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


7-19-2005

Laird v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9012




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                                      PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                   NO. 01-9012
                ________________

                RICHARD LAIRD

                          v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA
              DEPARTMENT
OF CORRECTIONS; THE DISTRICT ATTORNEY OF
             BUCKS COUNTY;
 THE ATTORNEY GENERAL OF THE STATE OF
             PENNSYLVANIA


      MARTIN HORN, Commissioner, Pennsylvania
                     Department
   of Corrections; *GREGORY WHITE, Superintendent
                          of
       the State Correctional Institution at Pittsburgh;
   *JOSEPH MAZURKIEWICZ, Superintendent of the
                         State
            Correctional Institution at Rockview,
                                      Appellants
             *(Pursuant to Rule 12(a), F.R.A.P.)
      On Appeal From the United States District Court
          For the Eastern District of Pennsylvania
                (D.C. Civ. No. 99-cv-2311)
           District Judge: Honorable Jan DuBois
      _______________________________________

                 Argued September 28, 2004


   Before: ROTH, MCKEE AND BARRY Circuit Judges.

                    (Filed July 19, 2005)

Diane E. Gibbons
Stephen B. Harris (argued)
Michelle A. Henry
Office of District Attorney
Doylestown, PA 18901

      Attorneys for Appellants

Billy H. Nolas (argued)
David W. Wycoff
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
Philadelphia, PA 19106


      Attorneys for Appellee



                               2
                  OPINION OF THE COURT
                  _______________________

McKEE, Circuit Judge:

        The Commonwealth appeals the order of the district court
overturning the defendant’s death sentence and granting a new
trial on his conviction for first-degree murder. As explained in
its extremely thorough, comprehensive, and well-reasoned
opinion, the district court held that the state trial court erred in
instructing the jury on accomplice liability during the guilt
phase. See Laird v. Horn, 159 F. Supp. 2d 58, 80-85 (E.D. Pa.
2001). For the reasons that follow, we will affirm.1




   1
     The district court also held that: the instructions during the
penalty phase violated the holding in Mills v. Maryland, 486
U.S. 367 (1988), defense counsel was ineffective during the
sentencing phase, and that Laird was denied due process of law
during the penalty phase when he was forced to appear before
the jury in shackles. Finally, the court held that Laird was also
entitled to habeas relief because the prosecutor improperly
commented on Laird’s failure to testify in his own behalf during
the penalty phase. However, since we affirm the district court’s
grant of habeas relief based upon the defective accomplice
liability charge during the guilt phase, we need not reach the
other issues raised in this appeal.

                                 3
                  I. Factual Background.2

       Laird and co-defendant, Frank Chester, met the victim,
Anthony Milano, in a bar in Bristol Township, Pennsylvania,
and all three men left in Milano’s car shortly after the bar
closed.

       Milano’s bloodied body was discovered in a wooded area
the next evening. His skull had been fractured by a blunt
instrument, and his throat and head had numerous lacerations.
Some of the wounds had been inflicted with such force, and
were sufficiently deep, that they resulted in severing two of
Milano’s vertebrae. His neck had been lacerated with such
force that he was almost decapitated.

       Laird and Chester were jointly tried for Milano’s murder.
During their trial, both defendants took the witness stand and
admitted being present when Milano was killed. However, they
each denied intending to kill Milano and insisted that the other
had inflicted the fatal wounds. The jury convicted both Laird
and Chester of murder in the first, second and third degrees as
well as kidnaping, aggravated assault, unlawful restraint, false
imprisonment, conspiracy, and possession of an instrument of




      2
       For a more comprehensive statement of the factual
background of this appeal see Laird, 159 F. Supp. 2d at 67, and
Commonwealth v. Chester, 587 A.2d 1367, 1371-72 (Pa. 1991).

                               4
crime. 3 At the conclusion of the ensuing penalty phase, the jury
sentenced both Laird and Chester to death, and the Pennsylvania
Supreme Court subsequently affirmed both convictions in a
single opinion. Commonwealth v. Chester, 587 A.2d 1367,
1371-72 (Pa. 1991) (“Chester I”). Thereafter, Laird filed a
petition for post-conviction relief pursuant to Pennsylvania’s
Post Conviction Relief Act (“PCRA”). That petition was
denied, and the Pennsylvania Supreme Court also affirmed that
decision. Commonwealth v. Laird, 726 A.2d 346 (Pa. 1999)
(“Laird I”). Laird then filed the instant habeas petition in
district court pursuant to 28 U.S.C. § 2254. As we noted at the
outset, the district court granted relief, and this appeal followed.

