                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                  Nos. 03-9000 & 03-9001
                       ___________

                DAVID C. COPENHEFER,
                            Appellee/Cross-Appellant

                             v.

MARTIN HORN, Commissioner, Pennsylvania Department
of Corrections; PHILIP JOHNSON, Superintendent of the
         State Correctional Institution at Greene;
 JOSEPH MAZURKIEWICZ, Superintendent of the State
            Correctional Institute at Rockview,
                                Appellants/Cross-Appellees
      ____________________________________

      On Appeal from the United States District Court
          for the Western District of Pennsylvania
           (D.C. Civil Action No. 99-cv-00005E)
      District Judge: Honorable Maurice B. Cohill, Jr.
       ____________________________________

                    Argued May 3, 2012

   Before: McKEE, Chief Judge, AMBRO and BARRY,
                   Circuit Judges

            (Opinion filed: September 27, 2012)

John H. Daneri, Esq. (ARGUED)
Erie County Office of District Attorney
140 West 6th Street
Erie, PA 16501

Counsel for Appellants/Cross-Appellees Martin Horn,
Philip Johnson, Joseph Mazurkiewicz
Matthew C. Lawry, Esq. (ARGUED)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106

Counsel for Appellee/Cross-Appellant David C. Copenhefer
                       ___________

                OPINION OF THE COURT
                     ___________

BARRY, Circuit Judge

                       I. Introduction

        The Commonwealth appeals the order of the District
Court granting David Copenhefer habeas relief from his
sentence of death, and Copenhefer cross-appeals the District
Court’s denial of habeas relief with respect to his conviction.
We will reverse to the extent that the District Court vacated
Copenhefer’s sentence of death, and affirm to the extent that
it otherwise denied Copenhefer relief.

                   II. Procedural History

        In March 1989, David Copenhefer was convicted in
the Court of Common Pleas, Erie County, Pennsylvania, of
first-degree murder, kidnapping, unlawful restraint, attempted
robbery, attempted theft by extortion, and terroristic threats.
The penalty phase began shortly thereafter, with the jury
finding, as to the murder conviction, two aggravating
circumstances and no mitigating circumstances. Based on the
jury’s finding, a sentence of death was mandatory under
Pennsylvania law. At the subsequent sentencing hearing, the
court imposed the death sentence fixed by the jury, and
consecutive sentences totaling twenty to forty years on the
remaining counts.      On appeal, the Supreme Court of
Pennsylvania affirmed the conviction and sentence.
Commonwealth v. Copenhefer, 587 A.2d 1353, 1354-55 (Pa.
1991).     Copenhefer then filed a petition pursuant to
Pennsylvania’s Post Conviction Relief Act (PCRA). The trial
court denied the petition, and the Supreme Court again
affirmed. Commonwealth v. Copenhefer, 719 A.2d 242 (Pa.
1998).

       In December 1999, Copenhefer filed a petition
pursuant to 28 U.S.C. § 2254 in the United States District
Court for the Western District of Pennsylvania. He withdrew
a second PCRA petition after the Commonwealth agreed to
waive the exhaustion of state court remedies with respect to
the claims in his § 2254 petition, and a third PCRA petition
was dismissed as untimely.

       The Magistrate Judge, in an extensive Report and
Recommendation (App. 42-157), recommended denying
relief with respect to the conviction, but granting relief from
the sentence of death on the ground that the trial court failed
to instruct the jury that it was required to find that
Copenhefer’s lack of a prior criminal record constituted a
mitigating circumstance. The District Court, finding the
objections of the parties to be without merit, adopted the
Report and Recommendation as the Opinion of the Court,
vacated Copenhefer’s sentence of death, and denied relief
with respect to his conviction. Both parties appealed. We
granted Copenhefer a certificate of appealability with respect
to his claim that trial counsel rendered ineffective assistance
by failing to challenge the Commonwealth’s theory that the
victim lingered before dying and his claim that the
Commonwealth exercised peremptory strikes to remove
female jurors in violation of J.E.B. v. Alabama, 511 U.S. 127
(1994). 1
          III. Jurisdiction and Standard of Review

      The District Court had jurisdiction under 28 U.S.C. §
2254, and we have appellate jurisdiction under 28 U.S.C.

1
  The case was first argued before us in June 2005, following
which we stayed the appeal pending the decision of the
Supreme Court of Pennsylvania on Copenhefer’s appeal from
the dismissal of his third PCRA petition. In December 2007,
that dismissal was affirmed. Commonwealth v. Copenhefer,
941 A.2d 646 (Pa. 2007). We ordered supplemental briefing
and we again heard argument prior to rendering this decision.
§§ 1291 and 2253. Because the District Court did not hold an
evidentiary hearing, our review of its legal conclusions is
plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.
2001). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2241 et. seq., habeas
relief cannot be granted on a claim that was adjudicated on
the merits in state court unless the adjudication resulted in a
decision that was either “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). If the state court did not reach the
merits of a claim, these deferential standards do not apply.
Holloway v. Horn, 355 F.3d 707, 718 (3d Cir. 2004).

                  IV. Factual Background

       In affirming the conviction and sentence on direct
appeal, the Supreme Court of Pennsylvania accurately
summarized the complicated facts of the kidnapping/murder
scheme now before us, and the overwhelming evidence that
supported the verdict:

      On June 16, 1988, Sally Weiner received a
      telephone      call    purportedly   from      a
      congressman’s office asking that she meet with
      the caller to discuss arrangements for the
      presentation of a civic award to her husband.
      The next day, around noon, she drove to the
      agreed meeting place, parked her car, and was
      never seen again alive. Several hours later, her
      husband, Harry, manager of the Corry office of
      Pennbank, received a telephone call playing a
      recorded message from his wife telling him she
      had been kidnapped and that the kidnapper
      demanded ransom money from the bank. Mr.
      Weiner was directed to retrieve a duffel bag
      from the parking lot outside his bank; the bag
      contained additional threats and instructions.
      Mr. Weiner called a vice president of the bank,
      as well as the bank’s security office, local
      police, state police, and the FBI. Mr. Weiner
never received the additional radio instructions
necessary to follow the directions contained in
the duffel bag and therefore did not comply
with the kidnapper’s demands.

Sally Weiner’s body was discovered two days
later on June 19, 1988, in a rural area north of
her home. She had died as the result of a
gunshot wound to the back of her head.

Initial investigations by the FBI, state police,
and local police resulted in the discovery of a
series of computer-generated notes and
instructions, each one leading to another, which
had been concealed at various hiding places in
and around Corry, Pennsylvania.             The
investigation also produced several possible
suspects,      including    appellant,     David
Copenhefer, who owned a nearby bookstore,
had had unproductive transactions with Mr.
Weiner’s bank, and apparently had bad personal
relations with the Weiners.

An examination of trash discarded from
appellant’s store revealed drafts of the ransom
note and directions.         Subsequent search
warrants resulted in seizure of incredibly
comprehensive evidence against appellant. This
included evidence tying appellant’s fingerprints,
computer, weapons and ammunition, clothing,
automobile, and materials from his home and
office to the victim or the murder site.

His fingerprints appeared on the original
ransom note and on some of the hidden notes.
Police discovered rough drafts of the ransom
note, a map of the hidden notes, as well as the
notes and directions themselves in apellant’s
handwriting, some of which bore his
fingerprints. Appellant had a collection of
guns, including two which might have fired the
fatal bullet. He also had glazier ammunition, a
nonstandard composition designed to fragment
       on impact so that after entering a body it will
       not exit and injure another person, of the type
       used to murder Mrs. Weiner. A metal rod from
       his home had been used to secure one of the
       hidden notes. Crepe paper torn from a roll at
       his store had been used to help secure another
       note. Human female skin tissue was found on
       his clothing. Tread marks matching appellant’s
       automobile tires were found at one hiding place
       and at the murder scene. Finally, appellant’s
       computer contained a series of drafts and
       amendments of the texts of the phone call to
       Mrs. Weiner on Thursday, the phone call to Mr.
       Weiner on Friday, the ransom note, the series of
       hidden notes, and a twenty-two point plan for
       the entire kidnapping scheme.

Copenhefer, 587 A.2d at 1354-55.

                         V. Discussion

              A. The Commonwealth’s Appeal

        Adopting the Report and Recommendation of the
Magistrate Judge, the District Court concluded that the
stipulated fact that Copenhefer had no prior criminal record
constituted a mitigating circumstance as a matter of law, and
the failure of the trial court to so instruct the jury and the jury
to find it as such violated the Eighth Amendment. The
District Court vacated the sentence of death, and the
Commonwealth appeals. We will reverse.

