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


7-24-1997

Smith v. Horn
Precedential or Non-Precedential:

Docket 96-9001,96-9002




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Recommended Citation
"Smith v. Horn" (1997). 1997 Decisions. Paper 170.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/170


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iled July 24, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-9001 and 96-9002

CLIFFORD SMITH

v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; JAMES PRICE,
SUPERINTENDENT, OF THE STATE CORRECTIONAL
INSTITUTION AT GREENE, AND; JOSEPH P.
MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE
CORRECTIONAL INSTITUTION AT ROCKVIEW

District Attorney of Bucks County,
Appellant No. 96-9001

CLIFFORD SMITH,

Appellant No. 96-9002

v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS; JAMES PRICE,
SUPERINTENDENT, OF THE STATE CORRECTIONAL
INSTITUTION AT GREENE, AND; JOSEPH P.
MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE
CORRECTIONAL INSTITUTION AT ROCKVIEW

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-03671)
Argued March 11, 1997

BEFORE: MANSMANN, COWEN and ALITO, Circuit Judges

(Filed July 24, 1997)

David D. Langfitt, Esq.
Gerard M. McCabe
Montgomery, McCracken, Walker
 & Rhoads
123 South Broad Street
Philadelphia, PA 19109

Billy H. Nolas, Esq. (argued)
Yvonne R. Bradley
Center for Legal Education
 Advocacy & Defense Assistance
437 Chestnut Street
Suite 501
Philadelphia, PA 19106

COUNSEL FOR APPELLEE/
CROSS APPELLANT

Stephen B. Harris, Esq. (argued)
Office of District Attorney
55 East Court Street
Bucks County Courthouse
Doylestown, PA 18901

COUNSEL FOR APPELLANT/
CROSS APPELLEE

OPINION OF THE COURT

COWEN, Circuit Judge.

This is an appeal from a judgment of the district court
granting in part petitioner-appellee/cross-appellant Clifford
Smith's petition for a writ of habeas corpus. The district
court held that certain comments made by the prosecutor

                                 2
at the penalty phase of Smith's trial for first-degree murder
violated Smith's rights pursuant to the Eighth and
Fourteenth Amendments. The district court further held
that the failure of Smith's attorney to object to these
comments violated Smith's right to the effective assistance
of counsel pursuant to the Sixth and Fourteenth
Amendments. The district court rejected Smith's claim that
instructions to the jury at the guilt phase of the trial,
concerning the elements of first-degree murder pursuant to
Pennsylvania law, violated Smith's right to a fair trial
pursuant to the Due Process Clause of the Fourteenth
Amendment. Similarly, the district court rejected Smith's
arguments that other constitutional errors occurred at the
penalty phase.

Respondents-appellants/cross-appellees ("Pennsylvania"
or "the Commonwealth") contend that the district court
erred in its determination that the prosecutor's closing
argument at the penalty phase, and the failure of Smith's
attorney to object to that argument, violated Smith's federal
constitutional rights. Smith cross-appeals, contending that
the district court erred in denying him habeas relief with
regard to his conviction for first-degree murder, and in
rejecting his other arguments for granting relief based on
alleged defects at the penalty phase.

We agree with Smith that errors in the jury instructions
at the guilt phase of his trial violated his rights pursuant to
the Due Process Clause of the Fourteenth Amendment. We
thus do not reach the district court's holding that errors at
the penalty phase violated Smith's rights pursuant to the
Sixth, Eighth, and Fourteenth Amendments. We also do not
reach Smith's arguments concerning other claims of error
that occurred at the penalty phase. Accordingly, we will
vacate the judgment of the district court in part, reverse in
part, and remand with directions to grant habeas relief.

I.

On November 22, 1983, in the Court of Common Pleas,
Bucks County, Pennsylvania, Smith was convicted offirst-
degree murder, among other crimes. The evidence at trial
showed that on June 17 of that year, Smith and Roland

                               3
Alston entered a pharmacy with the intention of robbing it,
that they forced three persons inside the store to lie in a
prone position on the floor as they committed the robbery,
and that one of the robbery victims, Richard Sharp,
sustained a fatal gunshot wound to the head.

Yvette Barrow and Cheryl Yancey, who later pled guilty to
being accomplices to the robbery, testified that Alston and
Smith committed the robbery while Barrow and Yancey
waited in Barrow's car. One eyewitness saw Alston and
Smith enter and leave the pharmacy at the time of the
robbery. A second eyewitness saw the pair walk in the
direction of the pharmacy just prior to the robbery. A third
eyewitness identified the car in which Smith and Alston
were traveling just after the robbery. All three independent
eyewitnesses identified the clothing worn by the robbers,
which was later found at the homes of Alston, Yancey, and
Frances Atkins, Smith's former girlfriend. Items taken from
the three robbery victims were later found at the homes of
Barrow and Yancey.

Although there was evidence that both Alston and Smith
carried handguns that day, the evidence tended to show
that Smith actually committed the killing. According to the
Commonwealth, Barrow testified that immediately after the
murder, Alston yelled at Smith, "Why did you shoot the
motherf[uck]er, why did you shoot him?" Appellant's Br. at
11.1 Smith responded, "He walked into the store and he
scared me -- the guy lifted his head and I had to do it, I
had to do it." Id. Barrow also testified that Smith told
Alston that "[s]ince [Smith] did the murder, he wanted the
ring" that was one of the proceeds of the robbery. Id.
Yancey similarly testified that Alston yelled at Smith, "Why
did you shoot that motherf[uck]er, man? You almost shot
me," to which Smith replied, "I had to." Id. She also testified
_________________________________________________________________

1. Because Smith has not contested the version of the trial testimony
related in the Commonwealth's briefs, we accept this version as accurate
for purposes of this appeal. Nonetheless, we feel the need to express our
bafflement at the Commonwealth's disregard of 3d Cir. LAR 30.3(a)
(1993) ("Relevant portions of a trial transcript . . . referred to in the
briefs shall be included in the appendix . . . ."). In light of the importance
of the testimony in question to the Commonwealth's position, it cannot
be disputed that this testimony is "[r]elevant."

                               4
that Smith stated that "he should have the ring because
he's the one that killed the man." Id. There was also
evidence that Smith's shoes had human blood on them.
Finally, there was evidence that unfired cartridges found at
Yancey's house had been loaded into and ejected from
Alston's pistol, indicating that Alston's weapon had not
been fired.

At the guilt phase of the trial, the district attorney made
the following comments in closing argument:

[W]ho shot Richard Sharp is of no moment in this trial,
because as His Honor will tell you, it makes no
difference under the law and under the facts. It doesn't
make one bit of difference who shot Mr. Sharp,
because if you find as a fact, and I suggest you can
based on the evidence, that Richard Sharp was killed
by either Roland Alston or Clifford Smith, you canfind
as a fact that there was murder in the first degree. It
makes no difference who pulled the trigger. The acts of
one accomplice are the acts of the other. The doings of
one are the doings of the other.

. . . .

 . . . [I]t makes no difference who fired the fatal shot
. . . [F]or your purposes, it doesn't make any difference.
The act of one is the act of the other. . . .

. . . .

 . . . [I]f you find that this defendant or both
defendants or either of them had the conscious purpose
to take human life, you can find as a matter of fact and
as a matter of law that it's murder in the first degree.
. . .

. . . .

 . . . [I]f you find that either Smith or Alston fired that
bullet . . . if you find that either did this, both as
conspirators or as accomplices are guilty of the crime of
first degree murder.

. . . .

 . . . Does the evidence indicate that Clifford Smith or
Roland Alston, either or both of them, made a

                               5
conscious decision to take human life, a willful, a
deliberate, an intentional killing, no accident?

Cross App. at 1007-08, 1010, 1012-13, 1014, 1017
(emphasis added).

The court first instructed the jury on homicide without
reference to any specific offense or degree:

[I]f . . . you find that Smith and Alston were
accomplices of each other, then it is not important for
you to determine which one actually pulled the trigger
that brought about the killing of Richard Sharp, if you
find beyond a reasonable doubt that one of the two did
so and were [sic] acting as the accomplice of each other
at the time. In order, however, to find Clifford Smith to
be guilty, you need not conclude, as I said, that he was
the actor; that is, if I can use the word "shooter," but
he was, nevertheless, acting as an accomplice of Alston
and it was his intent of promoting or facilitating that
act and the killing was done in furtherance of the
robberies, if you so find, then he would be guilty as
though he were the actual perpetrator. . . .

 . . . [T]he Commonwealth must prove all of the
elements of the case beyond a reasonable doubt, but
they do not have to prove beyond a reasonable doubt
which of the two, Smith or Alston, actually brought
about the killing of Richard Sharp by showing who
pulled the trigger and placing [sic] the shot in his head.
If, and I emphasize this, you find that one was the
accomplice of the other and that one of the two actually
performed the killing, you, the jurors, need not agree on
the role or roles played by the respective parties; that is,
by this defendant and his accomplice, if you find that
that was the position of both, provided that each of you
is satisfied that the crime was actually perpetrated by
the defendant or by the accomplice of the defendant.
Conversely, if you find that one was not the accomplice
of the other but that a criminal homicide occurred,
then you must determine who performed the act of
killing and, of course, it follows that if Alston was the
killer and Smith was not his accomplice, he, Smith,
would not be guilty of the crime of murder for the

                               6
Commonwealth has not proven this accomplice theory
beyond a reasonable doubt.

Id. at 1030-31, 1031-32 (emphasis added).

The court then instructed the jury specifically on first-
degree and second-degree murder:

[T]he elements of first degree murder are the unlawful
killing of another person done intentionally; that is,
willfully, deliberately and with premeditation, plus
malice, as I will define that term to you. If these
elements have been established beyond a reasonable
doubt, you may, on the theory that one was the
perpetrator and the other the accomplice, find Clifford
Smith guilty of murder in the first degree . .. .

 . . . You may find the defendant guilty of second
degree murder if you are satisfied that the following
elements have been proven beyond a reasonable doubt:
First, again you must find that a person caused the
death of Richard Sharp. Secondly, that the defendant,
or an accomplice of the defendant, was the person who
killed him. Thirdly, that the killing was committed
while the defendant was engaged, or an accomplice was
engaged, in the commission of . . . the felony of
robbery. Fourth, that the act of the defendant, or the
defendant's accomplice, that brought about the killing
and death of Richard Sharp was done in furtherance of
that robbery. Fifth, that the killing was with malice on
the part of the defendant [which] may be inferred by
you if you conclude that the defendant was engaging
in, or was an accomplice in, the commission or
attempted commission of a felony dangerous to human
life . . . .

Id. at 1035, 1035-36 (emphasis added).

