1992) ("The overwhelming evidence of Defendant's
guilt further supports our conclusion that he suffered no
prejudice as a result of his counsel's performance."), cert.
denied, 507 U.S. 911 (1993); Strouse v. Leonardo, 928 F.2d
548, 556 (2d Cir. 1991); Otey v. Grammer, 859 F.2d 575,
580 (8th Cir. 1988), cert. denied, 497 U.S. 1031 (1990);
Krist v. Foltz, 804 F.2d 944, 947 (6th Cir. 1986). We thus
agree with the District Court that Buehl is not entitled to
habeas relief based on trial counsel's failure to request a
limiting instruction relating to the other crimes evidence.6

C. Appellate counsel's failure to argue on dir ect appeal
that trial counsel was ineffective in not seeking a limiting
instruction. Buehl's next argument is that his right to
effective assistance of counsel on direct appeal, see Evitts v.
Lucey, 469 U.S. 387, 393-94 (1985), was violated because
the attorney who represented him at that stage failed to
argue that trial counsel had rendered ineffective assistance
in neglecting to request the cautionary instruction
discussed above. In making this argument, Buehl relies
chiefly on the manner in which the Pennsylvania Supreme
Court treated this argument when Buehl raised it in his
appeal from the denial of his PCRA petition. Six justices
heard the appeal, and as previously noted, all of them seem
to have proceeded on the erroneous assumption that
_________________________________________________________________

6. In arguing that the Strickland's prejudice prong is met in this case,
Buehl contends that in his appeal from the denial of PCRA relief a
majority of the Justices of the Pennsylvania Supreme Court concluded
that this prong was satisfied. Buehl's brief (which was filed prior to the
Supreme Court's decision in Lindh) then argues that "if the habeas
statute requires deference because the state courtfinding is factual in
nature or because deference is otherwise to be accorded to this state
court resolution of a legal issue, petitioner must prevail." Appellant's
Br.
at 21. In Part II C of this opinion (dealing with Buehl's contention that
his appellate counsel was ineffective), we will address in some detail the
Pennsylvania Supreme Court's discussion of the prejudicial effect of trial
counsel's asserted error. For present purposes, however, it is enough to
note that under the pre-AEDPA version of 28 U.S.C.S 2254, a state
court's conclusion regarding either prong of the Strickland test must be
reviewed de novo. Berryman, 100 F.3d at 1094.

                               14
Buehl's trial attorney never requested a cautionary
instruction. The plurality, in an opinion written by Justice
Montemuro and joined by Justices Zappala and Castille,
first stated that Buehl's "trial counsel was ineffective for
failing to request a cautionary instruction regarding these
crimes because it cannot be said with any reasonable
certainty that but for the this [sic] omission the outcome of
[Buehl's] trial would not have been different." 658 A.2d at
778-79. The plurality noted, however, that under a
provision of the PCRA, a defendant in Buehl's position was
entitled to relief "only in those instances in which counsel's
ineffectiveness `so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place.' " 658 A.2d at 779 (quoting 42 Pa.
Cons. Stat. Ann. S 9543(a)(2)(ii) (West 1998)). The plurality
then wrote:

       In the instant case, the circumstantial evidence
       presented by the Commonwealth, including the
       evidence linking the bullets and shell casings from the
       robberies of the Good Scents Shop and the Kirkpatrick
       home to the murder weapon, created overwhelming
       evidence of Appellant's guilt. Thus, while we are able to
       say that due to the prejudicial nature of the evidence
       in question the outcome of Appellant's trial may have
       been different had counsel requested a cautionary
       instruction, we are unable to say that due to this
       omission the adjudication of guilt is unreliable. As a
       result, appellant's claim does not constitute a basis for
       relief under the PCRA.

658 A.2d at 779 (footnote omitted).

In a concurrence, Chief Justice Nix stated that he did not
see "a substantive distinction between the prejudice prong
of the test for ineffectiveness of counsel and the language
contained in 42 Pa.C.S. S 9543(a)(2)(ii)" on which the
plurality relied. 658 A.2d at 782. Pointing to the
"overwhelming proof of [Buehl's] guilt," Chief Justice Nix
concluded that Buehl had not "met his burden of
establishing that he was prejudiced by counsel's failure to
request a cautionary instruction." 658 A.2d at 782-83 (Nix,
C.J., concurring).

                               15
Justice Cappy, joined by then-Justice Flaherty,
dissented. 658 A.2d at 783-86 (Cappy J., dissenting). Like
Chief Justice Nix, Justice Cappy saw no difference between
the prejudice prong of the test for ineffective assistance of
counsel and the PCRA provision cited by the plurality. Id.
at 785. Referring to Justice Montemuro's opinion, he wrote
that "[t]he Majority does not explain why the adjudication of
guilt is reliable if the outcome would have been different."
Id. (emphasis in original). Then, without discussing the
evidence against Buehl, he concluded that the PCRA
petition should have been granted. Id. at 786.