       At the outset, we set forth the rather extensive
background of what brings us to this point. At the start of the
penalty phase, the trial court gave preliminary instructions to
the jury with respect to aggravating and mitigating
circumstances, describing in a general sense what they are—
those things, for example, about the murder and the murderer
that make the case more terrible or less terrible and more or
less deserving of the death penalty—and also those specific
aggravating and mitigating circumstances at issue in this case
that are listed in the Pennsylvania Sentencing Code. As
relevant here, “[m]itigating circumstances spelled out in the
Statute ,” the court told the jury, “would be when the killer
has no significant history of prior criminal convictions.”
App. 4456; see 42 Pa. C.S. § 9711(e)(1) (“mitigating
circumstances shall include . . . [that] the defendant has no
significant history of prior criminal convictions.”). Also, the
jury was told, it may consider “any other evidence of
mitigation concerning the character and record of the
defendant and the circumstances of the offense.” Id. Defense
counsel and the Commonwealth then orally advised the jury
that they had entered into a stipulation that Copenhefer had
no prior criminal convictions.

        Mrs. Copenhefer and the Copenhefers’ son took the
stand and testified as to their relationships with Copenhefer
and his involvement in the church and community. Counsel
thereafter gave their closing arguments, with defense counsel
arguing that several mitigating circumstances had been
established: Copenhefer’s relationship with his son, his
relationship with his wife, that he did not abuse drugs or
alcohol, that he had never physically abused his wife, the
importance of religion to him, his intelligence and ability to
assist other inmates, that he helped his parents with their meat
business, his good behavior during trial, and the value of his
life to his family. With respect to the lack of a criminal
record, counsel argued:

       Now, with regards to the one mitigating
       circumstance, which we’ve already referred to,
       the fact that he has no prior convictions, [the
       prosecutor] stood up and stipulated to that, and I
       suggest to you that speaks for itself. In other
       words, we have established that clearly that
       mitigating circumstance exists.       And that,
       therefore, you should take that directly into
       consideration in making your determinations.

App. 4471. Relying on the evidence presented at trial, the
Commonwealth sought to establish the aggravating factors
that Mrs. Weiner was held for ransom and the murder was
committed during the course of a felony. See 42 Pa. C.S.
§ 9711(d)(3) &(6).

       Following the closing arguments of counsel and in
anticipation of the final instructions it would give the jury, the
trial court discussed with counsel whether it should or should
not direct the jury to find as a matter of law that the stipulated
fact that Copenhefer had no prior record was a mitigating
circumstance. The Commonwealth argued that the weight of
the fact that Copenhefer had no prior record, i.e. whether that
fact rose to the level of a mitigating circumstance, remained
for the jury to decide—the stipulation that there was no prior
record was not, it was argued, a stipulation that no prior
record constituted a mitigating circumstance.             Defense
counsel argued that whatever the weight of the fact of no
prior record, it was a proven mitigating circumstance by
virtue of the stipulation. The trial court agreed with the
Commonwealth, and proceeded to give its final instructions to
the jury, clearly and thoroughly explaining, among other
things, what, if proven in accordance with the appropriate
standard of proof, would constitute aggravating and
mitigating circumstances including, as relevant here, “the
following matters” under the Sentencing Code: “First, the
defendant has no significant history of prior criminal
convictions; and, second, any other evidence of mitigation
concerning the character and record of the defendant and the
circumstances of the offense.” App. 4507. There were no
objections to the instructions, nor any suggestions for
corrections or additions.

       We quote at some length from the trial court’s final
instructions, and particularly its thorough explanation of
mitigating circumstances, to provide context for the legal
analysis to which we will shortly turn our attention.

               [A] mitigating circumstance may arise
       from any of the diverse frailties of mankind.
       Mitigating circumstances are any facts relating
       to the defendant’s character, education,
       environment, mentality, life and background, or
       any aspect of the crime itself which may be
       considered extenuating, or as reducing his
       moral culpability, or making him less deserving
       of the extreme punishment of death. You may
       consider as mitigating circumstances any
       circumstance which tends to justify the penalty
       of life imprisonment.
                   *   *   *

       In this case, under the Sentencing Code,
the following matters, if proven to your
satisfaction by a preponderance of the evidence,
can be mitigating circumstances:

       First, the defendant has no significant
history of prior criminal convictions; and,
second, any other evidence of mitigation
concerning the character and record of the
defendant and the circumstances of the offense.

                   *   *   *

       [E]ach of you is free to regard a
particular mitigating circumstance as present
despite what other jurors may believe. This
difference treatment of aggravating and
mitigating circumstances is one of the law’s
safeguards against unjust death sentences. It
gives a defendant the full benefit of any
mitigating circumstances.
                   * * *

       You must consider all evidence of
mitigation. The weight which you give to a
particular mitigating circumstance is a matter
for your moral, factual, and legal judgment.
However, you may not refuse to consider any
evidence in mitigation which has been proven
to your satisfaction by a preponderance of the
evidence. I charge you that you must consider
the mitigating circumstances offered by the
defendant. This does not mean that you must
accept them as mitigating circumstances, for
you shall only do that if one or more of you
determines that those mitigating circumstances
have been proven by a preponderance of the
evidence.

      The list of mitigating circumstances
       offered cannot limit your deliberations, since
       you are free to consider any aspect of the crime
       or of the character of the defendant as
       mitigating in your sole discretion.

App. 4505, 4507-10.

        The jury commenced its deliberations, reaching its
verdict a few hours later. Prior to the announcement of the
verdict, the trial court reviewed the verdict form, and noted
that it had not been filled out correctly, twice handing it back
to the foreman for correction. When the form was initially
reviewed, the words “first offense” had been written in by the
jury in response to the question of whether a mitigating
circumstance had been found by one or more of the jurors.
The form was, however, missing a check mark in the box
indicating     whether     the    aggravating     circumstances
unanimously found outweighed that one mitigating
circumstance, and the form was, therefore, returned to the
foreman. The foreman crossed out “first offense,” but
mistakenly placed the check mark in the “weighing” box
where, given the crossout indicating that no mitigating
circumstance had been found, it should not have been placed.
The form was again corrected and, as finally returned, clearly
showed, and the foreman announced, that the jury found the
sentence to be death on the basis that there was at least one
aggravating circumstance and no mitigating circumstance.
Each juror, when polled, agreed. The verdict mandated a
sentence of death under 42 Pa. C.S. § 9711(c)(1)(iv) (“the
verdict must be a sentence of death if the jury unanimously
finds at least one aggravating circumstance specified in
subsection (d) and no mitigating circumstance.”).

       Relying only on Pennsylvania caselaw and statutes,
Copenhefer argued on direct appeal that the trial court erred
by refusing to instruct the jury that his lack of a prior record
was a mitigating circumstance as a matter of law. However,
the Supreme Court of Pennsylvania found:

       The verdict slip . . . indicates clearly that the
       jury did consider evidence of mitigation--viz.,
       that appellant had no significant history of prior
       criminal convictions. Any apparent confusion
       in the proceedings has to do with filling out the
       verdict slip, and the colloquy which occurred
       when the jury returned its verdict did not clarify
       the process. But it is readily apparent that the
       jury did follow the court’s instructions in
       considering appellant’s lack of a prior record
       during its deliberations.

Copenhefer, 587 A.2d at 1360. The Court addressed the issue
as a matter of state law, and concluded that the sentence was
not the product of passion, prejudice, or any arbitrary factor.

       In Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa.
2001), however, the Supreme Court of Pennsylvania
overruled its decision in Copenhefer and held that where the
absence of prior convictions is not in dispute, the jury has no
discretion not to find that absence as a mitigating
circumstance. The Court noted that

       [i]f we would grant the jury discretion to ignore
       stipulations of fact, we would be granting the
       right to arrive at a sentencing verdict in an
       arbitrary and capricious fashion.        Such a
       conclusion would undercut the very purpose of
       the death penalty sentencing scheme as
       developed by our General Assembly.              A
       sentence of death cannot be “the product of
       passion, prejudice or any other arbitrary factor.”
       42 Pa.C.S. § 9711(h)(3)(i).

Id. at 1089. Copenhefer filed a third PCRA petition and
raised a state law claim based on Rizzuto, a petition denied as
untimely. The Court affirmed the denial, stating: “[W]e used
the ‘arbitrary and capricious’ language in Rizzuto to indicate
the danger of ‘undercut[ting] the very purpose of the death
penalty sentencing scheme as developed by our General
Assembly.’ We did not expressly discuss the United States
Constitution or any constitutional rights.” Commonwealth v.
Copenhefer, 941 A.2d 646, 650 n.7. (Pa. 2007) (citation
omitted). Thus, Copenhefer’s third PCRA petition did not fit
into the exception to the PCRA’s limitations period for newly
created, retroactively applied constitutional
rights. Id. at 650. 2

       The District Court reviewed the Eighth Amendment
claim de novo after concluding that on direct appeal the
Supreme Court of Pennsylvania had not even mentioned any
such claim, much less decided one on the merits. We agree
with the District Court that review of this claim is de novo
given that the only claim on direct appeal was based solely on
state law. The federal claim was not, however, defaulted
because the Commonwealth waived exhaustion.

       The Commonwealth argues that the jury initially found
the mitigating circumstance of Copenhefer’s lack of a prior
record when it wrote on the verdict form, though later crossed
out, “first offense,” and that any confusion occurred only
when the trial court tried to clarify the form. Whatever merit
there may be to that argument and whether confusion may
have preceded the jury’s ultimate announcement that no
mitigating circumstance was found, we are bound by that
finding. Even on that understanding, however, there was no
constitutional error.

