                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-3-2008

Kindler v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 03-9010




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                                         PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
               _____________________

                 Nos: 03-9010 & 03-9011
                 _____________________

                    JOSEPH J. Kindler,

                       Appellee/Cross-Appellant

                              v.

 MARTIN HORN, Commissioner, Pennsylvania Department
of Corrections, *DAVID DIGUGLIELMO, Superintendent of
 the State Correctional Institution at Graterford, JOSEPH P.
MAZURKIEWICZ, Superintendent of the State Correctional
                   Institution at Rockview,

                      Appellant/Cross-Appellees

         *(Amended Per Clerk’s Order dated 1/6/05
                ____________________

               Appeal from the District Court
          for the Eastern District of Pennsylvania
              (Civil Action No. 99-cv-00161)
         District Judge: Honorable J. Curtis Joyner
                  ____________________
                  Argued October 15, 2007
            BEFORE: McKEE, FUENTES, and
              STAPLETON Circuit Judges

             (Opinion filed: September 3, 2008)


MATTHEW C. LAWRY, ESQ. (Argued)
MARIA K. PULZETTI, ESQ. (Argued)
STEPHEN L. MARLEY, ESQ.
MAUREEN K. ROWLEY, ESQ.
The Curtis Center, Suite 545 West
Independence Square West
Phila., PA 19106-0000

Attorneys for Appellee/Cross-Appellant


DAVID CURTIS GLEBE, ESQ. (Argued)
Assistant District Attorney
THOMAS W. DOLGENOS, ESQ.
Chief, Federal Litigation
Chief of Appeals
RONALD EISENBERG, ESQ.
Deputy, Law Division
Lynne Abraham, ESQ.
District Attorney
Three South Penn Square
Phila., PA 19107-3499

Attorneys for Appellant/Cross-Appellees


                             2
                             OPINION

McKEE, Circuit Judge.

       Joseph Kindler was sentenced to death after being

convicted of the first degree murder of David Bernstein. After

unsuccessfully appealing in state court, Kindler filed this habeas

petition in district court alleging, inter alia, that the trial court’s

jury instructions violated the Supreme Court’s pronouncement

in Mills v. Maryland, 486 U.S. 367 (1988), and that his trial

counsel had been ineffective during the penalty phase of his

trial. The district court agreed that Kindler was entitled to relief

under Mills, and also concluded that he had established two

additional claims of prosecutorial misconduct.             The court

granted relief on those grounds while denying his remaining

claims. The Commonwealth appealed, and Kindler filed a cross

appeal in which he challenged the district court’s denial of his


                                  3
remaining claims for relief.1 For the reasons that follow, we will

affirm the district court’s grant of habeas relief based on the

Supreme Court’s decision in Mills. We will reverse the district

court’s denial of relief based on ineffective assistance of counsel

during the penalty phase of the trial.        Because we grant

Kindler’s relief on his ineffective assistance of counsel and

Mills claims, we decline to review his claims of prosecutorial

misconduct.

       Ultimately, we conclude that Kindler is entitled to the

habeas relief that the district court ordered, and we will affirm.

           I. Factual and Procedural Background

                          A. The Crime.

       In 1982, Joseph Kindler, Scott Shaw, and David


   1
     The claims raised in the appeal and cross-appeal are so
closely intertwined that we will address the various claims
issue by issue rather than discussing the appeal and cross
appeal separately.

                                4
Bernstein burglarized a store in Lower Moreland Township,

Pennsylvania. Police stopped their “getaway” car as they sped

from the scene, and took Shaw and Bernstein into custody.

Somehow, Kindler managed to escape. However, under police

questioning, Bernstein identified Kindler as the driver of the

getaway car and the mastermind behind the burglary. Bernstein

also offered to testify against both Kindler and Shaw. Armed

with this information, police obtained a warrant and arrested

Kindler. The warrant identified Bernstein as the informant, and

Kindler subsquently learned that Bernstein had been granted

immunity so he could testify against Kindler.

       Following his arrest, and subsequent release on bail,

Kindler, along with Shaw and Shaw’s girlfriend, Michelle

Raifer, devised a plan to kill Bernstein in order to silence him.

Pursuant to that plan, Raifer lured Bernstein to the door of his

apartment in the early morning hours of July 25, 1982. Kindler,

                               5
who had been lying in wait, attacked Bernstein and struck him

over the head with a baseball bat approximately 20 times.

Acting on Kindler’s instructions, Shaw then jabbed Bernstein in

the ribs with an electric prod numerous times. Kindler and

Shaw then dragged an immobilized Bernstein to Raifer’s

waiting car, leaving a 30-foot trail of blood behind. The two

threw Bernstein into the trunk of the car and then drove to the

banks of the Delaware River where they took Bernstein from the

trunk and threw him into the river. Miraculously, Bernstein was

still alive when he was thrown into the river. Upon realizing

that their blows had not killed Bernstein, Kindler and Shaw

managed to fill Bernstein’s lungs with water and then they tied

a cinder block around his neck to weigh him down.

        Kindler, Shaw, and Raifer then drove back to Kindler’s

home.    They discarded their weapons and other physical

evidence by throwing them down various sewer inlets along the

                               6
way. Despite those “precautions,” the plan began unraveling

almost immediately because police tracked down Raifer’s

blood-soaked car within a few hours of the crime. Bernstein’s

girlfriend and others had seen it during the course of the killing.

Raifer confessed after police confronted her with evidence that

tied her to the assault. In her confession, she implicated Kindler

and Shaw, and directed police to the various sewer inlets where

they had thrown the evidence. To further complicate matters,

Bernstein’s body surfaced the next day. During a subsequent

examination, police established that he died from drowning and

massive head injuries.

     B. The Trial and Kindle’s Post-Verdict Motions.

       Kindler and Shaw were jointly tried for Bernstein’s

murder in state court, and the jury convicted both of first-degree

murder and criminal conspiracy. During the ensuing penalty

hearing, the jury found two aggravating circumstances

                                7
pertaining to Kindler; viz, he killed Bernstein to prevent him

from testifying, see 42 Pa. Cons. Stat. § 9711(d)(5), and he

committed the killing while perpetrating a felony - kidnapping.

See 42 Pa. Cons. Stat. § 9711(d)(6).             Although the

Commonwealth also argued that the “offense was committed by

means of torture,” 42 Pa. Cons. Stat. § 9711(d)(8), the jury did

not find that aggravating circumstance. The jury found no

mitigating circumstances in favor of Kindler. Thus, pursuant to

42 Pa. Cons. Stat. § 9711(c)(1)(iv), Kindler was given the death

penalty.2 After the penalty hearing, but before the sentence was

formally imposed, Kindler filed post-verdict motions with the

assistance of new counsel.3


   2
       Shaw received a sentence of life imprisonment.
   3
    In Pennsylvania, the death sentence is received and
recorded by the court after the jury determines the sentence.
The court formally imposes the sentence sometime later. See
42 Pa. Cons. Stat. § 9711(g).

                                8
       On September 19, 1984, while the post-verdict motions

were pending, Kindler escaped from a Philadelphia jail where he

was being held. Following the escape, the Commonwealth

immediately moved to dismiss his post-verdict motions because

he was then a fugitive. The trial court granted that motion

holding that Kindler had waived any right to have his post-

verdict motions considered by escaping.

