                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2005

Bronshtein v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9004




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PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                 Nos. 01-9004 & 01-9005
                      ____________

                ANTUAN BRONSHTEIN

                             v.

     MARTIN L. HORN, Commissioner, Pennsylvania
             Department of Corrections


            MARTIN HORN, COMMISSIONER,
         PENNSYLVANIA DEPARTMENT OF
             CORRECTIONS; *JAMES PRICE,
         SUPERINTENDENT OF THE STATE
        CORRECTIONAL INSTITUTION AT GREENE;
                    JOSEPH P.
        MAZURKIEWICZ, SUPERINTENDENT OF THE
              STATE CORRECTIONAL
        INSTITUTION AT ROCKVIEW; **GERALD J.
               PAPPERT, ATTORNEY
             GENERAL OF PENNSYLVANIA,

                            Appellants, No. 01-9004

               *(Pursuant to Rule 12(a), F.R.A.P.)

**(Amended in accordance with Clerk’s Order dated 6/23/04)
                 ___________________

                ANTUAN BRONSHTEIN,

                       Appellant, No. 01-9005

                             v.
  MARTIN HORN, Commissioner, Pennsylvania Department
  of Corrections; *JAMES PRICE, SUPERINTENDENT OF
     THE STATE CORRECTIONAL INSTITUTION AT
          GREENE; JOSEPH P. MAZURKIEWICZ,
  SUPERINTENDENT OF THE STATE CORRECTIONAL
 INSTITUTION AT ROCKVIEW; **GERALD J. PAPPERT,
      ATTORNEY GENERAL OF PENNSYLVANIA

         *(Amended in accordance with Clerk's Order dated
                         8/29/01.)
        **(Amended in accordance with Clerk's Order dated
                         6/23/04.)
                   ____________________

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

                    (D.C. No. 99-cv-02186)
       District Judge: The Honorable Lowell A. Reed, Jr.
                     ___________________

                    Argued: April 22, 2003

 Before: ALITO, BARRY, and STAPLETON, Circuit Judges

                (Opinion Filed: April 14, 2005)

Patrick J. O’Connor, Esq.
Peter G. Rossi, Esq.
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

Louis M. Natali, Jr. Esq. (Argued)
Turner & McDonald, P.C.
1725 Spruce Street
Philadelphia, PA 19103

Counsel for Appellee/Cross-Appellant

                               2
Patricia E. Coonahan (Argued)
Assistant District Attorney Captain,
Appellate Division
Mary MacNeil Killinger
Deputy District Attorney
Chief, Appellate Division
Office of District Attorney
P.O. Box 311
Norristown, PA 19104

Counsel for Appellants/Cross-Appellees

                       _________________

                   OPINION OF THE COURT
                    ____________________

ALITO, Circuit Judge:

        Antuan Bronshtein was convicted in a Pennsylvania court
for first-degree murder and sentenced to death. After unsuccessful
post-trial litigation in the state courts, he filed the habeas petition
now at issue. The District Court found merit in some but not all of
Bronshtein’s claims and ordered that a writ of habeas corpus be
granted unless Bronshtein was retried within a specified time. The
habeas respondent (hereinafter “the Commonwealth”) appealed,
and Bronshtein cross-appealed. We reverse the order of the
District Court insofar as it required a new guilt-phase trial, but we
affirm insofar as it required resentencing.

                                  I.

       In April 1994, Antuan Bronshtein was tried in the Court of
Common Pleas of Montgomery County on charges stemming from
the robbery and shooting death of Alexander Gutman. The
evidence at trial may be summarized follows. At about 5 p.m. on
January 11, 1991, Montgomery County police investigated a
robbery at a store called Jewelry by Alex in the Valley Forge
Shopping Center. See Commonwealth v. Bronshtein, 691 A.2d
907, 911 (Pa. 1997), cert. denied, 522 U.S. 936 (1997). The police

                                  3
discovered that the proprietor, Alexander Gutman, had been killed
by two gunshot wounds to the face. Id. Investigators found three
fingerprints and a palmprint on one of the intact display cases in
the store, and these prints were later identified as Bronshtein’s. Id.

       On February 27, 1991, Bronshtein contacted Philadelphia
police investigators and said that he wanted to discuss the murder
of another jeweler, Jerome Slobotkin, who had been killed in
Philadelphia on February 19, 1991. Bronshtein, 691 A.2d at 912.
After waiving his Miranda rights, Bronshtein signed a detailed
written confession admitting to the Slobotkin murder, and in
February 1992, he was convicted for that offense. Id.

       About a month after Bronshtein confessed to the Slobotkin
murder, Montgomery County police met with Bronshtein, at his
request, to discuss the Gutman murder. During this interview,
Bronshtein denied killing Slobotkin and said that both Slobotkin
and Gutman had been killed by a “Mr. X,” whom Bronshtein
described as a high-level member of the “Russian mafia.” Id.
During this interview, Bronshtein did not disclose Mr. X’s name,
but he later identified him as Adik Karlitsky, another jeweler. Id.

       Although Bronshtein told the Montgomery County police
that he had not killed Gutman, Bronshtein admitted that he was
acquainted with him and that he knew that he owned a jewelry
store. Bronshtein, 691 A.2d at 912. However, Bronshtein denied
knowing the location of the store or even that of the Valley Forge
Shopping Center, and he claimed that he had not seen Gutman in
more than two years. Id.

        At trial, however, three witnesses identified Bronshtein as
a man whom they had seen in or near Gutman’s store on the day of
his murder. Laura Sechrist stated that she had passed the store at
approximately noon and had seen Bronshtein and another man
talking to Gutman. Bronshtein, 691 A.2d at 912. Larry
Bainbridge, a postal carrier, testified that he had walked by the
store at 12:45 p.m. and had seen Bronshtein behind the counter. Id.
Alexander Daniels testified that he had passed the store at about
3:15 p.m. and had seen Bronshtein standing outside the store. Id.



                                  4
        Finally, a man named Wilson Perez testified about an
admission made by Bronshtein during January 1991. According
to Perez, he and Bronshtein were riding in Bronshtein’s car on
Roosevelt Boulevard in Philadelphia when Bronshtein said that he
had killed a man in a jewelry store “out past the boulevard” and
had taken his jewelry. Bronshtein, 691 A.2d at 912. As the
Pennsylvania Supreme Court noted, Roosevelt Boulevard “runs in
a northerly and southerly direction through Northeast
Philadelphia,” and “[i]n order to travel to Montgomery County
from a large section of Northeast Philadelphia, it is necessary to
cross . . . Roosevelt Boulevard.” Id. at 912 n.12. Perez further
testified that Bronshtein had given unset gemstones to Perez’s
brother. Id. at 912.

       The Commonwealth proceeded on the theory that, although
a second person had probably been involved in the robbery of
Gutman’s store, it was Bronshtein who intentionally shot and killed
Gutman. Bronshtein, on the other hand, contended that Adik
Karlitsky shot and killed Gutman. According to Bronshtein,
Karlitsky was a high-level member of a Russian organized crime
group. Bronshtein said that he worked for Karlitsky as a jewelry
“fence” and had merely accompanied Karlitsky to Gutman’s store
without knowing that Karlitsky was going to kill him.

        The jury convicted Bronshtein of first-degree murder,
robbery, theft of movable property, and possession of an instrument
of crime, as well as conspiracy to commit murder, robbery, and
theft. At the penalty phase, the jury found two aggravating
circumstances: that Bronshtein had “committed [the] killing while
in the perpetration of a felony,” 42 Pa. Cons. Stat. § 9711(d)(6),
and that he had “a significant history of felony convictions
involving the use or threat of violence to the person.” 42 Pa. Cons.
Stat. § 9711(d)(9). The jury found three mitigating circumstances:
extreme mental or emotional disturbance, poor childhood
upbringing, and “a possibility that the defendant did not pull the
trigger.” App. VI at 1969; see 42 Pa. Cons. Stat. § 9711(e)(2), (8).
However, the jury found that the aggravating circumstances
outweighed the mitigating circumstances and accordingly returned
a sentence of death for the first-degree murder conviction. The
trial court subsequently imposed the death sentence along with

                                 5
consecutive terms of imprisonment for the other convictions. The
Pennsylvania Supreme Court affirmed, Commonwealth v.
Bronshtein, 691 A.2d 907 (Pa. 1997), and the United States
Supreme Court denied certiorari on October 20, 1997. 522 U.S.
936 (1997).

       On December 3, 1997, the Center for Legal Education,
Advocacy and Defense Assistance (“CLEADA”) filed a “pro se”
Post-Conviction Relief Act (“PCRA”) petition on Bronshtein’s
behalf (“pro se PCRA petition”). The petition did not state any
claim for relief; it merely stated: “This is not a counseled PCRA
petition, but a request to initiate review, filed pro se. A counseled
petition shall be filed later pursuant to the court’s order.” App. VII
at 2126. The petition was signed by a CLEADA attorney,
purportedly with Bronshtein’s authorization.

        Shortly after the “pro se” PCRA petition was filed,
Bronshtein personally informed the trial court “that he wished to
waive his right to appeal and to terminate the PCRA proceedings
so that the sentence of death could be carried out immediately.” Id.
at 2121. He later told the court that the CLEADA attorneys “had
been misleading him and acting contrary to his instructions[.]” Id.
at 2121 n.2. On January 26, 1999, after extensive litigation over
Bronshtein’s competency to waive his rights under the PCRA, the
trial court issued an order dismissing the “pro se” PCRA petition
with prejudice. The court found that Bronshtein had “knowingly,
intelligently and voluntarily” sought to withdraw the petition. Id.
at 2125.

        Bronshtein’s mother and sister filed a next friend appeal
from the trial court’s order. On April 16, 1999, the appeal was
denied by the Pennsylvania Supreme Court, which held that the
appellants had failed to show that Bronshtein was incompetent.
Commonwealth v. Bronshtein, 729 A.2d 1102 (Pa. 1999). On
April 23, 1999, Bronshtein’s mother and sister filed a petition for
a writ of habeas corpus in the District Court and asked the Court to
issue a stay of execution. On April 29, 1999, during a hearing on
the petition, Bronshtein informed the District Court that he had
changed his mind and wished to pursue post-conviction relief. The
District Court stayed Bronshtein’s execution, appointed counsel for

                                  6
him, and gave him 120 days to prepare and file his own federal
habeas petition.

        On June 9, 1999, Bronshtein filed with the state trial court
a petition styled as an “Amended Petition For Habeas Corpus
Relief Under Article I, Section 14 Of The Pennsylvania
Constitution And For Statutory Post Conviction Relief Under The
Post Conviction Relief Act.” The trial court treated the petition as
a second PCRA petition and dismissed it for lack of jurisdiction,
holding both that Bronshtein had “irrevocably waived” his right to
seek post-conviction relief and that the petition was untimely.
App. VII at 2111-13. The Pennsylvania Supreme Court affirmed,
stating that it “agree[d] with the PCRA court that [Bronshtein’s]
petition [was] untimely, leaving [it] without jurisdiction to reach
[Bronshtein’s] issues.” Commonwealth v. Bronshtein, 752 A.2d
868, 871 (Pa. 2000). The Pennsylvania Supreme Court found that
Bronshtein’s “judgment became final on October 20, 1997, the date
that the United States Supreme Court denied certiorari.” Id. at 870.
The state supreme court therefore reasoned that Bronshtein “was
required to file his petition for post-conviction relief within one
year of October 20, 1997, that is by October 20, 1998, in order for
his PCRA petition to be timely filed.” Id. The Pennsylvania
Supreme Court did not address the question whether Bronshtein
had “irrevocably waived” his right to seek post-conviction relief,
as the trial court had held.

       Bronshtein filed the present petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on October 27, 1999. The
petition asserted 15 claims, but only seven are at issue in this
appeal. The following claims (numbered as they were in the
petition) are before us:

              I.     The trial court violated due process by
                     erroneously instructing the         jury that
                     Bronshtein’s specific intent could be inferred
                     from the actions of his co-conspirator.

              III.   Bronshtein’s death sentence violates the
                     Eighth Amendment because it was based in
                     part on an aggravating circumstance (42 Pa.