The court then instructed the jury on the crime of
conspiracy, without reference to a specific substantive
crime:

You should . . . determine . . . whether there was the
requisite intent to enter into this conspiracy to commit
the robbery and the killing which the Commonwealth
contends flowed therefrom or whether there was the

                               7
requisite intent to enter in and be the accomplice with
the other in bringing this about. That is to say, did
Clifford Smith agree, although not necessarily by
words, but by conduct and circumstances to bring
about this robbery which, in turn, led to the ultimate
shooting, so the Commonwealth contends, and the
killing of Richard Sharp? If so, then the major basis of
conspiratorial liability exists as to him.

Id. at 1047-48 (emphasis added).

Finally, the court distinguished among the different
degrees of murder:

You would . . . have to decide whether the act of the
perpetrator, or his accomplice, at the time of the killing
was acting [sic] with malice, as we have defined that
term to you. Was he acting willfully, deliberately and
with premeditation, although at that time not having
the specific intent to kill, but having the specific intent
to inflict grievous bodily harm upon Richard Sharp,
because that really is the distinction between third
degree murder and first degree murder. . . .

 If you would conclude that there was specific intent
to take life, you would then have to determine if it was
second degree murder, or as we call it felony murder,
because it involves killing incidental to a felony. . . .
[F]or persons to be accomplices in felony murder they
must have a common design. In other words, the
shared intent to commit that felony, the robbery in this
case, and in furtherance thereof the killing was
perpetrated as a natural act which flowed from the
robbery itself. However, . . . even though you would
conclude that there was the felony of robbery
committed, but would further conclude that all of the
elements of first degree murder were present, you . . .
would be justified in returning a verdict of first degree
murder, if you determine beyond a reasonable doubt
that the killing was intentional; that is, that there was
a specific conscious intent to kill and this was done
willfully, deliberately, and with premeditation.

Id. at 1057-58 (emphasis added).

                               8
Smith was convicted of, inter alia, first-degree murder
and conspiracy to commit murder. He was not convicted of
conspiracy to commit first-degree murder. At the penalty
phase of the trial, the jury found two aggravating factors
and no mitigating factors. The jury imposed the death
penalty, which it was required to do under these
circumstances pursuant to Pennsylvania law. See 42 PA.
CONS. STAT. ANN. § 9711(c)(1)(iv) (West 1982).

Smith filed a motion for a new trial, which was denied by
the trial court on June 18, 1985. Smith subsequently was
sentenced to death. He then appealed his conviction and
sentence to the Supreme Court of Pennsylvania. On July
29, 1986, the judgment was affirmed, and Smith's petition
to the Supreme Court of the United States for a writ of
certiorari was denied thereafter. See Commonwealth v.
Smith, 513 A.2d 1371 (Pa. 1986), cert. denied, 480 U.S.
951, 107 S.Ct. 1617 (1987) ("Smith I").

The Governor of Pennsylvania subsequently signed
Smith's death warrant, fixing his execution for November
13, 1990. On October 16, 1991,2 Smith filed a petition in
the Court of Common Pleas, Bucks County, pursuant to
the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA.
CONS. STAT. ANN. §§9541-9546 (West 1996 Supp.). His
execution was stayed several days later. After holding an
evidentiary hearing, the court denied the petition. The
Supreme Court of Pennsylvania affirmed on November 22,
1994, and the United States Supreme Court denied Smith's
petition for a writ of certiorari. See Commonwealth v. Smith,
650 A.2d 863 (Pa. 1994), cert. denied, ___ U.S. ___, 115
S.Ct. 1799 (1995).

In May of 1995, the Governor of Pennsylvania again
signed Smith's death warrant, fixing July 11, 1995, as the
date of execution. On June 30, 1995, the district court
granted Smith a stay of execution. Smith subsequently filed
the instant petition for a writ of habeas corpus in the
district court pursuant to 28 U.S.C. § 2254 (1994). That
court held an evidentiary hearing. On February 22, 1996,
the court granted the petition in part and denied it in part
_________________________________________________________________

2. The record does not indicate why Smith's execution was stayed past
November 13, 1990.

                               9
on the grounds that the prosecutor's comments in
summation at the penalty phase violated Smith's Eighth
and Fourteenth Amendment rights pursuant to Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633 (1985), and
California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446 (1983).
The district court also held that the failure of Smith's
counsel to object to the closing argument constituted
ineffective assistance of counsel in violation of the Sixth
and Fourteenth Amendments. The district court rejected
Smith's contention, regarding the guilt phase, that the jury
instructions on first-degree murder denied him due
process. It also rejected Smith's additional arguments
concerning the penalty phase that his sentence violated the
federal constitution. The court ordered that Smith be either
re-sentenced or released from confinement within 180 days,
and stayed its order pending appeal. See Smith v. Horn, No.
CIV. A. 95-3671, 1996 WL 172047 (E.D. Pa. Feb. 22, 1996).

This appeal and cross-appeal followed.

II.

As an initial matter, we find it necessary to address two
issues raised by the dissent. The dissent suggests, for the
first time, that we require the parties to brief the threshold
procedural issues of exhaustion of state remedies and
procedural default. See Dissent slip op. at 38, 40. We note
at the outset that the Commonwealth never raised either of
these issues at any time: not in the district court, not in its
briefing before this Court, and not at oral argument.

A.

The dissent concedes that it is likely an exhaustion
argument would fail on the grounds that further state
review of the due process issue would be foreclosed to
Smith. See id. at 37-38. Nevertheless, the dissent presses
the point, arguing that this might present a case where the
Pennsylvania courts would apply the narrow "miscarriage of
justice" exception to the stringent requirements of the
PCRA. See Doctor v. Walters, 96 F.3d 675, 681-83 (3d Cir.
1996). In Doctor, 96 F.3d at 683, we concluded that we
ought to require exhaustion unless there is "no chance that

                               10
the Pennsylvania courts would find a miscarriage of
justice."

However, in that case, the exhaustion issue was raised
and addressed in the district court. See id. at 678. Where
the issue was never raised in the district court, we are
afforded discretion pursuant to Granberry v. Greer, 481
U.S. 129, 134, 107 S.Ct. 1671, 1675 (1987), to "determine
whether the interests of comity and federalism will be better
served by addressing the merits forthwith or by requiring a
series of additional state and district court proceedings
before reviewing the merits of the petitioner's claim." See
also Evans v. Court of Common Pleas, 959 F.2d 1227, 1233
(3d Cir. 1992); Brown v. Fauver, 819 F.2d 395, 398 (3d Cir.
1987). We must exercise our discretion on a case-by-case
basis and with reference to the values of, not only comity
and federalism, but also "judicial efficiency," Granberry,
481 U.S. at 135, 107 S.Ct. at 1675, and "the ends of
justice," Keller v. Petsock, 853 F.2d 1122, 1127 & n.6 (3d
Cir. 1988).

The dissent suggests that we ought to exercise our
discretion in favor of requiring exhaustion in this case on
the ground that it "falls squarely within" the category of
cases that " `present[ ] an issue on which an unresolved
question of fact or of state law might have an important
bearing,' " Dissent slip op. at 36 (quoting Granberry, 481
U.S. at 134-35, 107 S.Ct. at 1675) (alteration added), and
"it would be helpful to have the benefit of a decision by the
Pennsylvania courts on the underlying issue of state law."
Id. at 6. See Brown, 819 F.2d at 399; cf. Zettlemoyer v.
Fulcomer, 923 F.2d 284, 309-10 (3d Cir. 1991). However,
this case presents no "unresolved question . . . of state
law." Granberry, 481 U.S. at 134, 107 S.Ct. at 1675. The
only question of state law presented -- the elements of first-
degree murder in Pennsylvania -- has been resolved by the
Pennsylvania Supreme Court, not once but twice. See infra
at 16-18. No one disputes that specific intent to kill is one
of those elements. All remaining questions presented by
this case -- whether there is a reasonable likelihood that
the jury understood its instructions in a certain way,
whether this understanding had the effect of relieving the
Commonwealth of the burden of proving this element

                               11
beyond a reasonable doubt, and whether this error was
harmless -- present issues of federal law.

Accordingly, we see no reason to delay review of this
petition in order to provide briefing on an issue the
Commonwealth never raised in any court and on which
even the dissent concedes the Commonwealth has very
little chance of succeeding.

B.

The dissent also suggests that we direct the parties to
brief the related issue of procedural default. The dissent
correctly notes that we and several of our sister circuits
have held that this issue may be raised sua sponte by the
court of appeals. See Dissent at 38 (citing Hull v. Freeman,
932 F.2d 159, 164 n.4 (3d Cir. 1991), overruled on other
grounds by Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992),
Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994),
Washington v. James, 996 F.2d 1442 (2d Cir. 1993), and
Hardiman v. Reynolds, 971 F.2d 500, 502-04 & n.4 (10th
Cir. 1992)). Nonetheless, it is evident from these cases that
whether we do so is discretionary, and that our discretion
is guided by the same considerations as those discussed in
Granberry. See Hull, 932 F.2d at 164 n.4; Washington, 996
F.2d at 1448-49; Hardiman, 971 F.2d at 504.

In Washington, 996 F.2d at 1449-50, the Court of
Appeals for the Second Circuit recognized that it might be
inappropriate for the court to raise the issue of procedural
default sua sponte where " `it is evident that a miscarriage
of justice has occurred' " (quoting Granberry, 481 U.S. at
135, 107 S.Ct. at 1675). The court also recognized that
"miscarriage of justice" in this context should be defined
somewhat more loosely than in the nonexhaustion context
because "[u]nlike in exhaustion cases, if we decline to reach
the merits in a procedural default case, the defendant has
no further recourse to either state or federal relief." Id. at
1450. Nevertheless, the court narrowly limited the
application of the miscarriage of justice exception to those
cases where the habeas petitioner challenges the validity of
the trial itself and not just the conviction, and those cases
where the claimed federal violation was the product of
malice. See id.; see also Ortiz, 19 F.3d at 715.

                               12
We believe, as did Judge Oakes in dissent in that case,
that the court unduly limited the meaning of "miscarriage
of justice" in contravention of the language of Granberry,
481 U.S. at 135, 107 S.Ct. at 1675. See Washington, 996
F.2d at 1454 (Oakes, J., dissenting). We agree with Judge
Oakes, and with Judge Stahl of the Court of Appeals for the
First Circuit, that " `miscarriage of justice' should include
cases where the record is well developed and the merits
strongly support the petitioner's claim." Id. at 1453 (Oakes,
J., dissenting); see also Ortiz, 19 F.3d at 717 (Stahl, J.,
dissenting).

In this case, not only do the merits strongly support
Smith's claim, as we shall demonstrate, but the record as
it relates to the merits is as well-developed as it can be. We
have been presented with the entirety of the charge
delivered at Smith's trial. We can lay alongside this charge
the unequivocal holdings of the Pennsylvania Supreme
Court in two separate cases that specific intent to kill is an
essential element of first-degree murder.