       Buchanan v. Angelone, 522 U.S. 269, 272-73 (1998),
which held that the Eighth Amendment does not require a
capital jury to be instructed on the concept of mitigating
evidence generally or on particular statutory mitigating
factors, resolves the issue before us. In Buchanan, the jury
was instructed that if it found that petitioner’s conduct in
committing the murders was outrageously vile, it could
sentence him to death. If, however, it believed from all the
evidence that the death penalty was not justified, it could
sentence him to life imprisonment. Petitioner requested
additional instructions on four mitigating factors that were
specifically listed in the Virginia Code. The trial court
refused to give the instructions. On its verdict form, the jury
indicated that it had considered the evidence in mitigation and
unanimously fixed the penalty at death.

2
   In addressing the District Court’s jurisdiction over the
sentencing claim, Copenhefer conceded, “Rizzuto does not
contain any discussion of the Eighth Amendment issues
raised in Claim III of the petition.” Pet. Mem. Addressing
Jurisdiction at 6 (emphasis in original).
       Petitioner argued to the Supreme Court that the Eighth
Amendment required the trial court to “instruct the jury on its
obligation and authority to consider mitigating evidence, and
on particular mitigating factors deemed relevant by the State.”
Buchanan, 522 U.S. at 275. The Supreme Court rejected the
argument, observing that, “[n]o such rule has ever been
adopted by this Court.” Id. It explained that, in the selection
phase of the capital sentencing process, it has “emphasized
the need for a broad inquiry into all relevant mitigating
evidence to allow an individualized determination,” and “the
sentencer may not be precluded from considering, and may
not refuse to consider, any constitutionally relevant mitigating
evidence.” Id. Its “consistent concern” has been that the jury
not be precluded from being able to give effect to mitigating
evidence—it has “never gone further and held that the state
must affirmatively structure in a particular way the manner in
which juries consider mitigating evidence.” Id. at 276. The
Court emphasized that the standard was “whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence.” Id. (quoting Boyde v.
California, 494 U.S. 370, 380 (1990)).

       Copenhefer does not argue, nor could he credibly do
so, that the jury was not given extensive instructions on the
concept of mitigating evidence generally or that it was not
instructed on the particular statutory mitigating circumstance
at issue here—his lack of a prior record; indeed, one could
well make the case that that is game, set, and match given the
holding of Buchanan. Rather, Copenhefer argues only that
the jury should have been instructed to find that the stipulated
fact that he had no prior record was, as a matter of law, a
mitigating circumstance. 3

       In support of his argument, Copenhefer cites Eddings

3
   In Buchanan, the Virginia Code at issue stated that
mitigating circumstances “may include” the lack of a
significant criminal history. Here, the Pennsylvania Code
uses the mandatory language “shall include.” This difference
in state law is, of course, not dispositive as to the
constitutional issue before us.
v. Oklahoma, 455 U.S. 104 (1982), and Penry v. Lynaugh,
492 U.S. 302 (1989), which require the jury to “give effect
to” the mitigating evidence, and he emphasizes the following
language from Penry: “Eddings makes clear that it is not
enough simply to allow the defendant to present mitigating
evidence to the sentencer. The sentencer must also be able to
consider and give effect to that evidence in imposing
sentence.” Penry, 492 U.S. at 319. As did the District Court,
Copenhefer reads the language “give effect to” in this passage
as being modified only by “must”—“[t]he sentencer must
also [] give effect to that evidence in imposing sentence,” i.e.,
must find it to be a mitigating circumstance. We conclude,
however, that the phrase “be able to” modifies “give effect
to” as well as “consider,” i.e., “[t]he sentencer must also be
able to consider and [be able to] give effect to that evidence
in imposing sentence.” The facts of Penry and Eddings and,
of course, the facts and holding of Buchanan clearly support
our conclusion.

       We but briefly address Penry and Eddings and then
only to show how distinguishable they are on the facts from
the case at hand. In Eddings, the trial court, as the sentencer,
found that it could consider the age of the capital defendant as
a mitigating factor but determined that, as a matter of law, it
could not consider his family history. Similarly, the state
appellate court appeared to consider evidence as mitigating
only when it would support a legal excuse from liability. The
Supreme Court found that these restrictions violated Lockett
v. Ohio, 438 U.S. 586 (1978):

       Just as the state may not by statute preclude the
       sentencer from considering any mitigating
       factor, neither may the sentencer refuse to
       consider, as a matter of law, any relevant
       mitigating evidence. In this instance, it was as
       if the trial judge had instructed a jury to
       disregard the mitigating evidence Eddings
       proffered on his behalf. The sentencer, and the
       Court of Criminal Appeals on review, may
       determine the weight to be given relevant
       mitigating evidence. But they may not give it
       no weight by excluding such evidence from
       their consideration.
Eddings, 455 U.S. at 113-14. (emphasis in original). Here,
the jury was not instructed to disregard Copenhefer=s lack of a
prior record or to give it no weight—indeed, quite the
contrary was instructed—and there is no evidence that the
jury refused to consider it. 4 Although the jury did not
ultimately find a mitigating circumstance, the record strongly
suggests that it considered the mitigating evidence and
decided that none of that evidence was qualitatively sufficient
to constitute a mitigating circumstance.

        In Penry, the jury was given three special questions,
and if it answered all of them in the affirmative, the trial court
was required to sentence the defendant to death. The
questions concerned whether the conduct of the defendant
was deliberate, whether he posed a continuing threat to
society, and whether his conduct was an unreasonable
response to provocation by the victim. The Supreme Court
noted that “[t]he jury was never instructed that it could
consider the evidence offered by Penry as mitigating evidence
and that it could give mitigating effect to that evidence in
imposing sentence,” Penry, 492 U.S. at 320, and determined
that the jury, confined to the three questions posed to it, had
not been empowered to give effect to Penry’s mitigating
evidence in answering the special questions.

       In the absence of jury instructions defining
       “deliberately” in a way that would clearly direct
       the jury to consider fully Penry’s mitigating
       evidence as it bears on his personal culpability,
       we cannot be sure that the jury was able to give
       effect to the mitigating evidence of Penry’s
       mental retardation and history of abuse in
       answering the first special issue.


4
  That the jury initially wrote down “first offense” instead of
“no significant history of prior criminal convictions” indicates
that it heard and remembered the stipulation and the defense
argument that Copenhefer had no prior convictions (as
opposed to some insignificant ones); notably, it did not just
copy what was listed on the verdict form as one of the
potential mitigating circumstances.
Id. at 323. The Court then discussed the other two special
questions and concluded that “a reasonable juror could well
have believed that there was no vehicle for expressing the
view that Penry did not deserve to be sentenced to death
based upon his mitigating evidence.” Id. at 326. Aside from
its facts, the lesson of Penry is that the jury must be able to
give effect to the mitigating evidence; it is not required to do
so.

        Here, as in Buchanan, the jury was not only not
precluded from considering Copenhefer’s lack of a prior
record or any other mitigating evidence, but it was instructed
that it must consider the mitigating evidence, and no
constraint was placed on the manner in which it could give
effect to that evidence. Had the jury been of the view that,
based on the mitigating evidence, Copenhefer did not deserve
to be sentenced to death, it was fully empowered to find that
his lack of record, or any other mitigating evidence presented,
constituted a mitigating circumstance, weigh that
circumstance or those circumstances against the aggravating
circumstances, and sentence him to life imprisonment. But in
no way was the evidence “exclu[ded] from meaningful
consideration by the jury.” Abdul-Kabir v. Quarterman, 550
U.S. 233, 250 (2007). To the contrary, Copenhefer’s jury was
“permitted to give that evidence meaningful, mitigating effect
in imposing the ultimate sentence.” Id. at 260. And, as the
Supreme Court reiterated in Buchanan, “complete jury
discretion is constitutionally permissible.” 522 U.S. at 276
(citation omitted).

       Parenthetically, it is difficult for us to imagine that the
outcome in this case would have been different even if the
jury had been specifically instructed to find that Copenhefer’s
lack of a prior record was a mitigating circumstance. As it
was, the jury was instructed that each juror was free to find
for himself or herself that a mitigating circumstance was
present despite what the other jurors believed. Thus, the
verdict rendered by Copenhefer’s jury indicates that not a
single juror believed that his lack of a prior record—or,
indeed, any of the many potential mitigating factors argued
by defense counsel—mitigated the painstakingly planned
murder about which the jury heard at trial.
       For the reasons we have stated, we simply cannot
conclude that Copenhefer has established any likelihood,
much less a reasonable likelihood, that the jury applied the
instructions—or, more precisely, as in Buchanan, the lack of
an instruction—in a way that violated the Eighth Amendment.
Because the District Court erred in finding an Eighth
Amendment violation, we will reverse its order vacating the
sentence of death.
                   B. Copenhefer’s Appeal

            1. Ineffective Assistance of Counsel

        We granted a certificate of appealability on
Copenhefer’s claim that his trial counsel provided
constitutionally ineffective assistance by failing to call an
expert witness to rebut the Commonwealth’s evidence that
Mrs. Weiner did not die immediately upon being shot but,
rather, “lingered” before dying. The District Court rejected
that claim. We do so as well.

