                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2004

Priester v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 03-2956




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Recommended Citation
"Priester v. Vaughn" (2004). 2004 Decisions. Paper 366.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/366


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                     PRECEDENTIAL            Thomas W. Dolgenos          (Argued)
                                                   Chief, Federal Litigation
   UNITED STATES COURT OF                    Ronald Eisenberg
APPEALS FOR THE THIRD CIRCUIT                      Deputy District Attorney
                                                   Law Division
                                             Arnold H. Gordon
              No. 03-2956                          First Assistant District Attorney
                                             Lynne Abraham
                                                   District Attorney
         BARRY PRIESTER,                     Philadelphia, PA 19102-1582
                     Appellant
                                                    Attorneys for Appellees
                    v.
                                                   OPINION OF THE COURT
     DONALD T. VAUGHN;
  THE DISTRICT ATTORNEY OF                   SLOVITER, Circuit Judge.
THE COUNTY OF PHILADELPHIA;
                                                    This appeal arises from appellant
THE ATTORNEY GENERAL OF THE
                                             Barry Priester’s 1991 state conviction of
   STATE OF PENNSYLVANIA
                                             first degree murder, two counts of
                                             aggravated assault, criminal conspiracy,
                                             and possession of an instrument of crime.
                                             Priester appeals the decision of the United
  On Appeal from the United States
                                             States District Court for the Eastern
District Court for the Eastern District of
                                             District of Pennsylvania denying his
             Pennsylvania
                                             petition for a writ of habeas corpus. The
     (D.C. Civil No. 02-cv-00075)
                                             District Court had subject matter
 District Judge: Hon. Stewart Dalzell
                                             jurisdiction over Priester’s habeas corpus
                                             petition pursuant to 28 U.S.C. § 2254 and
                                             we have jurisdiction pursuant to 28 U.S.C.
          Argued May 4, 2004
                                             §§ 1291, 2253.
  Before: SLOVITER, FUENTES and                                  I.
       BECKER, Circuit Judges
                                                 FACTS AND PROCEDURAL
                                                        HISTORY
        (Filed: August 19, 2004)
                                                    On May 19, 1990, Priester and
                                             Nathaniel Butler met Tracey Postell at the
Johanna E. Markind          (Argued)         corner of 8th and Louden Streets in
Philadelphia, PA 19102                       Philadelphia. Priester told Postell that he
                                             was meeting a group of people to confront
      Attorney for Appellant                 the individuals who had “rolled” Darius
                                             Barnes – a mutual friend. Postell agreed to
accompany Priester and Butler to locate             murder, two counts of aggravated assault,
these individuals. Priester drove one car           criminal conspiracy and possession of an
while Barnes drove another. Two or three            instrument of crime. They were tried
other cars containing additional gang               together in the Philadelphia Court of
members joined the caravan. According to            Common Pleas before a jury. During
Postell’s trial testimony, at one point along       testimony at trial, Postell attempted to
the way Priester pulled alongside Barnes’           recant the story he told the police and
car and said, “[w]hen we get up there, no           stated that he had lied to the police and
questions asked, start busting.” Trial Tr. at       was asleep in the car when the incident
190 (Sept. 13, 1991).                               occurred. Having been forewarned by
                                                    defense counsel about this change, the
        The cars arrived at the Belfield
                                                    prosecution sought the trial court’s
Recreational Center in North Philadelphia
                                                    approval to admit Butler’s previous
and Barnes began searching the
                                                    statement, which the trial court granted
playground for their targets. Once Barnes
                                                    subject to redaction.        Thereafter, a
identified the individuals who “rolled”
                                                    redacted version of the prior statement
him, Priester removed a gun from his
                                                    made by Butler, describing the incident,
jacket and handed it to Butler. Butler fired
                                                    was introduced at trial. This redacted
several shots into the crowd. Shots were
                                                    statement replaced Priester’s name, and all
also fired from the other vehicles. Soon
                                                    other names, with phrases such as “the
after the shooting, Priester and the others
                                                    other guy.” App. at 91-97. At the
drove away from the scene. As a result of
                                                    conclusion of the trial, the jury convicted
the shooting, Terrence Lucan died, and
                                                    Priester as well as Butler on all counts. At
Ronald Holliman and Walter Jefferson
                                                    the sentencing phase, the jury returned a
sustained significant injures.
                                                    sentence of life imprisonment for each
        On June 7, 1990, Philadelphia               defendant on the murder convictions and
Homicide Detective Frank M cGouirk                  the court imposed sentences on the
questioned Postell about the shooting. At           remaining counts, to run concurrently for
that time, Postell, who subsequently pled           both defendants.
guilty in a negotiated plea, detailed the
                                                            After the trial court denied post-
factual scenario surrounding the shooting
                                                    verdict motions, Priester appealed to the
as well as Priester’s and Butler’s
                                                    Pennsylvania Superior Court, contending
involvement. Butler was then arrested and
                                                    that the Commonwealth breached its
questioned. He stated that Priester was in
                                                    agreement not to introduce Butler’s prior
the car with him and Postell, and that
                                                    statement and challenging the sufficiency
Butler shot twice into the crowd with a .38
                                                    of the redaction, the admission of Postell’s
caliber pistol.
                                                    earlier statement as substantive evidence,
      After further investigation, Priester         and the sufficiency of the evidence to
and Barnes were indicted on first degree            convict him of first degree murder. The