Based on these opinions, Buehl argues that he received
ineffective assistance of counsel on direct appeal because,
if the attorney who represented him at that stage had
argued that trial counsel had rendered ineffective
assistance in failing to request a cautionary instruction, the
Pennsylvania Supreme Court would have reversed his
conviction and ordered a new trial. Looking at the votes of
the justices in the PCRA appeal, Buehl states: "Three
Justices stated that a new trial would have been ordered if
the issue was raised on direct appeal and two Justices
would have ordered a new trial on direct or collateral
attack." Appellant's Br. at 23.

We reject Buehl's argument because he has not satisfied
the first prong of the Strickland test. In order to meet the
requirements of that prong, he was required to show that
his appellate counsel's failure to raise the cautionary
instruction argument on appeal fell outside "the wide range
of reasonable professional assistance; that is,[he would
have to] overcome the presumption that, under the
circumstances, the challenged action `might be considered
sound [appellate] strategy.' " Strickland, 466 U.S. at 689
(citation omitted). One element of effective appellate
strategy is the exercise of reasonable selectivity in deciding
which arguments to raise. In this case, an appellate
attorney familiar with the record could not have ethically
argued that trial counsel's handling of the cautionary
instruction issue was constitutionally deficient without
calling to the attention of the Pennsylvania Supreme Court
the passages in the record that we discussed above and
that convince us that Buehl's trial attorney did in fact

                               16
request a cautionary instruction. Knowing this, a
competent appellate attorney could have reasonably
concluded he was unlikely to convince the Pennsylvania
Supreme Court that trial counsel was constitutionally
ineffective in his handling of the cautionary instruction
issue and that it was strategically inadvisable to select that
argument as one of those to be raised. Furthermore, even
if appellate counsel believed that he could convince the
Pennsylvania Supreme Court that trial counsel's
performance was deficient, appellate counsel could have
reasonably concluded that it was unlikely that he could
satisfy Strickland's prejudice prong and that it was
therefore strategically unwise to select this argument as
one of those to be raised.

As previously noted, our examination of the record
convinces us that there is no reasonable probability that
the jury's verdict would have been any different if a more
explicit cautionary instruction had been given. After
carefully reviewing the record, the District Court reached
the same conclusion. And while we have given careful
consideration to the opinions written by Justices
Montemuro and Cappy in Buehl's PCRA appeal, those
opinions do not convince that competent appellate counsel
could not have concluded that the likelihood of satisfying
Strickland's prejudice prong was not high enough to justify
raising the argument in question. We note that Justice
Montemuro characterized that evidence against Buehl as
"overwhelming" and that Justice Cappy's opinion does not
discuss the evidence and does not explain why there is a
reasonable probability that a stronger or more explicit
cautionary instruction would have caused the jury to
return a different verdict. Consequently, we hold that
appellate counsel did not render constitutionally ineffective
assistance.

D. Pennsylvania Supreme Court's alleged violat ion of due
process. In conjunction with his Sixth Amendment
argument regarding his representation on direct appeal,
Buehl raises a related due process issue. Buehl contends
that the Pennsylvania Supreme Court violated his due
process rights because the plurality's interpretation of the
standard for obtaining PCRA relief was "untenable or

                               17
amounts to a subterfuge to avoid federal review of a
constitutional violation." Appellant's Br. at 25-26. As
previously noted, the plurality invoked 42 Pa. Cons. Stat.
Ann. S 9543(a)(2)(ii) (West 1998), which authorizes PCRA
relief for "[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place." Buehl suggests
that the plurality deliberately ignored another provision of
the same statute, 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v)
(repealed 1995), which permitted relief to be granted for "[a]
violation of the provisions of the Constitution, law or
treaties of the United States which would require the
granting of Federal habeas corpus relief to a State
prisoner." Indeed, Buehl charges that the plurality went "so
far as to ellipse [this provision] out of the statutory
quotation in its opinion . . . ." Appellant's Br. at 26. Buehl
contends that the plurality's misinterpretation of the PCRA
was " `untenable or amount[ed] to a subterfuge to avoid
federal review of a constitutional violation,' " that his due
process rights were therefore violated, and that "federal
habeas relief is mandated." Appellant's Br. at 26 (quoting
Taylor v. Kinchleloe, 920 F.2d 599, 609 (9th Cir. 1990)).

