Gibson v. Beard

165 F.Supp.3d 286

Jerome Gibson

v.Jeffrey Beard, et al.

CIVIL ACTION NO. 10-445

United States District Court, E.D. Pennsylvania.

Signed February 29, 2016

Helen A. Marino, Samuel J.B. Angell, Federal Defender Office of Philadelphia, Philadelphia, PA, for Jerome Gibson.

Karen A. Diaz, Office of the District Attorney, Doylestown, PA, for Jeffrey Beard, et al.

MEMORANDUM

Dalzell, District Judge.

I. Introduction

We consider here petitioner's objections to the Report and Recommendation (“R & R”) issued by the Honorable Carol Sandra Moore Wells.

Jerome Gibson filed this counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Jeffrey Beard, the former Secretary of the Pennsylvania Department of Corrections, and Louis Folino, the Superintendent of the State Correctional Institution at Greene. Judge Wells found Gibson's claims to lack merit. Gibson now objects to the R & R, stating that Judge Wells erred when analyzing his Brady claims, ineffective assistance of counsel claims, challenge to the reasonable doubt instructions, prosecutorial misconduct claims relating to the testimony of Michael Segal, claims related to testimony regarding Gibson's hypothetical question to police, and cumulative error claim.

Gibson also objects to Judge Wells's denial of his final motion for discovery and requests an evidentiary hearing to develop facts in support of his claims. Finally, he asks in the alternative that we grant a certificate of appealability even if we approve and adopt the R & R.

For the reasons set forth below, we will overrule Gibson's objections to the R & R, deny his request for an evidentiary hearing, and decline to issue a certificate of appealability.

II. Standard of Review

Gibson objects to the R & R pursuant to Local R. Civ. P. 72.1 IV(b), which provides that “[a]ny party may object to a magistrate judge's proposed findings, recommendations or report under 28 U.S.C. § 636(b)(1)(B) ... within fourteen (14) days after being served with a copy thereof” by filing “written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections.” We make de novo determinations on those portions of the R & R and specific proposed findings or recommendations to which the petitioner objects. See 28 U.S.C. § 636.

III. Factual and Procedural History

We recite the facts and procedural history as evidenced by the record and Judge Wells's R & R.¹

On the morning of September 29, 1994, Gibson sought to obtain an automobile, as his car had recently broken down. He asked a friend, Sean Hess, for $200 so that he could purchase a new vehicle. When Hess refused, Gibson spoke of “making a move,” meaning that he would commit a robbery.

At approximately noon on that same day, Gibson went to an automobile dealership in Bristol Township to look for a replacement vehicle. Although he expressed an interest in purchasing a vehicle that was shown to him by salesman Glen Kashdan, he did not have the necessary funds. He told Kashdan, however, that his mother maintained sufficient funds in a bank account in Bristol Borough to pay for the vehicle. After Kashdan drove Gibson to the bank in a fruitless effort to withdraw the non-existent funds, he dropped Gibson off at a shopping center in Bristol Township, about one mile from the eventual scene of the crime. Gibson was wearing a dark hooded sweatshirt and jeans. Melissa Paolini, who worked at the bank where Kashdan had taken Gibson, observed the two men enter the bank at approximately 1:15 p.m. Gibson's picture was taken by the bank's monitor camera and was later identified by Paolini at trial. The picture clearly depicted Gibson wearing a dark hooded sweatshirt.

Shortly before 2:00 p.m., Gibson met Paulinda Moore, a long-time acquaintance, in the shopping center. Gibson showed Moore a handgun that was tucked into the waistband of his pants and stated that he needed money and was going to rob somebody. He added that if his prospective victim saw his face, he would shoot him. Gibson and Moore then parted company and Gibson continued on foot to Bristol Borough.

Kevin Jones, another acquaintance, encountered Gibson a little while later. Gibson informed Jones that he knew “a guy that had money,” whom he was going to rob, killing him if necessary. At approximately 2:00 p.m., Vera DuBois, Gibson's aunt, saw Gibson on foot in Bristol Borough and noticed that he was wearing a dark hooded sweatshirt. At 2:20 p.m., Gibson entered a jewelry store. Leonard Wilson, the store's proprietor, became suspicious of Gibson when he noticed that Gibson appeared to be observing the store itself, rather than looking at jewelry. After a brief conversation with Wilson, Gibson left the store.