                                 7
                      Cons. Stat. Ann. § 9711(d)(6)) that the jury
                      did not find beyond a reasonable doubt.

              IV.     The trial court violated Bronshtein’s federal
                      constitutional rights by excluding material
                      and relevant defense evidence.

              V.      The trial court’s admission of “other crimes”
                      evidence violated Bronshtein’s federal
                      constitutional rights.

              VI.     Bronshtein’s due process rights were violated
                      by repeated acts of prosecutorial misconduct.

              VII.    The prosecution violated Batson v. Kentucky,
                      476 U.S. 79 (1986), by exercising a
                      peremptory strike against a potential juror of
                      Russian-Jewish heritage.

              IX.     T he trial court violated the E ighth
                      Amendment by failing to inform the jury that
                      a life sentence in Pennsylvania means life
                      without the possibility of parole.

       The District Court handed down a decision without holding
an evidentiary hearing. See Bronshtein v. Horn, 2001 WL 767593,
2001 U.S. Dist. LEXIS 9310 (E.D. Pa. July 5, 2001). Before
reaching the merits of Bronshtein’s claims, the District Court first
addressed the issue of procedural default. Although some of
Bronshtein’s claims had been raised in the state courts for the first
time in the second PCRA petition, which the state supreme court
had found to be untimely, the District Court held that these claims
were not procedurally defaulted, “because the procedural rule that
the Supreme Court of Pennsylvania relied upon in rejecting his
claims was not clearly established or regularly followed at the time
of his alleged default, [and] therefore was not sufficiently
‘adequate’ to bar federal habeas review.” App. I at 3, 7-21.
Turning to the merits, the District Court concluded that the trial
court’s instructions on co-conspirator liability had violated
Bronshtein’s due process rights by permitting the jury to convict

                                 8
Bronshtein of first-degree murder without finding that he had the
specific intent to kill, and the District Court found that this error
was not harmless. See id. at 25-34. The District Court next
concluded that the trial court had violated Simmons v. South
Carolina, 512 U.S. 154 (1994), by failing to inform the jury that a
Pennsylvania prisoner sentenced to life imprisonment may not be
paroled. See id. at 35-41. Finally, the Court concluded that
Bronshtein’s death sentence violated the Eighth Amendment
because it was based in part on an invalid aggravating circumstance
(42 Pa. Cons. Stat. § 9711(d)(6) (commission of the killing while
in the perpetration of a felony)).

        The Court ordered that a writ of habeas corpus be issued if
the Commonwealth did not retry Bronshtein within 180 days, and
in light of this relief, the Court found it unnecessary to address the
other claims raised in the petition. See App. I at 46 n.33. The
Court stated that Bronshtein had not argued “that his convictions
for robbery, theft, and conspiracy were constitutionally flawed,”
and the Court therefore did “not consider those convictions[.]” Id.
at 47 n.35.

       Bronshtein filed a motion to alter or amend the judgment
pursuant to Fed. R. Civ. P. 59(e). He argued that his § 2254
petition did in fact raise claims – specifically, Claims IV, V, VI and
VII – challenging his robbery, theft, and conspiracy convictions.
The District Court denied the motion and held that the “voluminous
and carefully crafted submissions on [Claims IV, V and VI] can
only be read to challenge the murder conviction.” Bronshtein v.
Horn, 2001 WL 936702 (E.D. Pa. Aug. 16, 2001). However, the
Court agreed with Bronshtein that Claim VII addressed the other
convictions, but the Court rejected that claim on the merits. Id.

       The Commonwealth has appealed the District Court’s order
granting relief on Claims I, III, and IX. Bronshtein has filed a
cross-appeal, and he requests a certificate of appealability on
Claims IV, V, VI and VII. His request was referred to this panel
and is now before us along with the Commonwealth’s appeal.




                                  9
                                  II.

       We first consider the claims (i.e., Claims I, III, and IX) on
which the District Court granted relief. All of these claims were
raised for the first time in the state courts in the second PCRA
petition and, as noted, the Pennsylvania Supreme Court affirmed
the dismissal of that petition on the ground that it was untimely.
The Commonwealth therefore contends that federal habeas review
of the merits of these claims is blocked by the doctrine of
procedural default.

         The procedural default doctrine precludes a federal habeas
court from “review[ing] a question of federal law decided by a
state court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to support
the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991)
(emphasis added). The United States Supreme Court has employed
a variety of tests to determine whether a state ground is “adequate.”
Among other things, state procedural rules have been held to be
inadequate if they are not “firmly established and regularly
followed,” Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting
James v. Kentucky, 466 U.S. 341, 348-51 (1984)); see also Barr v.
City of Columbia, 378 U.S. 146, 149 (1964), or if they are
“novel[]” and unforeseeable. NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 457 (1958); see also Ford, 498 U.S. at
424.

        First, the test ensures that federal review is not barred unless
a habeas petitioner had fair notice of the need to follow the state
procedural rule. As we said in Cabrera v. Barbo, 175 F.3d 307,
313 (3d Cir. 1999), “a petitioner should be on notice of how to
present his claims in the state courts if his failure to present them
is to bar him from advancing them in a federal court.”

       Second, the “‘firmly established and regularly followed’
test” prevents discrimination.           “Novelty in procedural
requirements,” NAACP v. Alabama ex rel. Patterson, 357 U.S. at
457, can be used as a means of defeating claims that are disfavored
on the merits. If inconsistently applied procedural rules sufficed as
“adequate” grounds of decision, they could provide a convenient

                                  10
pretext for state courts to scuttle federal claims without federal
review. The requirement of regular application ensures that review
is foreclosed by what may honestly be called “rules” – directions
of general applicability – rather than by whim or prejudice against
a claim or claimant.

        In this case, as noted, the District Court held that the state
procedural rule on which the Pennsylvania Supreme Court based
its decision was not “firmly established and regularly followed” at
the relevant time. The Court’s analysis proceeded in three steps.

        First, the Court identified the relevant rule as “the rule that
§ 9545(b)(1) operates as an absolute, jurisdictional bar to hearing
the merits of a late PCRA petition, and that no exceptions outside
those in the statute may save a petition filed more than one year
after the date judgment becomes final.” App. I at 13. Second, the
Court concluded that the relevant point in time was “the moment
petitioner violated the procedural rule; that is, at the time
Bronshtein’s one-year window under § 9545(b)(1) closed.” Id.
Since direct review of Bronshtein’s conviction and sentence ended
when the United States Supreme Court denied his petition for a
writ of certiorari on October 20, 1997, the District Court concluded
that the critical date was October 20, 1998. Finally, the Court
found that the state procedural rule applied by the Pennsylvania
Supreme Court was not “firmly established and regularly followed”
on that date.

        We agree with the District Court that the rule applied by the
Pennsylvania Supreme Court was not firmly established and
regularly applied until after Bronshtein missed the PCRA’s one-
year filing deadline. To be sure, the pertinent statutory provision,
42 Pa. Cons. Stat. Ann. § 9545(b), which took effect on January 16,
1996, appears on its face to impose a one-year deadline in all cases
except those falling within three categories (none of which is
applicable here).1 Nevertheless, as the District Court observed,



       1
           This provision states in relevant part:

       (1) Any petition under this subchapter, including a

                                   11
strict enforcement of the provision did not begin immediately.

        Well before the enactment of this provision, the
Pennsylvania Supreme Court had begun to apply a “relaxed waiver
rule” in capital cases. See Commonwealth v. McKenna, 383 A.2d
174 (Pa. 1978). In McKenna, the Court stated that it bore a “duty
to transcend procedural rules” in capital cases because of the
“overwhelming public interest” in preventing unconstitutional
executions. Id. at 180-81. As we have observed, McKenna for a
time “firmly established that a claim of constitutional error in a



       second or subsequent petition, shall be filed within
       one year of the date the judgment becomes final,
       unless the petition alleges and the petitioner proves
       that:

              (i) the failure to raise the claim
              previously was the result of
              interference by government officials
              with the presentation of the claim in
              violation of the Constitution or laws of
              this C om m onw ealth or the
              Constitution or laws of the United
              States;
              (ii) the facts upon which the claim is
              predicated were unknown to the
              petitioner and could not have been
              ascertained by the exercise of due
              diligence; or
              (iii) the right asserted is a
              constitu tio na l right tha t w a s
              recognized by the Supreme Court of
              the United States or the Supreme
              Court of Pennsylvania after the time
              period provided in this section and has
              been held by that court to apply
              retroactively.

42 Pa. Cons. Stat. Ann. § 9545(b)(1).

                                12
capital case would not be waived by a failure to preserve it.”
Szuchon v. Lehman, 273 F.3d 299, 326 (3d Cir. 2001).

        Twenty years later, on November 23, 1998, the state
supreme court changed course in Commonwealth v. Albrecht, 720
A.2d 693 (Pa. 1998). After noting that it had long been the Court’s
“‘practice’ to decline to apply ordinary waiver principles in capital
cases,” the Court stated that this rule had “in effect, virtually
eliminated any semblance of finality in capital cases.” Id. at 700.
The Court concluded that the “benefits of relaxed waiver at the
PCRA appellate stage” were greatly outweighed by the need for
finality and judicial efficiency, and the Court announced that the
relaxed waiver rule would “no longer [apply] in PCRA appeals.”
Id.

        On December 21, 1998, the state supreme court held in
Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), that the
PCRA time bar applies to capital cases and is not superceded by the
relaxed waiver rule. Finally, on March 2, 1999, the state supreme
court held unequivocally in Commonwealth v. Banks, 726 A.2d
374 (Pa. 1999), that the PCRA time limits are jurisdictional and
thus not subject to judicial relaxation. Although one might argue
that either Albrecht or Peterkin marked the point when it became
firmly established that the PCRA time limits would be applied
literally in capital cases, our opinion in Fahy v. Horn, 240 F.3d
239, 245 (3d Cir. 2001), implies that the unavailability of judicially
created exceptions to the PCRA time limits was less than perfectly
clear until the state supreme court decided Banks. For present
purposes, however, it is not necessary for us to decide whether
Albrecht, Peterkin, or Banks marked the critical point in time
because Bronshtein’s one-year deadline expired before the earliest
of the three dates. As of October 20, 1998 – the one-year
anniversary of the conclusion of direct review in Bronshtein’s case
– Bronshtein did not have fair notice that he would not be given the
benefit of the “relaxed waiver” rule and that his failure to file his
PCRA petition within the one-year statutory deadline would result
in the dismissal of his petition. Moreover, holding Bronshtein
strictly to the one-year deadline would have denied him the more
lenient treatment that the state courts had allowed other capital
defendants up to that point. We thus agree with the District Court

                                 13
that the state procedural rule at issue in this case – the rule strictly
requiring a capital defendant to file a PCRA petition within one
year after the end of direct review – was not firmly established and
regularly followed at the time in question.

        Our analysis of the question of procedural default would
proceed along a different path if the Pennsylvania Supreme Court,
when it abandoned the doctrine of “relaxed waiver,” had adopted
what might be termed a “transitional rule,” i.e., a rule imposing a
special filing deadline for those cases in which a PCRA petitioner’s
one-year filing period expired prior to the end of the “relaxed
waiver” era.2 Accordingly, it would have made sense for the state
supreme court to have adopted a rule requiring such petitioners to
file within some specified time after the termination of the doctrine
of “relaxed waiver.” However, no such transitional rule was
invoked by the state supreme court in this case, and none has been
called to our attention. The only state law ground that we may
consider in deciding the issue of procedural default in this case is
the general one-year deadline. Because this rule was not firmly
established and regularly applied on the date when Bronshtein’s
time ran out, the doctrine of procedural default does not apply in
this case. We thus turn to the merits of the claims on which the
District Court granted relief.

                                  III.

       Bronshtein argues (Claim I) that the trial court’s jury
instructions violated his right to due process because they permitted
the jury to convict him of first-degree murder on the theory of co-
conspirator liability without finding an essential element of the
offense, viz., that he had the specific intent to kill. Under
Pennsylvania law, a defendant may not be convicted of first-degree
murder under a co-conspirator liability theory unless the jury finds



       2
         The Pennsylvania Supreme Court has adopted such a rule
in at least one analogous context. See Commonwealth v. Lark, 746
A. 585 (Pa. 2000)(when ground for filing second PCRA petition
arises while first petition is still pending, petitioner may file second
petition within 60 days after final decision on first petition).