        Mrs. Weiner was last seen early on a Friday afternoon
in June 1988. Dr. Antonio I. German, a clinical pathologist,
testified on behalf of the Commonwealth that she had died at
some point between midnight on Friday and 2 p.m. on
Saturday. He also testified that it was possible that her brain
stem was not completely destroyed by the gunshot and that it
was probable that she lingered in a coma before dying. Dr. K.
C. Kim, a forensic entomologist, testified—also for the
Commonwealth—that, based on insect activity on the body,
Mrs. Weiner died between 5 p.m. and 8 p.m. on Friday.
Detective Mark Watts testified for the Commonwealth, as
well, relating a conversation he had with Copenhefer not long
before trial in which Copenhefer told him that he
demonstrated to other inmates how to shoot a person in the
head without severing the medulla so that the person does not
die right away.           During closing arguments, the
Commonwealth cited the testimony of both Dr. German and
Dr. Kim to argue that Copenhefer shot Mrs. Weiner on Friday
afternoon and she lingered before dying between 5 p.m. and 8
p.m. In his closing, Copenhefer’s trial counsel argued that
Copenhefer had an alibi starting at 5 p.m., when he returned
to his bookstore.
        Copenhefer raised this ineffectiveness claim in his first
PCRA petition. At the PCRA hearing, his trial counsel
testified that he had reviewed the medical records in the case
and read quite a bit about forensic pathology, time of death,
and how fruit flies grow. He stated that he tried to show at
trial that Dr. Kim’s testimony was inaccurate, and explained
that Dr. German’s testimony was beneficial to the defense
because he placed the time of death on Saturday, when
Copenhefer had an alibi. Given that, counsel stated, there
was no reason, particularly in the midst of trial, to find a
defense expert. Indeed, it was during trial when Dr. German
first mentioned the possibility that Mrs. Weiner lingered
before dying, and there does not appear to be any evidence
that counsel was, or should have been, aware before trial that
Dr. German would testify about this theory. Counsel
explained that

       all of the reports we had from him indicated that
       the time of death was at a certain period of time
       and that that was consistent with the shooting.
       That being the case, [Dr. German’s] testimony
       was beneficial to the defense because it was
       consistent with when Mr. Copenhefer could not
       have done what he is accused of doing. It was
       not until [Dr. German] indicated that it’s
       possible that she could have lingered, and that
       was during his trial testimony, as I recall, and
       not prior to that.

Supp. App. at 141. Copenhefer presented the testimony of
Dr. Cyril Wecht, a forensic pathologist, who testified that the
medulla was not intact and that Mrs. Weiner died within a
minute or two of being shot.

        The PCRA court noted that trial counsel testified he
was satisfied with Dr. German’s time of death testimony.
Had counsel challenged the time of death, the court stated, he
would have opened up further attacks on Copenhefer’s
credibility concerning his whereabouts. The court concluded
that this was a valid strategy and that counsel did not perform
unreasonably. The Supreme Court of Pennsylvania also
noted trial counsel’s satisfaction with Dr. German’s testimony
as to the time of death. With respect to the lingering death
theory, the Court concluded that Copenhefer claimed only
that his counsel performed unreasonably by failing to call an
expert to “critically evaluate,” in rebuttal, the
Commonwealth’s expert testimony, and that it would not
consider counsel ineffective for failing to do so. Copenhefer,
719 A.2d at 254 n.12.

        To succeed on his claim of ineffectiveness,
Copenhefer was required to demonstrate that (1) counsel’s
representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that,
but for counsel’s error, the result would have been different.
Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). As
to the first prong, there is a strong presumption that counsel’s
conduct was reasonable. Id.

        The Report and Recommendation, adopted by the
District Court, found reasonable the Supreme Court of
Pennsylvania’s conclusion that trial counsel’s performance
was not deficient. It noted that the PCRA testimony showed
that counsel had sound reasons for not challenging Dr.
German’s testimony that Mrs. Weiner might have lingered
before dying, and that counsel believed that Dr. German’s
testimony was beneficial to Copenhefer. It also concluded
that, even if counsel’s performance was deficient, Copenhefer
could not show prejudice. Noting that uncontradicted
evidence proved that Copenhefer killed Mrs. Weiner whether
or not she lingered before dying, it concluded that even if trial
counsel had challenged the theory that Mrs. Weiner lingered
before dying, the result of the trial would have been the same.

       We conclude that Copenhefer simply cannot show
prejudice from this claim of ineffective assistance of counsel.
We need not, therefore, determine whether trial counsel
performed unreasonably by failing to anticipate that the
Commonwealth would use the lingering death theory of one
expert, Dr. German, while rejecting that expert’s time of
death, and also use the time of death of another expert, Dr.
Kim, or that counsel failed, in the middle of a four-week trial,
to find an expert to rebut the belatedly advanced “lingering
death” theory.
       Because the Supreme Court of Pennsylvania did not
address the prejudice prong of the Strickland test, the District
Court properly reviewed the issue de novo. Holloway, 355
F.3d at 718. To establish prejudice, Copenhefer was required
to show a reasonable probability that, but for counsel’s error,
the result would have been different. Strickland, 466 U.S. at
687-96 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694.     In light of the overwhelming evidence against
Copenhefer, we agree with the District Court that he cannot
show he was prejudiced.

       Even if trial counsel had presented expert rebuttal
testimony suggesting that it was not possible that Mrs.
Weiner lingered before dying, the jury also had before it Dr.
German’s testimony to the contrary. Moreover, and as noted
by the District Court, even if Mrs. Weiner did not linger
before dying, it was still possible for Copenhefer to have shot
her around 5 p.m. and then to have driven to his bookstore,
arriving sometime after 5 p.m. Citing the testimony of three
witnesses, Copenhefer argues that the lingering death theory
was important because he had an alibi from 5 p.m. on and the
experts put the earliest time of death at 5 p.m. But the
testimony of these three witnesses does not, in fact, support a
5 p.m. alibi. When asked when she saw Copenhefer that
afternoon, his wife testified “I can’t give an exact time.
Sometime between 5:00 and 6:00.” App. 3862. When asked
a similar question, she said “5:30, something like that.” Id. at
3865. David Zimmer, a bank employee, testified that when
he heard that Mrs. Weiner had been kidnapped, he left the
bank’s Erie branch at 5 p.m. and arrived in Corry around 6:30
or 7 p.m., and that Copenhefer was in the bookstore when he
went by. Trooper Johnston testified that Copenhefer was at
the bookstore at approximately 5 p.m., but admitted that that
was not based on personal knowledge. Copenhefer ignores
his own testimony that he arrived back at his bookstore
around 5:20 p.m.

       According to the 22-point plan found on his computer,
Copenhefer intended to kidnap Mrs. Weiner, have her tape a
message to her husband, and then kill her before leaving the
bag with the ransom note and making the call to her husband.
This timeline is consistent with the theory that Copenhefer
killed Mrs. Weiner early in the afternoon and that she
lingered before dying later that evening. When questioned by
the police, Copenhefer spoke openly about where he had been
Friday evening through Sunday, but he refused to discuss his
whereabouts on Friday afternoon. Moreover, and perhaps
most importantly, Copenhefer told a detective that he had
demonstrated to other inmates how to shoot a person in the
head without severing the medulla so that the person
“linger[s]” before dying. App. 3163-64. These pieces of
evidence all support the theory that Copenhefer shot Mrs.
Weiner in the early afternoon and that she, indeed, lingered
before dying, perhaps as early as 5 p.m., as Dr. Kim had
testified.

        The evidence that Copenhefer committed the
calculated kidnapping and murder of Mrs. Weiner, and did so
alone, was overwhelming. The compelling evidence of guilt
included the documents recovered from his computer,
including the drafts of his call to Mrs. Weiner, the recorded
call from Mrs. Weiner to her husband, the ransom note, the
notes at the drop sites, and the 22-point plan. An FBI
metallurgist testified that the rods found at the drop sites were
made within minutes of those found in Copenhefer’s
backyard. The tears on the crepe paper found at a drop site
matched the tear pattern on the roll found in his store.
Copenhefer’s fingerprints were found on notes at the drop
sites, and a note in his wallet matched up with the plan on his
computer.

       We cannot say that Copenhefer has established any
reasonable likelihood that the result would have been
different even if trial counsel had been able to rebut the
lingering-death theory. As the Magistrate Judge aptly noted,
“Copenhefer seeks to make time of death the only issue in
this case. To prove its case, the Commonwealth had to prove
murder, not time of death. On this point, the Commonwealth
made out an overwhelming case.” App. 109. We will affirm
the District Court’s denial of the “lingering death” claim.