We are not persuaded by this argument. First, the
Pennsylvania Supreme Court plurality's interpretation of
the PCRA was neither "an `obvious subterfuge to evade
consideration of a federal issue,' " Mullaney v. Wilkur, 421
U.S. 684, 691 n.11 (1975) (quoting Radio Station WOW, Inc.
v. Johnson, 326 U.S. 120, 129 (1945)) nor a"plainly
untenable" interpretation in the sense possibly relevant here.7
See Ward v. Love County, 253 U.S. 17, 22 (1919). Buehl's
charge of subterfuge flies in the face of the errors that the
plurality made in his favor -- i.e., its erroneous factual
assumption that trial counsel never sought a limiting
instruction and its erroneous legal conclusion that
_________________________________________________________________

7. The Supreme Court's decision in Ward v. Love County, 253 U.S. 17,
23 (1919), seems to be the origin of the Ninth Circuit's statement in
Taylor, 920 F.2d at 609, that a federal court need not accept a state
court's interpretation of state law if that interpretation is "untenable."
(Taylor cited Knapp v. Caldwell, 667 F.2d 1253, 1260 (9th Cir.), cert.
denied, 459 U.S. 1055 (1982), which in turn cited Ward.)

                               18
Strickland's prejudice prong was met. His suggestion that
the plurality deliberately failed to mention 42 Pa. Cons.
Stat. Ann S 9543(a)(2)(v) (repealed 1995) in order to reach
the result it desired overlooks the fact that the two
dissenting justices, who would have granted relief, also
relied exclusively on 42 Pa. Cons. Stat. Ann S 9543(a)(2)(ii)
(West 1998) and never mentioned 42 Pa. Cons. Stat. Ann
S 9543(a)(2)(v) (repealed 1995). Thus, wefind the charge of
subterfuge to be groundless.

Nor do we agree with Buehl that the plurality's
interpretation of the PCRA was "plainly untenable."
Assuming for the sake of argument that a federal habeas
court may reject a state court's "plainly untenable"
interpretation of state law, we find that this demanding test
is not met. Since 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(ii)
(West 1998) specifically addresses claims of ineffective
assistance of counsel, it was not "plainly untenable" for the
plurality (and, indeed, for the entire Pennsylvania Supreme
Court) to treat that provision, rather than the more general
rule set out in 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v)
(repealed 1995), as the governing provision. Nor was it
"plainly untenable" for the plurality to view the test
prescribed in 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(ii) (West
1998) (whether the ineffective assistance "so undermined
the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place") as more
demanding than Strickland's prejudice prong (whether
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would
have been different"). 466 U.S. at 694. We express no view
as to (a) whether we would agree with the pluralit y's
interpretation of the PCRA if it were our prerogative to
review that interpretation de novo or (b) whether it seems
to us that this interpretation was consistent with prior state
cases. Limiting ourselves to the narrow question whether
the plurality's interpretation was "plainly untenable," we
hold that it was not.

Furthermore, even if we were to conclude otherwise, we
would still not hold that Buehl is entitled to federal habeas
corpus relief. Buehl wants us to overrule the Pennsylvania
Supreme Court's interpretation of Pennsylvania law (the

                               19
PCRA) while deferring to that court's interpretation of
federal law (the Sixth Amendment standard for ineffective
assistance of counsel). We see no basis for such an
approach. If we were to hold that Buehl was entitled to
PCRA relief on his ineffective assistance of counsel claim if
he could establish "a violation of the federal Constitution
that would require the granting of Federal habeas corpus
relief," 42 Pa. Cons. Stat. Ann. S 9543(a)(2)(v) (repealed
1995), we would go on to consider whether he had
established such a constitutional violation. And as we have
already discussed, we conclude that he has not.

E. Trial counsel's failure to object to additi onal "other
crimes" evidence. Buehl next argues that his trial counsel
was constitutionally ineffective because he failed to object
to the introduction of evidence regarding crimes other than
the Pine Street and Kirkpatrick robberies. Buehl asserts
that his trial attorney should have objected to the
admissibility of Peter Ross's testimony that Buehl
possessed a knife and killed with a knife, Ross's testimony
that Buehl offered to kill Ross's enemies, Detective Richard
Natoli's reference to the service of a search warrant on
Buehl while he was incarcerated at Delaware County
Prison, Miller's testimony that Buehl threatened to "get his
PPK" and kill Miller and his friends, and Richard
Kirkpatrick's testimony that the person who robbed him
claimed to have shot two other people. Buehl argues that
none of this testimony was admissible and that it was
introduced solely to demonstrate his bad character and his
propensity to commit murder.

Observing that these references to other criminal activity
were "neither extensive nor detailed," the Pennsylvania
Supreme Court rejected Buehl's argument on two grounds.
Commonwealth v. Buehl, 658 A.2d 771, 778 n.6 (Pa. 1995).
First, it held that Buehl failed to satisfy Strickland's
performance prong, since his counsel might have had a
reasonable basis for electing not to object to these
statements. Because the statements were fleeting, the
Court noted that "trial counsel may have wished to avoid
emphasizing what might have gone relatively unnoticed by
the jury." Id. Second, the Court concluded that there was
no reasonable probability that these references changed the

                               20
outcome of the case. The Court therefore held that any
prejudice created by these fleeting remarks was insufficient
to establish constitutional violation. See id.