       Kindler was eventually arrested on new criminal charges

as well as on immigration violations in Canada. However, soon

after his arrest there, he once again managed to escape. This

time, he used bed sheets to create a makeshift rope to escape

from the thirteenth floor of the facility in Montreal where he was

being held. He was captured once again in New Brunswick

Canada in 1988.

       Upon being returned to Philadelphia in 1991, Kindler

moved to reinstate his post-verdict motions; the trial court

                                9
denied the motion.

  C. Kindler’s Direct Appeal and State Post-Conviction

                        Proceedings

      On October 3, 1991, the trial court formally imposed

Kindler’s death sentence for the murder conviction, as well as

a consecutive term of 10 to 20 years imprisonment for the

kidnapping, and a concurrent term of five to 10 years for

criminal conspiracy. Kindler appealed arguing that the trial

court should have addressed the merits of his post-verdict

motions upon his capture and return to Philadelphia. The

Superior Court rejected the argument and upheld his conviction

and sentence; the Pennsylvania Supreme Court affirmed. See

Commonwealth v. Kindler, 639 A.2d 1 (Pa. 1994).           The

Pennsylvania Supreme Court ruled that the trial court had

properly denied Kindler’s post-verdict motions without

considering the merits because of Kindler’s escape. Id. at 3

                             10
(“[T]he action taken in dismissing the post-verdict motions was

a reasonable response to [Kindler]’s ‘flouting’ of the authority

of the court”). The Court concluded that the escape resulted in

Kindler waiving all claims of error and preserving nothing for

appeal.   Nevertheless, given the death sentence, the court

reviewed the record as required by 42 Pa. Cons. Stat.

§ 9711(h)(3), and found no error.4 The Court therefore affirmed


   4
     At the time of Kindler’s direct appeal, 42 Pa. Cons. Stat.
§ 9711(h), titled “Review of death sentence,” provided as
follows:

              (1) A sentence of death shall be subject to
              automatic review by the Supreme Court of
              Pennsylvania pursuant to its rules.
              (2) In addition to its authority to correct errors at
              trial, the Supreme Court shall either affirm the
              sentence of death or vacate the sentence of
              death and remand for further proceedings as
              provided in paragraph (4).
              (3) The Supreme Court shall affirm the sentence
              of death unless it determines that:
              (i) the sentence of death was the product of
              passion, prejudice or any other arbitrary factor;

                               11
the conviction and sentence. On October 11, 1994, the United

States Supreme Court denied certiorari.

       On January 11, 1996, Kindler filed a petition under

Pennsylvania’s Post-Conviction Relief Act (“PCRA”) in which

he asked the court to adjudicate the merits of the claims he had


              (ii) the evidence fails to support the finding of at
              least one aggravating circumstance specified in
              subsection (d); or
              (iii) the sentence of death is excessive or
              disproportionate to the penalty imposed in
              similar cases, considering both the
              circumstances of the crime
              and the character and record of the defendant.
              (4) If the Supreme Court determines that the
              death penalty must be vacated because none of
              the aggravating circumstances are supported by
              sufficient evidence or because the sentence of
              death is disproportionate to the penalty imposed
              in similar cases, then it shall remand for the
              imposition of a life imprisonment sentence. If
              the Supreme Court determines that the death
              penalty must be vacated for any other reason, it
              shall remand for a new sentencing hearing
              pursuant to subsections (a) through (g).


                               12
raised on direct appeal. The PCRA court denied the petition

without a hearing because the Pennsylvania Supreme Court had

already ruled that Kindler’s escape resulted in a waiver of all

appellate claims he may otherwise have had. The Pennsylvania

Supreme Court subsequently affirmed, agreeing that Kindler

was ineligible for PCRA relief. Commonwealth v. Kindler, 722

A.2d 143, 148 (Pa. 1998).       The Court also concluded that

Kindler’s claims had been previously litigated because he had

challenged the dismissal of his post-verdict motions on direct

appeal. The Court explained: “[t]o grant [Kindler] the relief he

requests in his PCRA, an evidentiary hearing on claims already

forfeited by his flight from captivity, would render meaningless

all previous rulings of the trial court and of this Court.” Id. at

148. The Court rejected Kindler’s argument that Pennsylvania’s

“relaxed waiver” doctrine permitted review of the merits of his

claim. Although that doctrine allowed courts to look past a

                               13
procedural default and reach the merits of claims in a capital

case, the Court reasoned that the doctrine did not apply to

Kindler because it was “his own act of becoming a fugitive that

resulted in the forfeiture of the right to review of those claims.”

Id. at 148 n.13. The Court denied reargument on March 15,

1999.

        D. Kindler’s District Court Habeas Proceedings

        On March 13, 2000, Kindler filed a counseled § 2254

habeas petition in the United States District Court for the

Eastern District of Pennsylvania which he subsequently

amended. The amended petition raised eleven grounds for

relief. See Kindler v. Horn, 291 F. Supp. 2d 323, 337-38 (E.D.

Pa. 2003) (summarizing the claims). In opposing relief, the

Commonwealth claimed that the petition was untimely, and that

Pennsylvania’s fugitive waiver rule was an “independent and

adequate” state ground precluding federal habeas relief. The

                                14
Commonwealth also argued that the claims were meritless.

       The district court applied statutory tolling and ruled that

Kindler’s petition was timely.        The court concluded that

Kindler’s petition for reargument before the Pennsylvania

Supreme Court, had tolled the period of limitations.            The

Supreme Court of Pennsylvania had denied that petition on

March 15, 1999. The district court held that Kindler had one

year from that date to file his habeas petition. Since he filed it on

March 13, 2000, the district court concluded that his petition

was timely. Kindler v. Horn, 291 F. Supp. 2d at 338-39.

       Next, the district court relied in part on Doctor v.

Walters, 96 F.3d 675 (3d Cir. 1996), in rejecting the

Commonwealth’s claim of procedural default. There, we had

held that Pennsylvania’s fugitive forfeiture rule was not firmly

established when Kindler escaped. Accordingly, “the fugitive

forfeiture rule . . . [did] not provide an independent and adequate

                                 15
basis to preclude federal review of [Kindler’s] habeas claims. .

.”. Kindler v. Horn, 291 F. Supp. 2d at 343.

       In addressing the merits of Kindler’s claim, the district

court rejected all of Kindler’s challenges to the guilt phase of his

trial. However, the court agreed with Kindler’s challenge to the

penalty phase, and concluded that the trial court’s jury

instruction was inconsistent with the Supreme Court’s

pronouncements in Mills v. Maryland, 486 U.S. 367 (1988).

The court also ruled that Kindler was entitled to relief because

of the prosecutor’s argument during the penalty phase. The court

concluded that the prosecutor had improperly introduced an

aggravating circumstance and had also “vouched for the death

penalty with respect to [Kindler] . . . in violation of his rights

under the Eighth and Fourteenth Amendments to the U.S.

Constitution.” Kindler v. Horn, 291 F. Supp. 2d at 367.

       The Commonwealth appealed the order granting a new

                                16
sentencing hearing (C.A. No. 03-9010), and Kindler appealed

the denial of relief on his other claims. (C.A. No. 03-9011).

The appeals were consolidated, and we granted a certificate of

appealability to Kindler allowing him to raise counsel’s

ineffectiveness at sentencing, and the district court’s failure to

instruct the jury that he was not eligible for parole if sentenced

to life imprisonment. Kindler v. Horn, No. 03-9011 (order

entered Oct. 21, 2004).