By contrast, the record with regard to the procedural
default issue itself is sparse. For example, we have not been
provided with the crucial jury instruction defining first-
degree murder requested by Smith's trial counsel and
rejected by the trial court. There is similarly nothing in the
record with regard to whether Smith can show "cause" for
the alleged default (such as by showing that appellate
counsel was constitutionally ineffective) and "prejudice"
resulting therefrom, or that the procedural rule does not
provide an independent and adequate basis for precluding
habeas review. See Doctor, 96 F.3d at 683. Thus,
consideration of the procedural default issue at this late
stage in the proceedings would likely require not simply
supplemental briefing but a remand to the district court for
supplemental fact finding. In these circumstances, where
relief is "plainly warranted," Granberry, 481 U.S. at 135,
107 S.Ct. at 1676, and consideration of the procedural
default defense would result in undue delay, see Odum v.
Boone, 62 F.3d 327, 330 (10th Cir. 1995); Manlove v.
Tansy, 981 F.2d 473, 476 n.4 (10th Cir. 1992), we exercise
our discretion to decline to raise that defense sua sponte.

                               13
C.

With regard to both nonexhaustion and procedural
default, we are also persuaded that when the state has
never raised an issue in either the district court or this
Court we should be even less inclined to raise it sua sponte
than when the state either has raised the issue here only
belatedly or has raised it in the district court but has not
pursued that line of attack in the court of appeals. But see
Washington, 996 F.2d at 1448 n.3 (stating that complete
failure to raise defense should be treated same as belatedly
raising defense); Hardiman, 971 F.2d at 504 n.6 (same). In
any of these situations, consideration of the issue
contravenes our standard practice. However, where the
issue has been raised either in the district court or the
court of appeals, we are at least maintaining our roles as
judges, addressing only the issues flagged, at some point,
by the parties. Moreover, we are often aided in our
endeavor by the fact that the district court has addressed
the issue.

By contrast, where the state has never raised the issue at
all, in any court, raising the issue sua sponte puts us in
the untenable position of ferreting out possible defenses
upon which the state has never sought to rely. When we do
so, we come dangerously close to acting as advocates for
the state rather than as impartial magistrates. See United
States v. Burke, 504 U.S. 229, 246, 112 S.Ct. 1867, 1877
(1992) (Scalia, J., concurring in the judgment) ("The rule
that points not argued will not be considered . . . at least
in the vast majority of cases, distinguishes our adversary
system of justice from the inquisitorial one."); accord
Hardiman, 971 F.2d at 505. While considerations of
federalism and comity sometimes weigh in favor of raising
such issues sua sponte, consideration of that other great
pillar of our judicial system -- restraint -- cuts sharply in
the other direction.

We certainly have the discretion to raise these issues sua
sponte. As Granberry and its progeny direct, that discretion
should be exercised with reference to the values of
federalism and comity, judicial efficiency, and the ends of
justice. In cases in which an issue has not been raised by
either party in either the district court or in this Court, we

                               14
will decline to address the issue unless consideration of
these factors clearly indicates that we should depart from
our standard practice. We apply this presumption in such
cases lest we subtly transform our adversarial system into
an inquisitorial one.

The dissent has not persuaded us that consideration of
federalism and comity, judicial efficiency, and the ends of
justice clearly dictate that we consider the defenses of
nonexhaustion and procedural default. Accordingly, we
decline to do so.

III.

Smith argues that the jury instructions rendered by the
trial court erroneously informed the jury that Smith could
be convicted of first-degree murder even if he did not have
the specific intent to kill. He asserts that the jury was
incorrectly instructed that if it found beyond a reasonable
doubt that one of the men had the specific intent to kill,
and that Smith intended to commit the robbery that
resulted in the killing, this would be sufficient to convict
Smith of first-degree murder. He further argues that this
instruction was incorrect under Pennsylvania law, and that
this incorrect instruction violated his constitutional rights.
The district court summarily rejected Smith's contention,
stating: "Smith has raised several other arguments in his
petition concerning both the guilt and penalty phases of his
1983 trial. These we find to be without merit." Smith v.
Horn, 1996 WL 172047, at *15.

We conclude from a fair reading of the jury instructions
that there is a reasonable likelihood that the jury convicted
Smith of first-degree murder without finding beyond a
reasonable doubt that he intended that Sharp be killed.
Such an instruction is contrary to Pennsylvania law. We
hold that these jury instructions had the effect of relieving
the Commonwealth of its burden of proving beyond a
reasonable doubt one of the elements of first-degree murder
under Pennsylvania law. The delivery of these improper
instructions amounted to a violation of Smith's right to a
fair trial pursuant to the Due Process Clause of the
Fourteenth Amendment. Finally, we hold that this

                               15
constitutional error was not harmless and that Smith must
be discharged unless the Commonwealth determines to
retry him for first-degree murder.

A.

Under Pennsylvania law, both today and at the time of
Smith's trial, an accomplice or co-conspirator in a crime
during which a killing occurs may not be convicted of first-
degree murder unless the Commonwealth proves that he
harbored the specific intent to kill. See 18 PA. CONS. STAT.
ANN. § 2502(a) (West 1983); Commonwealth v. Huffman, 638
A.2d 961, 962-63, 964 (Pa. 1994); Commonwealth v.
Bachert, 453 A.2d 931, 935 (Pa. 1982). This is so even
where the identity of the actual killer is unknown. See
Huffman, 638 A.2d at 964-65 (Papadakos, J., dissenting).
The Commonwealth need not prove that the defendant
actually performed the killing, see Commonwealth v.
Bachert, 412 A.2d 580, 583 (Pa. Super. 1979), aff'd in part,
rev'd on other grounds in part, 453 A.2d 931 (Pa. 1982), but
it must prove he intended for the killing to occur. In other
words, felony-murder simpliciter does not constitute murder
in the first degree in Pennsylvania.

In Bachert, 453 A.2d at 933-34, the evidence showed that
the defendant and a cohort committed a kidnaping and
robbery, during the course of which the cohort killed the
victim. The Pennsylvania Supreme Court wrote that to
constitute first-degree murder, the evidence had to show
beyond a reasonable doubt that the defendant harbored "a
specific intent to kill." Id. at 935. It wrote:

To determine the kind of homicide of which the
accomplice [defendant] is guilty, it is necessary to look
to his state of mind; the requisite mental state must be
proved beyond a reasonable doubt to be one which the
accomplice harbored and cannot depend upon proof of
intent to kill only in the principal.

Id. (emphasis added).

In Huffman, 638 A.2d at 962, the trial court had advised
the jury that

                               16
"in order to find a Defendant guilty of murder in the
first degree, you must find that the Defendant caused
the death of another person, or that an accomplice or
co-conspirator caused the death of another person . That
is, you must find that the Defendant's act or the act of
an accomplice or co-conspirator is the legal cause of
death of [the victim], and therefore you must determine
if the killing was intentional."

(quoting trial transcript) (emphasis added) (alteration in
original). This, the Pennsylvania Supreme Court held, was
"patently erroneous" and "an outright misstatement of the
law on a fundamental issue relating to culpability." Id. The
court wrote that Bachert "express[ly] and unambiguous[ly]"
held that an accomplice to an underlying felony that results
in death could be convicted of first-degree murder only if
the Commonwealth proves that the accomplice specifically
intended to kill. Id. at 962-63.

The Commonwealth cites in its reply brief two cases in
support of the proposition that a shared intent to enter into
a conspiracy to commit a crime is sufficient to confer
criminal liability for a killing that is the natural and
probable result of the conspiracy, even if the killing were
not shown to be specifically intended by the defendant. See
Commonwealth v. Roux, 350 A.2d 867, 870 (Pa. 1976);
Commonwealth v. La, 640 A.2d 1336, 1345-46 (Pa. Super.
1994). However, neither of these cases involved first-degree
murder. See Roux, 350 A.2d at 868 (second-degree murder
and conspiracy);3 La, 640 A.2d at 1340 (third-degree
murder and conspiracy); see also Huffman, 638 A.2d at 964
n.9 (criticizing dissent for relying on cases involving
manslaughter and lesser degrees of murder). As the
Commonwealth unambiguously conceded at oral argument,
Huffman and Bachert make clear that specific intent to
commit a killing, not simply intent to commit some other
_________________________________________________________________

3. Additionally, the events in Commonwealth v. Roux, 350 A.2d 867, 869
(Pa. 1976), took place on November 10, 1973. Before March 26, 1974,
the definition of murder in the first degree in Pennsylvania included
felony-murder. See 18 PA. CONS. STAT. ANN.§ 2502, Historical Note (1983).
Thus, Roux would be inapposite even if the defendant there had been
convicted of first-degree murder.

                               17
crime from which a killing results, is a prerequisite to a
conviction for first-degree murder in Pennsylvania. Cf. Tison
v. Arizona, 481 U.S. 137, 175 n.13, 107 S.Ct. 1676, 1697
n.13 (1987) (Brennan, J., dissenting) (listing Pennsylvania
as a jurisdiction that "restrict[s] the imposition of capital
punishment to those who actually and intentionally kill").

B.

Our analysis of jury instructions claimed to impair a
constitutional right "must focus initially on the specific
language challenged." Francis v. Franklin, 471 U.S. 307,
315, 105 S.Ct. 1965, 1971 (1985); see also Rock v.
Zimmerman, 959 F.2d 1237, 1246 (3d Cir. 1992) (en banc).
The allegedly constitutionally infirm language must be
considered in the context of the charge as a whole. See
Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482
(1991); Flamer v. Delaware, 68 F.3d 736, 752 (3d Cir.
1995); Kontakis v. Beyer, 19 F.3d 110, 115-16 (3d Cir.
1994). The proper inquiry is " `whether there is a reasonable
likelihood that the jury has applied the challenged
instructions in a way' that violates the Constitution."
Estelle, 502 U.S. at 72, 112 S.Ct. at 482 (quoting Boyde v.
California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198 (1990))
(emphasis added); see also Victor v. Nebraska , 511 U.S. 1,
6, 114 S.Ct. 1239, 1243 (1994); Flamer, 68 F.3d at 752.

A fair reading of the jury instructions given in this case
permitted the jury to convict Smith of murder in the first
degree without first finding beyond a reasonable doubt that
Smith intended that Sharp be killed. Portions of the
instructions are ambiguous as to the requisite finding of
intent. Other portions affirmatively inform the jury that it
need not find beyond a reasonable doubt that Smith
specifically intended that the victim die in order for Smith
to be guilty of murder in the first degree. Taken as a whole,
there is a reasonable likelihood that the jury understood
the instructions in this way.

One of the two portions of the jury charge that
specifically mentions first-degree murder reads as follows:

[T]he elements of first degree murder are the unlawful
killing of another person done intentionally; that is,

                               18
willfully, deliberately and with premeditation, plus
malice, as I will define that term to you. If these
elements have been established beyond a reasonable
doubt, you may, on the theory that one was the
perpetrator and the other the accomplice, find Clifford
Smith guilty of murder in the first degree . .. .