We agree with the Pennsylvania Supreme Court's
analysis. An objection to these brief portions of testimony
might have simply highlighted the statements for the jury.
Accordingly, Buehl's claim fails the first prong of the
Strickland analysis because he cannot overcome the
presumption that his trial counsel's actions "might be
considered sound trial strategy." Strickland, 466 U.S. at
689. Moreover, as the District Court noted, several of the
statements appear to have been admissible. For example,
Miller's testimony that Buehl threatened to get his PPK is
relevant to show that Buehl was in possession of the type
of gun used in the murders. However, even if none of this
evidence was properly admissible, since the testimony was
such a small part of the inculpatory evidence presented
against Buehl, there is no reasonable probability that the
result of Buehl's trial would have been different if the
evidence had been excluded, and therefore Buehl's
argument also fails Strickland's prejudice requirement.

F. Trial counsel's failure to object to prosecutor's
summation. We next consider Buehl's claim that his trial
counsel was ineffective for failing to object to the
prosecutor's closing argument.8 Claiming that the
prosecutor improperly vouched for witnesses and expressed
his personal opinion regarding Buehl's guilt, Buehl
maintains that his counsel's failure to object was
unprofessional and prejudiced his defense.

A prosecutor's expression of personal opinion about the
credibility of witnesses or the guilt of a defendant creates a
risk that the jury will "trust the Government's judgment
rather than its own view of the evidence." United States v.
Young, 470 U.S. 1, 18-19 (1985). However, the fact that a
prosecutor made improper statements is insufficient, by
_________________________________________________________________

8. The Commonwealth asserts that Buehl failed to exhaust this issue
and the issue discussed below regarding inconsistent jury verdicts.
However, we conclude that these issues were exhausted because they
were presented to the Pennsylvania Supreme Court in Buehl's pro se
brief.

                               21
itself, to require a new trial. To obtain such relief, a
defendant must also demonstrate that the prosecutor's
improper statements prejudiced his defense. See United
States v. Gross, 961 F.2d 1097, 1108 (3d Cir. 1992) (citing
United States v. Swinehart, 617 F.2d 336, 339 (3d Cir.
1980)), cert. denied, 506 U.S. U.S. 965 (1992). In examining
whether the prosecutor's statements prejudiced the
defense, our precedents have considered whether the
comments suggested that the prosecutor had knowledge of
evidence other than that which was presented to the jury.
See id.

In this case, the prosecutor stated that the police
investigation had sought the truth, that several of the
government witnesses were credible, and that the
prosecutor had put his "heart and soul" into the case.
These comments did not suggest to the jury that the
prosecutor possessed evidence of guilt other than that
which had been presented in open court. Rather, the
comments merely expressed a belief that the evidence
presented to the jury was credible. We have previously held
this kind of comment insufficient to establish prejudice to
the defense. See id. Furthermore, given the weight of the
evidence against Buehl, a reasonable jury would not have
found Buehl innocent had the prosecutor refrained from
making these assertions. Accordingly, we conclude that
Buehl cannot show the requisite prejudice to establish
ineffective assistance of counsel on this claim.

G. Trial counsel's failure to object to an ins truction on
intent. Buehl's next argument is that his trial counsel's
failure to object to the trial court's instruction on intent
deprived him of effective assistance of counsel and denied
him due process of law. Buehl complains that the following
jury charge, which was delivered by the trial court,
improperly established a mandatory presumption of intent:

       In the trial of a person for committing or attempting to
       commit a crime of violence the fact that he was armed
       with a firearm, used or attempted to be used and had
       no license to carry the same shall be evidence of his
       intention to commit said crime of violence.

                               22
Joint App. 145. Buehl complains that the written verdict
slip that the court gave to the jury contained the same
language.

Buehl is correct that a state may not establish a
mandatory presumption of intent, see Francis v. Franklin,
471 U.S. 311-12 (1985), and the use of the term "shall,"
rather than "may be," in the instruction at issue seems to
offend that rule. Nevertheless, under the harmless error
standard set out in Brecht v. Abrahamson, 507 U.S. 619,
632, 637-38 (1993), it is clear that Buehl is not entitled to
relief. A writ of habeas corpus should issue only if the
reviewing court concludes that the instructional error "had
a substantial and injurious effect or influence in
determining the jury's verdict." Id. at 623. In this case, the
nature of the prosecution's evidence and Buehl's defense
rendered the error in this instruction harmless. Both the
prosecution and defense either expressly or impliedly
conceded that the killings at issue were done intentionally,
and therefore the matter of Buehl's intent to kill was not an
issue in his defense. Rather, Buehl based his entire defense
on a claim of mistaken identity--that he was not the person
who committed the murders.

Moreover, it cannot reasonably be doubted that the
assailant who attacked the Gross family and Mrs.
VanderVeur intended to kill them. The victims were shot
repeatedly at close range. One of the victims was shot in
the head at close range, and another was tied to a chair
before being shot. Accordingly, this case turned on the
jury's assessment of the evidence regarding the identity of
the killer. We therefore conclude that the court's
instructional error on intent did not have a substantial and
injurious effect on the jury's verdict.