                                                2
court rejected these claims.          The           accomplice liability. 1 We now consider
Pennsylvania Supreme Court denied                   these issues on appeal.
allocatur. Commonwealth v. Priester, 634
                                                                         II.
A.2d 220 (Pa. 1993). Priester then filed a
petition for collateral review under the                          DISCUSSION
Pennsylvania Post-Conviction Relief Act,
                                                    A. Standard of Review
42 Pa. Cons. Stat. § 9541 et seq. (2003)
(“PCRA”), which was denied by both the                     At the outset, we set forth our
trial court and the Superior Court.                 standard of review. Under the Anti-
                                                    Terrorism and Effective Death Penalty Act
       Priester next petitioned for allocatur
                                                    (“AEDPA”):
in the Pennsylvania Supreme Court of
three issues. He argued that Butler’s                      An application for a writ of
statement was insufficiently redacted in                   habeas corpus on behalf of a
violation of Bruton v. United States, 391                  person in custody pursuant
U.S. 123 (1968); that the trial court erred                to the judgment of a State
because it admitted Postell’s prior                        court shall not be granted
inconsistent statements as substantive                     with respect to any claim
evidence; and that the jury instructions                   that was adjudicated on the
regarding accomplice liability were                        merits in State court
deficient. The Pennsylvania Supreme                        proceedings unless th e
Court denied allocatur.                                    adjudication of the claim –
        Thereafter, Priester filed a pro se
petition for a writ of habeas corpus in the            1
                                                            Counsel for Priester attempts to
District Court, which was amended after
                                                    add an ineffectiveness of counsel claim
the appointment of new counsel. The
                                                    based on a failure to object to the
matter was referred to a Magistrate Judge,
                                                    admission of the redacted statement. See
who issued an opinion recommending that
                                                    Appellant’s Br. at 20-24. However, the
Priester’s claims be denied. The District
                                                    District Court certified only the two
Court appro ved a nd ad opted the
                                                    issues set forth above for appeal, App. at
Magistrate Judge’s recommendation, but
                                                    7, and we denied Priester’s request to
certified for appeal two of the many claims
                                                    certify other issues on September 23,
raised by Priester: the claim that the
                                                    2003. Therefore, we decline to discuss
admission of Butler’s redacted statement
                                                    this issue herein. In any event, in his
violated the Confrontation Clause of the
                                                    reply brief Priester states that the issue is
Sixth Amendment, and the claim that trial
                                                    properly presented as a Confrontation
counsel was ineffective because of his
                                                    Clause claim. Appellant’s Reply Br. at 2
failure to object to the jury instruction on
                                                    n.1. We decline to discuss the due
                                                    process claims related to the arguments
                                                    made on appeal for the same reason.