                    2. The J.E.B. Claim.

     We also granted a certificate of appealability on
Copenhefer’s claim that the prosecution used peremptory
strikes to remove female jurors, in violation of J.E.B., 511
U.S. 127. Copenhefer concedes, however, that under Abu-
Jamal v. Horn, 520 F.3d 272, 284 (3d Cir. 2008), he cannot
prevail because he is unable to show contemporaneous
objections to the strikes that he believes violated equal
protection, and that he simply wishes to preserve the claim for
possible future review. We will, nonetheless, briefly address
his claim on the merits. It resoundingly fails.

        The J.E.B. claim was not presented to the
Pennsylvania state courts. The District Court, however,
properly reviewed the claim, as the Commonwealth had
waived exhaustion. Because there was no adjudication on the
merits in the state court, we, of course, are not concerned with
an issue of AEDPA deference. Holloway, 355 F.3d at 718.
The District Court denied the claim because it found that
retroactive application of J.E.B. was barred by Teague v.
Lane, 489 U.S. 288 (1989), an issue we need not and do not
reach given Copenhefer’s failure to have made even a prima
facie showing that the Commonwealth exercised peremptory
strikes on the basis of gender.

       All relevant circumstances must be considered in
determining whether a prima facie showing has been made.
Holloway, 355 F.3d at 722. In Holloway, we cited five
generally relevant factors: “1) the number of [female]
members in the panel; 2) the nature of the crime; 3) the
[gender] of the defendant; 4) a pattern of strikes against
[females]; and 5) the questions and statements during the voir
dire.” Id. With respect to the first factor, Copenhefer states
that twenty-eight of the sixty-one jurors who were
individually questioned during voir dire were female. He
does not make any argument as to how the nature of the crime
affects the analysis, nor does he point to any disparate
questioning or treatment of female jurors. He relies solely on
the Commonwealth’s alleged pattern of strikes.

        In the District Court, Copenhefer set forth the
percentage of female jurors struck by the prosecution (11 out
of 20 or 55%) and the percentage of prosecution strikes used
to strike female jurors (11 out of 19 or 58%). He computed
some statistics using these numbers—there were, for
example, 1.38 peremptory strikes of female jurors for every
strike of a male juror—but did not explain whether and how
these statistics were significant.      Moreover, the final
composition of the jury was six females and nine males. The
three alternates were male, so there was an equal number of
each gender on the jury that actually deliberated. Before us,
Copenhefer points to the striking of specific female jurors;
however, in the District Court, he did not single out any
female juror as being impermissibly struck.

       The numbers presented by Copenhefer do not show a
pattern of strikes on the basis of gender, nor do they raise an
inference of discrimination. Simply put, Copenhefer has not
shown that “there is some reason to believe that
discrimination might be at work.” Johnson v. Love, 40 F.3d
658, 663 (3d Cir. 1994) (quoting United States v. Clemmons,
892 F.2d 1153, 1156 (3d Cir. 1989)). Accordingly, we will
affirm the District Court’s denial of relief with respect to this
claim.

                        VI. Conclusion

        With reference to the guilt phase of the trial, the
Magistrate Judge concluded that although Copenhefer had
raised a number of claims for relief, he had not demonstrated
that his conviction was compromised by any federal
constitutional violations, and that the Commonwealth had
marshaled an overwhelming amount of evidence linking
Copenhefer directly to the kidnapping and murder of Sally
Weiner. The Magistrate Judge recommended that guilt-phase
relief under 28 U.S.C. § 2254 be denied. The District Court
adopted the Report and Recommendation as to the guilt phase
claims.

       The Magistrate Judge then reached the penalty phase
claims, noting, at the outset, that it is “no part of the court’s
job to determine whether this sentencing hearing, or any state
criminal proceeding, was ‘ideal’; the court is charged only
with scouring the trial record for federal constitutional errors
that had a substantial and injurious effect on the jury’s
deliberations.” App. 130. Having done so, the Magistrate
Judge found that the record disclosed but one, the one we
have addressed at some length, and recommended relief only
as to that claim, thus effectively recommending a denial of
relief as to the sentencing claims that did not meet the
requisite federal standard. Not surprisingly, Copenhefer took
no issue with those recommendations, and the District Court
adopted the Report and Recommendation as to the penalty
phase claims. But whether decision on any remaining
sentencing claims was implicitly denied or whether decision
on any such claims was simply deferred, we have considered
all of those claims, and conclude that they fail as a matter of
law. 5

5
   (I) Treating Copenhefer’s factual allegations as true,
counsel’s penalty phase investigation into Copenhefer’s
personality disorder, paranoia, and head injury for the
purpose of developing mitigating evidence and his
performance at the penalty phase with reference thereto were
not unreasonable. Counsel retained an expert who performed
a mitigation investigation and diagnosed Copenhefer with
Antisocial Personality Disorder. Counsel then made a
strategic decision not to present that evidence. (II) & (IX)
Copenhefer was not entitled to a jury instruction that he was
not eligible for parole. Simmons v. South Carolina, 512 U.S.
154 (1994); O’Dell v. Netherland, 521 U.S. 151 (1997). (III)
Counsel did, in fact, argue for an instruction that the jury
must find Copenhefer’s lack of a criminal record as a
mitigating circumstance. Counsel was not ineffective for
failing to object to the Commonwealth’s argument that no
mitigating evidence existed. The Commonwealth’s actual
argument was that there were “no true mitigating
circumstances of merit in this particular case.” App. 4489
(emphasis added). (V) The jury did not rely on non-statutory
aggravating factors. See 42 Pa. C.S. § 9711(a)(2)(1989). To
the extent that it did, the Eighth Amendment was not violated.
Barclay v. Florida, 463 U.S. 939, 956 (1983); Lesko v.
Owens, 881 F.2d 44, 57-59 (3d Cir. 1989). (VI) The trial
court did not err in allowing the kidnapping of the victim to
establish both aggravating circumstances. Jones v. United
States, 527 U.S. 373, 398-400 (1999). (VII) Counsel for the
Commonwealth did not engage in misconduct in his closing
argument. Darden v. Wainwright, 477 U.S. 168, 181 (1986);
Barefoot v. Estelle, 463 U.S. 880, 896 (1983); Payne v.
Tennessee, 501 U.S. 808 (1991). (VIII) The Commonwealth
did not violate Brady v. Maryland, 373 U.S. 83 (1963). (X)
The Constitution does not require proportionality review,
       For the reasons we have stated, we will reverse the
order of the District Court to the extent that it granted
Copenhefer relief from his sentence of death. In all other
respects, we will affirm the judgment of the District Court.




Pulley v. Harris, 465 U.S. 37, 50-51 (1984), and Copenhefer
has not shown that the state court did not undertake its review
in good faith. Riley v. Taylor, 277 F.3d 261, 311-12 (3d Cir.
2001) (citing Walton v. Arizona, 497 U.S. 639, 656 (1990)).
(XI) A disagreement between experts does not establish a
claim that false and misleading testimony has been presented.
(XIII) Counsel was not ineffective for failing to argue at
sentencing that Copenhefer was not the sole perpetrator of the
offense. The evidence is overwhelming that Copenhefer
acted alone.
Copenhefer v. Horn, et. al.
Nos. 03-9000 & 03-9001

MCKEE, Chief Judge, concurring in part, and dissenting in part

       I agree with the majority’s conclusion that Copenhefer’s challenge to his

conviction is without merit. However, for the reasons that follow, I cannot agree that the

District Court erred in overturning the death sentence that was imposed.

                                                I.

       It has long been held that the Eighth Amendment bars the arbitrary imposition of

the death penalty. Beard v. Banks, 542 U.S. 406, 421 (2004). Because “death is

different,” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion), the United

States Supreme Court “has gone to extraordinary measures to ensure that the prisoner

sentenced to be executed is afforded process that will guarantee, as much as humanly

possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.”

Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O’Connor, J., concurring) (emphasis

added). Indeed, there is “a considerable history reflecting the law’s effort to develop a

system of capital punishment at once consistent and principled but also humane and

sensible to the uniqueness of the individual. Since the early days of the common law, the

legal system has struggled to accommodate these twin objectives.” Id. at 110.

       Eighth Amendment jurisprudence therefore requires that the sentencer (as opposed

to an appellate court) be permitted to consider any aspect of the defendant’s record or

character as a mitigating factor, and weigh it against any aggravating factors in

determining whether the defendant should be put to death by the state. Id. at 117-18



                                                 1
(O’Connor, J., concurring). The “[s]entencer [must] be given a full opportunity to

consider mitigating circumstances in capital cases. Lockett v. Ohio, 438 U.S. 586, 602

(1978). “Equally clear is the corollary rule that the sentencer may not refuse to consider

or be precluded from considering ‘any relevant mitigating evidence.’” Skipper v. South

Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings, 455 U.S. at 114).

