Lesko v. Wetzel

JOHN C. LESKO, Petitioner, v. JOHN E. WETZEL, et al., Respondents.

Civil Action No. 11-1049

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

January 20, 2015

Judge Cathy Bissoon

MEMORANDUM AND ORDER

I. MEMORANDUM

John C. Lesko's Petition for a Writ of Habeas Corpus (Doc. 12) will be denied, and a certificate of appealability will be granted only as to Claims I and II.

A. Introduction

At the end of December 1979, the petitioner, John Lesko, and his co-defendant, Michael Travaglia, went on multi-day killing spree, which the media later dubbed the "kill for thrill murders," that took them through several Pennsylvania counties. By the time the police apprehended them in downtown Pittsburgh the evening of January 3, 1980, they had murdered four people.

Their first victim was Peter Levato. On December 27, 1979, Lesko and Travaglia abducted him in downtown Pittsburgh near the Edison Hotel. They drove him to a remote area in Westmoreland County where they robbed him and then threw him off a bridge. When Levato did not die as a result of the fall, Travaglia shot him in the back of the head with a .22 caliber gun.

Their second victim was Marlene Sue Newcomer. In the early morning hours of January 1, 1980, Lesko and Travaglia were hitchhiking when Newcomer, who was returning home from a New Year's Eve party, offered them a ride. They took control of her vehicle, tied her up, and robbed her. Several tortuous hours later, Lesko shot and killed her with the same .22 caliber gun that had been used to kill Levato. Newcomer's killing also occurred in Westmoreland County. Later that same day, Lesko and Travaglia abandoned her vehicle, with her body in it, in the Gimbel's parking lot in downtown Pittsburgh.

Their third victim was William Nicholls. On January 2, 1980, Lesko and Travaglia were back in the Edison Hotel area of downtown Pittsburgh. Fifteen-year-old Ricky Rutherford was with them. They abducted Nicholls and took him and his car, which was a silver-colored Fiat Lancia, to Indiana County. At the beginning of their trip, Travaglia shot Nicholls in the arm with the same .22 caliber handgun that they had used to kill Levato and Newcomer. Lesko and Rutherford handcuffed Nicholls, stuffed cigarette butts down his throat and gagged him with a scarf. Lesko and Travaglia eventually tied a large rock to Nicholls's body and threw him into Blue Spruce Lake. At some point during this horrific ordeal, Nicholls died. They kept his car, which had the wallet they stole from him in it, and drove to Travaglia's father's house, where they stole a .38 caliber Colt Cobra snub-nose revolver. After Lesko discovered that they did not have the right bullets for the gun, they went back to Travaglia's father's house and stole those too.

Their fourth victim was Officer Leonard Miller. After they stole the .38 caliber handgun and bullets, Lesko, Travaglia and Rutherford traveled to Apollo, in Armstrong County. By this point, Travaglia was driving them in Nicholls's Fiat Lancia. At around 4:45 a.m., they saw a police car parked outside a Stop-N-Go. Although they were driving in a car they had stolen from a man they had just murdered, they decided to goad the officer into chasing them.Leonard Miller was the police officer. He was working the midnight to 8:00 a.m. shift. He was 21 years old and had been employed as a full-time Apollo police officer for only three days. The first time the Fiat Lancia sped past him, Office Miller did not pursue it. When it came speeding by him at least one more time, Officer Miller gave chase and eventually pulled the car over. As he approached it, Travaglia shot him twice with the .38 caliber handgun they had stolen from his father's house. Officer Miller radioed into police headquarters that he had been shot. Back-up officers quickly arrived at the scene, but it was too late. Officer Miller was lying on the highway, dead from two bullets wounds.

Officer Miller returned fire before he was killed and he shot out at least one of the windows of the Fiat Lancia. Lesko, Travaglia and Rutherford decided to abandon the damaged vehicle. They eventually made their way back to downtown Pittsburgh, where the police apprehended them later that evening. Lesko and Travaglia were individually interrogated. Both gave statements implicating themselves in the murders of Levato, Newcomer, Nicholls and Officer Miller.

This case concerns Lesko and Travaglia's murder of Officer Miller. Following various delays due to two changes of venue and a mistrial, they were tried in a consolidated trial in January 1981 in the Court of Common Pleas of Westmoreland County on charges of murder and conspiracy to commit murder of Officer Miller. Rutherford, who was 16-years-old at the time of the trial, had an agreement with the District Attorney of Westmoreland County and testified as a witness for the prosecution. The jury (which had been selected from Berks County) found that both defendants were guilty of first-degree murder. There was no dispute that Travaglia was the one who fired the shots that killed Officer Miller (he had admitted that fact in his statement to thepolice). The jury determined that Lesko was equally culpable for Officer Miller's murder as Travaglia's accomplice.