                    II. State Court Decisions

        In deciding the consolidated direct appeal, the
Pennsylvania Supreme Court was careful to distinguish between
“Chester’s” allegations, “Laird’s” allegations, and issues raised
by both Laird and Chester (“appellants”). See generally,
Chester I, 587 A.2d at 1373, 1375, 1376, 1377, 1381, and 1382.
The Court prefaced its discussion of the trial court’s instruction
on accomplice liability by stating: “Chester’s next allegation
relates to the jury instructions on accomplice liability. Appellant
submits that counsel was ineffective for failing to object to the
trial court’s failure to instruct the jury to find specific intent as


   3
    Under Pennsylvania law, first-degree murder requires the
specific intent to kill, second-degree murder is a killing that
occurs during the course of a felony, and “all other kinds of
murder” constitute third-degree murder. 18 Pa. C.S.A. § 2502.

                                 5
a prerequisite for accomplice liability.” 587 A.2d at 1384
(emphasis added). The Court rejected the argument, quoting the
challenged jury instruction as follows:

       A person is guilty of a particular crime if he is an
       accomplice of another person who commits that
       crime.       A defendant does not become an
       accomplice merely by being present at the same
       scene or knowing about a crime.          He is an
       accomplice, however, if with the intent of
       promoting or facilitating commission of a crime
       he solicits, or commands or encourages or
       requests the other person to commit it or if he
       aids, agrees to aid or attempts to aid the other
       person in planning the crime or committing the
       crime.       However, a defendant is not an
       accomplice under this concept that I'm explaining
       to you if before the other person commits the
       crime he stops his own efforts to promote or
       facilitate the commission of the crime. You may
       find the defendant guilty of a particular crime on
       the theory that he was an accomplice so long as
       you are satisfied beyond a reasonable doubt that
       the crime was committed and the defendant was
       an accomplice of the person who committed it.
       All right.     That is the accomplice theory of
       liability.


Id. The Court concluded that the instruction mirrored
Pennsylvania’s statute on accomplice liability and held that it

                                6
was not erroneous. In reaching that conclusion, the Court noted
that it was rejecting “Chester’s . . . allegation[]” challenging the
instruction.     The Court thus realized that Chester was
challenging the jury instruction on direct appeal, not Laird.

       Nevertheless, when it thereafter affirmed the denial of
Laird’s PCRA petition and the challenge to the instruction he
raised there, the state supreme court stated:

       This issue was presented on direct appeal as an
       allegation of ineffectiveness of trial counsel for
       failure to object to the charge as given. The
       allegation of error was denied as the charge was
       found to properly set forth the elements of
       accomplice liability. Laird, 587 A.2d at 1384.
       Petitioner attempts to relitigate this claim by
       attacking appellate counsel’s ineffectiveness for
       failing to prevail on this claim in the direct
       appeal. Post-conviction relief cannot be obtained
       on a previously litigated claim merely by arguing
       appellate counsel’s ineffectiveness and presenting
       new theories of relief.


Laird I, 726 A.2d at 354. However, as we have just explained,
that claim was only raised by the co-defendant, Chester, on
direct appeal. Thus, in resolving Laird’s habeas petition, the
district court correctly concluded that Laird’s claim had not been
adjudicated on the merits by the state courts.



                                 7
                 III. District Court Decision

        In the district court, Laird argued that the instruction on
accomplice liability denied him due process of law because it
relieved the prosecution of its burden of proving each element
of first degree murder beyond a reasonable doubt. The
Commonwealth argued that Laird’s due process claim was
procedurally defaulted because he had not raised it on direct
appeal. The district court rejected the Commonwealth’s position
and held that the “relaxed waiver rule” in effect at the time of
Laird’s direct appeal precluded finding a procedural default. 159
F. Supp. 2d at 81. Accordingly, the district court held that the
deferential standard established by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) did not apply because
the state courts had refused to review the claim on the merits.
The district court then analyzed the accomplice liability charge
under the pre-AEDPA standard and held that it was “reasonably
likely to lead the jury to conclude that it need only find that
petitioner solicited, commanded, encouraged or requested the
facilitation of a crime and the crime of first-degree murder was
committed – by either defendant.” Id. at 84. The court granted
conditional relief after concluding that the error was not
harmless.