       The reason is clear. “Rather than creating the risk of an unguided emotional

response, full consideration of evidence that mitigates against the death penalty is

essential if the jury is to give a reasoned moral response to the defendant’s background,

character, and crime.” Penry v. Lynaugh, 492 U.S. 302, 319 (1989) abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002) (internal quotations omitted); see also

Eddings, 455 U.S. at 112 (“the fundamental respect for humanity underlying the Eighth

Amendment requires consideration of the character and record of the individual offender

and the circumstances of the particular offense as a constitutionally indispensible part of

the process of inflicting the penalty of death.”). But mere “consideration” of mitigating

evidence is insufficient to satisfy Eighth Amendment safeguards. The jury must also be

able to “give effect to that evidence of mitigation.” Penry, 492 U.S. at 319.

       My colleagues quite correctly emphasize this point in discussing Penry and

Eddings “to show how distinguishable they are on the facts from the case at hand.” See

Maj. Op. at 16. (“[t]he sentencer must be able to consider and [be able to] give effect to

that evidence in imposing sentence.”) (emphasis added). The majority’s conclusion that

those cases, along with Buchanan v. Angelone, amount to “game, set, and match” would

be quite difficult to refute if Copenhefer’s sole argument was that the trial court erred by


                                                 2
failing to instruct the jury on the legal effect of the stipulation that he had no prior record.

Maj. Op. at 15; 522 U.S. 269, 272-73 (1998).

       Copenhefer’s argument, however, is not that narrow. Accordingly, we cannot so

readily declare that Buchanan ends our inquiry. Copenhefer argues not only that the

court’s failure to define “stipulation” or inform the jury of its significance

unconstitutionally precluded the jury from giving effect to evidence of mitigation, but

also that the jury’s failure to engage in the requisite balancing of mitigating and

aggravating factors (because the jury found that no mitigating factors existed) resulted in

the arbitrary imposition of the death penalty in violation of the Eighth Amendment. See

Initial Brief at 14 (“Moreover, the jury’s failure to find and weigh the stipulated

mitigating fact rendered the death sentence arbitrary and capricious.”). This latter point

is the issue upon which this case primarily turns and, given the record here, it is a point

that undermines the majority’s reliance on Buchanan. On the contrary, under the bizarre

circumstances of Copenhefer’s penalty hearing, Penry and Eddings require that we affirm

the District Court’s order vacating the sentence of death, and Buchanan is not to the

contrary.

                                                  II.

       As the majority explains in summarizing the underlying facts of this case, the

prosecutor entered into a stipulation with defense counsel which established that

Copenhefer had no prior criminal history. The court told the jury that the stipulation

existed. Thus, not surprisingly, defense counsel quite naturally made the following

argument during his summation at the close of the penalty phase of the trial:


                                                   3
              Now, with regards to the one mitigating circumstance, which
              we’ve already referred to, the fact that he has no prior
              convictions, [the prosecutor] stood up and stipulated to that,
              and I suggest to you that speaks for itself. In other words, we
              have established that clearly that mitigating circumstance
              exists. And that, therefore, you should take that directly into
              consideration in making your determinations.

App., p. 4471; see also Maj. Op. at 8.

However, for reasons known only to him, the prosecutor thought it appropriate to ignore

that he had stipulated that a migrating factor existed. After defense counsel’s closing, the

prosecutor argued to the jury: “[Copenhefer] chose to do it on his own, in a conscious and

deliberate and a calculated fashion, and that’s why I submit there are no true mitigating

circumstances of merit in this particular case.” App., p. 4489 (emphasis added).

       No doubt sensing the problems that could arise from the prosecutor’s remarks, the

“trial court discussed [with counsel] whether it should . . . direct the jury to find as a

matter of law that the stipulated fact Copenhefer had no prior record was a mitigating

factor.” 1 See Maj. Op. at 8. Not surprisingly, given the prosecutor’s decision to ignore

the stipulation and argue that no mitigating circumstance “of merit” existed, defense

counsel asked the trial court to instruct the jurors that at least one mitigating factor had

been proven as a matter of law. For reasons that are beyond my comprehension, the trial

court refused. Instead, it gave the standard charge which is quoted by the Majority.


1
  It is not at all clear what a “true mitigating circumstance” or one of “merit” is since the
mitigating factor that was stipulated to is a meritorious mitigating circumstance as a
matter of law. It would have been appropriate to argue that that mitigating circumstance
was outweighed by the evidence of aggravating circumstances here, but that is not what
the prosecutor said; and it is apparent from subsequent events that that is not how the jury
interpreted this troublesome – if not mischievous - argument.

                                                   4
Although my colleagues include the court’s charge at some length in their opinion, I will

reiterate portions of it in order to emphasize why the majority’s analysis reaches the

wrong conclusion. 2

       As the Majority points out, the trial judge instructed the jury that it was permitted

to consider all mitigating circumstances. However, that was qualified by the instruction

that Copenhefer “must prove any mitigating circumstances [sic] only by a

preponderance of the evidence; that is, by the greater weight of the evidence.” App., p.

004506 (emphasis added). At another point during the charge, the trial court instructed

the jury:

              In this case, under the Sentencing Code, the following
              matters, if proven to your satisfaction by a preponderance of
              the evidence, can be mitigating circumstances: First, the
              defendant has no significant history of prior criminal
              convictions; and, second, any other evidence of mitigation
              concerning the character and record of the defendant and the
              circumstances of the offense.

App., p. 004507 (emphasis added).

The trial judge informed the jury a second time that “the defendant need only prove any

mitigating circumstances by a preponderance of the evidence.” Id. at 004509 (emphasis

added). The trial court also reiterated that the jury “may not refuse to consider any

evidence in mitigation which has been proven to your satisfaction by a preponderance

of the evidence.” Id. (emphasis added). Finally, the trial court told the jury to “consider


2
  In doing so, I in no way intend to suggest that the court emphasized any particular part
of the charge through inflection or tone when it instructed the jury. Rather, as I explain
below, I emphasize portions of the text only to highlight language that allowed the jury to
ignore a mitigating circumstance that had been established as a matter of law.

                                                 5
the mitigating circumstances offered by the defendant. [But the trial court clarified],

[t]his does not mean that you must accept them as mitigating circumstances, for you shall

only do that if one or more of you determines that those mitigating circumstances have

been proven by a preponderance of the evidence.” Id. (emphasis added). 3

       Placed against this background and considered in the context required by this

record, Buchanan, Penry and Eddings mandate that we uphold the District Court’s

thoughtful opinion and affirm its order vacating Copenhefer’s sentence. In Buchanan,

the Supreme Court held that the trial court’s failure to specifically inform the jury of

certain statutorily prescribed mitigating circumstances did not invalidate the defendant’s

death sentence. As my colleagues explain, the Court held that no constitutional rule

required the court “to ‘instruct the jury on its obligation and authority to consider

mitigating evidence, and on particular mitigating factors deemed relevant by the State.’”


3
  The majority also asserts that “[t]here were no objections to the instructions, nor any
suggestions for correction or additions.” Maj. Op. at 9. I cannot agree. Copenhefer’s
counsel argued for an instruction regarding the significance of the stipulation. When
prompted by the trial court, Copenhefer’s counsel asserted:

              But it is a mitigating factor per se by the stipulation, it has
              been proven by that stipulation by a preponderance of the
              evidence. In discussing the jury instructions yesterday, one of
              the things we said was if you find something by a
              preponderance of the evidence, you cannot ignore it, you
              cannot dismiss it. And especially in light of this particular
              mitigating circumstance which is spelled out specifically in
              the Statute [sic], it is a mitigating circumstance which has
              been proven. Now, they can again decide it’s not worth much
              weight, but they cannot ignore it.

Appx., p. 004503


                                                  6
See Maj. Op. at 14 (quoting Buchanan, 522 U.S. at 275). However, nothing in the

Court’s opinion suggests that the jury ignored evidence of a mitigating factor or that the

Supreme Court would have upheld the results of a penalty hearing that allowed jurors to

arbitrarily ignore mitigation that had been established as a matter of law. On the

contrary, the Court explicitly declared “that the sentencer may not be precluded from

considering, and may not refuse to consider, any constitutionally relevant mitigating

evidence.” Buchanan, 522 U.S. at 276 (emphasis added). The Court rejected the

defendant’s challenge to the jury charge in Buchanan precisely because the “jury

instruction did not foreclose the jury’s consideration of any mitigating evidence” 522

U.S. at 277, but it is clear from the language I have just quoted that nothing on the record

in Buchanan suggested that the jury simply refused to consider evidence of mitigation.

       I do not suggest that the jury here, in Buchanan or in any other case should

attribute any particular weight to a mitigating fact that is proven. However, it is clear that

the Eighth Amendment does not tolerate a sentencing phase of a capital trial where jurors

plainly ignore mitigating evidence. As both the Court in Penry and majority in this case

explain, “Eddings makes clear that it is not enough simply to allow the defendant to

present mitigating evidence to the sentencer. The sentencer must also be able to consider

and give effect to that evidence in imposing [its] sentence.” Maj. Op. at 15 (quoting

Penry, 492 U.S. at 319).