Cross App. at 1035 (emphasis added). Taken in isolation,
this charge might convey the idea that the jury must find
that Smith harbored the specific intent to kill Sharp. This
interpretation would be reasonable only if the jury were to
understand the word "accomplice" to mean "accomplice in
the killing," and not simply "accomplice in the robbery."
Only in that way would the instructions convey the critical
idea that Smith must be found to have intended to kill
Sharp for Smith to be found guilty of first-degree murder.

Taken together with the remainder of the pertinent
instructions, it is clear that jury was not made to
understand "accomplice" in this way. In other portions of
the charge, in which the trial court mentioned the killing
but did not specifically discuss first-degree murder, the
court generally did not clarify whether it was using
"accomplice" in reference to the robbery, the killing, or
both. Further, when it did make the meaning of
"accomplice" reasonably clear, it appears that the court was
using that term in reference to the robbery only.

For example, the court instructed:

[T]he Commonwealth must prove all of the elements of
the case beyond a reasonable doubt, but [it] do[es] not
have to prove beyond a reasonable doubt which of the
two, Smith or Alston, actually brought about the killing
of Richard Sharp by showing who pulled the trigger
and plac[ed] the shot in his head. If, and I emphasize
this, you find that one was the accomplice of the other
and that one of the two actually performed the killing,
you, the jurors, need not agree on the role or roles
played by the respective parties; that is, by this
defendant and his accomplice, if you find that that was
the position of both, provided that each of you is
satisfied that the crime was actually perpetrated by the
defendant or by the accomplice of the defendant.

                               19
Conversely, if you find that one was not the accomplice
of the other but that a criminal homicide occurred,
then you must decide who performed the act of killing
and, of course, it follows that if Alston was the killer
and Smith was not his accomplice, he, Smith, would not
be guilty of the crime of murder for the Commonwealth
has not proven this accomplice theory beyond a
reasonable doubt.

Id. at 1031-32 (emphasis added).

The court also instructed:

[I]f . . . you find that Smith and Alston were
accomplices of each other, then it is not important for
you to determine which one actually pulled the trigger
that brought about the killing of Richard Sharp, if you
find beyond a reasonable doubt that one of the two did
so and were [sic] acting as the accomplice of each other
at the time. In order, however, to find Clifford Smith to
be guilty, you need not conclude, as I said that he was
the actor; that is, if I can use the word "shooter," but
he was, nevertheless, acting as an accomplice of Alston
and it was his intent of promoting or facilitating that
act and the killing was done in furtherance of the
robberies, if you so find, then he would be guilty as
though he were the actual perpetrator.

Id. at 1030-31 (emphasis added).

The jury was further instructed on "the distinction
between third degree murder and first degree murder." Id.
at 1057. Murder in the third degree occurs where"the
perpetrator,4 or his accomplice . . . [w]as . . . acting willfully,
deliberately and with premeditation, although . . . not
having the specific intent to kill." Id. (emphasis added). The
clear implication is that first-degree murder occurs where
"the perpetrator, or his accomplice" did have "the specific
intent to kill."

In these portions of the charge, the court did not clarify
whether "accomplice" means "accomplice in the killing,"
_________________________________________________________________

4. The court presumably meant "the defendant": by definition, the
"perpetrator" necessarily did the "acting."

                               20
"accomplice in the robbery," or both. The charge thus
blurred the distinction between "accomplice in the robbery"
and "accomplice in the killing," leading the jury to believe
that an accomplice for one purpose is an accomplice for all
purposes. This confusion was exacerbated when, in the
course of enumerating the elements of second-degree
murder, the court repeatedly used the word "accomplice" to
mean "accomplice in the robbery." Without an explicit
disclaimer, it is extremely unlikely that the jury understood
the same word to have two different meanings when used
only moments apart in the same charge. The charge thus
allowed Smith to be convicted of first-degree murder if the
jury found that either he or his accomplice in the robbery
intended to kill Sharp.

Additionally, with regard to the conspiracy counts, the
court instructed: "You should . . . determine . .. whether
there was the requisite intent to enter into this conspiracy
to commit the robbery and the killing which the
Commonwealth contends flowed therefrom or whether there
was the requisite intent to enter into and be the accomplice
with the other in bringing this about" Id. at 1047 (emphasis
added). In this portion of the charge, it is unclear whether
one could have the "requisite intent to enter into th[e]
conspiracy to commit the robbery," without also having the
"requisite intent to enter into the conspiracy to commit the
. . . killing which the Commonwealth contends flowed" from
the robbery. It is likely that a reasonable juror would have
inferred that the "requisite intent to enter into th[e]
conspiracy to commit the robbery" also necessarily
establishes the "requisite intent to enter into th[e]
conspiracy to commit . . . the killing which . . . flowed
therefrom." The court's conflation of the two independent
requirements of intent was aggravated by the court's next
instruction that the jury determine "whether there was the
requisite intent to enter into and be the accomplice with the
other in bringing this about," without clarifying whether the
"this" referred to the robbery, the killing, or both.

The court immediately attempted to explain the above
instruction, but in doing so it conveyed the impression that
Smith was criminally liable for conspiracy to commit
murder if he intended to enter into a conspiracy to commit
robbery:

                               21
That is to say, did Clifford Smith agree, although not
necessarily by words, but by conduct and
circumstances to bring about this robbery which, in
turn, led to the ultimate shooting, so the Commonwealth
contends, and the killing of Richard Sharp? If so, then
the major basis of conspiratorial liability exists as to
him.

Id. at 1047-48 (emphasis added). The court did not clarify
to which crime this "conspiratorial liability" applies; the
charge was given in the context of the general conspiracy
instruction. Thus, it is likely that the jury understood this
charge as instructing that Smith could be found guilty of
conspiracy to commit first-degree murder if he intended to
commit the robbery, even if he did not intend that the
killing be committed.

The closest the court came to instructing the jury that
specific intent on the part of Smith was necessary to
convict him of first-degree murder was the following: "[Y]ou
. . . would be justified in returning a verdict of first degree
murder, if you determine beyond a reasonable doubt that
the killing was intentional; that is, that there was a specific
conscious intent to kill and this was done willfully,
deliberately, and with premeditation." Id. at 1058 (emphasis
added). However, this language fails to convey the crucial
point that the jury must find that Smith, as opposed to
Alston, intended the killing to occur in order for Smith to
be found guilty of murder in the first degree. Thus, this
portion of the charge is "not rhetorically inconsistent,"
Rock, 959 F.2d at 1248, with the portions that convey the
idea that an intent on the part of Alston to kill, coupled
with Smith's participation in the robbery, rendered Smith
guilty of first-degree murder.

The Commonwealth contends that we are bound by the
Pennsylvania Supreme Court's determination, on Smith's
direct appeal, that the instructions fairly conveyed to the
jury the elements of first-degree murder. The court wrote:
"We have reviewed the record in the present case and find
no inadequacies in the trial court's instructions as to
elements of the crime of murder of the first degree and as
to pertinent requirements of criminal culpability." Smith I,
513 A.2d at 1377. Nonetheless, where an allegedly faulty

                               22
jury charge implicates a habeas petitioner's federal
constitutional rights, as we conclude in the next section
this charge did, we have an independent duty to ascertain
how a reasonable jury would have interpreted the
instructions at issue. See Francis, 471 U.S. at 315-16, 105
S.Ct. at 1972; Sandstrom, 442 U.S. at 516-17, 99 S.Ct. at
2455; Kontakis, 19 F.3d at 116.

The dissent contends that the trial court's initial
rendition of the meaning of "accomplice" pursuant to
Pennsylvania law adequately conveyed to the jury that each
subsequent use of the term was offense-specific. See
Dissent slip op. at 42-43. The court instructed:

[A]n accomplice is a person if with the intent of
promoting or facilitating the commission of a crime he
solicits, commands, encourages or requests the other
person or persons to commit that crime or crimes, or
aids, agrees to aid, or attempts to aid the other person
in the planning or committing the [sic] crime.

App. at 1029. Yet nothing in this charge would lead the
jury to think that, when the court instructed the jury on
murder, and the court used the word "accomplice," that
word meant only "accomplice in the murder." Indeed, this
charge reinforces the notion that an accomplice for one
purpose is an accomplice for all purposes. There is at least
a reasonable likelihood that, without further elaboration,
the jurors understood the instruction as stating that if
Smith harbored "the intent of promoting or facilitating the
commission of a crime [robbery] [and] he solicit[ed],
command[ed], encourage[d] or request[ed] [Alston] to
commit that crime [robbery] or aid[ed], agree[d] to aid, or
attempt[ed] to aid [Alston] in . . . planning or committing
the crime [robbery]," then Smith is "an accomplice." Id.
(emphasis added). The dissent seeks mightily to read into
this charge the additional words that might have conveyed
the correct impression -- "an accomplice in that crime" or
"an accomplice for purposes of that crime." That critical
impression, however, was not conveyed.

The Commonwealth urges that, taken as a whole, the
charge informed the jury that it must find that Smith
intended for the killing to occur in order to convict him of

                               23
first-degree murder. However, the Commonwealth has cited
us no additional language from the charge concerning the
elements of first-degree murder. Indeed, we have quoted
above the entirety of the charge as pertinent to the first-
degree murder count and, taken as a whole, we must
conclude that there is at least a reasonable likelihood that
the jury understood the charge as imposing upon the
Commonwealth no burden of proving that Smith intended
for the victim to die in order to convict Smith offirst-degree
murder.

C.

Having determined that the jury instructions in this case
were incorrect, we must further determine whether the
error is of constitutional magnitude. " `[I]t is well
established that a state court's misapplication of its own
law does not generally raise a constitutional claim. The
federal courts have no supervisory authority over state
judicial proceedings and may intervene only to correct
wrongs of constitutional dimension.' " Johnson v.
Rosemeyer, No. 96-1861, 1997 WL 318064, at *5 (3d Cir.
June 13, 1997) (quoting Geschwendt v. Ryan, 967 F.2d
877, 888-89 (3d Cir. 1992) (en banc)) (alteration and
emphasis added). However, this does not foreclose the
possibility that, in the rare case, "a state court's
misapplication of its own law" may itself result in a
"wrong[ ] of constitutional dimension." In other words, a
state court's misapplication of its own law, in and of itself,
cannot be corrected by a federal court. However, when that
misapplication has the effect of depriving a person of life,
liberty, or property without due process of law in violation
of the Fourteenth Amendment, the resulting federal
constitutional error can be corrected by a federal habeas
court. See Gilmore v. Taylor, 508 U.S. 333, 348-49, 113
S.Ct. 2112, 2121 (1993) (O'Connor, J., concurring in the
judgment). On the other hand, "errors of state law cannot
be repackaged as federal errors simply by citing the Due
Process Clause." Johnson, 1997 WL 318064 at *6. We
conclude that the jury instruction at issue here was not
merely an error of state law. By removing the
Commonwealth's burden of proving beyond a reasonable

                               24
doubt one of the essential elements of the crime of first-
degree murder, the instruction also contravened the Due
Process Clause of the Fourteenth Amendment.