                                  14
that the defendant personally had the specific intent to kill. See
Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997). “The general
rule of law [in Pennsylvania] pertaining to the culpability of
conspirators is that each individual member of the conspiracy is
criminally responsible for the acts of his co-conspirators committed
in furtherance of the conspiracy.” Commonwealth v. Wayne, 720
A.2d 456, 463 (Pa. 1998). However, “[t]o be guilty of first degree
murder, each co-conspirator must individually be found to possess
the mental state necessary to establish first degree murder – the
specific intent to kill.” Id. at 464 (emphasis in original).3 This
principle was settled at the time of Bronshtein’s trial. See
Commonwealth v. Huffman, 638 A.2d 961, 962 (Pa. 1994).

       In considering whether the jury instructions in this case
adequately conveyed this critical feature of Pennsylvania homicide
law,4 we focus initially on the language that is claimed to be
erroneous, but we must view this portion of the instructions “in the
context of the charge as a whole.” See Smith, 120 F.3d at 411.
“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.” Id. (emphasis in original, citations and
internal quotation marks omitted); see Boyde v. California, 494
U.S. 370, 380 (1990).

        In the present case, Bronshtein was charged, inter alia, with
first degree murder and conspiracy to commit murder. As we
hereafter explain, while the trial court’s instructions regarding the
first degree murder charge were such that the jury could have
convicted him of this charge without finding that he had a specific
intent to kill Gutman, the court’s instructions regarding conspiracy
to commit murder and the jury’s verdict of guilty on that charge


       3
        Compare Tison v. Arizona, 481 U.S. 137, 158 (1986)
(“major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the
[Eighth Amendment] culpability requirement”).
       4
        We do not apply the deferential standards of review set out
in 28 U.S.C. § 2254(d) because this claim was not “adjudicated on
the merits” by the state supreme court.

                                 15
demonstrate beyond a reasonable doubt that the jury made the
required finding of specific intent. Accordingly, we conclude that
any error in the first degree murder instructions was harmless.

        The trial judge instructed the jury that Bronshtein could be
found guilty of first degree murder based on any of three separate
theories. First, the trial judge charged the jury, Bronshtein could
be found guilty as a principal if the jury found that “each and every
element of [the crime] was established as to him specifically . . . .”
App. V, Pt. 2 at 1692. The trial court then correctly instructed the
jury that the three elements needed to convict Bronshtein for the
first-degree murder of Alexander Gutman were (1) that Gutman
was killed, (2) that the defendant killed him, and (3) that the
defendant did so with the specific intent to kill. Id.

       The trial judge also instructed the jury that Bronshtein could
be found guilty as an accomplice of the person who actually killed
Gutman but that, in order to do so, the jury would have to find that
Bronshtein had the specific intent to kill. The judge stated:

       A defendant is guilty of a crime if he is an
       accomplice of another person who commits the
       crime . . . .

       He is an accomplice if and only if with the intent of
       promotion or facilitating commission of the crime he
       encourages the other person to commit it or aids,
       agrees to aid or attempts to aid the other person in
       planning or committing it . . . .

       [I]n order to find the defendant guilty of first-degree
       murder as an accomplice, you must find the
       Commonwealth has proven beyond a reasonable
       doubt that the defendant shared a specific intent to
       kill Alexander Gutman with the active perpetrator
       and encouraged or assisted the active perpetrator by
       comparable overt behavior.

       Remember when we talked about first-degree
       murder? That’s the one that requires that specific

                                 16
       intent to kill? Yes, it is possible to convict the
       defendant as an accomplice to that even if he’s not
       the one who killed Mr. Gutman, but you’d have to
       find that he shared that specific intent to kill
       Alexander Gutman before you can find him guilty as
       an accomplice, and that he assisted the active
       perpetrator by some comparable overt behavior.

App. V, Pt. 2 at 1689-91 (emphasis added).

       Finally, the trial court instructed the jury that it could find
Bronshtein guilty of the various crimes with which he was charged
under the theory of co-conspirator liability. The court stated:

       You may find the defendant [guilty] of either the
       crime of murder, robbery or theft as a conspirator if
       you’re satisfied beyond a reasonable doubt: First,
       that the defendant agreed with this John Doe or Mr.
       X that the defendant would aid John Doe or Mr. X in
       committing either the crime of murder, robbery
       and/or theft; second, that the defendant so agreed
       with the intent of promoting or facilitating the
       commission of the crime; third, that while the
       agreement remained in effect, the crime of murder,
       robbery and/or theft was committed by this John Doe
       or Mr. X; and, fourth, that the crime of murder,
       robbery and/or theft, while it may differ from the
       agreed crime, was committed by John Doe or Mr. X
       in furtherance of his and the defendant’s common
       scheme.

       What am I saying to you? If those four elements
       have been established, then, if you find that the
       defendant is guilty of the conspiracy, he is also guilty
       of anything that John Doe or Mr. X did in
       furtherance of it . . . .
       [I]f you find those things, then, he can be found
       guilty of whatever acts the co-conspirator did in the
       furtherance of that agreement reached between them.



                                 17
Id. at 1687-89.

        Unfortunately, this instruction misleadingly suggested that
Bronshtein could be found guilty of first-degree murder even if he
did not have the specific intent to kill. According to a literal
reading of the instruction, the jury could find Bronshtein guilty of
first-degree murder if it found that he had conspired to commit the
robbery and that another conspirator had killed Gutman in
furtherance of the robbery. Compounding the error, the instruction
went on to say that if the jury found that the four elements set out
above were established, Bronshtein was “guilty of anything that
John Doe or Mr. X did in furtherance of [the conspiracy].”

       While the instructions on liability as a principal or
accomplice stressed the need to find a specific intent to kill, these
instructions did not cure the defect in the instructions on co-
conspirator liability. As the District Court put it: “A reasonable
jury could have understood the co-conspirator language to be an
alternate means to establish first degree murder, sans a finding of
specific intent to kill.”’ Dist. Ct. Op. at 27.

        For similar reasons, the flaw in the co-conspirator liability
instructions was not adequately cured by the supplemental
instructions on first-degree murder that were given, at the jury’s
request, during its deliberations.5 At that time, the trial judge gave
the jury the following “summary on first-degree murder”: “what
sets [first-degree murder] apart from second- and third-degree
murder is that element of the specific intent to kill either
personally, if you find that he did the act, or as a co-conspirator of
one who had the specific intent to kill[.]” App. V, Pt. 2 at 1725.
Although these supplemental instructions were accurate, they did
not specifically address the theory of co-conspirator liability.
“Language that merely contradicts and does not explain a
constitutionally infirm instruction will not suffice to absolve the
infirmity. A reviewing court has no way of knowing which of the



       5
       These supplemental instructions on first-degree murder
must be distinguished from the supplemental instruction on
conspiracy, which we discuss below.

                                 18
two irreconcilable instructions the jurors applied in reaching their
verdict.” Francis v. Franklin, 471 U.S. 307, 322 (1985). See also
Whitney v. Horn, 280 F.3d 240, 256 (3d Cir. 2002). Viewing all
of the first degree murder instructions together, we conclude that
there is a reasonable probability that the jury, consistent with their
terms, could have proceeded on the incorrect belief that a specific
intent to kill was not needed in order to convict Bronshtein of first-
degree murder on the theory of co-conspirator liability. We thus
hold that the jury was improperly instructed on the theory of co-
conspirator liability.

        We further hold, however, that this error was harmless. As
we explained in Smith, 120 F.3d at 416-17, an error of the type
present here is subject to harmless error analysis. “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.’” Id. at 417 (quoting California v. Roy, 519 U.S. 3,
5 (1996) (quoting Brecht v. Abrahamson, 507 U.S. 619 at 637
(1993)). In Smith, we elaborated:

       The Supreme Court has held that if a habeas court
       “is in grave doubt as to the harmlesssness of an
       error,” habeas relief must be granted. O’Neal v.
       McAninch, 513 U.S. 432, 437 (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, 519
       U.S. at 5.

120 F.3d at 418 (parallel citations omitted).

       Here, the jury’s verdict finding Bronshtein guilty of
conspiracy to commit murder convinces us that the error in the
instructions on co-conspirator liability was harmless.6 After stating



       6
       The jury specifically found Bronshtein guilty of conspiracy
to commit murder, as well as conspiracy to commit robbery and
conspiracy to commit theft. Significantly, the jury’s verdict did not

                                  19
that Bronshtein was charged with conspiracy to commit murder,
robbery and theft, the trial judge stated:

      [I]n order to find the defendant guilty of conspiracy
      to commit any one of those or all of them, you must
      be satisfied initially that the two elements of a
      conspiracy have been proven beyond a reasonable
      doubt. What are they? First, that the defendant
      agreed to aid another person. The Commonwealth
      merely defines that person or identifies that person
      as John Doe or Mr. X, meaning they don’t know who
      it is.

      That the defendant agreed to aid another person,
      whoever it was, in the planning or commission of the
      crimes of murder, robbery or theft; and, second, that
      the defendant did so with the intent of promoting or
      facilitating commission of the crimes of murder,
      robbery and/or theft. Those are the two elements.


“lump” the object offenses together:

             Court Clerk:            How say you on 3279-93.5,
                                     sec ond co unt, criminal
                                     conspiracy, conspiracy to
                                     commit murder?

             Presiding Juror:        Guilty.

             Court Clerk:            How say you on conspiracy to
                                     commit to robbery?

             Presiding Juror:        Guilty.

             Court Clerk:            How say you on conspiracy to
                                     commit theft?

             Presiding Juror:        Guilty.

App. V, Pt. 2 at 1747.

                                20
Id. at 1684-85. The most reasonable interpretation of these
instructions is that, in order to find Bronshtein guilty of murder, the
jury had to find that he had “the intent of promoting or facilitating
commission of the crime[] of murder.” 7

        This point was driven home with the supplemental
instructions on conspiracy to commit murder that the court gave
during the jury deliberations. As the Supreme Court has noted, this
is the point in a trial when “[o]ne would expect most of [a jury’s]
reflection about the meaning of the instructions to occur[.]”
Francis v. Franklin, 471 U.S. at 321 n.7. The trial judge in this
case told the jury:

       [I]n order to find the defendant guilty of conspiracy
       to commit murder, you must be satisfied that two
       elements of the conspiracy have been proven beyond
       a reasonable doubt: First, that the defendant agreed
       to aid another person, namely, this John Doe or Mr.
       X, in either the planning or the commission of the



       7
        Bronshtein contends that these instructions “lumped
together the three offenses of murder, robbery and theft and created
a reasonable likelihood that the jury would convict [him] of
conspiracy to commit all three offenses merely because he
conspired to commit one of them and Karlitsky [or whoever the
second individual at the store was] then committed the others.”
Bronshtein’s Br. at 58. In other words, Bronshtein argues that the
jury might have understood the instructions to mean that they could
find Bronshtein guilty of conspiracy to commit murder if they
found merely that Bronshtein intentionally aided in planning or
carrying out a theft. Such a reading of the instructions is contrary
to common sense and, in our view, unlikely, but because the trial
judge gave the supplemental instructions discussed above, we need
not decide whether these instructions standing alone would be
sufficient to establish harmless error. We note that, although the
District Court held that the error in the co-conspirator liability
instructions was not harmless, the District Court did not consider
the impact of the supplemental instructions on conspiracy to
commit murder that were given during the jury deliberations.

                                  21
       crime of murder. That’s the first element. He
       agreed to aid another person in either the planning or
       the commission of the crime of murder – first
       element.

       Second, that the defendant did so with the intent of
       promoting or facilitating the commission of the
       crime of murder.

Id. at 1733-34.