                                                3
       (1) resulted in a decision                   Supreme Court of the United States have
       that was contrary to, or                     made clear that as long as the reasoning of
       involved an unreasonable                     the state court does not contradict relevant
       application of, clearly                      Supreme Court precedent, AEDPA’s
       established Federal law, as                  general rule of deference applies. Early v.
       determined by the Supreme                    Packer, 537 U.S. 3 (2002); Woodford v.
       Court of the United States .                 Visciotti, 537 U.S. 19 (2002). In Early,
       ...                                          the Supreme Court held that qualification
                                                    for AEDPA deference “does not require
28 U.S.C. § 2254(d) (emphasis added).
                                                    citation of our cases – indeed, it does not
        Priester argues that because the            even require awareness of our cases, so
Pennsylvania Superior Court cited only              long as neither the reasoning nor the result
Pennsylvania law with no reference to               of the state court decision contradicts
federal law, we need not apply AEDPA’s              them.” Early, 537 U.S. at 8 (emphasis in
deferential standard of review. In granting         original). Similarly, in Woodford, the
a certificate of appealability, the District        Supreme Court held that the California
Court stated it believed that the deferential       Supreme Court’s “shorthand reference” to
standard was applicable, but cited in a             the ineffective assistance of counsel
footnote this court’s opinion in Everett v.         standard, while imprecise, did not render
Beard, 290 F.3d 500 (3d Cir. 2002), which           the decision unworthy of deference.
held otherwise. We need not dwell on this           Woodford, 537 U.S. at 24; see also Bell v.
issue2 because subsequent opinions of the           Cone, 535 U.S. 685, 698 (2002) (applying
                                                    the deferential AEDPA standard of review
                                                    where the state court had relied only on its
   2
        We note that in Everett, the
accomplice liability instruction was
patently erroneous as a matter of law, as           time of Everett’s trial, but we held that
the trial court peppered its instructions           Everett’s trial counsel was ineffective for
with legal admonitions such as, “[a]                failing to object to an instruction that
killing is willful and deliberate if the            allowed a juror to ascribe an
defendant and/or his accomplice . . .               accomplice’s intent to the defendant and
consciously decided to kill the victim . . .        that a Pennsylvania Superior Court
.” Everett, 290 F.3d at 504 (emphasis in            decision filed well before Everett’s trial
original). Instead of objecting, trial              should have given counsel a basis to
counsel actually “complimented the                  object. The Everett opinion noted that
judge on the fairness of these instructions         the Pennsylvania Supreme Court
after the jury left the courtroom.” Id. at          thereafter specifically held that for an
505. The Commonwealth argued that                   accomplice to be found guilty, s/he must
accomplice liability for first-degree               have intended that the victim be killed.
murder was not clearly established at the           Id. at 512-14.

                                                4
own precedent to reject the petitioner’s            Confrontation Clause of the Sixth
ineff ectiv e assistance of counsel                 Amendment.” Id. at 126. The Court noted
allegation); Rompilla v. Horn, 355 F.3d             that some courts had redacted the
233 (3d Cir. 2004) (applying AEDPA                  statement to avoid the Sixth Amendment
deference to Pennsylvania co urt’s                  issues. See id. at 134 n.10 (“Some courts
determination of petitioner’s allegation of         have required deletion of references to
ineffective assistance of counsel despite           code fend ants whe re practicable.”).
the court’s failure to expressly cite to the        Thereafter, the courts generally followed
Strickland standard).                               the practice of redacting co-defendants’
                                                    statements in order to eliminate all explicit
       Accordingly, we hold that the
                                                    references to other defendants on trial
deferential standard of AEDPA applies
                                                    before those statements were admitted into
even if the state court does not cite to any
                                                    evidence.
federal law as long as the state court
decision is consistent with federal law.                   Priester argues that the admission of
                                                    Butler’s redacted statement violated his
B. Bruton Issue
                                                    Sixth Amendment right to confrontation.
        In order to protect a defendant’s           The issue arose in the instant case because
Sixth Amendment rights to confrontation             Postell gave testimony at trial that differed
and cross-examination, trial courts that            from the statements that he gave to police.
admitted statements of non-testifying co-           The state moved to admit Butler’s
defendants would routinely instruct jurors          statement as evidence of B utler’s
that the statements were not to be                  involvement in the shooting. The statement
considered evidence against the defendant           was redacted to replace all references to
at trial. In Bruton, the Supreme Court              Priester and other participants in the
recognized the inadequacy of such                   shootings with words such as “the other
instructions, stating that “there are some          guy,” “someone,” “someone else,” “the
contexts in which the risk that the jury will       guy,” and “another guy.” App. at 91-97.
not, or cannot, follow instructions is so           In relevant part, the redacted statement
great . . . that the practical and human            read at trial was:
limitations of the jury system cannot be
                                                           A: Well like 15 guys came
ignored.” Bruton, 391 U.S. at 135.
                                                           and we were all sitting on
       The Court held that “because of the                 the corner of 8th and
substantial risk that the jury, despite                    Louden Sts. It was like 4
instructions to the contrary, looked to the                something in the afternoon.
incriminating extrajudicial statements in                  Several guys came up to the
determining petitioner’s guilt, admission                  corner some were walking
of [the co-defendant’s] confession in this                 and others were in cars.
joint trial violated petitioner’s right of                 They started fighting and
cross- exam ination secured b y the                        shooting at anybody who