       More specifically, in Penry, the United States Supreme Court granted certiorari to

resolve two questions. The question relevant to our inquiry was whether Penry:




                                                  7
       was sentenced to death in violation of the Eighth Amendment because the
       jury was not adequately instructed to take into consideration all of his
       mitigating evidence and because the terms in the Texas special issues were
       not defined in such a way that the jury could consider and give effect to his
       mitigating evidence in answering them.

492 U.S. at 313. The Court found that the jury had been unable to give mitigating effect

to evidence in imposing the sentence partly because the jury instructions failed to define

“‘deliberately’ in a way that would clearly direct the jury to consider fully Penry’s

mitigating evidence as it bears on his personal culpability.” Id. at 323. The Court held

that a reasonable juror may have thought Penry acted “deliberately” because he

confessed. Id. at 322. But the Court noted that

                 personal culpability is not solely a function of a defendant’s
                capacity to act ‘deliberately.’. . . Because Penry was mentally
                retarded, . . . and thus less able than a normal adult to control
                his impulses or evaluate the consequences of his conduct, and
                because of his history of childhood abuse, that same juror
                could also conclude that Penry was less morally ‘culpable
                than defendants who have no such excuse,’ but who acted
                ‘deliberately’ as that term is commonly understood.

Id. at 322-3 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,

concurring)).

       For our purposes, it is important to note that the Court specifically stated that:

                it is not enough simply to allow the defendant to present
                mitigating evidence to the sentencer. The sentencer must also
                be able to consider and give effect to that in imposing
                sentence. Only then can we can be sure that the sentencer has
                treated the defendant as a ‘uniquely individual human
                bein[g]’ and has made a reliable determination that death is
                the appropriate sentence.




                                                   8
Id. at 319 (quoting Woodson v. North Carolina, 428 U.S. 280, 304-5 (1976)). The Court

concluded: “[i]n the absence of jury instructions defining ‘deliberately’ in a way that

would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on

his personal culpability, we cannot be sure that the jury was able to give effect to the

mitigating evidence . . ..”. Id. at 323.

       Thus, Penry recognizes that there are situations where the mere mention of

“mitigating evidence” in a jury charge, or admitting evidence of mitigation, may not, by

itself, be sufficient to guard against the arbitrary imposition of the death penalty. This is

such a case.

       “Presentation of mitigating evidence alone, of course, does not guarantee that a

jury will feel entitled to consider that evidence.” Boyde v. California, 494 U.S. 370, 384

(1990). As the Court explained in Penry: “the right to have the sentencer consider and

weigh relevant mitigating evidence would be meaningless unless the sentencer was also

permitted to give effect to its consideration’ in imposing [its] sentence.” Penry, 492 U.S.

at 321 (quoting Franklin v. Lynaugh, 487 U.S. 164, 185,199 (1988)).

                                                 III.

       My colleagues focus on the trial court’s repetition of the role that evidence of

mitigation can play at the penalty phase of a capital trial. The Majority appears to rely on

the portions of the trial court’s instructions that told the jurors: (i) the jury “may consider

as mitigating circumstances any circumstance [sic] which tends to justify the penalty of

life imprisonment,” Maj. Op. at 9; (ii) the “list of mitigating circumstances offered cannot

limit your deliberations, since you are free to consider any aspect of the crime or of the


                                                   9
character of the defendant as mitigating in your sole discretion,” id. at 10; (iii) the jury

may consider “any other evidence of mitigation concerning the character and record of

the defendant and the circumstances of the offense.” Id. at 7.

       The problem here is that (as the Majority quite correctly notes) we are bound by

the jury’s pronouncement that it imposed the death penalty because no mitigating

circumstances were proven. See Maj. Op. at 13. The jury could not have come to that

conclusion without ignoring evidence of mitigation that was an uncontested part of the

record. I simply do not understand how we can be bound by the jury’s explanation of

why it imposed the death penalty and conclude anything other than that evidence of

mitigation was ignored. The fact that there was obvious confusion when the verdict slip

was handed to the judge does not allow us to spackle over the fact that the jury ignored

evidence of a mitigating circumstance that the law required be considered and weighed

against the aggravating circumstances. On the contrary, we should be especially reticent

to allow a death sentence to stand given the confusion that is so apparent on this record.

       The exchange between the court and jury foreperson at the penalty phase is as

revealing as it is troubling.

               THE COURT: Ladies and gentlemen, I’m reviewing the
               verdict slip that you have provided for me. Let me just double
               check something. I think that I find there is an inconsistency
               on this, and I’m going to have to ask you to take a moment to
               go back and reconsider this. I’m dealing specifically with part
               2 b, in which you must check off either one or two as it is
               applicable. You didn’t check off either one of them. I think I
               understand which one it is, I don’t know that it’s necessary
               for you to leave the jury box. I’m going to return this to you,
               to the foreman so that he can look at that, and determine—
               and make a determination. Look carefully, if you feel that you


                                                  10
have to go back in the jury room, that will be perfectly fine. I
would suggest before you do that, reread both one and two to
make sure which one you’re checking off so you feel satisfied
on that.

       (The verdict is handed to the foreman and returned
back to the judge.)

       THE FOREMAN: From my understanding, that’s the
way it should be, Your Honor.

       THE COURT: All right. Having checked off two, you
crossed out the one part.

       THE FOREMAN: We had a list in there, Your Honor,
I didn’t know whether we should also list those.

        THE COURT: Do I take it that should be in there
then?

        THE FOREMAN: No, it should not.

        THE COURT: Well –

       THE FOREMAN: We had a list that we dealt with
with [sic], if you would like us –

        THE COURT: I don’t want you to go into that. If you
do not have two down there, then logically—and I don’t mean
to suggest which is correct on this, but logically, you would
be filling out number one, rather than two.

        Give that back to the foreman.

        (The verdict slip is returned to the foreman.)

      THE FOREMAN: You’re correct, Your Honor.
Should I change it?




                                   11
       THE COURT: I would ask you then, if that is the case,
whether you wish to consult with the other members of the
jury or make the correction?

      THE FOREMAN: No, I think we understand. Yes, I
can make the change. There would be no problem.

        THE COURT: All right.

        THE FOREMAN: Do you want me to change it on
this?

       THE COURT: Yes. Thank you. Now you may leave
that with the foreman.

       Mr. Foreman, I understand from your submission of
the verdict slip that you have reached a determination of
sentence, is that correct?

        THE FOREMAN: Yes, we have, Your Honor.

        THE COURT: And what is that sentence?

        THE FOREMAN: Penalty of death.

        THE COURT: And on what basis?

       THE FOREMAN: On the basis of item number one,
that there is at least one aggravating circumstance and
mitigating—no mitigating circumstances.

      THE COURT: What did you find as the aggravating
circumstance?

       THE FOREMAN: That the victim was held for
ransom, that there was felony kidnapping, it was planned, and
ultimately, the victim did die.

       THE COURT: Thank you. You may pick up the
verdict slip. You may be seated, Mr. Foreman.



                                12
App., p. 4520-21 (emphasis added).

       The jury was then polled and the jurors unanimously agreed that there were no

mitigating circumstances to be considered. 4 Thus, I am not persuaded by the Majority’s

reliance on a line of cases which hold that the Eighth Amendment is not violated as long

as jurors are allowed to consider and give effect to any mitigating circumstance that any

juror believes is established by a preponderance of the evidence. Here, since the jury

concluded that there were no mitigating circumstances, it is clear that the jurors ignored a

mitigating circumstance that was established as a matter of law, and had to be

considered. I can find no Supreme Court case upholding a death sentence under such

circumstances.

       The Majority attempts to squeeze the genie back into the Buchanan bottle by

assuming that the foreman simply made a mistake in crossing out “first offense” on the

verdict form. Maj. Op. at 10 (stating that“[t]he foreman crossed out ‘first offense,’ but

mistakenly placed the check mark in the “weighing” box where, . . . it should not have

been placed.”). Such speculation would have merit had the foreman not explicitly stated

that there were no mitigating factors, and the jury not unanimously agreed when polled

immediately after hearing the foreman’s explanation for this sentence. See supra at p. 12.

I therefore have a hard time agreeing that the jury considered a fact no juror believed


4
   For ease of reference, I have attached the verdict slip. It is clear that whatever
confusion existed regarding the verdict slip, ultimately, the changes made to the verdict
slip reflect the pronouncement of the jury foreman (and that of each and every other
juror) that no mitigating factor was found to exist but aggravating factors did exist and,
therefore, death was mandatory.


                                                13
existed. My colleagues’ contrary view reduces the time-honored tradition of polling a

jury to nothing more than a ritualistic callisthenic.

       We cannot both accept the jury’s explanation and ignore it too by speculating

around it. If we accept what the jury unanimously declared, as the Majority says we

must, it is clear that the jury ignored constitutionally relevant evidence. Moreover, even

if we could ignore the record and breathe some ambiguity into what happened here, any

doubt must be resolved in favor of life, not death. See Andres v. United States, 333 U.S.