       After receiving these instructions, the jury found Bronshtein
guilty of conspiracy to commit murder. In returning that verdict,
the jury presumably followed the court’s instructions relating to
that offense, see Weeks v. Angelone, 528 U.S. 225, 234 (2000),
and therefore the jury must have found that Bronshtein participated
in “the planning or the commission of the crime of murder” and
that he “did so with the intent of promoting or facilitating the
commission of the crime of murder.” In other words, the jury must
have found that Bronshtein had the specific intent to kill. It
follows that the error in the instructions on the theory of co-
conspirator liability cannot have affected the jury’s verdict on the
charge of first-degree murder. Even if the jury based that verdict
on the theory of co-conspirator liability, and even if the jury
proceeded on the erroneous belief that this theory did not require
proof of a specific intent to kill, the jury’s guilty verdict on the
charge of conspiracy to commit murder shows that the jury found
that Bronshtein had that intent.

        The Pennsylvania Supreme Court’s decision in Wayne, 720
A.2d 456 (Pa. 1998), is instructive. In Wayne, the Court concluded
that the defendant was not prejudiced by his counsel’s failure to
object to jury instructions that, like the ones here, permitted the jury
to convict him of first-degree murder as a co-conspirator without
finding that he had the specific intent to kill. See Wayne, 720 A.2d
at 465. The Court reached this conclusion because the defendant
was also convicted of conspiracy to commit murder. See id. The
Court explained:

       A conspiracy to kill presupposes the deliberate

                                  22
       premeditated shared specific intent to commit
       murder. . . . In this case, the conspiracy was a
       conspiracy to kill. The conspiracy had only one
       object, the deliberate decision to take a life. Once
       this jury determined that appellant was guilty of
       conspiracy, given the sole object of that conspiracy,
       the only logical conclusion to reach is that this jury
       also determined, beyond a reasonable doubt, that
       appellant possessed the specific intent to kill.

Id. (emphasis in original). See also Commonwealth v. Bailey, 344
A.2d 869, 877 n.16 (Pa. 1975) (“A conspiracy to commit murder
would necessarily indicate that the killing was ‘willful, deliberate,
and premeditated.’”); Commonwealth v. Stein, 585 A.2d 1048,
1050 n.6 (Pa. Super. Ct. 1991) (“[T]he ‘intent’ element required to
be proven by the Commonwealth is the same for accomplice
liability as for conspiracy.”).8 We agree with this analysis and hold
that the error in the instructions on co-conspirator liability was
harmless under the standard applicable in a federal habeas
proceeding.

        Bronshtein contends that our decision in Smith shows that
Wayne “does not control here,” Bronshtein’s Br. at 57, but Smith
is readily distinguishable. There, the conspiracy instructions were
so ambiguous that they created the reasonable likelihood that the
jury convicted the defendant of conspiracy to commit murder
without finding that he had the intent to enter into the conspiracy
to commit murder. See Smith, 120 F.3d at 412-13. Furthermore,
the trial court’s attempt to explain the ambiguous instructions
actually made matters worse: it “conveyed the impression that



       8
        By contrast, in Commonwealth v. Huffman, 638 A.2d 961,
963 (Pa. 1994), the Pennsylvania Supreme Court found that an
error in the jury instructions similar to the one in Wayne (and the
one here) was not harmless. However, in that case the defendant
was convicted of conspiracy to commit burglary but not conspiracy
to commit murder. See Wayne, 720 A.2d at 465 n.7. Obviously,
conspiracy to commit burglary, unlike conspiracy to commit
murder, does not require proof of an intent to kill.

                                 23
Smith was criminally liable for conspiracy to commit murder if he
intended to enter into a conspiracy to commit robbery[.]” Id. at
413 (emphasis in original). In short, in Smith, unlike Wayne or the
present case, it was reasonably likely that the jury did not find that
the defendant had the intent to enter into a conspiracy to commit
murder, i.e, a specific intent to kill. Here, as we have explained,
the supplemental instructions were very clear in telling the jury that
it could not find Bronshtein guilty of conspiracy to commit murder
unless it found that he had that intent. For these reasons, we must
reverse the decision of the District Court insofar as it relates to
Bronshtein’s first-degree murder conviction.

                                  IV.

        We now address Bronshtein’s argument (Claim IX ) that the
trial court violated his right to due process by failing to instruct the
jury that under Pennsylvania law a defendant who is convicted of
first-degree murder must receive either a sentence of death or a
sentence of life imprisonment without the possibility of parole.
The District Court held that this claim has merit. On appeal, the
Commonwealth contests the District Court’s holding on two
grounds.

                                  A.

       The Commonwealth’s first argument, as we understand it,
is that Simmons v. South Carolina, 512 U.S. 154 (1994), the
seminal Supreme Court case on which Bronshtein’s claim is
predicated -- is inapplicable because Simmons does not apply
retroactively to cases in which direct review ended prior to that
decision. See O’Dell v. Netherland, 521 U.S. 151 (1997).
However, the District Court properly rejected this argument
because Simmons was decided long before the judgment in
Bronshtein’s case became final for retroactivity purposes on
October 27, 1997, the date when the Supreme Court denied
certiorari. See Beard v. Banks, 124 S. Ct. 2504, 2510 (2004)
(“State convictions are final ‘for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari
has elapsed or a timely filed petition has been finally denied.’”)

                                  24
(citation omitted). Accordingly, the Commonwealth’s argument is
meritless.

                                 B.

       The Commonwealth’s remaining contention is that the
prosecution’s arguments and the testimony that it elicited at the
penalty phase did not put the issue of Bronshtein’s future
dangerousness at issue in the way needed to trigger Simmons and
the subsequent related cases of Shafer v. South Carolina, 532 U.S.
36 (2001), and Kelly v. South Carolina, 534 U.S. 246 (2002).
Because the Pennsylvania Supreme Court did not adjudicate this
claim on the merits, the standards of review set out in 28 U.S.C. §
2254(d) are inapplicable.           Furthermore, because the
Commonwealth does not argue that either Shafer or Kelly
announced “new rules” within the meaning of Teague v. Lane, 489
U.S. 288 (1989), we need not and do not decide whether such an
argument would have merit, see Horn v. Banks, 536 U.S. 266, 271
(2002), and we consider Shafer and Kelly to be applicable in this
appeal.

        In Simmons, the prosecutor explicitly argued that the jury
should impose a death sentence in order to protect society from the
defendant. The prosecutor stated that a death sentence would be “a
response of society to someone who is a threat” and would be “an
act of self-defense.” 512 U.S. at 157. The Supreme Court held
that under these circumstances the trial judge was required to
instruct the jury that the defendant, if not sentenced to death, would
have received a sentence of life imprisonment without the
possibility of parole. The plurality opinion stated that “where the
defendant’s future dangerousness is at issue, and state law prohibits
the defendant’s release on parole, due process requires that the
sentencing jury be informed that the defendant is parole ineligible.”
Id. at 156 (emphasis added). However, as we noted in Rompilla v.
Horn, 355 F.3d 233, 265 (3d Cir.), cert. granted, 125 S. Ct. 27
(2004), Justice O’Connor’s controlling concurrence may be read as
adopting a narrower holding, namely, that the dispositive question
is not whether a defendant’s future dangerous is “at issue” but
whether “the prosecution argues that the defendant will pose a
threat to society in the future.” 512 U.S. at 177 (O’Connor, J.,

                                 25
concurring in the judgment). See also Shafer, 532 U.S. at 49.

       As we also observed in Rompilla, 355 F.3d at 266, the
holding in Simmons was arguably broadened in Kelly. There the
prosecutor stated in his penalty phase opening: “I hope you never
in your lives again have to experience what you are experiencing
right now. Being some thirty feet away from such a person.
Murderer.” 534 U.S. at 248. The prosecution then presented
evidence that while in prison, Kelly had made a knife, had
attempted to escape from prison, and had planned to hold a female
guard as a hostage. See id. The state also brought out evidence of
“Kelly’s sadism at an early age, and his inclination to kill anyone
who rubbed him the wrong way.” Id. at 248-49 (citation omitted).
During its closing argument, the state referred to Kelly as “the
butcher of Batesburg,” “Bloody Billy,” and “Billy the Kid.” Id. at
249-50. In addition, the prosecutor told the jury that “Kelly doesn’t
have any mental illness. He’s intelligent . . . . He’s quick-witted.
Doesn’t that make somebody a little more dangerous . . . .
[D]oesn’t that make him more unpredictable for [the victim] . . . .
murderers will be murderers. And he is the cold-blooded one right
over there.” Id. at 250.

        The Kelly Court concluded that the trial judge had an
obligation to give a parole ineligibility instruction. The Court
stated that “[t]he prosecutor accentuated the clear implication of
future dangerousness raised by the evidence and placed the case
within the four corners of Simmons.” Id. at 255. The Court
observed that “[e]vidence of future dangerousness under Simmons
is evidence with a tendency to prove dangerousness in the future;
its relevance to that point does not disappear merely because it
might support other inferences or be described in other terms.” Id.
at 254. The Court also acknowledged that “it may well be that the
evidence in a substantial proportion, if not all, capital cases will
show a defendant likely to be dangerous in the future.” Id. at 254
n.4. But the Court declined to decide whether a defendant is
entitled to a parole ineligibility instruction “when the State’s
evidence shows future dangerousness but the prosecutor does not
argue it.” Id.

       In the present case, the prosecution not only put

                                 26
Bronshtein’s future dangerousness “at issue” but “argue[d] that the
defendant [would] pose a threat to society in the future.” Simmons,
512 U.S. at 177 (O’Connor, J., concurring in the judgment).
During its closing argument at the penalty stage, the prosecutor
made the following statements:

       Ladies and gentlemen, the medical testimony in this
       case was significant because it tells you something
       about the psyche or persona of this man. He can’t
       conform to what is required in society. The doctors
       have told you that he’s anti-social. He’s prone to
       lying. He’s prone to stealing. He’s prone to living
       a life of crime.

       Whatever the seeds were that got him there, they’re
       planted, and that tree has grown. He’s grown into a
       twenty-two-year-old person now regardless of how
       the seeds were planted.

       You have to take a look at what effect that has had
       and what effect it had at the time he committed these
       crimes. The doctors have told you he’s a man that
       can’t conform to the needs of society.

App. VI at 1909-10 (emphasis added).

       Even without considering “the medical testimony” to which
the prosecutor referred, it is evident that these comments, although
more clinical than those in Simmons, conveyed the message that
Bronshtein presented a threat of future lawlessness. We agree with
the District Court’s evaluation of these comments:

       [T]he references to Bronshtein’s inability to
       ‘conform to what is required in society’ and the fact
       that he was ‘anti-social,’ in the context of the present
       and the future by reference to what Bronshtein is
       “going to” and “prone to” do, make clear that the
       Commonwealth was suggesting to the jury that it
       should impose the death penalty because of
       Bronshtein’s inability to function in society in the

                                 27
       future. The prosecutor’s assertion that [Bronshtein]
       was “prone to living a life of crime,” when placed in
       the context of the stark choice of life in prison or
       death, would suggest to any juror that petitioner
       would pose a danger to society if he was released
       from prison. The none-too-subtle implication of
       these arguments is that Bronshtien should be put to
       death because if he were ever released, he could not
       “conform to the needs of society,’ and was “going
       to” continue “living a life of crime” and engaging in
       dangerous, violent conduct.

Dist. Ct. Op. at 36-37. Thus, the import of the penalty phase
closing in itself is clear enough.

        When the “the medical testimony” to which the prosecutor
referred in the closing is also taken into account, the significance
of the prosecutor’s statements becomes even clearer. At the
penalty phase, Bronshtein called a psychologist, Gerald Cooke, to
testify to “psychological mitigating factors.” App. VI at 1835. Dr.
Cooke testified that Bronshtein suffered from paranoid personality
disorder, anti-social personality disorder, and depression. See id.
at 1838, 1840. On cross-examination, the Commonwealth elicited
from Dr. Cooke a litany of dangerous tendencies that persons with
these disorders often exhibit. The questioning went as follows:

              Q:     One of the features of [a person with an anti-
                     social personality disorder] is he tends to be
                     irresponsible; correct?

              A:     Well, one of the features of anti-social
                     personality can be irresponsibility. I don’t
                     know if that’s necessarily a criteria that fits
                     him. He fits a number of the other criteria.

              Q:     It can be anti-social behavior; correct?