It is axiomatic that Pennsylvania may, within certain
constitutional limits, define first-degree murder in whatever
way the Commonwealth sees fit. See McMillan v.
Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415-16
(1986); Johnson, 1997 WL 318064 at *6. It certainly may
include within that definition felony-murder. Indeed, many
states do include such killings in their definitions of first-
degree murder. See Tison, 481 U.S. at 152-54 & nn.5-9,
107 S.Ct. at 1683-86 & nn.5-9. Pennsylvania itself defined
first-degree murder in this way until 1974. See 18 PA. CONS.
STAT. ANN. § 2502, Historical Note. The Supreme Court has
held that the inclusion of felony-murder within the
definition of first-degree murder, and the consequent
imposition of the death penalty, does no violence to the
federal Constitution so long as the defendant was a major
participant in the felony and exhibited a reckless
indifference to human life. See Tison, 481 U.S. at 158, 107
S.Ct. at 1688.

However, once the state has defined the elements of an
offense, the federal Constitution imposes constraints upon
the state's authority to convict a person of that offense. It
is well-settled that "the Due Process Clause [of the
Fourteenth Amendment] protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he
is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct.
1068, 1073 (1970); see also Victor, 511 U.S. at 5, 114 S.Ct.
at 1242; Francis, 471 U.S. at 316-17, 105 S.Ct. at 1973-74;
Sandstrom v. Montana, 442 U.S. 510, 520-22, 99 S.Ct.
2450, 2457-58 (1979). A jury instruction that omits or
materially misdescribes an essential element of an offense
as defined by state law relieves the state of its obligation to
prove facts constituting every element of the offense beyond
a reasonable doubt, thereby violating the defendant's
federal due process rights. See Carella v. California, 491
U.S. 263, 265, 109 S.Ct. 2419, 2420 (1989) (per curiam);
Rock, 959 F.2d at 1245-46; see also Polsky v. Patton, 890
F.2d 647, 651 (3d Cir. 1989) (no due process violation

                               25
where jury instruction "did not omit any essential element
of the crime charged").

This result is not inconsistent with Johnson, 1997 WL
318064 at *6-8. In that case, the federal habeas petitioner
contended that the jury instructions concerning
justification rendered at his Pennsylvania trial for
aggravated assault, and later affirmed by an intermediate
appellate court, violated his rights pursuant to the Due
Process Clause. See id. at *3-5. We noted that a conviction
for aggravated assault in Pennsylvania required that the
Commonwealth prove beyond a reasonable doubt that the
defendant acted with malice. See id. at *6. We further noted
that justification on the part of the defendant would
necessarily negate a showing of malice. See id. Thus, the
Commonwealth was required to prove that the defendant
acted without justification. See id. The petitioner argued
that, by misdescribing justification pursuant to
Pennsylvania law, the trial court violated his Due Process
rights. See id. He reasoned that the allegedly erroneous
instruction allowed the Commonwealth to convict him of
the offense without having proved every element, as
properly defined, beyond a reasonable doubt. See id.

We rejected this argument, holding that no federal issue
was raised. See id. at *8. We further held that a federal
habeas court is bound by the definition given a state
criminal offense even by intermediate state appellate
courts. See id. at *10-13. However, in Johnson the
Pennsylvania Supreme Court had not yet defined
justification pursuant to state law. See id. at *4. The
petitioner simply challenged the definition of that term
rendered by the state trial and intermediate appellate
courts, urging that the Pennsylvania Supreme Court would
rule differently. Thus, Johnson stands for the unremarkable
proposition that the states are free to define criminal
offenses in any way they see fit, within certain
constitutional limitations, even through their lower courts.
This is so even if the definition they choose makes it
somewhat easier to convict a person of the offense than
would be the case under a different definition. Johnson
most emphatically does not stand for the proposition that,
once a state has defined a criminal offense, the state may

                               26
then proceed to convict a person of that offense on anything
less than proof beyond a reasonable doubt of all the
elements of the offense. Thus, whether a state is relieved of
that burden via an instruction that omits an element of an
offense, materially misdescribes that element, or shifts to
the defendant the burden of proof on that element, the
result is the same -- the defendant has been denied his
federal constitutional rights.

The dissent accuses us of holding that "the Due Process
Clause is violated whenever a state trial judge, in
instructing a jury on an element of a state offense, gives an
ambiguous instruction that prejudices the defendant."
Dissent slip op. at 45-46. We do no such thing. First,
rather than being "ambiguous," the language must be such
that "there is a reasonable likelihood that the jury has"
understood and applied it in a certain way. Supra at 18
(emphasis and internal quotation marks omitted). Second,
we require more than that the defendant simply be
"prejudice[d]." Our recent holding in Johnson, 1997 WL
318064 at *6-8, makes this clear. The standard requires
that the defendant be prejudiced in a very particular way --
it requires that the erroneous instructions have operated to
lift the burden of proof on an essential element of an
offense as defined by state law.

The dissent notes that the Supreme Court has never
expressly held that a jury charge that eases the state's
burden of proof on an element of an offense by omitting or
materially misdescribing it violates the Due Process Clause.
The proposition is true as far as it goes. If our duty as a
court of appeals were simply to sustain only those claims
the legal bases for which have already been settled by the
Supreme Court, the dissent's observation would have some
relevance. However, our duty also extends to predicting, in
circumstances where there is no specific guidance, how
that Court would decide if it were to consider the case
before us.

Contrary to the dissent's assertions, our holding follows
inexorably from the Supreme Court's decisions in
Sandstrom, Franklin, and Carella. As the dissent recognizes,
those cases "held that the Due Process Clause[i]s violated
where jury instructions in [a] criminal case[ ] set out either

                               27
a conclusive presumption or a mandatory rebuttable
presumption that relieve[s] the prosecution of the burden of
persuasion on the presumed fact." Dissent slip op. at 46.
Here, the jury was not instructed on an essential element
of first-degree murder -- Smith's intent. Instead, as we read
the charge (and we understand the dissent disputes this
point) the jury was instructed that as long as either Smith
or Alston killed Sharp, and as long as Smith and Alston
were accomplices in the robbery, Smith could be found
guilty of first-degree murder. This charge was the
functional equivalent of an instruction that as long as
either Smith or Alston killed Sharp, and as long as Smith
and Alston were accomplices in the robbery, the jury should
conclusively presume that Smith had the intent to kill Sharp,
and therefore he could be found guilty of first-degree
murder. Yet the dissent apparently would find that the
former charge does not violate Smith's constitutional rights,
because it is not identical in form to the latter, which
indisputably is repugnant to the Due Process Clause under
Sandstrom, Franklin, and Carella.

In this case, there is no dispute that Pennsylvania law
requires the Commonwealth prove specific intent to kill on
the part of the defendant in order to convict him of first-
degree murder. The Commonwealth unambiguously
conceded as much at oral argument. However, the jury was
instructed that Smith could be found guilty of first-degree
murder even if it did not find beyond a reasonable doubt
that Smith intended for a killing to take place. The
instruction thus relieved the Commonwealth of the burden
of proving beyond a reasonable doubt facts necessary to
constitute every element of the offense with which Smith
was charged. The instruction therefore constituted error
pursuant to the Due Process Clause of the Fourteenth
Amendment.

D.

Finally, we must determine whether the constitutional
error that occurred in this case was harmless.

1.

We must first determine whether a jury charge that omits
or misdescribes an element of an offense can ever be
harmless. We have explained that

                               28
[c]onstitutional errors have been categorized as one of
two types: structural error or trial error. A structural
error is a defect in the trial mechanism itself, affecting
the entire trial process, and is per se prejudicial. Trial
error occurs during the presentation of the case to the
jury, and may be qualitatively assessed in the context
of all other evidence. Thus, trial errors are subject to a
harmless error analysis.

Yohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996) (citations
omitted); see also Arizona v. Fulminante, 499 U.S. 279,
307-10, 111 S.Ct. 1246, 1264-65 (1991).5

In California v. Roy, ___ U.S. ___, ___, 117 S.Ct. 337, 339
(1996) (per curiam), the Supreme Court characterized "an
error in the instruction that defined the crime" as a trial
error rather than a structural error. In that case, the
defendant was accused of aiding a confederate in
committing first-degree murder. See id. at ___, 117 S.Ct. at
337. The trial court had instructed the jury the defendant
could be convicted if it found beyond a reasonable doubt
that he had knowledge of his cohort's unlawful purpose and
that the defendant aided him in the commission of the act.
See id. at ___, 117 S.Ct. at 337-38. The instruction was
erroneous under state law because it failed to convey the
critical idea that the defendant must also have intended to
aid in the commission of the crime in order to be found
guilty. See id. at ___, 117 S.Ct. at 338.

The Roy Court arguably did not decide that all "error[s] in
the instruction that define[ ] the crime" constitute trial
error, id. at ___, 117 U.S. at 339, but only that that label
attaches "to errors that concern fairly narrow departures
from proper charge language." Peck v. United States, 102
F.3d 1319, 1325 (2d Cir. 1996) (en banc) (per curiam)
_________________________________________________________________

5. In Kontakis v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994), we stated
broadly that "unconstitutional jury instructions" constitute trial error.
There is at least one type of erroneous jury instruction, however, that
constitutes structural error. See Sullivan v. Louisiana, 508 U.S. 275,
279-80, 113 S.Ct. 2078, 2082 (1993) (defective reasonable doubt charge).
While most erroneous jury instructions that rise to the level of
constitutional error will be trial error, we undertake to determine how to
classify the specific type of instructional error that occurred here.

                               29
(Newman, C.J., concurring); see also id. at 1326 (Newman,
C.J., concurring). It may be that a "mere" misstatement of
an element of an offense is a trial error, while a complete
omission of an element is a structural error. See Roy, ___
U.S. at ___, 117 S.Ct. at 339; see also Waldemer v. United
States, 106 F.3d 729, 736 n.3 (7th Cir. 1997); United States
v. Wiles, 102 F.3d 1043, 1059 (10th Cir. 1996) (en banc),
modified, 106 F.3d 1516 (10th Cir.), petition for cert. filed,
65 U.S.L.W. 3632 (U.S. Mar. 10, 1997) (No. 96-1430); cf.
Peck, 102 F.3d at 1325 (Newman, C.J., concurring).