740, 752 (1948) (“In death cases doubts such as those presented here should be resolved

in favor of the accused.”); Penry, 492 U.S. at 328 (“Our reasoning in Lockett and Eddings

thus compels a remand for resentencing so that we do not risk that the death penalty will

be imposed in spite of factors which may call for a less severe penalty. When the choice

is between life and death, that risk is unacceptable and incompatible with the commands

of the Eighth and Fourteenth Amendments.”) (internal citations and quotations omitted).

       When the instructions are read in their entirety, it is clear that jurors believed they

were permitted to consider any evidence of mitigation only after that evidence had been

proven by a preponderance of the evidence. That is what the judge told them and there is

certainly nothing wrong with that statement of the law. However, the prosecutor had

decided to argue that there was no evidence of mitigation and the jury was never

instructed about the effect of the stipulation between Copenhefer and the




                                                  14
Commonwealth. 5 Thus, the court’s failure to instruct on the significance of a stipulation

allowed the jury to ignore evidence of mitigation under these circumstances.

       Our Eighth Amendment inquiry must focus on “whether there is a reasonable

likelihood that [this] jury . . . applied the challenged instruction in a way that prevent[ed]

the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. This

inquiry could not be easier because the jury said that it did precisely that. Therefore, we

should conclude that the instruction allowed the jury to ignore constitutionally relevant

evidence that had been proven as a matter of law. It did so by not informing the jury that

the law regards a stipulated fact as proven after the prosecutor decided to argue the

absence of any mitigation. See id; Abdul-Kabir v. Quarterman, 550 U.S. 233, 259 (2007)

(“The jury must have a ‘meaningful basis to consider the relevant mitigating qualities’ of

the defendant’s proffered evidence.”) (quoting Johnson v. Texas, 509 U.S. 350, 369

(1993)).

       My colleagues attempt to rationalize this paradoxical penalty hearing by assuming

that this jury would have imposed the death penalty anyway and merely did what it

intended. They reason that “the record strongly suggests that [the jury] considered the

mitigating evidence and decided that none of that evidence was qualitatively sufficient to

5
   Over Copenhefer’s objection, the trial court found that it could not compel the jury to
find the stipulated fact as a mitigating factor though it admitted it would be problematic if
the jury refused to find the existence of a mitigating factor based on the stipulation.
Appx., p. 004504 (The Court: “[T]he stipulation does not mean that the jury must accept
it. I anticipate they will, of course, but I don’t think I can compel they accept it as being
something that they must put down as a mitigating factor. [Defense Counsel]: That’s
fine. In fact, [if] the verdict of death comes back, and there’s an indication that they
haven’t accepted that, then we have a whole new problem. The Court: Then we have a
problem, I agree with you.”).

                                                  15
constitute a mitigating circumstance.” Maj. Op. at 17. However, there is a difference

between deciding that evidence is not sufficient to constitute a mitigating circumstance

and deciding that there is no evidence of mitigation. The distinction is far more than a

linguistic complexity; it is a distinction with a constitutional difference.

       My colleagues also believe that “it is difficult [to] imagine that the outcome of this

case would have been different if the jury had been specifically instructed to find

Copenhefer’s lack of a prior record was a mitigating circumstance.” Id. at 18. Perhaps,

but the solemnity and finality of the death penalty should not afford the luxury of such

harmless error speculation. “[W]e may not speculate as to whether the [sentencer]

actually considered all of the mitigating factors and found them insufficient to offset the

aggravating circumstances . . .. [Instead we are required to] remove any legitimate basis

for finding ambiguity concerning the factors actually considered by the [sentencer].”

Eddings, 455 U.S. at 119 (O’Connor, J., concurring). The Majority’s speculation is

particularly dangerous because it ignores the jury’s own explanation of its sentence. 6

Moreover, the majority’s hypothesis is no more likely than the possibility that at least one




6
  This case is unlike Mills v. Maryland, 486 U.S. 367, 381 (1988). There, the Court
stated that “[t]here is, of course, no extrinsic evidence of what the jury in this case
actually thought. . . .” Here, the jury told the judge what it thought. Since no mitigating
factor existed, and there was evidence of several aggravating factors, the death sentence
had to be imposed. In Mills, the Court set a death sentence aside explaining: “Our
reading of [the judge’s instruction and verdict form] leads us to conclude that there is at
least a substantial risk that the jury was misinformed.”; see also Eddings, 455 U.S. at 119
(O’Connor, J., concurring). Here, that risk is a certainty.


                                                  16
juror would have been unwilling to have Copenhefer killed for his first criminal offense

no matter how wanton his conduct was. 7

       The majority’s hypothesis about what happened here is little more than restorative

speculation that attempts to re-write this confused record. However, despite the obvious

confusion, some incontrovertible facts remain. The prosecutor, after stipulating to the

existence of a mitigating factor, argued that the defendant should be put to death because

there were no mitigating factors “of merit” on the record; the trial court then sat by and

refused to explain to the jury that one mitigating factor had been established as a matter

of law – and was therefore “of merit” and had to be considered; instead, the trial court

told the jurors that they must weigh any mitigating factors that were proven. The jurors

then imposed the death penalty based upon their unanimous conclusion that, contrary to

stipulated evidence, no mitigating factors had been proven.

       Unless we take it upon ourselves to completely ignore the verdict slip and the

jury’s unanimous explanation for sentencing Copenhefer to be executed, we must

conclude that the jury either ignored the jury instruction and refused to find evidence of

mitigation despite the court’s charge, or that the jury accepted the charge but took it upon

itself to ignore a proven fact that the law required be weighed in determining the

sentence. It does not matter which of these two possibilities occurred here because one is

7
  We must be confident that the trial court’s instruction did not “foreclose the jury’s
consideration of any mitigating evidence.” Buchanan, 522 U.S. at 277. I can have no
such confidence on this record. It is one that should remind us all that “[e]volving
standards of societal decency have imposed a correspondingly high requirement of
reliability on the determination that death is the appropriate penalty in a particular case.”
Mills, 486 U.S. at 384.


                                                 17
as arbitrary and constitutionally improper as the other. As I stated at the outset, “[t]he

sentencer may not refuse to consider . . . any relevant mitigating evidence.” Eddings, 455

U.S. at 114.

                                                  IV.

       I do not want to conclude without acknowledging that it may well be that the jury

imposed this sentence because the jurors wanted Copenhefer to pay for his crime with his

own life, just as my colleagues speculate. Given the circumstances here, the jury could

certainly have reached that conclusion after properly considering all of the evidence of

his guilt, the aggravated circumstances of his crime, and weighing them in a rational

manner against the evidence of mitigation. However, the Eighth Amendment does not

allow a jury to ignore evidence of mitigation and sentence someone to death just because

the jury thinks that he deserves to die. Yet, according to the record, that is what

happened here. In upholding the death penalty on this record, we are not only assuming

the role of the circus hand who walks behind the elephant with a shovel, we are

establishing precedent that will surely undermine the very significant legal protections

that polling the jury is supposed to afford the accused. 8

       Imposing the death sentence without considering evidence of mitigation is

precisely the arbitrary result the Eighth Amendment guarantees against. See Mills, 486

U.S. at 375 (“[F]ailure to consider all of the mitigating evidence risks erroneous

imposition of the death sentence, in plain violation of Lockett . . . .”) (internal citations

8
  See United States v. Gibbs, 813 F.2d 596, 603(3rd Cir. 1986) (Aldisert, J., dissenting)
(alluding to the court being “the circus hand following the . . . elephant around the
sawdust trail.”).

                                                  18
omitted). The jury charge that was given would not have resulted in an unconstitutional

sentence if the jury concluded that there was evidence of mitigation but then proceeded to

give it insufficient weight to counterbalance the aggravating factors of the crime. See

Eddings, 455 U.S. at 114-15 (“The sentencer . . . may determine the weight to be given

relevant mitigating evidence. But [the sentencer] may not give it no weight by excluding

such evidence from [its] consideration.”). However, that is not what the jury said it did;

we cannot change that.

                                         V. CONCLUSION.

       In arguing that this death sentence cannot be supported on this record I do not, of

course, ignore or minimize the barbarity of Copenhefer’s crime or the overwhelming

evidence of his guilt. Much has been said and written about the dangers of executing an

innocent defendant; this is not such a case. Having served on this court for nearly 20

years, and having presided over hundreds of homicide trials as a state trial judge for more

than 10 years - 3 of which consisted of nothing but homicide trials - I can truthfully say

that I cannot recall a case where the evidence against a defendant was stronger than the

evidence the Commonwealth marshaled against Copenhefer. He is clearly guilty; but, of

course, that is not the issue in this case.

       It is precisely those crimes that most disgust us that most require we remain

vigilant in deciding issues that arise under the Eighth Amendment’s protection against

arbitrary punishment. Those are the crimes that pose the greatest danger that jurors will

allow reason to be supplanted by passion. “Arbitrary” sentences also include sentences

imposed in violation of the law, and that is what the Eighth Amendment prohibits.


                                                19
Because it is clear that the sentencing here was in violation of the Eighth Amendment’s

guarantee against the arbitrary imposition of the death penalty, we should affirm the

District Court’s order vacating this death sentence. See Mills, 486 U.S. at 384.




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