              A:     Absolutely.

              Q:     Including criminal activity; correct?

                                28
A:   Correct.

Q:   Lying?

A:   Yes.

Q:   Stealing?

A:   Yes.

Q:   Fighting?

A:   Yes.

Q:   Being very aggressive; correct?

A:   Yes.

Q:   They can be prone to being irritable; correct?

A:   Yes.

Q:   Prone to getting repeatedly into physical
     fights; correct?

A:   Can be. . . .

Q:   Failed to conform to social norms; correct?

A:   That is true.

Q:   Repeatedly can perform anti-social acts;
     correct?

A:   Yes. . . .
Q:   They also tend to express no remorse, don’t
     they?

A:   That’s true.



                 29
             Q:     No remorse about the effects of their
                    behavior on other people?

             A:     They often don’t have insight to the effects of
                    their behavior on themselves or on other
                    people.

             Q:     In other words, a lot of people who have anti-
                    social personality disorders can’t play by the
                    rules in a civilized society; correct?

             A:     True.

Id. at 1855-1858.

      The prosecutor then questioned Dr. Cooke regarding
Bronshtein’s paranoid personality disorder:

             Q:     Dr. Cooke, with regard to the paranoid
                    personality disorder, they’re also people that
                    can react quickly with anger; correct?

             A:     Yes.

             Q:     And are likely to counterattack if they feel
                    threatened; correct?

             A:     They are likely to see themselves as being
                    threatened, and many of them sort of follow
                    the kind of attitude that the best defense is
                    offense.

             Q:     In other words, they’re more likely to feel
                    threatened than the normal person; correct?

             A:     True, and that’s what being paranoid means.

             Q:     Because they’re more likely to feel
                    threatened, they’re more likely to
                    counterattack because of the threat they feel;

                               30
     correct?

A:   That is true.

Q:   They can bear grudges for a long time;
     correct?

A:   True.

Q:   And they can even get to the point where they
     never forgive different insults people have
     done to them; correct?

A:   True.

Q:   They’re viewed as secretive?

A:   Yes.

Q:   Devious?

A.   Sometimes.

Q:   Scheming?

A:   Sometimes.

Q:   Have great      difficulties   accepting self-
     criticism?

A:   That’s true.

Q:   Dr. Cooke, Mr. Bronshtein has a combination
     of the two – paranoid personality disorder and
     anti-social personality disorder – doesn’t he?

A:   And depression.
     ...

Q:   Doctor, it’s certainly a potentially lethal

                31
                    combination of personality disorders, isn’t it?

             A:     Could be.

Id. at 1858-1860.

      The Commonwealth also presented rebuttal evidence
through its own mental health expert, Dr. Timothy J. Michaels.
The Commonwealth elicited the following testimony from Dr.
Michaels:

             Q:     [W]hat is your agreement or disagreement
                    with the diagnoses which [Dr. Cooke] has
                    made?

             A:     . . . I certainly agree with the anti-social
                    personality disorder. What that means is, this
                    young man has gotten in trouble throughout
                    his life. He doesn’t learn by experience.
                    He’s impulsive. He continues to get in
                    trouble within the prison system. He acts out,
                    justifies his behavior. So even after he has
                    be e n incarcerated, the re ’s ongoing
                    difficulties.

                    . . . When you’re anti-social, you don’t follow
                    the rules. You don’t learn by experience.
                    You think you’re right and other people are
                    wrong. . . .

                    I also agree with the paranoid personality
                    disorder. . . .

                    He’s paranoid. Basically, he’s looking over
                    his shoulder. He doesn’t trust people, doesn’t
                    trust most people. . . .

                    This combination of not trusting people and
                    then acting out, not following the rules is an
                    explosive combination in my opinion. . . . So

                                32
                      I see that as a serious, very serious behavioral
                      problem that this young man has.
                      ...

              Q:      Dr. Michaels, what findings did you make
                      with regard to this personality disorder or
                      these personality disorders with having
                      remorse?

              A:      . . . Individuals who are anti-social don’t have
                      remorse. They don’t learn. They’re not sorry
                      for their behavior. They don’t learn from
                      experience. So they do this over again.

                      And instead of being remorseful,
                      unfortunately there is acceleration of
                      behavior. I think I can get away with it –
                      even though you get caught. I can outsmart
                      the people[.]

App. VI at 1869-71, 1874.

       Taken together, the testimony of Drs. Cooke and Michaels
suggested the following: that Bronshtein’s “combination of
personality disorders” could be “lethal” or “explosive”; that he was
prone to lie, scheme, steal, fight, and act very aggressively; that he
was much more likely than a normal person to distrust others, bear
grudges, feel threatened, and respond with a counterattack; that he
was unable to “play by the rules in a civilized society”; that he was
probably remorseless, and unlikely to learn from experience, and
thus prone to commit the same crimes “over again”; and that there
would probably be an “acceleration” of his anti-social behavior.

        The prosecution’s penalty phase closing must be viewed as
incorporating these points. As noted, the prosecutor asked the jury
to recall “the medical testimony,” referred twice to what “the
doctors” had told the jury, and summarized that testimony as saying
that Bronshtein is “anti-social,” “prone to living a life of crime,”
and “can’t conform to the needs of society.” In any realistic sense
of the concept, the prosecutor “argue[d] that the defendant [would]

                                 33
pose a threat to society in the future.” Simmons, 512 U.S. at 177
(O’Connor, J., concurring in the judgment). And it goes without
saying that the Bronshtein’s future dangerousness was put at issue
within the meaning of Kelly. In the words of that decision, “[t]he
prosecutor accentuated the clear implication of future
dangerousness raised by the evidence.” 534 U.S. at 255. We thus
reject the Commonwealth’s argument that the prosecution’s
presentation at the penalty phase was insufficient to trigger the
obligation imposed by Simmons, Shafer, and Kelly.

       Having considered and rejected the Commonwealth’s
arguments regarding Simmons and its progeny, we have before us
no ground for reversing the order of the District Court insofar as it
held that Bronshtein’s death sentence is unconstitutional under
those precedents. In light of our decision on this issue, we have no
occasion to decide whether, as the District Court held, that sentence
is unconstitutional for the additional reason that the jury was
improperly instructed regarding the aggravating factor set out in 42
Pa. Cons. Stat. Ann. § 9711(d)(6) (commission of homicide while
perpetrating felony) and that there was insufficient evidence to
prove that factor.9

                                 V.

       We now consider the claims raised in Bronshtein’s cross-
appeal. As noted, Bronshtein asks us to issue a certificate of
appealability on these claims, and we must do so if he has made “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). On the merits, our review of the decision of
the District Court is plenary, as the District Court relied exclusively
on the state court record and did not hold an evidentiary hearing.
Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999).

                                  A.



       9
        The law concerning § 9711(d)(6) is not in dispute and, now
that the specific language used by the trial court has been
challenged, there is no reason to expect that the same instruction
will be repeated if a new penalty-phase proceeding is held.

                                  34
        Bronshtein argues that the prosecution violated Batson v.
Kentucky, supra, by exercising a peremptory challenge based on
religion and ethnic background. During collective voir dire, the
trial court asked the prospective jurors whether they had “any
moral, religious or other ethical beliefs which would prevent
[them] from considering the imposition of the death penalty[.]”
Bronshtein’s App. II at 293. Ten of the 30 prospective jurors –
including Jan Eidelson – responded in the affirmative.

        Later, during individual voir dire, defense counsel asked
another prospective juror, Nanette Phyllis Honigman, whether she
was “of Jewish heritage,” and she responded that she was not.
App. II at 420-21. After Ms. Honigman was dismissed for cause
on unrelated grounds, the trial judge raised the issue whether it was
appropriate to ask potential jurors about their religions. Id. at 421.
The judge suggested that such an inquiry would not be reasonable
unless a juror expressed an unwillingness to consider a death
verdict for religious reasons. Id. Defense counsel explained that
his only reason for doing so “would be for the possible Batson
issues, it’s whether the juror was of the same Jewish heritage as
Mr. Bronshtein.” Id. The prosecutor seems to have taken the
position that Batson does not apply to peremptory challenges based
on religion, while defense counsel and Bronshtein himself
contended that striking a prospective juror because the person is
Jewish would be a challenge based on “nationality” or “race” and
would thus fall within Batson. Id. at 423-24. The trial judge then
stated that Judaism is “a religion, it’s not a nationality” and ruled
that a peremptory challenge based on Judaism did not present “a
Batson issue.” Id. at 424-25. However, because the judge thought
that an inquiry into a juror’s religion might be justified for the
limited reason of exploring whether the juror would be willing to
consider a death sentence, the judge asked counsel to provide
advance warning before asking any questions along those lines. Id.
at 425.

      Immediately after this exchange, the prosecutor stated that
he wanted to ask Ms. Eidelson about her religion “only because of
the educational background” noted in her information sheet,
namely, that she had written that she had attended a school called
“Friends Central.” App. II at 426. The trial judge responded that

                                 35
this inquiry was legitimate because “it cannot be disputed that if
someone is a Quaker they hold a religious belief that would prevent
them, probably, from serving on this jury.” Id.

        When Ms. Eidelson came up for individual voir dire a short
time later, the trial judge questioned her first. In response to the
court’s questions, she stated that she could vote to impose a death
penalty but that “it would not be a comfortable thing” and “would
[not] be easy.” App. II at 429, 435. She expressed reservations
about being sequestered for the two weeks that the trial was
expected to last, stating that she “wouldn’t want to be in a situation
where [she] could not have contact with [her] support system[.]”
Id. at 429. She also stated that, although she was a graduate of
Friends Central High School, she was not a Quaker. Id. at 437.
Finally, when the judge asked her whether she “would have any
tendency to be biased or prejudiced against [Bronshtein] because
he is a Russian-Jew,” Ms. Eidelson answered that she did not think
that she would and added: “Well, I need to let you know, my dad’s
parents came from Russia.” Id. at 439.

       Defense counsel questioned Eidelson next. In response to
his questioning, she stated that her “dad’s parents were Russian-
Jews” and that her mother was Jewish. App. II at 440. The
prosecutor then questioned Ms. Eidelson briefly and inquired only
whether, if the jury voted for the death penalty and the jurors were
polled, she would be able to stand up in open court and state that
she had voted to impose that sentence. App. II at 443-45. She
answered in the affirmative. Id. at 445.

       After Ms. Eidelson left the courtroom, defense counsel
stated that she was acceptable, but the prosecutor exercised a
peremptory strike against her. App. II at 445. Defense counsel
objected, claiming that the prosecution had exercised the strike in
violation of Batson, but the trial judge rejected the objection
without explanation. Id. at 446.

      On direct appeal, the Pennsylvania Supreme Court found it
unnecessary to resolve the question whether “‘Russian-Jewish’ is
an ethnic classification for the purposes of a Batson claim[.]”
Bronshtein, 691 A.2d at 915. First, the Court held that Bronshtein

                                 36
“failed to develop a record setting forth the race or ethnicity of the
rest of the venire or the jurors eventually empaneled as required by
[Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995)].” Second,
the Court stated:

       [T]he record reveals that the prospective juror
       equivocated on the death penalty on moral, religious
       and philosophical grounds and expressed serious
       reservations about serving on the jury because it
       would entail being separated from her ‘support
       group’ during the anticipated two weeks of
       sequestration. . . . Reasons such as these have been
       found by this court to be a proper basis for
       exercising a peremptory challenge.

Id.

        The District Court discussed Bronshtein’s claim in some
detail. See Aug. 16, 2001 Mem. at 2-8. The District Court
expressed disagreement with the state courts on three grounds. The
District Court opined that “it is likely that the trial judge was wrong
on the issue of whether Jews were a cognizable group under
Batson.” Id. at 4. The District Court also disagreed with the state
supreme court’s view that Batson “requires a defendant [to]
produce evidence of the race of all venirepersons struck by the
prosecutor, the race of prospective jurors stricken by the defense,
and the racial makeup of the final jury selected.” Id. at 8. The
District Court “read Batson to be far less exacting in its evidentiary
requirements” and stated that “there are many evidentiary avenues
a petitioner may travel to bolster his Batson claims.” Id. Finally,
the District Court disagreed with the state supreme court’s
approach in rejecting Bronshtein’s claim on the ground that the
record revealed legitimate grounds on which the strike of Ms.
Eidelson could have been based. Id. at 6. The District Court
wrote:

       Batson requires the prosecutor to reveal her actual
       reasons for striking a juror. Where the prosecutor
       has not done so, whether on her own initiative or
       because of the trial court’s ruling, an appellate or

                                  37
       habeas court should not later divine reasons that
       might have motivated the prosecutor, however
       tempting that may be, and regardless of how
       abundant or logical the possible reasons may seem.