                                8
                        III. Discussion 4

       If a claim has been adjudicated on the merits in state
court, federal habeas relief can not be granted unless the state
court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States;” or “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).

       Here, the Commonwealth argues that the district court
improperly concluded that Laird’s challenge to the trial court’s
accomplice liability charge was not subject to the deferential
standard of AEDPA because the state supreme court never
adjudicated it on the merits.

        Thus, before we address the merits of the challenge to the
accomplice liability instruction, we must determine whether the
district court correctly identified the applicable standard of
review. Holloway v. Horn, 355 F.3d 707, 718 (3d Cir. 2004).

      The Commonwealth argues that the Pennsylvania
Supreme Court’s adjudication of Chester’s claim that his trial
counsel was ineffective for not objecting to the instruction is


   4
    The district court had jurisdiction pursuant to 28 U.S.C. §
2254, and we have appellate jurisdiction under 28 U.S.C. §§
1291 and 2253. Our review of the district court’s legal
conclusions is plenary. Duncan v. Morton, 256 F.3d 189, 196
(3d Cir. 2001).

                                9
tantamount to a decision on the merits of Laird’s due process
challenge to the instruction that must be afforded deference
under AEDPA. The Commonwealth has not offered any
authority to support the proposition that a ruling on a
defendant’s ineffectiveness of counsel claim constitutes a
decision on the merits of a due process claim subsequently
raised by the co-defendant on collateral review, and we can find
no such authority. Moreover, the ephemeral nature of any such
agency is particularly problematic here because Laird and
Chester each attempted to blame the other for Milano’s murder
during their joint trial.5

        The Commonwealth’s position is even more untenable
given the state supreme court’s analysis of Chester’s PCRA
claim. In affirming the denial of Chester’s PCRA petition, the
Court also concluded that the challenge to the accomplice
liability instruction had previously been litigated. However, it
then noted that the claim had arguable merit as the charge was
“facially inconsistent” with the court’s decision in
Commonwealth v. Huffman, 638 A.2d 961, 962 (Pa. 1994). The
Court stated:



   5
    Furthermore, we note that in his PCRA appeal, Laird cited
our opinion in Smith v. Horn, 120 F.3d 400 (3d Cir. 1997),
which was issued after the Pennsylvania Supreme Court’s
decision on Chester’s claim on direct appeal. In refusing to
review Laird’s PCRA claim, the Pennsylvania Supreme Court
never addressed Smith which, as discussed below, is controlling
precedent for this habeas claim.

                              10
        Although this claim was finally litigated for
        purposes of PCRA review, we must acknowledge
        the arguable merit of [Chester’s] allegation. The
        charge on accomplice liability as given at
        petitioner's trial appears facially inconsistent with
        this court's holding in Commonwealth v. Huffman,
        536 Pa. 196, 638 A.2d 961 (1994). A general
        accomplice charge, while legally correct on the
        law of accomplice liability, when given in
        conjunction with a charge of first degree murder,
        must clarify for the jury that the specific intent to
        kill necessary for a conviction of first degree
        murder must be found present in both the actual
        killer and the accomplice. The rationale used by
        this court on direct appeal in resolving this issue
        fails to acknowledge this distinction.

Chester II, 733 A.2d at 1253 n.12 (emphasis added). The Court
thus admitted that its reasoning on direct appeal in Chester I
failed to acknowledge that an accomplice instruction involving
a charge of first-degree murder must inform the jury of the need
to find that the accomplice shared the specific intent to kill the
victim.6

       Nevertheless, the Court held that Chester had not been
prejudiced by the charge because he had been convicted of


    6
      Given that Court’s recognition of the obvious problems
with this charge, the Commonwealth’s rather obstinate defense
of the instruction is perplexing.

                                 11
conspiracy to commit first-degree murder, and the jury therefore
must have found the requisite intent beyond a reasonable doubt.
However, as we note below in discussing our recent decision in
Bronshtein v. Horn, that reasoning is flawed. Laird and Chester
were convicted of conspiracy to commit murder. Since second
and third degree murder do not require the specific intent to kill,
see 18 Pa. C.S.A. § 2502, we can not agree with the state court’s
harmless error analysis.