H. Failure to object to allegedly inconsistent guilty
verdicts. Buehl argues that his counsel was also
constitutionally ineffective because he failed to object to the
entry of inconsistent verdicts. With respect to each of the
three victims, the jury found Buehl guilty of first degree
murder, third degree murder, and involuntary
manslaughter.9 Buehl notes that first and third degree
_________________________________________________________________

9. The jury found Buehl not guilty of voluntary manslaughter. 18 Pa.
Cons. Stat. Ann. S 2503 defines voluntary manslaughter as follows:

                               23
murder under Pennsylvania law requires an intent to kill
and malice, whereas involuntary manslaughter requires
neither.10 Consequently, Buehl argues that the verdicts are
inconsistent and that the trial court would have been
required to vacate them if his trial counsel had raised a
timely objection.11
_________________________________________________________________

         (a) General Rule. -- A person who kills an indiv idual without
lawful
         justification commits voluntary manslaughter if at the time of the
         killing he is acting under a sudden and intense passion resulting
         from serious provocation by:

         (1) the individual killed; or

         (2) another whom the actor endeavors to kill, but he negligently or
         accidentally causes the death of the individual killed.

10. 18 Pa. Cons. Stat. Ann. S 2502 (West 1998) provides:

         (a) Murder of the first degree.--A criminal ho micide constitutes
         murder of the first degree when it is committed by an intentional
         killing.

         . . .

         (c) Murder of the third degree.--All other kinds   of murder shall
be
         murder of the third degree. Murder of the third degree is a felony
of
         the first degree.

         (d) Definitions.--As used in this section the following words and
         phrases shall have the meanings given to them in this subsection:

         . . .

         "Intentional killing." Killing by means of poison, or by lying in
wait,
       or by any other kind of willful, deliberate and premeditated
killing.

18 Pa. Cons. Stat. Ann. S 2504(a) (West 1998) provides:

         A person is guilty of involuntary manslaughter when as a direct
         result of the doing of an unlawful act in a reckless or grossly
         negligent manner, or the doing of a lawful act in a reckless or
         grossly negligent manner, he causes the death of another person.

11. The District Court reconciled Buehl's murder and involuntary
manslaughter convictions by reference to the Supreme Court's statement
in United States v. Powell, 469 U.S. 57 (1984), that a court may let stand
inconsistent guilty and not-guilty verdicts because it is possible that
"the
jury, convinced of guilt, properly reached its conclusion on the [offense

                               24
In order to determine whether Buehl's trial attorney fell
below the minimum level of competence demanded by the
Sixth Amendment, we must first consider the governing
legal rules regarding inconsistent guilty verdicts at the time
when Buehl's trial ended in January 1983. The rule in the
federal courts and in the courts of Pennsylvania had long
been that a guilty verdict could not be attacked on the
ground that it was inconsistent with a not-guilty verdict,
see Dunn v. United States, 284 U.S. 390 (1932);
Commonwealth v. Kline, 164 A. 124 (1933),12 and in Harris
v. Rivera, 454 U.S 339 (1981), the Supreme Court had held
that this rule (generally called the Dunn Rule) was
consistent with constitutional requirements. In a decision
handed within a year after the Buehl verdicts, the United
States Supreme Court reaffirmed the Dunn rule and
disapproved decisions of several courts of appeal that had
"begun to carve exceptions" to it. United States v. Powell,
469 U.S. 57, 63 (1984). However, in a footnote, the Powell
Court noted that its opinion was not "intended to decide the
proper resolution of a situation where a defendant is
convicted of two crimes, where a guilty verdict on one count
logically excludes a finding of guilt on the other." Id. at 69
n. 8. Years later, our court wrote that this exception to the
_________________________________________________________________

for which the guilty verdict was returned], and then through mistake,
compromise, or lenity, arrived at an inconsistent conclusion of the
[offense for which it returned the not-guilty verdict]." See Buehl, No.
95-
5917, slip op. at 68-69 (E.D. Pa. Dec. 31, 1996) (citing Powell, 469 U.S.
at 64); see also, e.g., United States v. Wilson, 1993 WL 55193 (9th Cir.
Mar. 3, 1993). As noted above, however, the Supreme Court has
expressly reserved decision on the question whether this rationale
applies to cases where the jury returns inconsistent guilty verdicts, and
we have stated that logically incompatible guilty verdicts may not stand.
See Gross, 961 F.2d at 1106.

12. In this situtation, the Supreme Court has reasoned, it is impossible
to determine whether the prosecution or defense is prejudiced. It is
entirely possible that the guilty verdict represents the jury's true
assessment of the evidence and that the not-guilty verdict is based on
"mistake, compromise, or lenity." Powell, 469 U.S. at 65. Therefore, it is
not assumed that it is the defendant who is prejudiced, but the
defendant is protected by the "independent review of the sufficiency of
the evidence undertaken by the trial and appellate courts." Id. at 67.