Id. (emphasis in original).

       The District Court nevertheless rejected Bronshtein’s Batson
claim on the ground that he had failed to make out a prima facie
case. The Court noted that “[t]he only record evidence petitioner
pointed to at trial” or in the federal habeas proceeding was “the
undisputed fact that the prosecutor used a peremptory challenge to
exclude from the jury the only person in the venire who shared
petitioner’s Russian-Jewish ancestry.” Aug. 16, 2001 Mem. at 6-7.
The District Court also noted that “it was petitioner’s counsel, not
the prosecutor, who asked two jurors whether they were Jewish”
and that “[n]othing in the record indicate[d] that the prosecutor was
interested in whether the jurors shared a common ethnic heritage
with the defendant.” Id. at 7-8.

       Because one of the grounds given by the Pennsylvania
Supreme Court for rejecting Bronshtein’s claim was his failure to
develop the record in accordance with one of that Court’s prior
decisions, Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995),
we begin by discussing the question of procedural default. We
hold that consideration of Bronshtein’s Batson claim is not barred
for two reasons. First, the Commonwealth has not argued that the
claim is procedurally barred, and we are not required to raise this
issue sua sponte. See Smith v. Horn, 120 F.3d at 408-09. Second,
we understand Commonwealth v. Simmons to represent an
interpretation of what Batson requires, not an independent state
procedural rule. In Commonwealth v. Simmons, the Pennsylvania
Supreme Court accurately summarized Batson’s holding as
follows:

       To sustain a prima facie case of improper use of
       peremptory challenges, a defendant must establish
       the following: (1) the defendant is a member of a
       cognizable racial group and the prosecutor exercised
       peremptory challenges to remove members of the

                                 38
       defendant’s race from the venire; (2) the defendant
       can then rely on the fact that the use of peremptory
       challenges permits “those to discriminate who are a
       mind [sic] to discriminate; and, (3) the defendant,
       through facts and circumstances, must raise an
       inference that the prosecutor excluded members of
       the venire on account of their race. . . .

662 A.2d at 631. The Court then continued:

       This third prong requires defendant to make a record
       specifically identifying the race of all the
       venirepersons removed by the prosecution, the race
       of the jurors who served and the race of jurors
       acceptable to the Commonwealth who were stricken
       by the defense.

Id. (emphasis added). It thus seems clear that the Commonwealth
v. Simmons procedural requirements represent an interpretation of
Batson, not a state procedural rule.

       We therefore proceed to the merits of Bronshtein’s claim.
Because this claim was “adjudicated on the merits” in state court,
the narrow standards of review set out in 28 U.S.C. § 2254(d)
apply. We must thus decide whether the state supreme court’s
“adjudication of the claim . . . resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1) (emphasis added).

        A state court adjudication is “contrary to” Supreme Court
precedent if it results from the application of “a rule that
contradicts the governing law set forth” by the Supreme Court or
is inconsistent with a Supreme Court decision in a case involving
“materially indistinguishable” facts. Williams v. Taylor, 529 U.S.
362, 405-06 (2000). “A state court decision fails the ‘unreasonable
application’ prong only ‘if the court identifies the correct governing
rule from the Supreme Court’s cases but unreasonably applies it to
the facts of the particular case or if the state court either
unreasonably extends a legal principle from the Supreme Court’s

                                 39
precedent to a new context where it should not apply or
unreasonably refuses to extend the principle to a new context
where it should apply.’” Rico v. Leftridge-Byrd, 340 F.3d 178, 181
(3d Cir. 2003) (citations omitted).

       Before applying these standards to the present case, we note
that we agree with the District Court that the Pennsylvania
Supreme Court clearly misinterpreted Batson. First, Batson does
not invariably demand compliance with the procedural
requirements set out in Commonwealth v. Simmons, 662 A.2d at
631. It is noteworthy that Batson discussed what a criminal
defendant must do to establish a prima facie case without hinting
that a defendant must always satisfy anything like the rigid
Commonwealth v. Simmons requirements. More important,
Batson’s specific examples of how a prima facie case may be
established make it clear that the Commonwealth v. Simmons
requirements need not always be met. Batson stated that “a
‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.” 476 U.S.
at 97. In other words, a stark pattern – say, peremptorily striking
numerous African American jurors and no others – could suffice
without the creation of a record regarding “the race of the jurors
who served and the race of the jurors acceptable to the
[prosecution] who were stricken by the defense.” Commonwealth
v. Simmons, 662 A.2d at 631. Batson further stated that a
“prosecutor’s questions and statements during voir dire
examination and in exercising his challenges may support or refute
an inference of discriminatory purpose.” 476 U.S. at 97. Thus, in
some circumstances, suspicious questioning, coupled with strikes
that seem to implement the thrust of the questioning, may be
enough. In short, a prima facie case may be established by “all
relevant circumstances.” Id. at 96. While the factors noted in
Simmons are certainly relevant, in the words of the District Court,
“there are many evidentiary avenues a petitioner may travel to
bolster his Batson claims.” Aug. 16, 2001 Mem. at 8.

       Second, the Pennsylvania Supreme Court clearly
misinterpreted Batson insofar as it rejected Bronshtein’s claim on
the ground that the record suggested legitimate reasons that could
have motivated the prosecutor to exercise the contested peremptory

                                40
challenge. Under Batson, if the objecting party establishes a prima
facie case, the party exercising the challenge must state its actual
reasons, and the trial judge must make a finding regarding the
challenging party’s motivation. See 476 U.S. at 97-98.

        In light of our conclusion that the state supreme court
misinterpreted Batson, we conclude that the state supreme court’s
decision fails to satisfy the standards set out in 28 U.S.C. §
2254(d)(1). The “contrary to” prong is violated because the state
supreme court “applie[d] a rule that contradicts the governing law
set forth” by the Supreme Court, Williams, 529 U.S at 405. And
the “unreasonable application” prong is also contravened because
the state supreme court did not “identif[y] the correct governing
rule from the Supreme Court’s cases.” Rico, 340 F.3d at 181. It
does not follow, however, that Bronshtein is entitled to relief.

       A state prisoner’s federal habeas petition may be granted
“only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Thus, if a petitioner’s custody does not in fact violate
federal law – i.e., if the petitioner’s claims fail even de novo review
– the petitioner is not entitled to habeas relief regardless of the
correctness of the state court’s analysis of those claims. This
conclusion follows naturally from the longstanding rule that federal
courts will not entertain habeas petitions to correct errors that do
not undermine the lawfulness of a petitioner’s detention. See
McNally v. Hill, 293 U.S. 131, 135 (1934) (errors may not be
attacked on one count of indictment where sentence was lawfully
imposed after conviction on another count), overruled on other
grounds, Peyton v. Rowe, 391 U.S. 54 (1968).

       Our conclusion also follows naturally from the language of
28 U.S.C. § 2254(d). Under the “contrary to” prong of §
2254(d)(1), it is the state supreme court’s “decision,” not its
reasoning, that must be “contrary to” clearly established Supreme
Court precedent. As we put it in Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc) (emphasis
added), the “contrary to” prong applies when “Supreme Court
precedent requires the contrary outcome.” Likewise, our decision
in Werts v. Vaughn, 228 F.3d 178, 196-97 (3d Cir. 1999) (quoting

                                  41
O’Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998)) (emphasis
added), glossed the “contrary to” language as entitling a petitioner
to relief only if the petitioner “shows that ‘Supreme Court
precedent requires an outcome contrary to that reached by the
relevant state court.’”

       Accordingly, both the terms of the habeas statute and
common sense dictate that Bronshtein cannot obtain relief on his
Batson claim unless application of a correct interpretation of that
decision leads to the conclusion that his rights were violated.

        Applying plenary review, we agree with the District Court
that Bronshtein failed to make out a prima facie case.10 First, it is
relevant that Bronshtein’s claim is based on a single strike. We do
not hold that a prima facie case always requires more than one
contested strike, but the absence of a pattern of strikes is a factor
to be considered. In this connection, it is relevant (though not, as
the state supreme court held, dispositive) that the record does not
reveal whether the prosecutor passed up the opportunity to strike
other prospective jurors who were Jewish or who had ancestors
who once lived in Russia. See Simmons v. Beyer, 44 F.3d 1160,
1167 (3d Cir. 1995) (pattern of strikes and number of racial group
members in panel relevant); United States v. Clemons, 843 F.2d
741, 747-48 (3d Cir. 1988) (same).

       Second, the nature of the crime did not provide a reason for
heightened suspicion about the prosecution’s reason for striking
Ms. Eidelson. See Simmons v. Beyer, 44 F.3d at 1167 (nature of
crime and race of accused and victim relevant); Clemons, 843 F.2d
at 748 (same). There was no suggestion that religion or ethnicity
played any role in the murder, and the accused and the victim
shared the same religion and ethnic background.



       10
         We therefore have no need to address the question whether
Bronshtein would be entitled to relief if he had shown that the
peremptory challenge at issue was based on “religious affiliation,”
see United States v. DeJesus, 347 F.3d 500, 510 (3d Cir. 2003)
(reserving decision on question), or ethnicity. See Rico v.
Leftridge-Byrd, 340 F.3d 178, 182-84 (3d Cir. 2003).

                                 42
        Third, the prosecutor’s questions and statements during voir
dire did not suggest that Ms. Eidelson was peremptorily challenged
because of her religion or ethnicity. See Simmons v. Beyer, 44
F.3d at 1167 (prosecutor’s questions relevant); Clemons, 843 F.2d
at 748 (same). It was defense counsel who first asked a juror
whether she was Jewish. The prosecutor expressed an interest in
whether Ms. Eidelson was a Quaker, not whether she was Jewish,
and his only question to her concerned her ability to vote for the
death penalty. We agree with the District Court that these facts are
insufficient to make out a prima facie case, and we therefore reject
Bronshtein’s Batson claim on this ground.11

                                  VI.

       We now consider two issues relating to the trial court’s
evidentiary rulings. First, Bronshtein argues that the trial court
violated his federal constitutional rights to a fair trial, to present a
defense, to due process, and to confrontation by excluding
proposed testimony by private investigator Alan Hart. Second,



       11
          Bronshtein contends that the strike of Ms. Eidelson was
suspicious because, immediately after the trial judge ruled that
Batson does not prohibit peremptory challenges based on religion,
the prosecutor expressed an interest in asking about the religion of
a prospective juror “with a Jewish-sounding last name.”
Bronshtein’s Br. at 84-86. These circumstances are relevant, but
particularly in light of the reason volunteered by the prosecutor,
i.e., Ms. Eidelson’s attendance at Friends Central High School, we
are not persuaded that a prima facie case was established.

        Bronshtein also contends that the following facts support a
prima facie case: (1) the Commonwealth exercised a peremptory
strike against a non-Jewish prospective juror who had lived for
some time in a predominantly Jewish neighborhood and (2) the
Commonwealth did not strike other venirepersons who shared
some of Ms. Eidelson’s characteristics, e.g., her marital and
employment status, educational background, and lack of military
service. See Bronshtein’s Br. at 86-88. These factors provide
slight support at best for Bronshtein’s position.

                                  43
Bronshtein contends that the trial court violated his right to due
process by admitting his confession to the Slobotkin murder for the
limited purpose of showing the identity of the person who shot and
killed Gutman.

                                 A.