       Before addressing the merits of either appeal, we must

determine the threshold procedural issues, including whether

Kindler’s habeas petition was timely filed. If Kindler’s claims

are timely and not defaulted, we must then determine whether

the district court erred in granting relief pursuant to Mills v.

Maryland. In addition, we must determine whether the court

erred in denying relief on Kindred’s claim that the trial

erroneously failed to instruct the jury that he was ineligible for

                               17
parole, as well as Kindler’s claim of ineffective assistance of

counsel during the penalty phase of his trial. As mentioned

above, we decilne to address Kindler’s prosecutorial misconduct

claims.

           II. Timeliness and Procedural Default

       The Anti-Terrorism, and Effective Death Penalty Act

(“AEDPA”) creates a one-year period of limitations for state

prisoners to file federal habeas petitions. See 28 U.S.C. §

2244(d)(1). The one year clock usually starts ticking when the

time for direct review expires. Typically, that is when the United

States Supreme Court denies certiorari or when the time for

seeking certiorari review expires. However, the limitation

period is tolled while “a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment. . . is pending.” 28 U.S.C. § 2244(d)(2).

       Kindler and the Commonwealth agree that the limitation

                                18
period here was tolled until at least December 11, 1998 when

the Pennsylvania Supreme Court rejected his appeal of the

denial of PCRA relief.5    As noted earlier, thereafter, Kindler

filed for reargument of that December 11 ruling, and that

petition for reargument was not decided until March 15, 1999.

The parties disagree about whether the filing period was tolled

while his petition for reargument was pending before the

Pennsylvania Supreme Court. If the period was not tolled by

filing the petition for reargument, Kindler’s one year limitation

period expired on December 10, 2000, and his March 13, 2000

   5
     Kindler’s PCRA petition was pending as of April 24,
1996, when AEDPA became effective, and remained pending
at least through December 11, 1998 when the Pennsylvania
Supreme Court denied Kindler’s state habeas petition. See 28
U.S.C. § 2244(d)(2); see also, Burns v. Morton, 134 F.3d 109,
111 (3d Cir.1998); Miller v. N.J. State Dep't of Corrs., 145
F.3d 616, 617 (3d Cir.1998) (holding that for convictions that
became final prior to AEDPA’s enactment, the AEDPA
limitations period begins on AEDPA’s effective date of April
23, 1996).


                               19
federal habeas petition would therefore be untimely. Conversely,

if the AEDPA clock was tolled while that petition was pending,

the habeas petition was timely filed as detailed above.6

       Congress specifically provided that the one year period

for filing a federal habeas petition is tolled while “a properly

filed application for state post-conviction review or other

collateral proceeding is pending.” 28 U.S.C. § 2244(d)(2).

AEDPA does not specifically define that phrase or explain what

it includes. Nevertheless, we have held that an application for

relief that is permitted under state law and filed in accordance

with the state’s procedural requirements, tolls the filing period

   6
    We reject the Commonwealth’s argument that the
limitation period was not tolled from December 11, when the
the PCRA petition was denied to December 20 th when the
motion for reargument was filed because there was nothing
pending before a court during that time. See Carey v. Saffold,
536 U.S. 214 (2002) (petitioner’s application would be
considered as pending during 4 ½ month time between denial
of lower court petition and filing of appeal of that decision so
long as the appeal was filed in accordance to state law.)

                               20
under AEDPA. Compare Lovasz v. Vaughn, 134 F.3d 146 (3d

Cir. 1998) (a prisoner’s second state habeas petition tolled the

AEDPA period of limitations because the state courts permitted

successive habeas petitions, and occasionally granted relief on

these petitions.); with Douglas v. Horn, 359 F.3d 257 (3d Cir.

2004) (a notice to appeal nunc pro tunc did not toll the

limitation period because Pennsylvania courts do not recognize

nunc pro tunc appeals as a permissible avenue for post-

conviction relief.).

       The Commonwealth does not dispute that Kindler

properly filed his motion for reargument within 14 days of the

denial of relief, as required by state law.        Rather, the

Commonwealth argues that motions for reargument are petitions

for “extraordinary relief,” and therefore not encompassed within

the meaning of “a properly filed petition” under AEDPA. The

Commonwealth rests this argument on its contention that such

                              21
petitions are “not favored” under Pennsylvania law. According

to the Commonwealth such petitions are an exceptional form of

relief and Congress could therefore not have intended the

AEDPA clock to stop ticking while such a motion was pending.

       However, we have found no Pennsylvania statute, case or

rule prohibiting motions for reargument and the Commonwealth

does not direct us to any. Indeed, Pennsylvania appellate

practice specifically provides for a motion for reargument, and

sets forth the time for filing such a motion. See Pa.R.A.P. 2542

(setting forth a 14 day time limit for filing a motion for

reargument as well as other procedures for such motions); see

also Pa.R.A.P. 2543-2547. Moreover, not surprisingly, capital

defendants in Pennsylvania routinely seek reargument when

their claims for relief are denied, and the Pennsylvania Supreme

Court has granted such motions on more than one occasion. See

Commonwealth v. Saranchak, 810 A.2d 1197 (Pa. 2002) (on

                              22
reargument, granting reinstatement of PCRA petition that had

been dismissed on appeal); Commonwealth v. Young, 748 A.2d

166 (Pa. 2000)(on reargument, granting relief on claim that was

denied in original decision); see also, Lovasz v Vaughn, 134

F.3d 146 (3d Cir. 1998) (considering the fact that the state

historically allowed a certain type of filing in determining that

such a filing tolls the AEDPA statute of limitations).

       The Commonwealth nevertheless claims that Kindler’s

motion for reargument should not toll the limitation period here

because it was not necessary to exhaust state remedies.

According to the Commonwealth, only proceedings that are

required to exhaust a claim toll the limitation period under

AEDPA. That argument is not rooted in the text of AEDPA or

any decision of this court of the Supreme Court. Rather, the

Commonwealth rests this argument upon the logic of

harmonizing AEDPA’s requirements for exhaustion and tolling.

                               23
The Commonwealth also argues that this interpretation of

AEDPA’s one year time limit prevents habeas petitioners from

tolling the limitation period indefinitely with a series of “exotic”

petitions for “extraordinary” relief. We disagree.

       Nothing in the text of AEDPA suggests that Congress

intended any such linkage. To the contrary, that text undermines

the Commonwealth’s attempt to read exhaustion into the

statute’s tolling requirements. Section 2244 conditions AEDPA

tolling only upon     properly filling an application for post-

conviction or collateral review. Once properly filed, the time

during which the petition is pending is explicitly tolled under §

2244. Congress could easily have declared that the limitations

period would only be tolled while any petition required to

exhaust claims is pending in state court. It did not do so, and we

can not amend the statute by adopting the Commonwealth’s

attempt to forge a nonexistent link between exhaustion and

                                24
statutory tolling.7

       Moreover, we rejected a similar argument in Sweger v.

Chesney, 294 F.3d 506 (3d Cir. 2002). There, we concluded

that the plain text of 28 U.S.C. § 2244 undermines any policy

justification for linking AEDPA’s tolling requirements with its

exhaustion requirements. Specifically, we had to determine

       whether this tolling provision applies on a claim-
       by-claim basis, requiring at least one or more of
       the issues raised in the state collateral proceeding
       to be included in the federal habeas petition, or
       whether a state post-conviction proceeding
       attacking a judgment of conviction tolls the period
       of limitations for the entire habeas petition
       attacking that same judgment.