                                                5
      was out there. . . .                      jurors:
      Somebody gave one of the
                                                          A statement made by a
      guys a .38 caliber gun . . . .
                                                          defendant before trial may
      Then another guy shot
                                                          be considered as evidence
      twice. After the first guy
                                                          but only a ga inst the
      shot they pulled off and
                                                          defendant who made the
      after the other two shots I
                                                          statement. You may not
      pulled off.
                                                          consider one defendant’s
      ....                                                statement as evidence
                                                          against the other defendant[
      Q: In what car was the guy
                                                          ]....
      who shot first?
                                                Trial Tr. at 416 (Sept. 17, 1991).
      A: He was the passenger in
      the front seat of the brown                       Priester argues that the admission of
      Toyota. That was the first                this redacted statement violated the Sixth
      car.                                      Amendment because replacing Priester’s
                                                name with varying phrases and pronouns
      Q: How many were in the
                                                did not adequately shield his identity, as
      car with him?
                                                other trial testimony made clear who was
      A: Two other guys.                        in the second car.         During Postell’s
                                                testimony, he identified the occupants of
      Q: How many were in the
                                                his car as being “Barry [Priester] and Nate
      second car?
                                                [Butler].” App. at 108 (quoting Trial Tr. at
      A: I was the driver and two               182 (Sept. 13, 1991)). Furthermore, in his
      others.                                   opening statement, the prosecutor claimed,
      Q: How many shots did you                           in the first of those cars was
      see fired from the second                           an individual by the name of
      car?                                                Darius Barnes. In another
                                                          c a r, t h e d e f e ndants ,
      A: Two.
                                                          Nathaniel Butler and Barry
      ....                                                Priester, were riding along
                                                          with an individual named
      Q: Who did the guy in your
                                                          Tracey Postell.
      car shoot at?
                                                App. at 106 (quoting Trial Tr. at 20 (Sept.
      A: He just put out the
                                                12, 1991)).
      window and shot twice. He
      wasn’t looking.                                  From Postell’s testimony and the
                                                prosecutor’s opening statement, which is
App. at 91-93. The trial court instructed
                                                not evidence, the jury could have inferred