Between 2:30 and 3:00 p.m., Kimberly Rankins, another acquaintance, nearly hit Gibson with her car as he was crossing Mill Street in the direction of the Ascher Health Care Center (“Ascher Health”) in Bristol Borough. The last time that Rankins observed Gibson that day, he was wearing a dark blue sweatshirt and was approximately twenty-five feet away from the entrance of Ascher Health, walking towards it.

Shortly before 3:00 p.m., Michael Segal, a shopkeeper at a store directly across the street from Ascher Health, heard a gunshot from inside Ascher Health. Segal looked across the street and saw Robert Berger, the proprietor of Ascher Health, struggling with an assailant behind the store counter. When Segal observed that the assailant had a gun, he dialed “911.” While on the telephone, he heard two more gunshots. He looked across the street and saw Berger lying on the floor while the assailant rifled through the cash register drawers. Segal then observed the assailant leave the store, stuffing items into his pants, and walk up Mill Street towards an apartment building. Segal was unable to see the assailant's face, but he did observe that the man was wearing a dark blue hooded sweatshirt. Segal later testified at trial that the man's size, build and complexion matched those of Gibson.

Alfonso Colon, who was in a second floor apartment above Ascher Health that afternoon, walked downstairs and went outside after hearing the three gunshots. He saw Gibson, whom he positively identified at trial, leaving Ascher Health and walking toward him while stuffing an object that appeared to be a handgun into his pants. Upon seeing Colon, Gibson crossed Mill Street and headed in a different direction.

At 2:58 p.m., the police responded to Segal's call. They entered Ascher Health and found Berger lying dead on the floor from gunshot wounds. A cash drawer was open and there was an empty gun holster on the floor. Berger was pronounced dead upon arrival at the hospital at approximately 3:45 p.m. An autopsy revealed that he had suffered three gunshot wounds : a fatal wound to the left chest, a wound to the upper right chest, and a wound to the upper left arm. Two. 32 caliber projectiles were removed from the body. It was later determined that approximately $1,400 in cash had been stolen during the robbery, along with a. 38 caliber handgun belonging to Berger. There was no evidence that Berger's gun had been fired during the robbery.

Shortly after 3:00 p.m. on the day of the shooting, Gibson arrived at the home of his cousin, Pamela Harrison. When Harrison responded to Gibson's knock on her door, she observed that he was wearing a dark hooded sweatshirt and was sweating. Harrison also heard police sirens. Gibson asked to come into the house and Harrison admitted him, noticing that he was carrying a handgun. After hiding his sweatshirt in Harrison's basement, Gibson left the house. He returned later that evening and retrieved the sweatshirt without Harrison's permission.

After leaving Harrison's house, Gibson met his friend, Sean Hess, in the shopping center where Gibson had been earlier that day. Gibson told Hess that he had shot a man three times and taken his money. Gibson also stated that the victim had a gun, but that he had used his own gun.

The following day, while at a bar, Gibson admitted to Bernard McClean that he had shot the old man in Bristol three times, explaining that he had been broke and needed the man's money. He later told his friends, Herman Carroll and Eddie Jones, that he had robbed and killed the victim. He also told Edward Gilbert, another friend, that he had killed the victim to obtain money with which to purchase a vehicle. He gave Gilbert the. 32 caliber handgun, along with Berger's. 38 caliber handgun, to keep for him. Berger's gun was later recovered at a motel in Bristol Township, but Gibson's gun was never located.

On October 2, 1994, three days after the murder, two detectives from the Bucks County District Attorney's Office, who had received information implicating Gibson in the murder, went to the apartment where Gibson was staying and waited outside in their car. Shortly thereafter, Gibson and some other individuals came out of the apartment. Gibson approached the detectives and asked them if they wished to speak with him. In response to Gibson's inquiry, the detectives told him that they wished to talk to him about a murder that had occurred on Mill Street on September 29, 1994. Gibson asked if he was under arrest and the officers replied that he was not. They suggested, however, that Gibson speak with them at the Bristol Borough Police Station, since there were other people nearby. The detectives made it clear that Gibson could proceed to the station by his own transportation, that he would be free to leave the station at any time, and that he could terminate the conversation whenever he wished. Gibson acquiesced and followed them to the police station in his own vehicle, which he had purchased the day after the shooting.

Upon arriving at the police station, the detectives led Gibson to an interview room, where another detective and a Bristol Borough police officer joined them. Gibson was again advised that he was

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