294 F.2d at 513.

       We held that Congress did not intend AEDPA’s tolling


   7
     Indeed, it is ironic given considerations of deference and
comity so frequently relied upon in arguing against federal
relief that the state would now ask us to ignore a procedure
provided under state procedural law and utilized by the state’s
highest court.

                               25
provision to be applied on a case by case basis. We noted that

our decision would have been the same even if we factored

policy considerations into our analysis because separate rules for

tolling and exhaustion advance, rather than retard, the goals of

federalism and comity enshrined in AEDPA. Id. at 519-520 (“

the statute of limitations . . . and the exhaustion doctrine . . .

impose entirely distinct requirements on habeas petitioners;

[although] both must be satisfied before a federal court may

consider the merits of a petition.”). Maintaining the distinction

encourages habeas petitioners to utilize all avenues for review

authorized under state law before seeking habeas relief in

federal court. Id.

       Moreover, we are simply not impressed by the

Commonwealth’s concern that habeas petitioners may endlessly

extend AEDPA’s one year filing deadline by resorting to exotic

or “extraordinary” state petitions. That theoretical concern, not

                               26
exemplified here, does not justify the forced reading of AEDPA

required by the Commonwealth’s position.

                    B. Procedural Default

       As noted above, the Pennsylvania courts applied

Pennsylvania’s fugitive forfeiture rule and concluded that

Kindler waived his right to seek appellate review. They thus

dismissed his appeals without reaching the merits of any of his

claims. As a matter of comity and federalism, a federal court

cannot rule on the merits of a habeas petitioner’s claims when

a state court has found such claims to be procedurally defaulted

pursuant to an independent and adequate state procedural rule

unless the petitioner shows cause and prejudice for the default.

 See Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996). The

district court reasoned that, in this case, Pennsylvania’s fugitive

forfeiture doctrine did not preclude review of the merits of

Kindler’s claims. We agree.

                                27
       A state procedural rule precludes federal habeas review

only if it is “firmly established” and “consistently and regularly

applied” by the state’s courts. See Johnson v. Mississippi, 486

U.S. 578, 587 (1988); see also Ford v. Georgia, 498 U.S. 411,

423-24 (1991) (state procedural rule must be “firmly established

and regularly followed” to bar federal habeas review).         In

addition, the state rule must speak in unmistakable terms, and

the state courts’ refusal to review a petitioner’s claim must be

consistent with decisions in similar cases.       See Doctor v.

Walters, 96 F.3d at 683-684; Neely v. Zimmerman, 858 F.2d

144, 148 (3d Cir.1988). A procedural rule that is consistently

applied in the vast majority of cases is adequate to bar federal

habeas review even if state courts are willing to occasionally

overlook it and review the merits of a claim for relief where the

rule would otherwise apply. Id. Furthermore, the adequacy of

the rule is determined by the law in effect at the time of the

                               28
asserted waiver, not when the petitioner subsequently seeks

review in federal court. See Doctor, 96 F.3d at 684.

       Despite the Commonwealth’s efforts to distinguish this

case, our analysis of Kindler’s procedural default is controlled

by our analysis in Doctor. There, we held that Pennsylvania’s

fugitive forfeiture rule did not bar federal habeas review as

applied to Doctor, a habeas petitioner who had, like Kindler,

escaped. Doctor escaped in 1986 during a lunch recess of his

criminal trial, but the trial resumed after the recess and he was

convicted in absentia. Id. at 678. Five years later, after he was

captured and sentenced, he appealed. The Pennsylvania courts

applied the fugitive forfeiture rule and refused to consider the

merits of his appeal.    Id.   On federal habeas review, the

Commonwealth argued that the state courts’ application of the

fugitive waiver doctrine precluded federal habeas relief. We

disagreed because the rule was not being consistently or strictly

                               29
applied when Doctor escaped in 1986. Id. at 684-686. After

surveying decisions of Pennsylvania courts we concluded that

Pennsylvania courts had discretion to hear an appeal filed by a

fugitive who had been returned to custody before an appeal was

initiated or dismissed. Id. at 686. Accordingly, the fugitive

forfeiture rule was not “firmly established” and therefore was

not an independent and adequate procedural rule sufficient to

bar review of the merits of a habeas petitioner in federal court.

       Here, Kindler escaped from custody in 1984 while his

post-verdict motions were pending. Kindler, like Doctor, was

returned to custody before any direct appeal of his conviction or

sentence was initiated. The Commonwealth seeks to distinguish

Doctor because Kindler’s escape resulted in the dismissal of

post-verdict motions that were pending when he escaped. The

Commonwealth contends that the dismissed post-verdict

motions were analogous to a dismissed appeal. Therefore,

                               30
argues the Commonwealth, the state appellate courts had no

more discretion to re-instate Kindler’s post-verdict motions than

they had to reinstate a dismissed appeal. Despite its facial

appeal, we cannot agree with this interpretation of Doctor.

       In Commonwealth v. Galloway, 333 A.2d 741 (Pa. 1975),

as discussed in Doctor, the Pennsylvania Supreme Court

re-instated supplemental post-verdict motions that had been

dismissed pursuant to the fugitive forfeiture rule. The court did

so because once the defendant was apprehended, he was

returned to the jurisdiction of the court, and would therefore be

responsible for, and subject to, the court’s judgment. Galloway

thus underscores a critical distinction between dismissed

post-verdict motions and a dismissed final appeal.            That

distinction arises from the fact that after an appeal is dismissed,

a court no longer retains jurisdiction. However, appellate courts

can exercise jurisdiction after post-verdict motions are

                                31
dismissed, and they therefore can exercise discretion to hear the

claims of defendant’s appeal. Thus, Galloway fatally undercuts

the Commonwealth's attempt to distinguish Kindler’s situation

from Doctor’s based upon differences in the procedural posture

at the time of their respective escapes. When Kindler escaped in

1984, Galloway had not been overruled. Accordingly, the state

trial court still had discretion to reinstate his post-verdict

motions.    Accordingly, we conclude that, under Doctor,

Pennsylvania’s fugitive waiver law did not preclude the district

court from reviewing the merits of the claims raised in Kindler’s

habeas petition.

                   III. Kindler’s Claims.

       We review the district court’s resolution of Kindler’s

claims de novo. See Duncan v. Morton, 256 F.3d 189, 196 (3d

Cir. 2001). We do not apply the deferential standard of review

otherwise applicable under AEDPA because Kindler’s claims

                               32
have never been “adjudicated on the merits” in state courts. See

Bronshtein v. Horn, 404 F.3d 700, 710 (3d Cir. 2005).

                       A. Mills v. Maryland

       Kindler contends that his sentence was imposed in

violation of the Eighth Amendment, as construed in Mills v.

Maryland and Boyde v. California, 494 U.S. 370 (1990). More

specifically, Kindler contends that the jury instructions and

verdict slip created a reasonable likelihood that the jury believed

it could only consider mitigating circumstances that jurors

unanimously agreed upon. The district court agreed and granted

a conditional writ requiring the Commonwealth to either

conduct a new sentencing hearing or cause Kindler to be

sentenced to life imprisonment.