                               25
Dunn rule "only operates in those situations where a jury
has convicted a defendant of two crimes and those
convictions are mutually exclusive." United States v. Gross,
961 F.2d 1097, 1107 (3d Cir.), cert. denied, 506 U.S. 965
(1992). We added that "[s]uch a result would be patently
unjust because a defendant would be convicted of two
crimes, at least one of which he could not have committed."
See also Masoner v. Thurman, 996 F.2d 1003, 1005 (9th
Cir.) ("a due process challenge to a jury verdict on the
ground that convictions of multiple counts are inconsistent
with one another will not be considered if the defendant
cannot demonstrate that the challenged verdicts are
necessarily logically inconsistent. If based on evidence
presented to the jury any rational fact finder could have
found a consistent set of facts supporting both convictions,
due process does not require that the convictions be
vacated."),13 cert. denied, 510 U.S. 1028 (1993).

Because the Powell footnote and our opinion in Gross
postdate the return of the verdicts at issue here, they are
of little relevance in assessing the performance of Buehl's
trial attorney. For present purposes, however, we will
assume that Pennsylvania law at the time of Buehl's trial,
as opposed to the federal constitution, recognized that as a
general rule, if a jury returned logically inconsistent guilty
verdicts and the defense objected, the judge was obligated
to instruct the jury to retire and cure the inconsistency. See
Commonwealth v. Brightwell, 424 A.2d 1263 (Pa. 1981).
Nevertheless, we do not believe that Buehl's trial counsel
"fell outside the wide range of professionally competent
assistance," Strickland, 466 U.S. at 690, in failing to object
that the jury's verdicts of guilty on the charges offirst and
third degree murder "logically exclude[d] afinding of guilt"14
on the charge of involuntary manslaughter, and vice versa.

An examination of the statutory definitions offirst degree
murder, third degree murder, and involuntary
manslaughter does not reveal any apparent logical
_________________________________________________________________

13. Other courts, however, have expressed the view that the Dunn rule
extends to cases in which the jury returns inconsistent guilty verdicts.
See United States v. Grier, 866 F.2d 908, 929 (7th Cir. 1989).

14. Powell, 469 U.S. at 69 n.8.

                                  26
inconsistency in the verdicts. To be sure, the minimum
requisite mens rea for each of these offenses differs, but the
Pennsylvania Criminal Code generally follows the Model
Penal Code rule that a lesser mens rea may be satisfied by
proof of a greater one. See 18 Pa. Cons. Stat. Ann. S 302(e)
(West 1998); Model Penal Code S 2.02(5).15 Thus, although
involuntary manslaughter requires only recklessness or
gross negligence,16 that element may be satisfied by proof
that the defendant intentionally killed the decedent, as the
first degree murder statute requires. See 18 Pa. Cons. Stat.
Ann. S 2502(a) (West 1998). Accordingly, afinding that
Buehl intentionally killed the victims (which is implicit in
the verdicts of guilty of first degree murder) is logically
consistent with a finding that the he caused their deaths
through recklessness or gross negligence.

In much the same way, the recklessness or gross
negligence required for involuntary manslaughter could be
viewed as subsumed within the element of malice needed
for murder, which "may be found if the homicide is
committed with an intent to kill, with an intent to inflict
serious bodily harm, or with reckless disregard of the
likelihood of death or serious bodily harm manifesting
extreme indifference for the value of human life."17 Justice
_________________________________________________________________

15. Model Penal Code S 2.02(5) provides:

       (5) Substitutes for Negligence, Recklessness and Knowledge. When
       the law provides that negligence suffices to establish an element
of
       an offense, such element also is established if a person acts
       purposely, knowingly or recklessly. When recklessness suffices to
       establish an element, such element also is established if a person
       acts purposely or knowingly. When acting knowingly suffices to
       establish an element, such element also is established if a person
       acts purposely.

Similarly, 18 Pa. Cons. Stat. Ann. S 302(e) (West 1998) states:

       Substitutes for negligence, recklessness and knowledge. -- When
       the law provides that negligence suffices to establish an element
of
       an offense, such element also is established if a person acts
       intentionally or knowingly. When acting knowingly suffices to
       establish an element, such element also is established if a person
       acts intentionally.