       Although even a cursory reading of Chester I establishes
that the state supreme court never addressed the merits of
Laird’s due process claim, the Commonwealth nevertheless
argues that “[t]he district court’s finding that the Pennsylvania
Supreme Court rejected [Laird’s accomplice liability claim]
without ever having reviewed it is clearly not supported by the
record.” Appellant’s Br. at 25. That is clearly wrong.

        Moreover, the weakness of the Commonwealth’s position
is underscored by the Pennsylvania Supreme Court’s decision in
Laird I rejecting the contention that Laird’s claim of inconsistent
verdicts had been previously litigated on direct appeal. The
Court explained: “only co-defendant Chester raised this issue,
it has not been finally litigated by [Laird].” Laird I, 726 A.2d at
355. Therefore, the state supreme court did not intend for its
resolution of claims raised by one defendant to control
unlitigated claims of the co-defendant.

        Alternatively, the Commonwealth argues that if Laird did
not raise the accomplice liability instruction on direct appeal, we
can not review it on habeas review because Laird can not
establish the “cause and prejudice” or “miscarriage of justice”

                                12
required for reviewing a procedurally defaulted claim.
According to this alternative position, “Laird, as Chester did,
could have raised this issue on direct appeal and it would have
been addressed by both the state trial and the Pennsylvania
Supreme Court.” Appellant’s Br. at 25. The district court
rejected this argument and so do we.

        The district court correctly concluded that Laird’s
accomplice liability claim is not procedurally defaulted. We will
affirm that conclusion for substantially the reasons set forth by
the district court in its well-reasoned opinion. See Laird II, 159
F. Supp. 2d at 70-77.7 For the reasons that follow, we also
affirm the district court’s conclusion that the trial court’s
accomplice liability instruction denied Laird a fair trial in
violation of the Due Process Clause of the Fourteenth
Amendment.

            A. The Accomplice Liability Charge.

      In In re Winship, 397 U.S. 358 (1970), the Supreme
Court held that due process “protects the accused against


    7
       Briefly stated, the district court relied in part upon our
holding in Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir.
1996), and the Pennsylvania Supreme Court’s reversal of the
“relaxed waiver rule” in Commonwealth v. Albrecht, 720 A.2d
693, 700 (Pa. 1998), to conclude that Laird’s claim was not
procedurally defaulted and that no “adequate and independent”
state procedural rule barred federal habeas review of the merits
of Laird’s challenge to the accomplice liability charge.

                               13
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” Id. at 364. Laird argues that the jury instructions
pertaining to accomplice liability for first-degree murder
relieved the Commonwealth of its burden of proving beyond a
reasonable doubt that he intended to kill Milano.

        Under Pennsylvania law, first-degree murder requires the
specific intent to kill, and that mens rea is also required of
accomplices and co-conspirators. See 18 Pa. C.S. § 2502(a);
Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997) (citing
Commonwealth v. Huffman, 638 A.2d 961 (Pa. 1994)). On
habeas review, we must analyze the challenged portions of the
jury instruction in context with the entire charge and determine
“whether there is a reasonable likelihood that the jury has
applied the challenged instructions in a way that violates the
Constitution.” Smith, 120 F.3d at 411.

       During the guilt phase of Laird’s trial, the court gave the
following instruction on accomplice liability:

       A person is guilty of a particular crime if he is an
       accomplice of another person who commits that
       crime.     A defendant does not become an
       accomplice merely by being present at the scene
       or knowing about a crime. He is an accomplice,
       however, if with the intent of promotion or
       facilitating commission of a crime he solicits, or
       commands or encourages or requests the other
       person to commit it or if he aids, agrees to aid, or
       attempts to aid the other person in planning the

                               14
       crime or committing the crime. . . . You may find
       the defendant guilty of a particular crime on the
       theory that he was an accomplice so long as you
       are satisfied beyond a reasonable doubt that the
       crime was committed and the defendant was an
       accomplice of the person who committed it.

App. at 231-32. Thereafter, the court gave the following
instruction on first-degree murder:

       You may find a defendant guilty of first degree
       murder if you are satisfied that the following four
       elements have been proved beyond a reasonable
       doubt:
       First, that Anthony Milano is dead.
       Second, that a defendant or an accomplice of the
       defendant killed him.
       Third, that the killing was with specific intent to
       kill.
       And, fourth, that the killing was with malice as I
       have defined that term for you.
       A killing is with specific intent to kill if it is
       willful, deliberate, and premeditated; that is, if it
       is committed by a person who has a fully
       informed intent to kill and is conscious of his own
       intent.