However, we need not decide this issue. The charge error
in the instant case is so similar to the one at issue in Roy
that we believe that this case is controlled by that decision.
In addition, several pre-Roy decisions from both the
Supreme Court and this Court all hold that similar types of
instructional error constitute trial error. See Yates v. Evatt,
500 U.S. 391, 402, 111 S.Ct. 1884, 1892 (1991)
(instructions that impermissibly impose mandatory,
rebuttable presumption on element of offense); Carella, 491
U.S. at 266, 109 S.Ct. at 2421 (mandatory, conclusive
presumption); Rose v. Clark, 478 U.S. 570, 579-82, 106
S.Ct. 3101, 3106-08 (1986) (mandatory, rebuttable
presumption); Pope v. Illinois, 481 U.S. 497, 501-03, 107
S.Ct. 1918, 1921-22 (1987) (instructions that misdescribe
element of offense in violation of First and Fourteenth
Amendments); United States v. Edmonds, 80 F.3d 810, 824
(3d Cir. 1996) (en banc) (instructions that effectively
abridge federal criminal defendant's Sixth Amendment right
to jury unanimity); Kontakis, 19 F.3d at 116 (instructions
that alter burden of proof on element of offense). We
conclude that the error that occurred here was trial error,
not structural error.

2.

In a collateral proceeding, the standard for harmlessness
is "whether the error had substantial and injurious effect or
influence in determining the jury's verdict." Roy, ___ U.S. at
___, 117 S.Ct. at 338 (internal quotation marks omitted);
see also Brecht v. Abrahamson, 507 U.S. 619, 637, 113
S.Ct. 1710, 1722 (1993); Yohn, 76 F.3d at 523; Alston v.
Redman, 34 F.3d 1237, 1252 (3d Cir. 1994).

                               30
Pursuant to the Brecht standard,

[t]he crucial inquiry is the impact of the error on the
minds of the jurors in the total setting. It is thus
inappropriate to ask whether there was sufficient
evidence to support the result, apart from the phase of
the trial affected by the error. The correct inquiry is
whether the error had a substantial influence on the
verdict despite sufficient evidence to support the result
apart from the error.

Yohn, 76 F.3d at 523 (citations omitted); see also Alston, 34
F.3d at 1252.

The Supreme Court has held that if a habeas court "is in
grave doubt as to the harmlessness of an error," habeas
relief must be granted. O'Neal v. McAninch, 513 U.S. 432,
___, 115 S.Ct. 992, 995 (1995). Thus, if the court concludes
from the record that the error had a "substantial and
injurious effect or influence" on the verdict, or if it is in
"grave doubt" whether that is so, the error cannot be
deemed harmless. See Roy, ___ U.S. at ___, 117 S.Ct. at
338.

3.

We now apply the harmless error analysis set forth above
to the facts of this case. The Commonwealth urges that this
error was harmless because the jury's findings, in light of
the evidence, embrace the finding that Smith actually killed
Sharp and intended to do so. According to the
Commonwealth, the harmlessness of the error follows
syllogistically: (1) the trial court essentially instructed the
jury that Smith was guilty of first-degree murder if at least
one of the robbers both killed Sharp and intended to kill
him; (2) by finding Smith guilty of first-degree murder, the
jury necessarily found beyond a reasonable doubt that
either Smith or Alston killed Sharp and intended to do so;
and (3) because there was evidence that Smith killed Sharp,
and no evidence that Alston killed Sharp, the jury found
beyond a reasonable doubt that Smith both killed Sharp
and intended to do so.

While this reasoning has some superficial appeal, it does
not withstand close scrutiny. The fundamental flaw arises

                               31
in the leap from step two to step three of the analysis. The
jury was never asked to evaluate the respective
probabilities that Smith or Alston killed Sharp. The verdict
demonstrates that the jury found beyond a reasonable
doubt that one of them killed Sharp. The evidence
supporting this verdict demonstrates that it is more likely
that Smith, rather than Alston, killed Sharp. However, this
evidence and the factual findings it supports are not the
" `functional[ ] equivalent' " of, nor do they "effectively
embrace[ ]," a finding beyond a reasonable doubt that Smith
killed Sharp. Edmonds, 80 F.3d at 824 (quoting Carella,
491 U.S. at 271, 109 S.Ct. 2423-24 (Scalia, J., concurring
in the judgment)), cert. denied, ___ U.S. ___, 117 S.Ct. 295
(1996) (alteration added); Roy, ___ U.S. at ___, 117 S.Ct. at
339 (Scalia, J., concurring). We cannot say that a finding
that either Smith or Alston killed Sharp is " `so closely
related' " to a finding that Smith killed Sharp, in light of the
evidence presented, that " `no rational jury' " that made the
former finding would have failed to make the latter finding.
Edmonds, 80 F.3d at 824 (quoting Carella, 491 U.S. at 271,
109 S.Ct. at 2423-24 (Scalia, J., concurring in the
judgment)).

The strongest evidence that Smith actually killed Sharp
were his admissions, made immediately after the robbery,
related at trial by Barrow and Yancey. These two witnesses
were admitted accomplices to the robbery whose credibility
was therefore in question. Smith's participation in the
robbery was well established by independent evidence --
the jury did not need to believe either Barrow or Yancey in
order to find him guilty of robbery and therefore (because of
the erroneous jury instructions) first-degree murder. It is
thus unclear whether and to what extent the jury believed
or disbelieved Barrow and Yancey. Since the jury charge
did not necessitate that the jury make this determination,
we can only speculate as to its conclusion with regard to
Barrow and Yancey's credibility. We cannot assume that
the jury, having found Smith guilty, "believed all properly
admitted evidence against him and disbelieved all evidence
in his favor." ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS
ERROR 28 (1970).

The situation here is analogous to the one contemplated
in Yates, 500 U.S. at 405-06, 111 S.Ct. at 1894. In that

                               32
"mandatory rebuttable presumption" case, the Supreme
Court cautioned that if it appears that the jury did not
consider

all the evidence bearing on the issue in question[,]
before it made the findings on which the verdict rested
. . . an examination of the entire record would not
permit any sound conclusion to be drawn about the
significance of the error to the jury in reaching the
verdict. . . . [T]he terms of some presumptions so
narrow the jury's focus as to leave it questionable that
a reasonable juror would look to anything but the
evidence establishing the predicate fact in order to infer
the fact presumed.

Id. (footnote omitted). Analogously, the effect of the
instructions here was to "so narrow the jury's focus as to
leave it questionable that a reasonable juror would"
endeavor to answer the rather difficult question whether
Smith killed Sharp, rather than to rest upon the answers to
the relatively straightforward questions whether Smith
participated in the robbery and whether either Smith or
Alston killed Sharp.

Moreover, the Commonwealth proceeded on the theory
that Smith was guilty of first-degree murder whether or not
he intended the victim to be killed. Although the prosecutor
in summation contended that Smith committed the killing,
he also repeatedly admonished the jury that it need not
consider whether Smith actually killed Sharp. See Cross
App. at 1007-08, 1010, 1012-13, 1014, 1017. Having
repeatedly urged the jury to base its verdict on a theory
predicated on a fundamental constitutional error, the
Commonwealth cannot now seriously contend that that
error had no "substantial and injurious effect or influence"
on the verdict. See Yohn, 76 F.3d at 523-24 (repeated
emphasis by prosecution on importance of erroneously
admitted evidence demonstrated error was not harmless).

For these reasons, our harmless-error analysis leads
inexorably to the conclusion that the error here was not
harmless. Upon a review of the record, we cannot say that
the error had no "substantial and injurious effect or
influence" on the jury's verdict.

                               33
IV.

The judgment of the district court will be reversed to the
extent that it denied Smith habeas relief with regard to his
conviction for first-degree murder. The judgment will be
vacated in all other respects. The matter will be remanded
to the district court with directions that it conditionally
order Smith released from confinement. Smith shall be
released unless the Commonwealth retries him for the
crime of first-degree murder within 180 days.6

_________________________________________________________________

6. We express no opinion whether, following the grant of habeas relief,
the Commonwealth may properly move to resentence Smith for any
lesser included homicide (such as murder or manslaughter where
specific intent is not an element of the crime). Nor do we express an
opinion concerning the propriety of the Commonwealth moving to
resentence Smith on the other crimes for which he was convicted along
with first-degree murder.

                               34
ALITO, Circuit Judge, dissenting.

The majority's decision in this case is troubling. In 1983,
Clifford Smith was convicted in state court forfirst-degree
murder. At his trial, the prosecution introduced strong
evidence that Smith and another man, Roland Alston,
robbed a pharmacy and that, after the pharmacist was
ordered to lie face down on the floor, Smith proceeded to
execute him with a gunshot to the head. Fourteen years
later, when retrial will almost certainly be difficult at best,
the majority holds that Smith's federal habeas petition
must be granted based on a perceived ambiguity in the jury
instructions. According to the majority, certain references
to the concept of an "accomplice" are ambiguous in that
they could be interpreted to mean either " `accomplice in
the killing,' `accomplice in the robbery,' or both." Maj. Op.
at 20-21. This supposed ambiguity, the majority concludes,
not only created confusion about the requirements of state
law but rose to the level of a federal due process violation.
e majority takes this course even though (1) the trial
judge, before making the references to "accomplice"
that the majority finds to be ambiguous, provided an
accurate and detailed definition of that term which, if
read into all of the challenged references, renders them
accurate; (2) Smith's attorney did not object at trial to
the relevant portions of the jury charge; and (3) Smith
never argued in either of his two appeals to the
Pennsylvania Supreme Court that these portions of the
jury instructions violated either state law or the Due
Process Clause. Under these circumstances, I cannot agree
with the majority's decision.

I.

An important threshold question is whether Smith
exhausted state remedies. Although the Commonwealth has
not raised this issue, I believe that we should nevertheless
address it under the circumstances present here.1 In
_________________________________________________________________

1. In this opinion, I rely on the caselaw regarding exhaustion and
procedural default as they existed prior to the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132,

                               35
Granberry v. Greer, 481 U.S. 129, 134-35 (1987), the
Supreme Court stated that "both comity and judicial
efficiency" might make it appropriate for a court to raise the
issue of exhaustion on its own where a case "presents an
issue on which an unresolved question of fact or of state
law might have an important bearing." 481 U.S. at 134-35.
The present case falls squarely within this description. As
noted, the majority's decision is founded upon its
conclusion that the jury instructions inaccurately explained
Pennsylvania's rule of accomplice liability. Before
considering whether this purported misstatement of state
law rose to the level of a federal due process violation, it
would be helpful to have the benefit of a decision by the
Pennsylvania courts on the underlying issue of state law.