       In Mills v. Maryland, the Supreme Court held that the

Constitution prohibits a state from requiring jurors to

unanimously agree upon the existence of a particular mitigating

                                33
circumstance before weighing that circumstance against any

aggravating circumstances during the penalty phase of a capital

trial. The Court illustrated with a “disturbing scenario” wherein

eleven jurors agreed upon a mitigating circumstance but

concluded that they could not consider it because a 12 th juror

disagreed that it exists. Mills, 486 U.S. at 373. That single

juror’s view of the facts would result in the death penalty being

imposed despite the will of the overwhelming majority of the

jurors. Equally disturbing to the Court was the possibility that all

twelve jurors would each find a mitigating circumstance, but not

be able to agree on the existence of any one “mitigator.” Such

a jury would also recommend a sentence of death because it

would erroneously conclude that there was nothing to weigh

against the aggravating circumstances that may exist. Id. The

Court thus concluded that the Eighth Amendment requires that

jurors be allowed to consider any and all mitigating

                                34
circumstances without the requirement of unanimity. Id. at 384.

Accordingly, a death sentence must be vacated if there is a

substantial probability that the jury charge caused a reasonable

juror to believe that mitigating circumstances can not be

considered   unless all jurors agree on the existence of the

mitigating circumstance. Id.

       The Supreme Court later clarified Mills in Boyde v.

California. In Boyde, the Court explained that the inquiry under

Mills was whether “there is a reasonable likelihood that the jury

has applied the challenged instruction in a way that prevents the

consideration” of relevant mitigating circumstances that the

defendant proffered.

       Here, the court’s instruction at the beginning of the

penalty phase included the following explanation:8


   8
    Kindler’s counsel objected to this charge on the record.
Joint Appendix (“JA”), 204-205.

                               35
       Now, the aggravating circumstances must be
       proved by the Commonwealth beyond a
       reasonable doubt. Mitigating circumstances must
       be proved by the defendant by a preponderance of
       the evidence. A preponderance of the evidence is
       somewhat less proof than is required for
       reasonable doubt.

       Now, the verdict must be a sentence of death if
       the jury unanimously finds at least one
       aggravating circumstance specified in that list,
       subsection “D” and no mitigating circumstances
       or if the jury unanimously finds one or more
       aggravating circumstances which outweigh any
       mitigating circumstances.

       The verdict must be a sentence of life
       imprisonment in all other cases. The court may in
       its discretion discharge the jury if it is of the
       opinion that further deliberation will not result in
       a unanimous agreement as to the sentence, in
       which case the court shall sentence the defendant
       to life imprisonment. The court shall instruct the
       jury on any other matters that may be just and
       proper under the circumstances . . . .

JA 73-74 & 196-97.9

   9
   The second time that the judge read the instructions, he
removed the words “in that list” and added a filler phrase;
“which you have seen,” so that the instructions read:

                               36
Moreover, the verdict slip read:

       We, the jury empaneled in the above entitled case,
       having heretofore determined that the defendant is guilty
       of murder in the first degree, do hereby find:

              AGGRAVATING CIRCUMSTANCE(S)

              The victim was a fireman, peace officer, or
              public servant concerned in official
              detention who was killed in the
              performance of his duties ()

              The defendant paid or was paid by another
              person or had contracted to pay or be paid
              by another person or has conspired to pay
              or be paid by another person for the killing
              of the victim ( )

              The victim was being held by the
              defendant for ransom or reward, or as a

       Now, the verdict must be a sentence of death if the jury
       unanimously finds at least one aggravating
       circumstance specified subsection “D,” which you
       have seen and no mitigating circumstances or if the
       jury unanimously finds one or more aggravating
       circumstances which outweigh any mitigating
       circumstances.

JA 197.

                               37
shield or hostage ( )

The death of the victim occurred while
defendant was engaged in the hijacking of
an aircraft ( )

The victim was a prosecution witness to a
murder or other felony committed by the
defendant and was killed for the purpose
of preventing his testimony against the
defendant in any grand jury or criminal
proceeding involving such offenses ( )

The defendant committed a killing while
in the perpetration of a felony ( )

In the commission of the offense the
defendant knowingly created a grave risk
Of death to another person in
addition to the victim of the offense
()

The offense was committed by
means of torture ( )

The defendant has a significant
history of felony convictions
involving the use or threat of
violence to the person ( )

The defendant has been convicted

                 38
of another Federal or State offense,
committed either before or at the
time of the offense at issue for
w hich a se n te nc e of lif e
imprisonment or death was
imposable or the defendant was
undergoing a sentence of life
imprisonment for any reason at the
time of the commission of the
offense ( )

M I T I G A T I N                 G
CIRCUMSTANCE(S)

The defendant has no significant
history of prior criminal
convictions ( )

The defendant was under the
influence of extreme mental or
emotional disturbance ( )

The capacity of the defendant to
appreciate the criminality of his
conduct or to conform his conduct
to the requirements of law was
substantially impaired ( )

The age of the defendant at the time
of the crime ( )


                39
The defendant acted under extreme
duress, although not such duress as
to constitute a defense to
prosecution under Section 309
(relating to duress), or acted under
the substantial domination of
another person ( )

The victim was a participant in the
defendant's homicidal conduct or
consented to the homicidal acts ( )

The defendant's participation in the
homicidal act was relatively minor
()

Any other evidence of mitigation
concerning the character and record
of the de fe ndan t and the
circumstances of his offense ( )

The aggravating circumstance(s)
outweigh the mitigating
circumstance(s) YES ( ) NO ( )

We the jury render the following
sentencing verdict:

DEATH ( )

LIFE IMPRISONMENT ( )

                40
JA 213-15.

      In addition, the following exchange occurred between the

court and the jury foreperson when the jury returned to ask a

question during deliberations:

      JURY FOREPERSON: Do we have to apply any
      checkmarks besides the aggravating and
      mitigating circumstances on the final sheet?
      What I’m saying, is that there’s a poll taken and
      say were using all 10 questions, you know, just
      for example, and there’s quite a possibility that all
      12 people would pick all 10. Do you want a
      checkmark or do you want a number beside
      those?

      THE COURT: I’ll just read the instructions from
      the law and then I’ll answer your question. The
      verdict must be a sentence of death if the jury
      unanimously finds at least one aggravating
      circumstance that’s specified in subsection D and
      no mitigating circumstances or if the jury
      unanimously finds one or more aggravating
      circumstances which outweigh any mitigating
      circumstances. The verdict must be a sentence of
      life imprisonment in all other cases.

      In other words, the only ones that you would mark

                                 41
       off and report would be [the ones] that all of you
       had agreed upon.       Are there any further
       questions?

       JURY FOREPERSON: You don’t want a number
       there; you just want a checkmark.

       THE COURT: A checkmark.

JA 198-200.

       The judge’s answers thus exacerbated the Mills problem

that already infected the jury’s deliberations based upon the

misleading and ambiguous wording of the jury charge. That

charge clearly created a reasonable likelihood that the jurors

may have believed that they could only consider the mitigating

circumstances that they unanimously agreed upon.             The

language quoted above instructed the jury that: “the verdict must

be a sentence of death if the jury unanimously finds at least one

aggravating circumstance . . . and no mitigating circumstances

or if the jury unanimously finds one or more aggravating


                               42
circumstances which outweigh any mitigating circumstances.”