        Before reaching the merits of these claims, we must
consider whether review is precluded by non-exhaustion or
procedural default. Without an express waiver by the state, a
federal court is allowed under 28 U.S.C. § 2254(b)(1)(A) to grant
a state prisoner’s habeas petition only if the petitioner has
exhausted all available state remedies. In order to satisfy the
exhaustion requirement, a federal habeas claim must have been
“fairly presented” to the state courts. Picard v. Connor, 404 U.S.
270, 275 (1971). This means that a petitioner must “present a
federal claim’s factual and legal substance to the state courts in a
manner that puts them on notice that a federal claim is being
asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999). “It is not enough that all the facts necessary to support the
federal claim were before the state courts,” Anderson v. Harless,
459 U.S. 4, 6 (1982), and “mere similarity of claims is insufficient
to exhaust.” Duncan v. Henry, 513 U.S. 364, 366 (1995).

       In this case, our review of the state court record reveals that
the arguments that Bronshtein made with respect to these issues
were based entirely on state, rather than federal, law.12 As a result,
these claims were not properly exhausted. See Keller v. Larkins,
251 F.3d 408, 413-15 (3d Cir. 2001).

       Bronshtein contends, however, that these claims “were
automatically exhausted on direct appeal by virtue of the
Pennsylvania Supreme Court’s mandatory appellate review in
capital cases.” Reply And Mem. Of Law In Support Of Pet. For
Writ Of Habeas Corpus at 11. Under 42 Pa. Cons. Stat. §



       12
         See Appellant’s Br. at 14-20, 27-29, 32-37,
Commonwealth v. Bronshtein, 88 Capital Appeal Docket, Pa. Sup.
Ct., Eastern District.

                                 44
9711(h)(3)(i), the Pennsylvania Supreme Court is required to
review the record in capital cases to determine whether “the
sentence of death was the product of passion, prejudice or any
other arbitrary factor[.]” Such review, Bronshtein asserts,
“satisfies the exhaustion requirement for all record-based claims of
constitutional error.” Reply And Mem. Of Law In Support Of Pet.
For Writ Of Habeas Corpus at 15. The District Court agreed,
stating that “[e]ven when a petitioner fails to raise a particular
constitutional issue, the mandatory review of capital convictions
and sentencings required in Pennsylvania is sufficient to exhaust
fundamental constitutional claims of the kind raised here by
Bronshtein.” App. I at 22 n.19.

        We must disagree with this analysis. First, neither 42 Pa.
Cons. Stat. § 9711(h)(3)(i) nor any other Pennsylvania statute states
that the Pennsylvania Supreme Court is expected to try to identify
and then assess every “record-based” federal constitutional
argument that might possibly be made on behalf a capital
defendant. Instead, 42 Pa. Cons. Stat. § 9711(h)(3)(i) imposes a
much more limited, albeit important, obligation, i.e., to make sure
that no death sentence is “the product of passion, prejudice or any
other arbitrary factor.”

        Second, we see no evidence that the Pennsylvania Supreme
Court believes that it is required to engage in, or that it in fact
engages in, the sort of boundless inquiry that Bronshtein thinks is
required. See Commonwealth v. Paolello, 665 A.2d 439, 454 n.12
(Pa. 1995) (“[W]e decline counsel’s invitation to scour the record
for additional errors caused by counsel and sua sponte raise said
issues; the request is inappropriate and nonsensical in that such
advocacy would be beyond the scope of our appellate review.”)
The state supreme court’s opinion on direct appeal in this case is
illustrative. The state supreme court did not address any federal
constitutional issue that Bronshtein did not raise; nor did the state
supreme court address the question whether Bronshtein’s state-law
arguments would have merit if recast in federal constitutional
terms. It seems fanciful to suggest that, in every capital appeal, the
state supreme court actually considers and rejects a host of federal
constitutional claims without receiving briefing or argument on
those claims from counsel and without even mentioning in the

                                 45
opinion of the court that the claims were entertained.

        Third, Bronshtein’s argument is inconsistent with
Pennsylvania’s scheme of post-conviction review. Under the
PCRA, a petitioner may not obtain relief on a claim that was
“previously litigated,” 42 Pa. Cons. Stat. Ann. § 9543(a)(3), and a
claim is viewed as having been “previously litigated” if “the
highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue.” 42
Pa. Cons. Stat. Ann. § 9544. Thus, if a Pennsylvania Supreme
Court decision affirming a capital conviction and sentence on
direct review is deemed to signify that the Court considered and
rejected every possible federal constitutional argument that could
be made based on the record, it would follow that no such claims
could ever be asserted under the PCRA. See Holland v. Horn, 150
F. Supp. 2d 706, 720-21 (E.D. Pa. 2001); Banks v. Horn, 49 F.
Supp. 2d 400, 406-07 (M.D. Pa. 1999). We are convinced that the
Pennsylvania Legislature did not intend such a result.

        Fourth, Bronshtein’s argument would frustrate important
aspects of the federal habeas scheme. Under the federal habeas
statute, an applicant for federal habeas relief must show that “the
applicant has exhausted” all available state remedies. 28 U.S.C. §
2254(b)(1)(A) (emphasis added). In addition, a state is not
“deemed to have waived the exhaustion requirement” unless it
“expressly” does so, 28 U.S.C. § 2254(b)(3), and a federal habeas
court’s scope of review varies greatly depending on whether a
particular claim was or was not “adjudicated on the merits” in the
state courts. See 28 U.S.C. § 2254(d). Under Bronshtein’s
argument, however, the fiction that the state supreme court on
direct review automatically considers all possible “record-based”
arguments (and tacitly rejects all those that it does not expressly
endorse) essentially does away with these aspects of the federal
habeas scheme.        The exhaustion requirement is rendered
meaningless since all possible claims are deemed to be exhausted
on direct review. Moreover, because an affirmance on direct
review is deemed to constitute an adjudication on the merits of all
possible record-based claims, it would seem to follow that all such
claims are subject to the narrow scope of federal habeas review set
out in 28 U.S.C. § 2254(d) regardless of whether the state supreme

                                 46
court in fact ever considered those claims.

         For these reasons, we agree with the courts of appeals that
have rejected arguments similar to Bronshtein’s. See, e.g., Beaty
v. Stewart, 303 F.3d 975, 987 (9 th Cir. 2002); Smith v. Moore, 137
F.3d 808, 821 (4 th Cir. 1998); Nave v. Delo, 62 F.3d 1024, 1039
(8 th Cir. 1995); Julius v. Johnson, 840 F.2d 1533, 1546 (11 th Cir.
1988). We have considered the Ninth Circuit’s decision in Beam
v. Paskett, 3 F.3d 1301, 1305-07 (9 th Cir. 1993), but that decision
does not persuade us to accept Bronshtein’s argument here.

        In Beam, the claim at issue concerned the constitutionality
of an aggravating factor set out in the Idaho capital sentencing
statute. After first concluding that the habeas petitioner had fairly
presented his federal claim to the Idaho Supreme Court, the Beam
panel stated that the claim would not be procedurally defaulted
even if the petitioner had not raised it in the state supreme court.
The Beam panel noted that the Idaho Supreme Court was required
by statute to review the entire record in a capital case to make sure
that the death sentence was not the result of an “arbitrary factor.”
Id. at 1306. The panel then predicted that the Idaho Supreme Court
would interpret the state statute to mean that “affirmance of a
capital sentence constitutes an implicit rejection of all specific
claims falling within the subject of its mandatory review authority
and that any claim covered by the mandatory review statute must
be deemed resolved against the defendant even if he did not raise
that claim before the court and even if the court failed to address it
in its opinion.” Id. at 1306. Reasoning that reliance on the
sentencing factor at issue “would clearly constitute reliance on an
arbitrary factor,” the Beam panel concluded that this claim fell
within the specific terms of the Idaho Supreme Court’s mandatory
review authority and that therefore the state supreme court must
have considered and rejected the claim. Id. at 1307.

       Beam is distinguishable from the present case on several
grounds. First, as noted, the petitioner there was held to have fairly
presented his claim to the state supreme court. Second, the relevant
discussion in Beam was based on a prediction about how the Idaho
Supreme Court would interpret its mandatory review authority, and
we do not predict that the Pennsylvania Supreme Court would

                                 47
interpret its mandatory review authority in a similar fashion. Third,
the relevant discussion in Beam was also predicated on the Court’s
view that the particular claim at issue, the constitutionality of a
capital sentencing factor, fell within the list of specific questions
that the Idaho Supreme Court was obligated to consider on direct
review. The pertinent claims here are different, and even if we
were bound by Beam – and of course we are not – it would not
follow that the particular claims in question here fall within the
scope of the Pennsylvania mandatory review provision. However,
to the extent that Beam’s reasoning differs from our analysis of
Bronshtein’s argument here, we find Beam unpersuasive. We thus
hold that the claims under discussion were not properly exhausted.

       Although Bronshtein has never properly exhausted the
claims at issue, he is now “clearly foreclosed” from doing so by the
PCRA time limit, see 42 Pa. Cons. Stat. Ann. § 9545(b), and these
claims are therefore procedurally defaulted. See Whitney, 280 F.3d
at 250-52. As a result, we may not grant relief on those claims
unless Bronshtein “makes the standard showing of cause and
prejudice or establishes a fundamental miscarriage of justice.” Id.
at 253 (citation and internal quotation marks omitted).

       We would permit Bronshtein to attempt on remand to
establish a reason to excuse his procedural default, but we find it
unnecessary to do so because it is apparent that the claims in
question lack merit. Under 28 U.S.C. § 2254(b)(2), we may reject
claims on the merits even though they were not properly exhausted,
and we take that approach here. We will discuss in turn the two
evidentiary rulings that Bronshtein contests.

                                 B.

        1. Hart’s testimony. In his proffer of Hart’s testimony at an
in camera hearing before the trial judge, defense counsel stated that
Hart would testify that he had been hired by the New Jersey
Jewelers’ Association to conduct an investigation into a “scam”
that Karlitsky was suspected of carrying out. App. V at 1376-77.
According to the proffer, Hart would have testified that jewelry
that had been reported as stolen from Karlitsky’s store had “ended
up” at a downtown Philadelphia store owned by Karlitsky’s cousin.

                                 48
Id. In addition, it was proffered that Hart would have testified that,
“contrary to . . . the Commonwealth’s testimony,” the Philadelphia
Police Department was involved in the investigation of this matter.
Id. Defense counsel asserted that Hart’s testimony would support
the theory that Karlitsky gave some of the jewelry from a scam at
the Leo Mall to Gutman to sell at his store and that a dispute
between them motivated Karlitsky to kill Gutman. See id. at 1341-
42.

       Defense counsel acknowledged, however, that Karlitsky was
never charged or arrested in connection with the Leo Mall robbery
“because they couldn’t get enough evidence to arrest him.” Id. at
1377. Furthermore, defense counsel conceded that much of Hart’s
proffered testimony was hearsay and that the only proper testimony
that Hart could have given was that he was “working with the
Philadelphia Police in an investigation of Karlitsky.” Id. at 1377-
80. See also Commonwealth v. Bronshtein, 691 A.2d at 917 n. 18.
The trial court excluded this testimony on the ground that evidence
about the Leo Mall robbery was “entirely collateral to the
proceedings,” and the state supreme court held that this ruling was
not an abuse of discretion because Bronshtein “failed to offer any
evidence that there was any logical connection between the
Slobotkin and Gutman murders and this dissimilar case.”
Bronshtein, 691 A.2d at 917.

       “A defendant’s right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions.” United
States v. Scheffer, 523 U.S. 303, 308 (1998). Here, the trial court
apparently applied a familiar evidence rule allowing the exclusion
of evidence if its probative value is outweighed by the danger of
confusion of the issues or needless presentation of cumulative
evidence. See Morrison v. Commonwealth, Dept. Of Pub. Welfare,
646 A.2d 565 (Pa. 1994); Commonwealth v. Boyle, 447 A.2d 250
(Pa. 1982); Pa. Rule of Evid. 403 (effective 1998). The trial
court’s ruling plainly did not rise to the level of a federal
constitutional violation.

       To begin, Hart’s proffered testimony would have been
largely cumulative since evidence about the Leo Mall robbery had
already been admitted. Montgomery County Detective Donald H.