16. See footnote 10, supra.

17. Commonwealth v. Garcia, 378 A.2d 1199, 1206 n.11 (Pa. 1977)
(plurality opinion). Pennsylvania cases define malice as "wickedness of
27
Roberts's plurality opinion in Commonwealth v. Garcia, 378
A.2d 1199, 1205-07 & n.14 (Pa. 1977), made precisely this
point. Justice Roberts carefully explained why the state of
mind that suffices to establish the commission of
involuntary manslaughter constitutes a lesser included
kind of culpability with respect to the malice that is an
essential element of murder, and he therefore concluded
that the offense of involuntary manslaughter is included
within the offense of murder. Id. It is difficult to see how
involuntary manslaughter can be included within the
offense of murder and yet be logically inconsistent with that
offense. For this reason, courts in other jurisdictions have
recognized that multiple guilty verdicts for the same
conduct that are based on varying levels of mens rea are
not mutually exclusive. See, e.g., United States v. Wilson,
1993 WL 55193 (9th Cir. Mar. 3, 1993) (holding that
verdicts will not be vacated where an alleged inconsistency
flows from a conviction on a lesser included offense);
Engram v. Hallahan, 1997 WL 579112 (9th Cir. Sept. 11,
1997) (same).

In view of these authorities, a lawyer whose performance
met the Strickland standard of professional competence
could have easily failed to perceive at the time in question
that the Buehl verdicts might be attacked as inconsistent.
This is not to say that Pennsylvania case law provided no
basis for such argument. Commonwealth v. Brightwell, 424
A.2d 1263, 1264 (Pa. 1981), which suggested that guilty
_________________________________________________________________

disposition, hardness of heart, wanton conduct, cruelty, recklessness of
consequences and a mind regardless of social duty." Commonwealth v.
Lopez, 627 A.2d 1229, 1230 (Pa. Super. Ct. 1993). Malice may also be
found "where the principal acts in gross deviation from the standard of
reasonable care, failing to perceive that such actions might create a
substantial and unjustifiable risk of death or serious bodily injury."
Stidman v. Midvale Sportsmen Club, 618 A.2d 945, 951 (Pa. Super.
1992), appeal denied, 637 A.2d 290 (Pa. 1993). The Pennsylvania
Supreme Court has stated that malice "consists of either an express
intent to kill or inflict great bodily harm." Commonwealth v. Paquette,
301 A.2d 837, 840 (Pa. 1973); see also Commonwealth v. Seibert, 622
A.2d 361, 366 (Pa. 1993) (citing Commonwealth v. Pigg, 571 A.2d 438
(Pa. Super. Ct. 1990); Commonwealth v. Kersten , 482 A.2d 600 (Pa.
Super. Ct. 1984)).

                               28
verdicts for murder and voluntary manslaughter were
inconsistent,18 furnished such a basis.19 But a lawyer's
failure to perceive the ground for crafting an argument that
might have succeeded is very different from the failure to
meet the level of competence required by the Sixth
Amendment. We thus hold that Buehl has failed to meet
the first prong of the Strickland test.

Nor do we think that the second Strickland prong is
satisfied. If Buehl's trial attorney had objected that the
verdicts were inconsistent, the most that the trial judge
might have done was to direct the jury to retire and
reconsider its verdict. Brightwell, 424 A.2d at 1264. In light
of the evidence in this case -- which left little doubt that
the perpetrator acted with a greater mens rea than that
required for involuntary manslaughter -- we see no
substantial likelihood that the jury (which subsequently
sentenced Buehl to death) would have retracted its verdicts
of first and third degree murder and found Buehl guilty of
involuntary manslaughter only. It seems very likely that the
jury initially found Buehl guilty of involuntary
manslaughter, not because it concluded that he killed the
victims unintentionally, but because it believed that his
intent to kill, while more than required to prove involuntary
manslaughter, was nevertheless sufficient. We thus hold
that Buehl's trial attorney did not violate his client's Sixth
Amendment rights by failing to object to the verdicts as
inconsistent.

I. Cumulative prejudice. As a final Sixt h Amendment
argument, Buehl contends that, in applying Strickland, we
must consider the cumulative prejudicial impact of the
constitutional violations that he alleges. However, after
_________________________________________________________________

18. A defendant may be convicted of voluntary manslaughter if he acted
"under a sudden and intense passion resulting from serious provocation
. . . ." 18 Pa. Cons. Stat. Ann. S 2503(a) (West 1998). A defendant may
also be convicted of voluntary manslaughter if he intentionally or
knowingly kills the victim based on the unreasonable belief that the
killing is justified. Id. The presence of these affirmative elements might
be viewed as logically inconsistent with malice, but the offense of
involuntary manslaughter contains no similar elements.

19. See also Commonwealth v. Kemmerer, 584 A.2d 940, 945 (Pa. 1991),
which came well after the Buehl verdicts.

                               29
conducting this review, we conclude that the District Court
correctly determined that the overwhelming evidence of
Buehl's guilt prevents him from satisfying Strickland's
prejudice prong.

III

We turn now to Buehl's claim that the prosecution
violated his due process rights by improperly withholding
exculpatory and impeaching evidence. Buehl asserts that
the prosecution did not inform his counsel that county
detectives had overheard prosecution witness Joseph Dwyer
state that he had seen Kelly in possession of his PPK a few
weeks after the Gross family was murdered. Buehl also
asserts that the government failed to disclose the full extent
of Kelly and Dwyer's criminal histories, LaMotte's active
probation status, and several alleged favors that the
Commonwealth provided to Dwyer. Since Buehl's defense
proceeded on the theory that Kelly--who was the owner of
the PPK--was the real killer, Buehl asserts that the
prosecution's failure to reveal this information deprived him
of exculpatory evidence and impeachment material and
thus denied him a fair trial.