Thus, “unanimous” modifies “finds” and creates a reasonable

likelihood that the jurors erroneously believed that mitigating

and aggravating circumstances both had to be unanimously

agreed upon. Nowhere were the jurors told that they only had

to unanimously agree on aggravating circumstances and not

mitigating circumstances, or that the requirement of unanimity

did not apply to any mitigating circumstance that any juror may

have found by a preponderance of the evidence.

        This conclusion is consistent with our recent holding in

Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008), as well as

other cases where similar instructions were given.10 See Albrecht

   10
      In Abu-Jamal, we rejected the Commonwealth’s
contention that our decision upholding the charge in
Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.1991)
precluded a Mills violation in that case. See Zettlemoyer, 923
F.3d at 308 (upholding charge instructing the jury to impose
death if they unanimously agree and find that the aggravating
circumstances outweigh the mitigating circumstances.).

                               43
v Horn, 471 F.3d 435 (finding a Mills violation, but vacating the

district court's order granting habeas relief after applying Teague

v. Lane); Banks v Horn, 271 F.3d 527 (3d Cir. 2001), rev'd on

other grounds by Beard v. Banks, 542 U.S. 406 (2004); Frey v.

Fulcomer, 132 F.3d 916, 923-24 (3d Cir.1997).

       In addition, as we have just explained, the confusion was

amplified by the court’s exchange with the jury foreperson when

the jury returned to ask a question during deliberations.

       Finally, the error was further exacerbated by the wording

of the verdict slip. Unlike Hackett v. Price, 381 F.3d 281 (3d.

Cir. 2004), where the verdict slip established that the jury agreed

that there were no mitigating circumstances, the verdict slip here

offered no direction regarding how findings were to be made.

Moreover, no boxes were checked. This may mean that no juror

found any mitigating circumstance as the Commonwealth

argues. However, it is equally likely that jurors could not

                                44
unanimously agree on any particular mitigating circumstance

even though one or more juror was convinced a mitigating

circumstance had been established, and that the jury assumed

that the mitigating circumstance could not be weighed because

of the lack of unanimity.      Accordingly, the district court

properly granted relief under Mills.

            B. Ineffective Assistance of Counsel11

        Kindler also contends that his attorney’s performance

during the penalty phase deprived him of effective assistance of

counsel under the Sixth Amendment because his attorney failed

to investigate his social and family history or his mental health


   11
      Although our conclusion that the district court did not
err in granting relief under Mills is itself sufficient to affirm
the conditional writ that the district court granted and decide
Kindler’s appeal, we think it important to also discuss
Kindler’s claim of ineffective assistance of counsel during the
penalty phase because of the importance of the issue to our
jurisprudence, the gravity of the consequence of the alleged
deficiency, and the need to provide guidance in future cases.

                               45
history.

       Ineffective assistance of counsel claims are governed by

the familiar two-prong inquiry set forth in Strickland v.

Washington, 466 U.S. 668, 687 (1984), requiring a petitioner to

show that counsel’s performance was deficient and that the

deficiency prejudiced him. The first prong is established by

demonstrating that counsel’s performance fell below an

objective standard of reasonableness. Id. The reasonableness

of counsel’s performance is assessed on the facts of the

particular case at the time of the challenged conduct or

omission. Id. at 689. The prejudice inquiry requires a showing

that “there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.”

Id. at 694. A “reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id.

       Kindler submitted an affidavit from Daniel-Paul Alva, his

                               46
trial counsel, in support of his Strickland claim. That affidavit

includes the following declaration:

       Mr. Kindler’s case was my first capital trial. I did
       not have any experience or training in how to
       handle capital cases, in particular the penalty
       phase of the proceeding.

       I concentrated my efforts on attempting to create
       a reasonable doubt as to Mr. Kindler’s guilt,
       although I was aware that there was a strong
       likelihood that Mr. Kindler would be convicted.

       I did not conduct a penalty phase or mitigation
       investigation. In particular, I did not talk to Mr. Kindler
       or any of his family members about his family
       background. Mr. Kindler’s family was available to me.
       His parents had retained me, and they attended the trial.
       I simply did not think about investigating or presenting
       evidence concerning family background at the penalty
       phase.

       I also did not attempt to obtain any school, medical or
       other records relating to Mr. Kindler. I did not have a
       strategic or tactical reason for not seeking such records;
       it just did not occur to me that such records could be
       helpful.

       I also did not consider obtaining any mental health
       evaluation of Mr. Kindler. Again, there was no strategic

                               47
          or tactical reason for my failure to do so.

S.A. 25.

          Kindler also submitted declarations from his parents, his

sister, a friend, a psychologist and a psychiatrist detailing

information that Kindler claims would have been uncovered by

an adequate investigation. Kindler’s parents and sister detailed

Kindler’s upbringing. Kindler’s parents fought frequently and

violently. In these fights, his parents threw household items,

dishes, shoes, and furniture at each other. Kindler personally

witnessed these fights, and they left him terrified and crying.

Kindler’s mother was violent, depressed, and often intoxicated.

She attempted suicide on several occasions. Kindler’s father

was so controlling that he even restricted the amount of water,

electricity, and other resources available to Kindler and his

sister.    After Kindler’s mother separated from his father,

Kindler’s father threatened to kill her and the children. Supp.

                                  48
App. 7. Kindler’s sister described the situation as “living with

two crazy people that could not control themselves.” Supp.

App. 12.

       The declarations also state that both of Kindler’s parents

abused him. His mother was verbally abusive. Id. She also

threw food at Kindler, and once dumped soup on his head when

he wouldn’t eat. Kindler’s father physically abused him with

electrical cords. These beatings would leave him with welts on

his back, and blood showing through his shirt. After his mother

and father separated, Kindler lived with his father, and they

fought frequently. Their relationship deteriorated to the point

where Kindler’s sister described an instance where Kindler and

his father threw bricks at each other during a fight.

Kindler’s friend described a motorcycle accident Kindler was

involved in when Kindler was a “preteen.” Supp. App. 16. The

motorcycle Kindler was riding on was hit by a car causing

                               49
Kindler to lose consciousness for a few minutes.           After

regaining consciousness, Kindler was dazed and confused, and

could not remember the accident.          His speech was also

incomprehensible. Despite those symptoms, Kindler was not

taken to a hospital or given medical treatment.

       Perhaps most importantly, in her affidavit, psychologist,

Carol Armstrong, Ph.D., declared that Kindler suffered from

frontal lobe impairment that can affect judgment, and the ability

to control impulsive behavior. The frontal lobe impairment is

consistent with Kindler’s history of head injuries, and physical

and emotional abuse.      She also attested to the cognitive,

developmental, and emotional effects that the neglect, abuse,

and violence that surrounded Kindler could have had upon him.

Armstrong additionally noted that the tests she performed could

have been performed and would have resulted in the same

conclusions at the time of Kindler's penalty phase proceedings.

                               50
       As if this were not sufficiently derelict, psychiatrist,

Robert A. Fox, declared that he also evaluated Kindler and

reviewed various records. Fox diagnosed Kindler as suffering

from “mood disorder due to a general medical condition with

mixed features” and “narcissistic personality disorder” at the

time of the crimes. Supp. App. 23. He stated that the mood

disorder caused periods of hypomanic symptoms interspersed

with periods of depression and significant distress and

impairment in Kindler's life. According to Dr. Fox, similar

distress resulted from the narcissistic personality disorder, which

is characterized by grandiosity, a need for admiration, and a lack

of empathy.     Fox concluded that these two disorders, in

combination with the history of physical and emotional trauma,

were impairments that constituted an extreme mental or

emotional disturbance.