We have no such decision, however, because Smith did
not challenge the relevant portions of the jury instructions
on any ground in either of his two appeals to the
Pennsylvania Supreme Court. Not only did he fail to raise
the federal due process claim on which the majority's
decision rests, but he did not even contend that the
instructions misstated state law.2
_________________________________________________________________

110 Stat. 1221, which became law on April 24, 1996, after Smith's
federal habeas petition was filed. Under a provision of that Act applicable
to a state prisoner under a capital sentence, a district court is generally
precluded from considering a claim unless it was "raised and decided on
the merits in the State courts." 28 U.S.C. § 2264(a). This provision
applies to federal habeas petitions already pending when the Act became
law. See Lindh v. Murphy, 1997 WL 338568 (U.S. Sup. Ct. June 23,
1997). However, this provision applies only if a state satisfies certain
conditions, see U.S.C. § 2261, and in Death Row Prisoners of
Pennsylvania v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997), the
Commonwealth declared, and our court agreed, that Pennsylvania did
not meet the requirements of § 2261 as of January 31, 1997. It therefore
appears that § 2264(a) is inapplicable here. Under the current version of
28 U.S.C. § 2254(b)(3), consideration of the issue of exhaustion would be
required. However, Smith's petition was filed before this provision took
effect. See Lindh, supra.

2. On direct appeal, Smith argued that the trial judge erred in refusing
to give three instructions requested by the defense, namely, Nos. 8, 11,
and 12. Number 8 defined first degree murder; number 11 defined

                               36
Although Smith did not exhaust state remedies, "[a]
petitioner's failure to exhaust state remedies is . . . excused
. . . when state law `clearly foreclose[s] state court review of
[the] unexhausted claims.' " Doctor v. Walters, 96 F.3d 675,
680 (3d Cir. 1996) (quoting Toulson v. Beyer, 987 F.2d 984,
987 (3d Cir. 1993)). Here, the Pennsylvania courts might
well hold that review of Smith's claim is foreclosed under
the Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. S.
§§ 9541-46 (Supp. 1996). In Doctor, 96 F.3d at 681, we
explained that under Pennsylvania law

"[a]n issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state postconviction
_________________________________________________________________

involuntary manslaughter; and number 12 defined the terms
"intentionally," "knowingly," "recklessly," and "negligently." None of these
requested instructions related to the claim on which the majority relies.

The Supreme Court of Pennsylvania rejected Smith's argument
regarding the requested instructions on involuntary manslaughter on the
ground that the evidence at trial did not support such a charge.
Commonwealth v. Smith, 513 A.2d 1371, 1377-78 (Pa. 1986). The court
rejected Smith's argument concerning the other two requested
instructions on the ground that the substance of those requests was
adequately covered by the trial judge. The state supreme court wrote:

It is established that a trial court is not required to accept points
submitted by counsel verbatim, but rather is free to select its own
forms of expression. Commonwealth v. McComb, 462 Pa. 504, 509,
341 A.2d 496, 498 (1975). "The only issue is whether the area is
adequately, accurately and clearly presented to the jury for their
consideration." Id. We have reviewed the record in the present case
and find no inadequacies in the trial court's instructions as to
elements of the crime of murder of the first degree and as to
pertinent requirements of criminal culpability.

513 A.2d at 1377.

This passage cannot reasonably be interpreted to mean that the state
supreme court sua sponte considered the federal due process claim now
before us. Indeed, it would be utterly unrealistic to interpret the court's
statements to mean even that it had rejected all possible objections to
the instructions that might be raised under state law. To go further and
read that statement as a rejection of an unraised federal due process
claim would be absurd.

                               37
proceeding." [42 Pa. Cons. Stat. Ann.] § 9544(b). As the
Pennsylvania courts have noted, "nearly all claims are
waived under the PCRA since nearly all claims
potentially could have been raised on direct appeal
. . . . Commonwealth v. Eaddy, 419 Pa. Super. 48, 614
A.2d 1203, 1207-08 (1992), appeal denied, 534 Pa.
636, 626 A.2d 1155 (1993); accord Commonwealth v.
Stark, 442 Pa. Super. 127, 658 A.2d 816, 820 (1995).

We recognized, however, that PCRA review might not be
foreclosed if a petitioner is "able to demonstrate a
`miscarriage of justice' warranting `departure from the
PCRA's stringent eligibility requirements.' " Doctor, 96 F.3d
at 681 (quoting Commonwealth v. Fiore, 445 Pa. Super.
401, 665 A.2d ll85, 1193 (1995) (Hoffman, J., concurring)
(citations omitted), appeal denied, 675 A.2d 1243 (1996)). I
question whether at this time the Pennsylvania courts
would entertain Smith's challenge to the jury instructions,
but I would certainly request briefing from the parties on
this question.

If, as seems likely, PCRA review is foreclosed because of
Smith's failure to raise his federal due process claim in the
prior state-court proceedings, we should consider the
doctrine of procedural default. See Coleman v. Thompson,
501 U.S. 722, 735 n.* (1991). This doctrine, like
exhaustion, has not been raised by the Commonwealth, but
I believe that we should apply this doctrine nevertheless.
Our court, see Hull v. Freeman, 932 F.2d 159, 164 n.4 (3d
Cir. 1991), and many others have held that procedural
default may be raised sua sponte by a court of appeals.
See, e.g., Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994);
Washington v. James, 996 F.2d 1442 (2d Cir. 1993);
Hardiman v. Reynolds, 971 F.2d 500, 502-04 & n.4 (10th
Cir. 1992).3 In Washington , the Second Circuit explained
_________________________________________________________________

3. Cf. Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-jurisdictional
Teague rule may but need not be raised by federal court sua sponte;
Granberry, 481 U.S. at 134-35 (same for exhaustion); Patsy v. Board of
Regents of Fla., 457 U.S. 498, 515 n.19 (1982) (same for Eleventh
Amendment defense). Compare Trest v. Cain, 94 F.3d 1005 (5th Cir.
1996), petition for cert. granted, 117 S.Ct. 1842 (1997) (presenting
question whether court of appeals is required to raise procedural

                               38
that "[p]rinciples of comity and federalism bear on the
relations between court systems, and those relations will be
affected whether or not the litigants have raised the issue
themselves." 996 F.2d at 1448. In Hardiman, the Tenth
Circuit, quoting our opinion in Brown v. Fauver, 819 F.2d
395, 398 (3d Cir. 1987) (holding that a court could raise
exhaustion sua sponte), stated that it was appropriate for a
court to raise the issue of procedural default because it
implicates " `values that may transcend the concerns of the
parties to [the] action.' " 971 F.2d at 502.

In Ortiz, the First Circuit, when confronted with a federal
constitutional claim closely resembling Smith's, held that it
was appropriate to raise the issue of procedural default on
its own motion. The petitioner in Ortiz, argued that "his
right to due process was violated because the jury was not
properly instructed on the elements of felony-murder under
Massachusetts law, and therefore did not find every
element of the offense beyond a reasonable doubt." 19 F.3d
at 710. Although the petitioner argued on direct appeal that
the instructions were deficient, the Supreme Judicial Court
of Massachusetts declined to review his claim on the merits
because he had not objected to the instructions at trial. Id.
at 713. Instead, the Supreme Judicial Court "limited its
inquiry to whether the error gave rise to a substantial
likelihood of miscarriage of justice." Id. at 714. Accordingly,
the First Circuit found that "the state procedural default
_________________________________________________________________

default). The petition in Trest argues that, under Gray v. Netherland, 116
S.Ct. 2080, 2082 (1996), procedural default is an affirmative defense
that is lost if not properly raised by the state. But while it is certainly
true that a state may lose the "right" to have the doctrine of procedural
default considered if it does not properly raise that issue, see Gray, 116
S.Ct. at 2082, it is far from clear that Gray meant to go further and say
that the lower federal courts lack the discretion to raise the issue on
their own. See id. (citing Schiro v. Farley, 510 U.S. 222, 227-28 (1994)
(refusing as a matter of discretion to consider Teague bar where not
raised at cert. petition stage), and Jenkins v. Anderson, 447 U.S. 231,
234 n.1 (1980) (refusing to consider procedural default where raised for
the first time in Supreme Court).

                               39
[was] clear on the face of the record," and thus found it
unnecessary to review the merits of the petitioner's claim.4

Like the First Circuit in Ortiz, I think that it is
appropriate for us to raise the issue of procedural default in
this case on our own motion, particularly since Smith's
federal constitutional claim is grounded on an issue of state
law. Since Smith has not had an opportunity to address the
issue of procedural default, I would request further briefing
on that issue before determining whether there is any basis
for excusing default in this case.

The majority refuses to consider the issues of exhaustion
and procedural default -- indeed, refuses even to request
briefing on these serious issues. The majority voices
concern that consideration of these issues would "result in
undue delay." Maj. Op. 13; see also id. at 12. This concern
is curious -- and not only because of the pace of the post-
conviction proceedings to date. Consideration of procedural
default would not simply delay a decision on the merits of
Smith's claim; rather, it holds the potential for precluding
a decision on the merits of that claim. If the claim is
procedurally defaulted, if Smith cannot show cause and
prejudice, and if no other exception applies (questions on
which I express no view without hearing from the parties),
then neither the state nor the federal courts would decide
the merits of Smith's claim. Obviously, then, the refusal to
consider procedural default cannot be defended on the
ground that to do so would only delay an inevitable
decision on the merits.

The majority also contends that the jury instructions
resulted in a "miscarriage of justice." As I show below,
however, the instructions at issue here were at most
ambiguous -- and that is undoubtedly why they did not
even elicit an objection from Smith's trial counsel, why
challenges to these instructions were not included among
the numerous arguments raised in Smith's two appeals to
the Supreme Court of Pennsylvania, and why the district
court judge in this federal habeas corpus proceeding
thought that the alleged errors that the majority is willing
_________________________________________________________________

4. The First Circuit did state that it would have rejected the claim even
if it had reached the merits.

                               40
to label "a miscarriage of justice" were meritless and did not
even warrant discussion. See Smith v. Horn, 1996 WL
172047 (E.D. Pa. 1996), page 12.

There is one reasonable argument that can be made in
support of the conclusion that we should not raise the
doctrines of exhaustion and procedural default on our own,
i.e., that these doctrines, which serve to protect state
prerogatives, should be raised by the state's attorneys. But,
as I previously noted, our court and others have recognized
that the values served by these doctrines "may transcend
the concerns of the parties to an action." Brown v. Fauver,
819 F.2d at 398.

Aiming to curb federal habeas corpus abuses,
particularly in death penalty cases, Congress endorsed this
view when it enacted the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1221. In
capital cases subject to chapter 154, 28 U.S.C. §§ 2261-66,
Congress prohibited federal courts from considering a claim
unless it was "raised and decided on the merits in the State
courts." 28 U.S.C. § 2264(a). In other cases, Congress
provided that a state may not be deemed to have waived
exhaustion unless it does so expressly. 28 U.S.C.
§ 2254(b)(3). These new provisions do not apply here (see
footnote 1, supra), but they are animated by the same
respect for the state court systems that informed our
court's prior decisions. Accordingly, I believe that we should
not proceed to review the merits of Smith's due process
claim without considering the issues of exhaustion and
procedural default. However, since the majority has skipped
over these questions and plunged into the merits of Smith's
federal constitutional claim, I will address the merits of that
claim as well.

II.