Due process requires the prosecution to inform the
defense of evidence material to guilt or punishment. See
Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution
must also disclose evidence that goes to the credibility of
crucial prosecution witnesses. See Giglio v. United States,
405 U.S. 150, 154 (1972); United States v. Starusko, 729
F.2d 256, 260 (3d Cir. 1984). However, the prosecution's
failure to disclose such evidence amounts to a violation of
due process only if there is a reasonable probability that
the jury would have returned a different verdict if the
information had been disclosed, or, stated differently, if "the
Government's evidentiary suppression undermines
confidence in the outcome of the trial." Kyles v. Whitney,
514 U.S. 419, 434 (1995). "[T]he Constitution is not violated
every time the government fails or chooses not to disclose
evidence that might prove helpful to the defense." Id. at
436-37; see also United States v. Pelullo, 14 F.3d 881, 886
(3d Cir. 1994) ("a Brady violation . . . does not mandate
automatic reversal. . . . A reversal is warranted only where

                               30
the suppression of the Brady evidence undermines
confidence in the outcome of the trial."). In evaluating
whether the government's failure to turn over Brady or
Giglio material undermines confidence in the outcome of
the trial, the suppressed evidence is "considered
collectively, not item-by-item." Kyles, 514 U.S. at 436.

In this case, the Commonwealth admits that it did not
provide the information listed above but asserts that it was
not required to provide all of that information. The
Commonwealth argues that it was not required to inform
Buehl of Dwyer's alleged statement because the prosecution
was unable to verify whether Dwyer in fact made such a
statement. When the prosecution investigated the
detectives' report, Dwyer denied making the statement, and
Kelly denied having possession of the PPK after the killings.

The Commonwealth's argument misses the point. If
Buehl's counsel had known about Dwyer's alleged
statement, he could have asked Dwyer on cross-
examination whether he had seen Kelly with the gun after
the murders. If Dwyer had denied seeing Kelly in
possession of the gun, the prior statement overheard by the
detectives could have been used for impeachment, and the
statement itself might have been admissible depending on
how the detectives recorded Dwyer's statement. See
Commonwealth v. Sholcosky, 719 A.2d 1039, 1044 (Pa.
1998) (prior inconsistent statement is admissible as
substantive evidence if it is embodied in an electronic,
audiotaped or videotaped recording).

Nevertheless, we conclude that Buehl's Brady argument
lacks merit because the prosecution's failure to disclose the
information is not sufficient to "undermine[ ] confidence in
the outcome of the trial." Kyles, 514 U.S. at 434. Dwyer's
statement that Kelly had the PPK several weeks after the
murders does not seriously undercut the evidence that
Buehl was in possession of the gun at the time of the
murders. Buehl admitted that he used the PPK to rob the
shop on Pine Street just two days before the Gross
murders. On the same afternoon as the murders, the same
PPK was used to rob the Kirkpatrick home, and Buehl sold
jewelry stolen from the Kirkpatricks that same evening. On
the afternoon of the murders, Buehl appeared in LaMotte's

                               31
office with a gun in his waistband and stated that he had
just killed three people. Within a few days of the killings,
Buehl told Miller that he had killed three people with a
PPK, and Buehl threatened to "blow Miller away" with the
same weapon. In light of this overwhelming evidence that
Buehl had the PPK at the time of the killings and that he
was the murderer, we conclude that Buehl was not
seriously prejudiced by the inability to use Dwyer's
statement for impeachment or to show that Kelly possessed
the gun several weeks after the killings.

Additionally, the government's failure to disclose its
witnesses' complete criminal histories does not sufficiently
undermine confidence in the outcome of his case because
Buehl was informed that Dwyer had been convicted of theft
and receiving stolen property and that Kelly had at least
two prior convictions. Consequently, Buehl had an
opportunity to discredit the government's witnesses. In fact,
as the District Court noted, Buehl's counsel was able to
discredit Dwyer and Kelly effectively at trial.

Moreover, the government's failure to disclose Dwyer's
alleged statement, the witnesses' complete criminal
histories, and the alleged favors provided to Dwyer is offset
by the significant amount of evidence presented against
Buehl. Given the weight of this evidence and the mitigating
factors discussed above, Buehl cannot show that the
government's failure to disclose the information
undermined confidence in the outcome of the trial.
Accordingly, we reject Buehl's claim.

IV.

For the reasons set out above, we conclude that Buehl's
trial and appellate counsel were not constitutionally
ineffective and that his due process rights were not
violated. We therefore affirm the judgment of the District
Court.

                                32
A True Copy:
Teste:

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

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