       The district court concluded that Alva’s performance did

                                51
not violate Kindler’s Sixth Amendment right to effective

assistance of counsel. The court reasoned that although Alva’s

failure to investigate Kinder’s personal and psychological

history constituted deficient performance under the first

Strickland prong, that failure did not prejudice Kindler, and he

therefore could not prevail under the second prong. The district

court believed that this evidence could have been viewed as a

mitigating circumstance, but the court did “not believe that the

jury could have determined that this mitigating factor adequately

outweighed the two aggravating factors found.” Id.

       Both parties assert that the district court erred. The

Commonwealth argues that the court erred in ruling that Alva’s

performance was deficient; Kindler argues that the district court

erred by holding that the deficient performance did not result in

prejudice.

       It is difficult to understand how the Commonwealth can

                               52
sincerely argue that the kind of information set forth above

could not have been viewed as a mitigating circumstance by the

jury or how Alva’s failure to investigate it could be viewed as

anything other than deficient representation. Defense counsel

in capital cases has a duty to reasonably investigate the existence

of mitigating evidence unless reasonable strategic judgments

support a decision not to. See Strickland, 446 U.S. at 691.

Here, Alva admits that his failure to investigate Kindler’s history

was not the result of any strategic or tactical decision. Supp.

App. 25. Rather, it resulted solely from his lack of experience

in capital cases, and the fact that it never occurred to him to

investigate Kinder’s history. Id. Although the Commonwealth

insists that Alva is “falling on his sword” for a former client,

nothing on this record contradicts the veracity of his sworn

affidavit, and the district court did not rest its decision on any

doubt about the veracity of Alva’s sworn declarations.

                                53
       The Commonwealth also argues that Kindler’s Strickland

claim is belied by the quality of the mitigation case that Alva

presented during the penalty phase of Kindler’s trial. The

Commonwealth points to the five witnesses that Alva called on

Kindler’s behalf and the testimony he elicited regarding

Kindler’s usefulness to society. The Commonwealth also points

to Alva’s impassioned final argument asking the jury to spare

Kindler’s life. This misses the point. We do not suggest that

Alva’s performance was deficient because he inadequately

presented the limited information that he had. Rather, Alva’s

performance was deficient because his failure to adequately

investigate mitigation evidence of mitigation materially limited

what evidence he could present to the jury. Indeed, the skillful

manner in which Alva presented the limited evidence that he did

have illustrates the potential force of the mitigation evidence

that he did not have because he so limited the scope of his

                              54
mitigation investigation.

       Alva, a very skillful and forceful advocate, only

presented testimony that Kindler was skilled in electronics, and

could be productive in prison.        That mitigation pales in

comparison to the mitigating circumstances that a proper

investigation of Kindler’s background would have developed.

In finding that Alva’s performance did not prejudice Kindler,

the district court considered only the evidence proffered by the

two experts relating to Kindler’s frontal lobe impairment and his

personality and mood disorders. Kindler v. Horn, 291 F.Supp.

2d at 356. The court found that the mitigating circumstance of

Kindler’s emotional disturbance would have been established by

the experts, but (in what it termed “a close call”) the court held

that the evidence was ‘insufficient to undermine confidence in

the outcome of the sentencing verdict.” Id. We disagree; this

evidence, in conjunction with proposed testimony regarding

                               55
Kindler’'s chaotic and violent childhood with "two crazy people"

for parents who constantly abused him (and each other in his

presence), is sufficient to meet the second prong of the

Strickland inquiry. See Rompilla v. Beard, 545 U.S. 374 (2005)

(defendant was victim of physical abuse and neglect from

alcoholic parents); Wiggins v. Smith, 539 U.S. 510 (2003)

(defendant suffered extreme parental neglect, severely abused by

his mother, and sexually abused as a child) ; Williams v. Taylor,

529 U.S. 362 (2000) (defendant was severely neglected as a

child); Outten v. Kearney, 464 F.3d 401 (3d Cir. 2006)

(defendant was physically abused by father, and sexually abused

by others).

       Kindler’s jury could easily have considered evidence of

his chaotic and abusive childhood as “evidence of mitigation

concerning the character and record of the defendant and the

circumstances of his offense.” 42 Pa. Cons. Stat. § 9711(e)(8).

                               56
We can not say with confidence that the penalty phase would

have had the same result if the jurors had been able to weigh the

two aggravating circumstances that were established beyond a

reasonable doubt against the evidence of mitigation that a proper

investigation would have presented. The evidence might well

have been accepted as explaining (though certainly not

excusing) Kindler’s impulsive actions including why he was so

willing to kill and brutalize Bernstein.

       Accordingly, we find that Kindler is also entitled to a

new   penalty    hearing    because   his   counsel’s   deficient

performance during the penalty phase deprived him of the

effective assistance of counsel that the Sixth Amendment

requires.

                           C. Vouching

       Kindler claimed that the prosecutor’s argument during

the penalty phase violated his constitutional rights by improperly

                               57
vouching for the death penalty. He challenged the following

part of the prosecutor’s statement:




              Let me at this point, ladies and gentlemen,
              tell you the position, the position of the
              office, the position of the Commonwealth.

              We in this case seek and urge through the
              evidence and the law the death penalty
              against Joseph Kindler.

              In reference to Scott Shaw, I will argue
              and present both of the sides and it is up to
              you to decide against both of these
              particular individuals what penalty you
              feel appropriate. That would be the case no
              matter what our office’s position is but I
              felt from the outset here that I would let
              you know that the urging would be done
              based on the evidence would be against
              Mister Kindler.

              That does not mean that you cannot or
              would not, based on the evidence and the
              law return such a penalty if you felt
              appropriate, against Mister Scott Shaw.
              That is your power and if you find it your
              duty in connection with what the law is,

                               58
              then I am sure you would do it but I, at
              least, wanted to let you know that now.

     Kindler argued that this was tantamount to improperly

vouching for a sentence of death for him because the prosecutor

improperly informed the jury that the official position of the

District Attorney’s Office was that he should be put to death, but

the District Attorney did not care about whether his co-

defendant should be executed. The district court agreed, and the

Commonwealth appeals that ruling.

       The district court reasoned:

              In considering [the prosecutor’s
              argument], we find it clearly
              constituted improper vouching and
              harmful, constitutional error.
              Indeed, the entire premise of the
              prosecutor’s argument was that the
              Commonwealth possessed even
              stronger evidence of Joseph
              Kindler’s guilt and statutory
              aggravators than that presented to
              the jury and that ‘was why the
              urging would be done based on the

                               59
              evidence... against Mister Kindler.’

        We disagree. “Our case law indicates that to find

vouching, two criteria must be met: (1) the prosecutor must

assure the jury that the testimony of a Government witness is

credible; and (2) this assurance is based on either the

prosecutor's personal knowledge, or other information not

contained in the record.” United States v. Walker, 155 F.3d 180,

187 (3d Cir.1998). The prosecutor’s statements here do not

meet either requirement.12 The prosecutor did not draw upon

evidence outside of the record to assure the jury of the


   12
      We do not suggest that a defendant can never establish
improper prosecutorial vouching if the challenged statement
does not rigidly adhere to these criteria as there may be
situations where the prosecutor’s argument so strongly
invokes the authority of his/her office and so blatantly crosses
the line of propriety that it is tantamount to unconstitutional
vouching. See United States v. Johnson, 968 F.2d 768 (8 th
Cir. 1992). However, no such circumstance is present here,
and our analysis therefore proceeds along the familiar two
prong inquiry discussed in Walker.