Following a subsequent penalty trial, the same jury sentenced both defendants to death. As a result of a federal habeas proceeding that concluded in 1992, Lesko had another sentencing hearing in the court of common pleas in February 1995. The jury at this proceeding once again sentenced Lesko to death.

Before this Court is Lesko's Petition for a Writ of Habeas Corpus [ECF No. 12], filed pursuant to 28 U.S.C. § 2254. Lesko asserts that he is entitled to a new trial or, at a minimum, another sentencing hearing. He raises six guilt-phase claims (Claims I, II, III, IV, XX, and part of Claim XXII) and numerous sentencing-phase claims (part of Claim I and Claims V-XIX and XXI-XXII). After careful consideration, this Court concludes that Lesko is not entitled to federal habeas relief on any of his claims.

This case has a lengthy and complex factual and procedural history that spans more than 30 years. Only that which is pertinent to the evaluation of the claims that Lesko raises in his habeas petition will be discussed. There have been over 13 court decisions issued in Lesko's lengthy state and federal proceedings, and he cites them in his brief as Lesko I through Lesko XIII. [ECF No. 30, Brief at i]. In order to remain consistent with his method of citation, the Court will use it herein.

B. The 1981 Guilt-Phase Trial¹

The court of common pleas appointed Rabe F. Marsh, Esq., to represent Lesko at his trial.² Marsh was a local attorney with a private practice. The court appointed the Westmoreland County Public Defender, Dante G. Bertani, Esq., to be Travaglia's counsel. Bertani was Travaglia's lead counsel and Timothy J. McCormick, Esq., who worked in the Public Defender's Office, was co-counsel.

Lesko's and Travaglia's interests coincided to a large extent during the pre-trial and trial proceedings and defense counsel worked together in many ways when appropriate, including cross-examining the prosecution's witnesses. From 1999 through 2002, several hearings were held in the court of common pleas during the litigation of Lesko's state petition for collateral relief, which he filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"). At the PCRA hearing conducted in 2002, Bertani explained that he did "the bulk of the cross examination for all of the witnesses" and Marsh, who typically would cross-examine a witnesses after Bertani, followed up to the extent that Bertani missed something, or if there was something particular that applied to Lesko's defense. (Apr. 2002 PCRA Hr'g Tr. at 155-56).

At the trial, the prosecution wanted to introduce evidence of the three other murders that the defendants committed during their multi-day crime spree. (Vol. I, Trial Tr. at 3). The court ruled that evidence related to Levato's and Newcomer's murders was inadmissible. It held, however, that the events surrounding Nicholls's murder, about which Rutherford would testify, was admissible as evidence of motive and intent. The trial court explained that it was admitting the evidence because it was probative of the prosecution's theory that Officer Miller, whom the defendants intentionally had provoked into chasing them, was killed because he had approached perpetrators of murder and theft in possession of incriminating evidence, namely, Nicholls's stolen car and wallet, and the gun used to shoot him in the arm when he was first abducted. Both defendants moved to limit Rutherford's testimony, but the trial judge denied their motion, ruling that the details of the Nicholls murder were relevant to each defendant's state of mind. The court explained that the severity of the Nicholls murder, and its temporal proximity, made it more likely than not that the defendants would attempt to avoid apprehension at any costs, going so far as to murder a police officer. (Vol. I, Trial Tr. at 298-99, 309-11, 330, 332).

Rutherford testified that in the late hours of January 2, 1980, he was at hotdog shop in downtown Pittsburgh. Lesko and Travaglia were there too. (Id. at 345-46). They asked Rutherford if he "wanted to go and do some partying." (Id. at 347). Rutherford told them that he did, and he and Lesko walked outside and waited in an alleyway by the Edison Hotel. (Id. at 347-49). After about five to ten minutes, Travaglia and another man drove into the alleyway in a "silver sports car." (Id. at 350). The other man was Nicholls, and he was driving his silver Fiat Lancia. Travaglia was in the front passenger's side seat and he told Rutherford and Lesko to get into the car. (Id.)

Rutherford testified that Travaglia pulled out a gun and pointed it at Nicholls and shot him in the arm. (Id. at 351). Nicholls was not critically injured, and Travaglia forced him to continue to drive...