App. at 253-54.

       As noted above, Chester and Laird both testified that the
other killed Milano. Each defendant admitted participating in

                               15
the kidnaping, but denied any intent to kill Milano or to help the
other kill him. Since Laird was convicted of conspiracy,
kidnaping and aggravated assault as well as murder generally,
he argues that the instructions allowed the jury to convict him of
first-degree murder as Chester’s accomplice even if the jury was
not convinced of a shared intent to kill. The Commonwealth
attempts to counter by arguing that “it is logical that the
subsequent references to ‘accomplice’ were made in reference
to the particular offense that the trial court was discussing.”
Appellant’s Br. at 35. The Commonwealth therefore urges us to
infer that the jury understood an “accomplice” to first-degree
murder must have the specific intent to kill required for a
conviction of that crime.

       However, that argument stretches the contours of the
challenged jury instruction beyond the words of the charge.
Moreover, we have already rejected the identical position in
Smith. There, Smith and his accomplices killed their victim
while robbing a pharmacy, and the trial court gave an
accomplice liability charge that was nearly identical to the one
at issue here. Relevant portions of that charge are quoted at
l e n g t h                 b e l o w . 8


   8
     In Smith, the court first explained the crime of homicide
without referring to the specific degrees of that crime. The court
then explained the crime of conspiracy without referring to a
substantive crime:

       You should ... determine ... whether there was the
       requisite intent to enter into this conspiracy to

                               16
       commit the robbery and the killing which the
       Commonwealth contends flowed therefrom or
       whether there was the requisite intent to enter in
       and be the accomplice with the other in bringing
       this about. That is to say, did Clifford Smith
       agree, although not necessarily by words, but by
       conduct and circumstances to bring about this
       robbery which, in turn, led to the ultimate
       shooting, so the Commonwealth contends, and the
       killing of Richard Sharp? If so, then the major
       basis of conspiratorial liability exists as to him.

Smith, 120 F.3d at 406 (alteration in original). The court next
explained the various degrees of murder in context with the
concept of accomplice liability:

You would ... have to decide whether the act of the perpetrator,
or his accomplice, at the time of the killing was acting [sic] with
malice, as we have defined that term to you. Was he acting
willfully, deliberately and with premeditation, although at that
time not having the specific intent to kill, but having the specific
intent to inflict grievous bodily harm upon Richard Sharp,
because that really is the distinction between third degree
murder and first degree murder....
If you would conclude that there was specific intent to take life,
you would then have to determine if it was second degree
murder, or as we call it felony murder, because it involves
killing incidental to a felony.... [F]or persons to be accomplices
in felony murder they must have a common design. In other

                                17
             Smith claimed that the charge denied him a fair trial. In
             reviewing the challenged jury instruction, we said: “nothing in
             this charge would lead the jury to think that, when the court
             instructed the jury on murder, and the court used the word
             ‘accomplice,’ that word meant only ‘accomplice in the murder.’
             Indeed, this charge reinforces the notion that an accomplice for
             one purpose is an accomplice for all purposes.” Id. at 414. That
             is precisely the problem here.

                    The Commonwealth attempts to distinguish Smith by
             arguing that the only focus of Chester and Laird was harming
             Milano. According to the Commonwealth, unlike Smith, Laird
             and Chester did not also agree to commit a crime such as theft
             or robbery. However, that position ignores the record. Chester



             words, the shared intent to commit that felony, the robbery in
             this case, and in furtherance thereof the killing was perpetrated
             as a natural act which flowed from the robbery itself. However,
             ... even though you would conclude that there was the felony of
             robbery committed, but would further conclude that all of the
             elements of first degree murder were present, you ... would be
             justified in returning a verdict of first degree murder, if you
             determine beyond a reasonable doubt that the killing was
             intentional; that is, that there was a specific conscious intent to
             kill and this was done willfully, deliberately, and with
             premeditation.

Id. at 406. (alteration in original).



                                             18
and Laird were also convicted of kidnaping, aggravated assault,
false imprisonment, and unlawful restraint. Given the court’s
instruction on accomplice liability, the jury could easily have
convicted Laird of first-degree murder based on his conspiring
with Chester to kidnap or assault Milano even if jurors were not
convinced beyond a reasonable doubt that Laird intended to kill
him.