                                 49
Rohner had testified that, according to an unnamed source (who,
unbeknownst to the jury, was Bronshtein himself), Karlitsky was
a suspect in the alleged robbery of his own store. Indeed, in an
important respect, Rohner’s testimony was actually more helpful
to the defense than Hart’s would have been. Although Hart could
not have given competent testimony supporting the defense theory
that some of the jewelry from the Leo Mall robbery had found its
way to Gutman’s store, Rohner testified that, according to his
source, jewelry from the Leo Mall robbery had “ended up
somewhere else, at least one or more other places[.]” App. IV at
898.13

        Moreover, even if Hart’s testimony had not been largely
cumulative, it would have had little probative value. At best,
Hart’s testimony suggested that Karlitsky might have staged the
robbery of his own store. This fact alone sheds no light on the
identity of Gutman’s killer. Even if Hart’s testimony is viewed in
conjunction with Detective Rohner’s statement that some of the
jewelry from the Leo Mall store “ended up” in other places, the
evidence does little to show that one of those places was Gutman’s
store, much less that a dispute over this jewelry led Karlitsky to kill
Gutman. This limited probative value must be weighed against the
likely danger that the evidence would sidetrack the proceedings and
confuse the jury. By admitting Hart’s testimony, the court risked
submerging the defendant’s trial in collateral litigation over an
unsolved and (at most) tangentially related crime committed by
someone other than the accused. For these reasons, the trial
judge’s decision to exclude Hart’s proffered testimony did not
violate Bronshtein’s federal constitutional rights.




       13
         It appears that Hart’s testimony would have supplemented
Rohner’s in only one respect. While Rohner testified that Karlitsky
was a suspect in the Leo Mall robbery, he stated that he did not
receive any information that the Philadelphia police considered him
a suspect, and Hart would have testified that the Philadelphia
police did suspect Karlitsky. This additional feature of Hart’s
proffered testimony is far too slight to convince us that the trial
court’s ruling violated Bronshtein’s federal constitutional rights.

                                  50
       2. Confession to Slobotkin murder. As previously noted,
Bronshtein confessed to the Philadelphia police that he had killed
Slobotkin, but when Bronshtein was questioned by the
Montgomery County police about the Gutman murder he told them
that Slobotkin and Gutman had been killed by the same man,
namely, “Mr. X,” whom Bronshtein later identified as Karlitsky.
Bronshtein also said that he was afraid of Mr. X and that he had
previously confessed to the Slobotkin murder only because he
would have “walked out of [the police station] a dead man” if he
had not confessed. App. IV at 965-66.

       The trial judge admitted evidence of Bronshtein’s
confession to the Slobotkin murder but instructed the jury that it
was permitted to consider this evidence solely in relation to
Bronshtein’s statement that the person who killed Slobotkin also
killed Gutman. When the evidence was admitted, the trial court
told the jury:

       This evidence [Bronshtein’s confession that he killed
       Slobotkin] is not to be considered by you to the
       extent that one might conclude, well, if he did do this
       other crime for which we’re not trying, then, he’s a
       bad person, and that means he probably did this. No,
       it can’t be used for that purpose. It comes in for a
       very limited and specific purpose, which is to say
       that if you believe that he made this statement, and if
       you believe that it was true, and if you believe that
       he made the other statement that has been entered
       into evidence [that the same person who killed
       Slobotkin also killed Gutman], and if you believe
       that is true, then, all of that may be considered by
       you as evidence as to the identity of the person who
       did, in fact, kill Mr. Gutman, the decedent who is the
       subject of this case. But it is for that specific and
       limited purpose only that you are being permitted to
       hear this.

Id. at 1090-91. In its final charge, the trial court gave a similar




                                 51
warning.14
      Admission of “other crimes” evidence provides a ground for



      14
           The trial judge stated:

      [Y]ou’ve heard evidence tending to prove that the
      defendant was guilty of an offense for which he is
      not on trial, and I am speaking again of the testimony
      to the effect that the defendant made a statement to
      Detective Augustine that he had killed a jeweler
      named Slobotkin. This evidence, as I instructed you
      at the time you first heard it, was before you for a
      limited purpose, that is, for the purpose of tending to
      show the identity of the killer in this, the Gutman
      case, and then only because the Commonwealth has
      put before you another statement allegedly from the
      defendant that the killer of Slobotkin and the killer
      of Gutman were one and the same man. In other
      words, you were allowed to hear about the statement
      allegedly attributed to the defendant on a case
      unrelated to this one only because if coupled with the
      other statement attributed to him and if believed by
      you, then, it goes to the question of the identity of
      the killer of Mr. Gutman, which is the issue in this
      case.
           Now, this evidence must not be considered by
      you in any way other than for the purpose I just
      stated. You must not regard this evidence, that is,
      the statement about killing Slobotkin, as showing
      that the defendant is a person of bad character or
      criminal tendencies from which you might be
      inclined to infer his guilt. If you find the defendant
      guilty, it must be because you are convinced by the
      evidence that he committed the crime in this case,
      the one charged, not because you believe he’s
      wicked or has committed other offenses in other
      places at other times.

App. V, Pt. 2 at 1676-77.

                                     52
federal habeas relief only if “the evidence’s probative value is so
conspicuously outweighed by its inflammatory content, so as to
violate a defendant’s constitutional right to a fair trial.” Lesko v.
Owens, 881 F.2d 44, 52 (3d Cir. 1989). That is plainly not the case
here.

        Other crimes evidence is routinely admitted when it is
relevant15 to show “identity.” See, e.g., Fed. R. Evid. 404(b); Pa.
R. Evid. 404(b)(2). Here, Bronshtein’s confession to the
Philadelphia police that he killed Slobotkin was relevant to show
the identity of Gutman’s killer because Bronshtein later informed
the Montgomery County police that Slobotkin’s killer also
murdered Gutman. Bronshtein’s confession to the Slobotkin
murder was not rendered irrelevant by his subsequent contradictory
statement to the Montgomery County police that Karlitsky killed
Slobotkin, as well as Gutman. Relevant evidence does not become
irrelevant just because contradictory evidence exists. Conflicting
evidence presents a question of credibility for the trier of fact, not
a question of relevance for the court, and of course a trier of fact is
under no obligation to accept or reject a party’s admissions in toto.
On the contrary, a trier of fact may believe some of the party’s
admissions and disbelieve others. Here, Bronshtein’s statement
that he killed Slobotkin and his statement to the Montgomery
County police that Karlitsky was the killer were both relevant to
show the identity of Gutman’s murderer, and it was proper for the
trial judge to admit both statements.

                                 VII.

       Bronshtein’s final argument concerns comments made by
the prosecutor in his guilt phase summation. In short, the
prosecutor argued that, although Bronshtein’s attorney had
suggested that Karlitsky was a major organized crime figure and
that Karlitsky had killed Gutman, the defense had not offered any



       15
        In this context, “relevant” means sufficient to support a
finding that the other crime or wrong occurred and that the
defendant was the actor. Huddleston v. United States, 485 U.S.
681, 689 (1988).

                                  53
significant evidence to support this theory. According to the
prosecutor, even the Leo Mall evidence was weak.16



      16
           The prosecutor stated:

                And I suggest to you they would
                search high and low, heaven and hell,
                to try and get somebody in this
                courtroom, expert or otherwise, that
                can put Karlitsky somehow related to
                some scam –
                ....
                They would be more than happy to
                find somebody that would come in
                here and link [Karlitsky] to some
                scam, link him to some involvement
                of the mob.

                Ask their own so-called expert, the
                man they’re putting forth as the
                expert, “Have you ever heard of
                Karlitsky?”
                ....
                Did you hear that question even posed
                to their expert? Did you hear he heard
                him [Karlitskly] involved in anything?

                What is this, what he has labeled,
                Nicky Scarfo-like head? What’s his
                criminal background? No robberies,
                like he said. No murders, like he said.
                Big Nicky Scarfo, Daddy Warbucks
                Scarfo, headed this Russian Mafia,
                Russian Mob, has a shoplifting arrest
                from 1990. That’s where they got his
                fingerprints from, a shoplifting arrest.
                No other criminal history, nothing
                w ith robberie s, noth in g w ith
                murders[.] . . . That’s a smoke screen,

                                    54
ladies and gentlemen, you can
conclude based on the evidence that’s
been presented to you.

That’s something where they’re trying
to take your focus off the ball, trying
to get your attention deflected off of
what you can conclude based on the
law and the evidence is the real truth
in this case.

They want you to believe a Karlitsky.
They have to have you believe a
Karlitsky if their defense is going to
apply, if their defense is going to
work.

But nobody has heard of him.
Organized crime hasn’t heard of him.
He’s not linked to any scams, not
linked to any organized crime –
....
Nothing. No links whatsoever that
have been brought forward in this case
no matter how many times he wants to
object, but that’s still the way it is.
And that’s still the facts in this case.

The only thing they even alluded to –
and I suggest to you, they didn’t even
give you the whole picture – was they
alluded to some Leo Mall store he had
as a jeweler. He starts talking about
this consignment stuff.

You haven’t heard one word about any
consignment from Leo Mall. You
haven’t heard word one about his

                  55
        Bronshtein claims that the prosecutor’s statements violated
his due process rights. He contends that the comments on the
defense’s failure to present evidence in support of the defense
theory were improper because the prosecutor knew that, but for the
trial court’s preclusion of Hart’s testimony, the defense would have
presented “evidence that Karlitsky had previously committed
jewelry robberies and scams in support of the defense theory that
Karlitsky . . . held the intent, motive and means for committing the
instant offenses.” Bronshtein’s Br. at 104.



              involvement in any scam from
              Philadelphia Police involved in the
              Leo Mall, not one iota about that; but
              they bring it forth and they argue it to
              you when they come here in closing to
              try and say, “Well, we’ll infer he was
              involved in a scam here; so we’ll take
              that and infer through our expert that
              Russian Jews are involved in scams
              and a lot of organized crime. From
              that, they do scams, and so we’ll link
              him from maybe being in a scam, from
              being a Russian Jew to maybe
              working in scams they do. Wah-la.
              He’s organized crime.”

              Think of the step that takes. Think of
              the leaps they take when they try and
              take that to you and whether it’s
              founded in any of the evidence that
              has been presented to you. Think of
              that, because that’s the linchpin of
              their defense; because if this fear is
              dispelled, if this Karlitsky does not
              exist in terms of doing anything in this
              case, then, their defense goes down
              the tubes.

App. V, Pt. 2 at 1585-88.

                                56
        Improper remarks by a prosecutor may “so infect[] the trial
with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
Due process is violated where the misconduct “constitutes a
‘failure to observe that fundamental fairness essential to the very
concept of justice.’” Id. at 642. No such violation occurred here.

        In discussing the prosecutor’s comments, the Pennsylvania
Supreme Court accurately noted that the defense had not proffered
any evidence that Karlitsky had staged the robbery of his own
store, only evidence that the police suspected him of involvement.
See Bronshtein, 691 A.2d at 920. Moreover, there was no evidence
linking Karlitsky to “the Russian ‘mafia.’” Id. The Pennsylvania
Supreme Court observed:

       [A] review of the transcript of an in camera
       discussion reveals that, although appellant’s expert
       had personally investigated the possibility of
       Karlitsky’s involvement in an alleged scam at the
       Leo Mall jewelry store, there had been no evidence
       to link Karlitsky to any such scam or to link any
       jewelry scam to the Gutman murder . . . .

               Trial counsel dedicated more than half of his
       sixty page closing argument to the theory that
       Karlitsky had committed the murder as part of a
       jewelry store scam involving the Russian “mafia,”
       and that appellant had confessed to the Slobotkin
       murder out of fear of Karlitsky. Given that there was
       no evidence, either at trial or in the defense proffer
       on the substance of the excluded testimony, of
       Karlitsky’s involvement in an alleged scam at the
       store or his connection to the Russian “mafia,” it was
       not improper for the prosecution to ask the jury to
       draw an inference that no such evidence existed.

Id.

       We agree with the state supreme court’s analysis of this
issue and hold that the summation did not violate Bronshtein’s


                                57
federal constitutional rights.

                                 VIII.

       For the reasons set out above, we reverse the order of the
District Court in part and affirm in part, and we remand for further
proceedings consistent with this opinion.




                                  58