                                            6
that the “other guy” in Butler’s statement         U.S. 185 (1998), and this court’s decision
was Priester. But this inference is not a          in United States v. Richards, 241 F.3d 335
foregone conclusion. There were at least           (3d Cir. 2001), clarify the rule set forth in
fifteen perpetrators in various cars               Richardson in a manner that supports his
involved in the shooting. The redacted             argument. We find this unpersuasive. In
statement by Butler is unclear as to the           the first place, both decisions were
people in the first car, in the second car,        announced after Priester’s merits appeal
who was shooting when and from which               was heard in the Pennsylvania Superior
car. This is because the trial court               Court and it did not act unreasonably in
removed not just references to Priester, but       failing to predict the Supreme Court’s
removed references to every name in the            decision in Gray. Moreover, the decision
statement, making the statement difficult          in Gray, even if applicable, does not
to follow.                                         support Priester’s contention. The Court
                                                   explained in Gray that it “granted certiorari
        Subsequent to Bruton, the Supreme
                                                   in order to consider Bruton’s application to
Court held that the introduction of the
                                                   a redaction that replaces a name with an
redacted statement of a nontestifying co-
                                                   obvious blank space or symbol or word
defendant was not unconstitutional. It
                                                   such as ‘deleted.’” Gray, 523 U.S. at 188.
rejected the contextual implication
                                                   It then held that such redactions were
argument Priester makes here. It stated
                                                   constitutionally impermissible.            In
that where ascertaining the identity of a
                                                   Richardson, the issue was “whether Bruton
co-defendant in a redacted statement
                                                   requires the same result when the
requires an inference drawn from linking
                                                   codefendant’s confession is redacted to
other evidence to the statement, the risk
                                                   omit any reference to the defendant, but
that the jury cannot follow limiting
                                                   the defendant is nonetheless linked to the
instructions is not sufficiently substantial
                                                   confession by evidence properly admitted
to violate the S ixth Amendment.
                                                   against him at trial.” Richardson, 481 U.S.
Richardson v. Marsh, 481 U.S. 200, 208
                                                   at 202. The Court held that the admission
(1987) (“Where the necessity of such
                                                   of the redacted confession was not
linkage is involved, it is a less valid
                                                   unconstitutional.
generalization that the jury will not likely
obey the instruction to disregard the                     The Court in Gray explained that
evidence.”). “In short, while it may not           the key difference between Gray and
always be simple for the members of a jury         Richardson was the extent to which the
to obey the instruction that they disregard        statement’s alterations directly connected
an incriminating inference, there does not         the statement to the defendant, as
exist the overwhelming probability of their        “nicknames and specific descriptions fall
inability to do so . . . .” Id.                    inside, not outside, Bruton’s protection.”
                                                   Gray, 523 U.S. at 195. The reasons given
      Priester argues that the Supreme
                                                   in Gray for holding such redactions
Court’s decision in Gray v. Maryland, 523

                                               7
impermissible – such as “an obvious blank          Sixth Amendment.
will not likely fool anyone,” “the obvious
                                                   C. Jury Instruction Issue
deletion may well call the jurors’ attention
specially to the removed name,” and that                  Priester argues that the District
“a blank or some other similarly obvious           Court erred in concluding that his trial
alteration” are “directly accusatory,” Gray,       attorney’s failure to object to the jury
523 U.S. at 193-94 – do not apply to the           instructions did not constitute ineffective
instant case.       There are no such              assistance of counsel. The parameters of
“nicknames,” descriptions or phrases that          the Sixth Amendment right of a criminal
directly implicate Priester in the instant         defendant to receive effective assistance of
case.                                              counsel were set forth in Strickland v.
                                                   Washington, 466 U.S. 668, 686 (1984). A
       Finally, in this court’s Richards
                                                   defendant claiming a violation of this right
opinion, on which Priester relies, there
                                                   must make a two-part showing:
were only three people involved in the
case, one of whom was the confessor and                   First, the defendant must
one of whom was the co-defendant                          show that c oun sel’s
Richards, and the word “friend” was                       performance was deficient.
substituted for Richards’ name. Richards,                 This requires showing that
241 F.3d at 341. As the prosecutor called                 counsel made errors so
the co-defendant’s mother to testify that                 serious that counsel was not
the confessor and co-defendant Richards                   functioning as the “counsel”
were “friends,” the word “friend”                         guaranteed the defendant by
unequivocally pointed to Richards. In                     the Sixth Amendment.
contrast, in this case there were at least                Second, the defendant must
fifteen perpetrators involved in the                      show that the deficient
shooting, and the phrases “the other guy”                 performance prejudiced the
or “another guy” are bereft of any                        defense. This requires a
innuendo that ties them unavoidably to                    show ing that coun sel’s
Priester. In Richards, the replacement was                errors were so serious as to
tantamount to an explicit reference to the                deprive the defendant of a
co-defendant; the same cannot be said for                 fair trial, a trial whose result
the redaction in the instant case.                        is reliable.
       Because the trial court redacted the        Id. at 687.
statement carefully, and because it gave
                                                          “Judicial scrutiny of counsel’s
appropriate limiting instructions before the
                                                   performance must be highly deferential” to
admission of the statement and during jury
                                                   ensure “the wide latitude counsel must
instructions, the District Court did not err
                                                   have in making tactical decisions.” Id. at
in holding that the admission of Butler’s
                                                   689. “[A] court must indulge a strong
redacted statement did not run afoul of the