        The Commonwealth also points out that the trial court
instructed the jury that a defendant could not be found guilty of
first-degree murder unless the defendant was “at that time,
capable of forming a specific intent to kill . . . .” App. at 261.
However, that instruction was given in the context of a charge
on the diminished capacity defense to first-degree murder.
When that defense is implicated, voluntary intoxication can
reduce first-degree murder to third-degree murder by raising a
reasonable doubt about the perpetrator’s ability to form the
specific intent to kill. See Whitney v. Horn, 280 F.3d 240, 254
(3d Cir. 2002) (citing Commonwealth v. Graves, 334 A.2d 661
(Pa. 1975)). Given that context, we can not conclude that such
a brief reference to the required mens rea for first-degree murder
remedies the incorrect and misleading portion of the instruction.
“Language that merely contradicts and does not explain a
constitutionally infirm instruction will not suffice to absolve the
infirmity. [We have] no way of knowing which of the two
irreconcilable instructions the jurors applied in reaching their
verdict.” Francis v. Franklin, 471 U.S. 307, 322 (1985).

      Moreover, the problem here is exacerbated because, as
noted above, the Pennsylvania Supreme Court, while
recognizing the problem with the instruction, did not attempt to

                                19
resolve it.

       Thus, inasmuch as Laird’s claim was not adjudicated on
the merits by the state court, the district court correctly
concluded that AEDPA’s deferential standard of review does
not apply and that the instruction was erroneous.      T h is
does not, however, end our inquiry. We must still determine if
the error was harmless as the Commonwealth claims and as the
Pennsylvania Supreme Court suggested in Chester II.

                     B. Harmless Error.

        In determining whether this error was harmless, we must
examine whether it “had a ‘substantial and injurious effect or
influence’ on the verdict.” Smith, 120 F.3d at 418 (citations
omitted). If our analysis causes us “grave doubt” about the
integrity of the verdict, it can not be deemed harmless, and Laird
is entitled to relief. Id.

        The Commonwealth offers two arguments in support of
its claim that Laird is not entitled to habeas relief. First, as
suggested by the Pennsylvania Supreme Court in Chester II, it
contends that the error was harmless because Laird was
convicted of conspiracy to commit murder. Thus, argues the
Commonwealth, the jury must have found that he had the mens
rea required for the crime of murder. We are not persuaded.
Laird was convicted of conspiracy to commit murder, not
conspiracy to commit first-degree murder. We have already
explained that the jury might have believed that Laird intended
to kidnap and/or assault Milano, but that only Chester intended
to kill him. Such a finding would have supported a conviction

                               20
for second-degree murder under Pennsylvania’s felony murder
rule, but it would not support a finding of that shared specific
intent necessary to convict Laird of conspiracy to commit first-
degree murder. See 18 Pa. C.S.A. § 2502(b), Commonwealth v.
Waters, 418 A.2d 312, 93-94 (Pa. 1980).

       To further compound the problem, while instructing the
jury on the crime of conspiracy, the trial court told the jury that
they could convict Laird of a substantive offense if: “the
particular crime, while it may differ from the agreed crime, was
committed by the coconspirator in furtherance of his and the
defendant’s common design.” App. at 233 (emphasis added).
Thus, the conspiracy instruction clearly allowed the jury to
convict for first-degree murder without a finding that each
conspirator had the specific intent to kill as long as the killing
was “in furtherance” of the kidnaping or assault Laird had been
charged with.

       The Commonwealth also argues that the error was
harmless in the context of the evidence at trial “which
overwhelmingly established that Laird intentionally killed the
victim.” Appellant’s Br. at 39. The Commonwealth claims that
“the deliberate actions of Laird establish a concerted conscious
decision to take the life of the victim. The actions of Laird
individually reflect elements of premeditation and deliberation
necessary to prove murder of the first degree.” Appellant’s Br.
at 32. We can not agree.