                               60
credibility of a prosecution witness or the strength of the

Commonwealth’s case. Rather, the prosecutor emphasized that

the jury’s decision must be based on the law and the evidence.

Although he informed jurors that he was specifically requesting

the death penalty for Kindler and not Shaw, he also stated that

the jury must make its own decision about what sentence was

appropriate for Kindler and his codefendant irrespective of the

Commonwealth’s position.

       Although it would have been far better for the prosecutor

to simply make his argument without informing the jury of the

official position of the District Attorney, his statements here are

distinguishable from those that have required relief in other

cases. For example, in Shurn v. Delo, 177 F.3d 662 (8 th Cir.

1999), the prosecutor, after linking the defendant to notorious

mass murderer Charles Manson, and imploring the jury to kill

the defendant several times,         stated: “I’m the top law

                                61
enforcement officer in this county and I’m the one that decides

in which cases to ask for the death penalty . . . . I’m telling you

there’s no case that could be more obvious than the

[defendants’].” 177 F.3d at 666.

       Although we disagree with the District Court’s view of

Kindler’s vouching claim, we agree it comes perilously close to

the evils enunciated in Brooks v. Kemp, 762 F.2d 1383 (11 th Cir.

1985). There, the prosecutor made an unsupported claim that he

had only sought the death penalty in a few cases during the past

year, which improperly implied “that the prosecutor’s office had

already made the careful judgment that [that] case, above most

other murder cases, warranted the death penalty.” Id. at 1383.

The prosecutor’s statement here did not purport to draw upon

evidence outside the record in order to distinguish between

Kindler and his codefendant. Cf. Giglio v. United States, 405

U.S. 150, 154 (1972).

                                62
          D. Non-Statutory Aggravating Factors

      Kindler also objected to the following portion of the

prosecutor’s argument during the penalty phase:

      There has been testimony that you heard that
      Mister Shaw was in fact led. You have heard
      testimony from his grandmother, as a matter of
      fact, that he in fact got into trouble because he
      was led as a result of other people, because of the
      failure perhaps at times to have sufficient male
      companionship among other things. If that were
      the case and you must accept that does not lessen
      in terms of guilt of a crime indeed not as you had
      found.

      But as you must consider in reverse what and
      where that puts the individual that organized and
      effectuated this particular act, for . . . that man has
      not only forever ruined the life of an individual so
      that he is dead but ruined the life of another
      individual because of his influence, intensity,
      clarity of purpose and methods in detail. . . That
      is what we are talking about.

      If you believed that Mister Shaw was in fact led,
      if you believe that he, as a, at the time, 16 year old
      boy, who was under the influence of older people
      and if you believe that either indirectly or
      whatever, there was a certain amount of coercion,

                                63
       although not sufficient to negate the crime, if you
       would accept that, well yes, you could find of
       course mitigating circumstances in that. So you
       must consider, however, ever there the
       aggravating circumstances that I had mentioned.
       That’s up to you to decide.

       But in reference to Mister Kindler, it’s an entirely
       different story. Because with that, we are talking
       about, a leader, the actor, the one with the idea,
       the one with the motive, the one with the push
       throughout, the one that came back and said he’s
       not dead yet; I had to use a concrete stone to drop
       him in the river. Ladies and gentlemen, that
       alone. We are talking about weighing, we are
       talking weighing of circumstances to see where
       the aggravating circumstances and the mitigating
       would apply, how they in fact would be in
       reference to weighing each other.

       The district court concluded that this argument was

tantamount to asking the jury to impose the death penalty based

upon a “non-statutory” aggravating circumstance; that Kindler

was the leader who had organized the murder and in doing so

exerted undue influence over a vulnerable codefendant. The

Commonwealth appeals.

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       We agree that the prosecutor's argument was improper.

Neither Kindler's role in the murder, nor his influence over

Shaw can properly be considered an aggravating circumstance

under the applicable statute. See 42 Pa. Cons. Stat. § 9711(d).

Rather than limit his argument to the aggravating factors defined

by the legislature, the prosecutor invited the jury to impose the

death penalty based upon his own view of the importance of

Kindler’s role and manipulation of Shaw. The prosecutor's

argument introduced an invalid sentencing factor into the

analysis, which is an error of constitutional magnitude. Cf.

Brown v. Sanders, 546 U.S. 212, 220 (2006).

       That said, this error did not have any "substantial and

injurious effect" on the deliberations. Fry v. Pliler, 127 S.Ct.

2321, 2328 (2007). At Kindler's sentencing, the jury found two

aggravating factors unrelated to the prosecutor's improper



                               65
argument, and no mitigating factors.13 The jury was instructed

that "the verdict must be a sentence of death if the jury

unanimously finds at least one aggravating circumstance. . . and

no mitigating circumstances."       We presume that the jury

followed these instructions, and therefore we must conclude that

the jury would have sentenced Kindler to death whether or not

the improper argument was presented. Richardson v. Marsh,

481 U.S. 200, 206 (1987) (stating the "almost invariable

assumption of the law that jurors follow their instructions.").

The result of the equation would be the same whether the jury

weighed    2 aggravating circumstances against none or             3

aggravating circumstances to none. In either case, the absence

of any mitigating factors would tip the balance in favor of a

sentence of death. Accordingly, the admission of the improper

   13
     We assume for this inquiry that the jury’s findings were
not affected by the Mills error or the ineffective assistance of
counsel.

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argument was harmless.

                  E. Simmons v. California

       Kindler also argues that the penalty phase was flawed

because the trial court did not inform the jury that “life” means

life in Pennsylvania and he would not be eligible for parole if

sentenced to life imprisonment. In Simmons v. South Carolina,

512 U.S. 154 (1994), the Court held that not informing a jury

that a defendant would never be released on parole if sentenced

to life was a violation of due process requiring a new penalty

phase. However, that requirement is only applicable when the

prosecution argues future dangerousness. the Court explained:

       Holding all other factors constant, it is entirely
       reasonable for a sentencing jury to view a
       defendant who is eligible for parole as a greater
       threat to society than a defendant who is not.
       Indeed, there may be no greater assurance of a
       defendant's future nondangerousness to the public
       than the fact that he never will be released on
       parole. The trial court's refusal to apprise the jury
       of information so crucial to its sentencing

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       determination, particularly when the prosecution
       alluded to the defendant's future dangerousness in
       its argument to the jury, cannot be reconciled with
       our well-established precedents interpreting the
       Due Process Clause.

512 U.S. 154, 164.     Kindler’s future dangerousness never

became an issue here. Therefore, the rule in Simmons simply

does not apply.

                        V. Conclusion

       To summarize: we conclude that the jury instructions

and verdict sheet that were used during the penalty phase of

Kindler’s trial denied him due process of law pursuant to the

holding in Mills v. Maryland. We also find that Kindler was

denied effective assistance of counsel during the penalty

phase. However, we find no merit in the remainder of

Kindler’s claims.

       Accordingly, the order of the district court granting a

conditional writ of habeas corpus and ordering either a new

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sentencing hearing within 180 days or a sentence of life

imprisonment will be affirmed.




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