                                               8
presumption that counsel’s conduct falls                  A defendant does not
within the wide range of reasonable                       become an acco mplice
professional assistance . . . .” Id.                      merely by being present at
                                                          the scene or merely by
       The portion of the trial judge’s jury
                                                          knowing of the crime. He is
instruction which Priester claims was
                                                          an accomplice if, with the
misleading was:
                                                          intent of promotion or
       [M]urder of the first degree                       facilitating commission of
       is a criminal homicide                             the crime, he solicits or
       committed with a specific                          commands or encourages or
       intent to kill. An intentional                     requests another person to
       killing is a killing by means                      commit it or if he aids or
       of poison or by lying in wait                      agrees to aid or attempts to
       or by any other kind of                            aid the other person in
       willfu l, deliberate and                           planning or committing it.
       premeditated act.
                                                          You      may    fin d    the
       Therefore, in order to find                        defendants guilty of a crime
       the defendants guilty of                           on the theory that they were
       murder in the first degree,                        an accomplice as long as
       you must find that the                             you are satisfied beyond a
       killing was a willful,                             reasonable doubt that the
       deliberate and premeditated                        crime was committed and
       act.                                               the defendants were an
                                                          accomplice of the persons
       ....
                                                          who committed it.
       Members of the jury, you
                                                   Trial Tr. at 564-65, 577-78 (Sept. 19,
       may find a defendant guilty
                                                   1991).
       of a crime without finding
       that he personally engaged                          Priester argues that although he was
       in the conduct required for                 charged with three different degrees of
       commission of that crime or                 homicide, including first degree murder
       even that he was personally                 which requires a specific intent to kill,
       present when the crime was                  Smith v. Horn, 120 F.3d 400, 422 (3d Cir.
       committed.                                  1997), “the import of the instruction
                                                   regarding the requirement of specific
       A defendant is guilty of a
                                                   intent to kill was diluted by the court’s
       crime if he is an accomplice
                                                   instr uctions regarding acco mp lice
       of another person who
                                                   liability.” Appellant’s Br. at 25. As the
       commits that crime.
                                                   District Court stated:


                                               9
                Priester claims that                    1367, 1384 (Pa. 1991) (same).
        the instruction to the jury
                                                                Bound by the state court’s
        enabled the jury to find him
                                                        determination that the instruction at issue
        guilty as an accomplice to
                                                        comported with state law, it is evident that
        first-degree murder even if
                                                        Priester cannot satisfy the first component
        he did not have the intent to
                                                        of a viable ineffective assistance of
        kill.     This instruction,
                                                        c ouns e l claim – that c oun sel’ s
        Priester continues, violated
                                                        performance was deficient. Thus Priester
        Pennsylvania law – which
                                                        cannot overcome the “strong presumption”
        makes specific intent to kill
                                                        that his counsel’s conduct fell outside the
        an essential element for
                                                        “wide range of reasonable professional
        accomplice liability to first
                                                        assistance.” Strickland, 466 U.S. at 689.
        degree murder – and
        burdened his fundamental                                            III.
        right under the Due Process
                                                                     CONCLUSION
        Clause to be convicted only
        upon proof beyond a                                     Applying AEDPA’s deferential
        reasonable doubt of every                       standard in reviewing Priester’s habeas
        element of the offense.                         petition, we hold that the District Court did
                                                        not err in concluding that the admission of
App. at 20 (footnotes omitted). On state
                                                        the redacted statement comported with the
collateral review, the Pennsylvania
                                                        requirements of the Sixth Amendment and
Superior Court held that the instructions
                                                        that trial counsel’s failure to object to the
were correct as a matter of state law. App.
                                                        accomplice liability instruction did not
at 71.
                                                        constitute ineffective assistance of
          Federal courts reviewing habeas               counsel.
claims cannot “reexamine state court
                                                              For the reasons given above, we
determinations on state-law questions.”
                                                        will affirm the District Court’s order
Estelle v. McGuire, 502 U.S. 62, 67-68
                                                        denying the petition for a writ of habeas
(1991). This is particularly true in the
                                                        corpus.
instant case because the issue of
a p p r o priate jury instr u c t i o n s on
accomplice liability in first-degree murder
trials has been squarely addressed by the
P e n n s y lv a n i a S u p r e m e C o u r t .
Commonwealth v. Thompson, 674 A.2d
217, 222-23 (Pa. 1996) (upholding
accomplice liability instructions nearly
identical to those quoted above);
Commonwealth v. Chester, 587 A.2d

                                                   10