       Although there is clearly sufficient evidence to sustain
that position, we can not substitute ourselves for the jury by
speculating about what portion of the testimony the jury

                                21
believed. The only testimony that Laird actually killed Milano
came from Chester. The only testimony that it was Chester,
came from Laird. In Smith, we discussed the evidence against
Smith and his co-defendant and concluded that “[t]he evidence
supporting [the] verdict demonstrates that it is more likely that
Smith, rather than [his accomplice], killed [the victim].
However, this evidence and the factual findings it supports are
not the ‘functional equivalent’ of, nor do they ‘effectively
embrace’ a finding beyond a reasonable doubt that Smith killed
[the victim].” Smith, 120 F.3d 418 (citations omitted). That is
precisely the problem here.

        Several witnesses testified to statements Chester made
shortly after the killing. Those statements corroborate Chester’s
testimony that Laird was the actual killer. However, Chester
also made several conflicting statements to investigators. It was
for the jury, not a court, to determine the identity and mens rea
of the actual killer.

        This in no way suggests that the evidence was
insufficient to establish that the actual killer had the specific
intent to kill. Given the severity and location of the wounds,
there is little doubt that whoever inflicted them intended to kill
Mr. Milano. That is not the issue here. Rather, we must
determine if the instructions explained that the killer’s co-
conspirator must have also intended that Milano be killed. The
district court correctly held that the instruction on accomplice
liability raises grave doubts about that question, and we will
therefore affirm the district court’s conclusion that the error was
not harmless.


                                22
                    C. Bronshtein v. Horn

        Our discussion would be incomplete if we did not
mention our recent holding in Bronshtein v. Horn, 404 F.3d 700
(3d Cir. 2005). There, the defendant was convicted of first-
degree murder and conspiracy. We held that the charge on
accomplice liability “misleadingly suggested that Bronshtein
could be found guilty of first-degree murder even if he did not
have the specific intent to kill.” 404 F.3d at 711. We
nevertheless denied relief on that claim because we concluded
that the error was harmless.

       Following the decision in Bronshtein, the parties filed
supplemental briefs addressing whether or not that decision
impacted this appeal. Not surprisingly, the Commonwealth now
suggests that Bronshtein undermines the district court’s analysis
of Laird’s jury charge. The Commonwealth argues that any error
here was also harmless given the rationale in Bronshtein. We
can not agree.

        Bronshtein was convicted of first-degree murder,
robbery, theft, and conspiracy. We held that, given the wording
of the court’s instruction, “the jury could [have found]
Bronshtein guilty of first-degree murder if it found that he had
conspired to commit the robbery and that another conspirator
had killed [the victim] in furtherance of the robbery.” Id.
However, we reasoned that the error was harmless because the
jury also convicted him of first-degree murder and conspiracy.
The trial court had given the following instruction on
accomplice liability for first-degree murder:


                               23
       [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 [the victim] 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
       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 [the victim], but you'd
       have to find that he shared that specific intent to
       kill . . . before you can find him guilty as an
       accomplice, and that he assisted the active
       perpetrator by some comparable overt behavior.

Id. at 711 (emphasis added). Since the instructions explained
that shared criminal intent is necessary to convict for first-
degree murder, and since Bronshtein was convicted of
conspiracy as well as first-degree murder, we reasoned that the
jury must have been convinced beyond a reasonable doubt that
he was either the actual killer or shared the specific intent to kill
required for first-degree murder. Thus, the erroneous charge
was harmless. That is not the situation here.

       As we explained above, the trial court here did not
explain that a co-conspirator can not be convicted of first-degree
murder absent a shared specific intent to kill. Moreover,
Bronshtein was convicted of first-degree murder. Laird was
convicted of first, second, and third-degree murder, as well as

                                24
conspiracy. Thus, there is no way for us to determine if the jury
understood that an accomplice to a first-degree murder must also
intend to kill the victim. See Commonwealth v. Waters, 418
A.2d at 93-94.

                                III.

        For the reasons set forth herein, we will affirm the district
court’s conditional grant of habeas relief and remand to the
district court so that the matter may be returned to state court for
further proceedings consistent with this opinion.9




   9
     Our holding in no way undermines the jury’s guilty verdict
on the remaining charges. Since his conviction for second-
degree murder carries a mandatory sentence of life
imprisonment, the Commonwealth will have the option of
retrying Laird for first-degree murder followed by a new
sentencing for that charge if he is convicted, and/or causing
Laird to be sentenced on the remaining charges that he was
convicted of. Since the jury imposed the death sentence on
Laird’s first-degree murder conviction, it appears that the
mandatory sentence of life imprisonment without the possibility
of parole for his second-degree murder conviction was never
formally imposed.