A. The Pennsylvania rule of accomplice liability is as
follows:

When causing a particular result is an element of an
offense, an accomplice in the conduct causing such
result is an accomplice in the commission of that
offense if he acts with the kind of culpability, if any,

                               41
with respect to that result that it is sufficient for the
commission of the offense.

18 Pa. Cons. Stat. Ann. § 306(d) (emphasis added). An
"accomplice" is defined in pertinent part as follows:

A person is an accomplice of another person in the
commission of an offense if:

(1) with the intent of promoting or facilitating the
commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other
person in planning or committing it.

18 Pa. Cons. Stat. Ann. § 306(c) (emphasis added). Thus, in
order for an "accomplice" to be criminally responsible for a
particular offense, the "accomplice" must have "the intent
of promoting or facilitating the offense" -- which means
that the accomplice must at a minimum possess the intent
necessary for conviction of that offense as a principal.

In this case, Smith was charged with first degree murder,
robbery, possession of instruments of crime, and
conspiracy. The trial judge instructed the jury on the
elements of all of these offenses, as well as the lesser
included homicide offenses of second and third degree
murder and voluntary manslaughter.

Before setting out the elements of these offenses,
however, the trial judge instructed the jury on the
principles of accomplice liability, which were relevant, not
only to the first degree murder charge, but to all of the
other substantive offenses as well. The trial judge
accurately stated that an accomplice is criminally
responsible for the acts of the principal. CA 1028.
"Therefore," the court stated, "it is necessary that you
understand and that we spell out what is meant under our
Crimes Code by the term accomplice." See CA 1028-29.
Tracking the language of 18 Pa. Cons. Stat. Ann.
§ 306(c)(1), the trial judge then explained that a person is
an accomplice "if with the intent of promoting or facilitating
the commission of a crime he solicits, commands,
encourages or requests the other person or persons to

                               42
commit that crime or crimes, or aids, agrees to aid, or
attempts to aid the other person in the planning or
committing the crime." Id. (emphasis added). Under this
instruction, as under 18 Pa. Cons. Stat. Ann. § 306(c), a
person can be an accomplice with respect to the
commission of a particular crime only if that person has
"the intent of promoting or facilitating" the commission of
"that crime."

When a trial judge, in instructing a jury, provides a
definition of a complicated legal term, the judge is not
generally required to repeat that definition every time the
term is subsequently employed. Rather, the judge may
reasonably rely on the prior definition, and that is what the
trial judge did here -- without objection. If the previously
provided definition is read into the instructions whenever
the judge referred to an "accomplice," the judge's
instructions are correct. Under this procedure, every
reference to "an accomplice" should be read as a reference
to an "accomplice" with respect to the particular offense or
offenses that the judge is discussing. In finding that certain
references to the concept of an "accomplice" are ambiguous,
the majority ignores the significance of the definition that
preceded these references.

For example, the majority holds (Maj. Op. 18-19) that the
trial judge violated due process when he gave the following
instruction:

[T]he elements of first degree murder are the unlawful
killing of another person done intentionally; that is,
willfully, deliberately and with premeditation, plus
malice, as I will define that term to you. If these
elements are established beyond a reasonable doubt,
you may, on the theory that one was the perpetrator
and the other the accomplice, find Clifford Smith guilty
of murder in the first degree . . . .

CA 1035. The majority finds this instruction objectionable
because it did not clearly convey the message that, if Alston
pulled the trigger, Smith could be convicted of first degree
murder only if Smith was Alston's " `accomplice in the
killing' and not simply [his] accomplice in the robbery.' "
Maj. Op. 19. But if the previously supplied definition of an

                               43
"accomplice" is applied, this alleged ambiguity is dispelled.
As noted, an "accomplice" must have the intent required for
the offense in question (see Pa. Cons. Stat. Ann. § 306(c);
CA 1029); therefore, to be an accomplice in a first degree
murder a person must have the intent required for that
offense, i.e., the person must act intentionally, willfully,
deliberately, and with premeditation. 18 Pa. Cons. Stat.
Ann. §§ 2502(a), (d).

To be sure, if Smith's trial attorney had objected to this
and the other instructions at issue on the ground that they
were suspectable to the misinterpretation that troubles the
majority, if the trial judge had overruled this objection, if
the objection had been raised on direct appeal, and if we
sat on a Pennsylvania appellate court, rather than a federal
court, I could understand a decision requiring a new trial.
But for a federal appeals court to order a new trial 14 years
later based on such a previously unchallenged ambiguity is
shocking.

The remaining portions of the instructions that the
majority has singled out are similar. The majority objects
(Maj. Op. 19-20) to certain instructions in which the trial
judge attempted to explain in generic terms the application
of the principles of accomplice liability to any of the
homicide offenses that were before the jury, i.e.,first,
second, and third degree murder and voluntary
manslaughter. See CA 1030-32. Probably because he was
speaking about all of these offenses at the same time, the
judge did not at this point specify the intent required for
conviction for each offense (he did that a few pages later),
but if the definition of an accomplice that he gave on the
previous page is applied, the challenged instructions were
correct. In retrospect, one might argue that it was
inadvisable for the trial judge to have attempted to explain
in one breath how the principles of accomplice liability
relate to all four of the homicide offenses that were before
the jury, and one might fault the particular language that
the judge chose. But I see nothing in these instructions
that justifies federal habeas relief.5
_________________________________________________________________

5. The majority goes so far as to cite alleged ambiguities in the
instructions on criminal conspiracy as support for its decision to strike

                               44
Having identified what is at most an ambiguity in the
jury instructions on a point of state law, the majority
alchemizes this ambiguity into a violation of the Due
Process Clause. The majority writes:

In this case, the misapplication of state law resulted in
a federal constitutional error. It is well-settled that "the
Due Process Clause [of the Fourteenth Amendment]
protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct.
1068, 1073 (1970); see also Victor, [v. Nebraska, 511
U.S. 1, -- (1994), 511 U.S. 114 S.Ct. -- 1242 (19 );
Francis, 471 U.S. at 317, 105 S.Ct. at 1973; Sandstrom
v. Montana, 442 U.S. 510, 521, 99 S.Ct. 2450, 2458
(1979). A jury instruction that omits or materially
misdescribes an essential element of an offense as
defined by state law relieves the state of its obligation
to prove facts constituting every element of the offense
beyond a reasonable doubt, thereby violating the
defendant's federal due process rights. See Carella v.
California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420
(1989) (per curiam); Rock, 959 F.2d at 1245-46; see
also Polsky v. Patton, 890 F.2d 647, 651 (3d Cir. 1989)
(no due process violation where jury instruction "did
not omit any essential element of the crime charged").

Maj. Op. at 25.

In essence, the majority holds that the Due Process
Clause is violated whenever a state judge, in instructing a
jury on an element of a state offense, gives an ambiguous
_________________________________________________________________

down Smith's first degree murder conviction. See Maj. Op. 18-19; CA
1047-48. This argument is far-fetched indeed. By this point in the
instructions, the trial judge had turned to the last "remaining crimes in
the Information, . . . the crimes of criminal conspiracy to commit the
various robberies . . . criminal conspiracy to commit first degree murder
and murder and criminal conspiracy to commit the act of possession of
instruments of crime." CA. 1043. If there were any serious flaws in these
instructions -- and I see none -- they could at most undermine Smith's
conspiracy conviction, not his conviction for first degree murder.

                               45
instruction that prejudices the defendant -- even if defense
counsel does not object. None of the decisions cited by the
majority supports this holding. In Winship, the Supreme
Court held that the Due Process Clause requires proof
beyond a reasonable doubt to support a finding that a
juvenile committed an act that would constitute a crime if
committed by an adult. Sandstrom, Francis, and Carella all
held that the Due Process Clause was violated where jury
instructions in criminal cases set out either a conclusive
presumption or a mandatory rebuttable presumption that
relieved the prosecution of the burden of persuasion on the
presumed fact. Victor reviewed instructions that defined the
concept of reasonable doubt. No Supreme Court case cited
by the majority -- or any other Supreme Court decision of
which I am aware -- has held that the Due Process Clause
is violated whenever a state trial judge, in instructing a jury
on the elements of a state offense, uses ambiguous
language that prejudices the defendant. Nor is the
majority's decision supported by either of the Third Circuit
cases it cites. In Rock, 959 F.2d at 1245-46, we merely
restated in dicta the holdings of Winship and Sandstrom. In
Polsky, we held that a particular instruction conveyed the
essence of the element that was allegedly omitted. 890 F.2d
at 651.

Although not cited by the majority, the Supreme Court
opinion that appears to be most closely on point,
Henderson v. Kibbe, 431 U.S. 145 (1977), cuts against the
majority's argument. In Henderson, a federal court of
appeals, relying on Winship, ordered that federal habeas
corpus relief be granted because the trial judge (without
objection) failed to instruct the jury on an essential element
of the offense of second-degree murder. Reversing, the
Supreme Court wrote:

 Orderly procedure requires that the respective
adversaries' views as to how the jury should be
instructed be presented to the trial judge in time to
enable him to deliver an accurate charge and to
minimize the risk of committing reversible error. It is
the rare case in which an improper instruction will
justify reversal of a criminal conviction when no
objection has been made in the trial court.

                               46
 The burden of demonstrating that an erroneous
instruction was so prejudicial that it will support a
collateral attack on the constitutional validity of a state
court's judgment is even greater than the showing
required to establish plain error on direct appeal. The
question in such a collateral proceeding is "whether the
ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process,"
Capp v. Naughten, 414 U.S. at 147, not merely whether
"the instruction is undesirable, erroneous, or even
`universally condemned,' " id. at 146.

431 U.S. at 154 (footnotes omitted).

Here, the instructions cited by the majority did not " `so
infect[ ] the entire trial that the resulting conviction violates
due process.' " Id. (citation omitted). Thus, I would reject
Smith's due process claim.

It is a cardinal principle that "it is not the province of a
federal habeas court to reexamine state court
determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States." Estelle v. McGuire, 112 S.Ct. 475, 480
(1991). Our court has emphasized this important rule.
Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992)
(en banc); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3rd
Cir. 1991). Cf. Johnson v. Rosemeyer, 1997 WL 318064, (3d
Cir. June 13, 1997). The majority's extension of Winship
and related precedents threatens to undermine this
important principle and to claim for a federal habeas court
the power to decide, long after a state trial has been
completed, whether previously unchallenged jury
instructions set out the requirements of state law with
sufficient clarity to satisfy the federal court's taste. "[I]t is
difficult to think of a greater intrusion on state sovereignty
than when a federal court instructs state officials on how to
conform their conduct to state law." Pennhurst State School
& Hospital v. Halderman, 465 U.S. 89, 106 (1984). The
majority's decision here not only works an injustice in an
important case but it creates a dangerous precedent. I
must therefore dissent.

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A True Copy:
Teste:

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

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