Lowry v. Weneronicz

ANDRE C. LOWRY, Petitioner, v. MICHALE WENERONICZ; the ATTORNEY GENERALOF THE COMMONWEALTH OF PENNSYLVANIA;and the DISTRICT ATTORNEY OF ALLEGNEY COUNTY, Respondents.

Civil Action No. 11 - 165

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: February 13, 2014

Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

I. CONCLUSION

For the reasons stated herein, the Petition for Writ of Habeas Corpus (ECF No. 4) will be denied and a certificate of appealability will also be denied.

II. FACTUAL AND PROCEDURAL HISTORY

Petitioner, Andre Lowry (hereinafter referred to as "Lowry" or "Petitioner"), a state prisoner currently incarcerated in Graterford, Pennsylvania under an April, 1998 sentence of lifeimprisonment for first degree murder, has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Even affording Petitioner all pro se consideration, each of his claims is meritless for reasons apparent in the documents of record before this Court.

The facts of the crimes as set forth by the State Court¹ are as follows:

On December 20, 1996, Petitioner was involved in an altercation with the murder victim, Jouron Miller ("Miller"), at Gene and Eileen's Bar in Braddock, Allegheny County, Pennsylvania. Earlier that evening Miller was at the bar with David Hawes ("Hawes") but they left and walked to the house of Lyon Tinsley ("Tinsley"), Miller's cousin. There, Miller related that Petitioner had pulled a gun on him in the men's room. The three men returned to the bar, as Miller wanted to confront Petitioner. Miller approached Petitioner and a verbal argument escalated to mutual pushing. An escalating fight amongst several additional patrons in the crowded bar then continued into the street. Hawes testified that once outside he walked around the corner from the bar and after hearing gunshots saw officers apprehend Petitioner and order him to the ground. Tinsley testified that he was pushed out of the bar by the crowd and Miller came out shortly thereafter with a bloody nose and followed by Petitioner. Miller and Petitioner continued to exchange words and, according to Tinsley, Petitioner fired a gun five or six times at Miller, who fell to the ground.

At the time of the shooting, approximately 1:25 a.m., Officer Dominic DiLeo ("Officer DiLeo") of the Braddock Borough Police Department was on duty in his police vehicle at a red light at an intersection next to the bar, just down the street from the Braddock Police Station. Nothing was obstructing his view. He observed six to ten people rapidly exit the bar. He also saw a group of several black males standing on the sidewalk with the one in the middle - later identified as Petitioner - wearing a Pittsburgh Steeler jersey with white lettering and the number "10" on it. Officer DiLeo heard five or six shots and his attention was drawn to Petitioner because his knees were bent and his body made several "jerking" motions, moving repeatedly in a manner consistent with absorbing recoil from firing a gun. Petitioner was about ten feet away from Miller. Officer DiLeo observed Miller fall backwards and someone then holding him. Officer DiLeo saw Petitioner leave the area quickly.

Officer DiLeo immediately radioed dispatch, advised that shots were fired, and gave a description of Petitioner and his attire, as identifying the suspected shooter. Officer DiLeo then immediately went to the victim and noticed two gunshot wounds to Miller's trunk; Miller was transported to the hospital and died of his wounds. Officer DiLeo heard over the radio that Petitioner had been apprehended right around the corner, near the police station. An officer working in the station heard the call and headed down the street, and saw Petitioner "slowing down from a run to a fast walk" near a jitney stand. He ordered Petitioner to the ground.Petitioner was unarmed.² Officer DiLeo ran up and identified Petitioner as the suspect. Officer DiLeo patted Petitioner down, handcuffed him and read him his Miranda rights.

The person Officer DiLeo saw holding the victim after the shooting was Lyon Tinsley. Tinsley estimated he was approximately twelve feet away from Petitioner, whom he knew by name, when the shooting began. Tinsley testified that he saw Petitioner shoot the victim. He stated that the area was lit well enough for him to see and identified Petitioner as wearing a Steeler's jersey with the number "10" on it. Four hours later, at 5:28 a.m., county detectives drove Tinsley past the police station while Petitioner was standing in the doorway of the police station, cuffed, and flanked by two police detectives. Tinsley identified Petitioner and stated there was no doubt in his mind that Petitioner was the man who shot the victim.

In an initial interview by Officer James Morton ("Officer Morton") at the Braddock police station around the corner from the bar, Petitioner denied having shot Miller. But he gave a different statement during another interview after he was transferred to the homicide office. In an interview with Allegheny County Police Officers Kevin Paul ("Officer Paul") and Jim Cvetic ("Officer Cvetic"), at which Officer Cvetic took notation of Petitioner's responses, Petitioner gave a statement (transcribed from Officer Cvetic's notes but unsigned) that Miller was involved in an altercation at the bar, but left and returned, and came up to Petitioner and begin "pointingat" him. He asserted that a fight broke out in the bar, that he tried to leave, and was hit several times and forced out of the bar. He said he heard gunshots and thought he'd been hit while still inside the bar. Id. at 15. Petitioner asserted that he grabbed a handgun from someone (David Lyons) as he was leaving the bar and believed the safety was on. When Miller and two others were making aggressive gestures at him outside the bar, Petitioner told them he had a gun and pointed it in the air, but as he lowered the gun, he heard someone firing shots and the gun in his hand "just started going off", which surprised him. Petitioner remembered the gun going off and shooting the victim in the midsection. Petitioner said he dropped the gun and walked around the corner to a jitney station, and that the shooting was unintentional. Id. at 16.³ At trial, however, Petitioner again denied shooting Miller, or having a gun in his possession that night, or being in a continuing altercation with Miller or others outside the bar. He asserted that "some guy named Rob" shot Miller and that, on his way to his car which was parked near the jitney stand, Petitioner saw Rob running up the hill immediately before the officer stopped Petitioner instead.

In July, 1997, Petitioner was charged with one count of criminal homicide and two counts of uniform firearm violations (former convict not to possess firearms, 18 Pa. Cons. Stat. Ann. § 6105, and firearms not to be carried without a license, 18 Pa. Cons. Stat. Ann. § 6106 - the violation of Uniform Firearms Act charge under Section 6105 was severed from the other charges prior to trial). See Commonwealth's Answer at 2.

On September 26, 1997, Petitioner's counsel filed an Omnibus Pretrial Motion asserting that the on-scene identification of Petitioner by Tinsley should be suppressed and that there was no probable cause for the arrest. See id. at 2 (citing Omnibus Pretrial Motion attached as Ex. 3). After a multiple-day hearing that Fall, the suppression motion was denied by Order of January 20, 1998.

A jury trial was held from January 20-26, 1998. Petitioner was found guilty of murder in the first degree and of the remaining firearms violation (not to be carried without a license). In April, 1998, Petitioner was sentenced to a mandatory term of life imprisonment on the first degree murder conviction, and a consecutive term of 3-1/2 to 7 years incarceration for the firearms conviction. See id. at 3.

In April 24, 1998 Petitioner's counsel filed a post-sentence motion (the "April 1998 Post-Sentence Motion") which was denied by operation of law on August 31, 1998. Said Motion alleged that:

(1) The trial court erred by failing to suppress statements obtained from the defendant which were the fruit of an arrest unsupported by probable cause;

(2) The trial court erred in failing to suppress the in-court identification by Tinsley, which was tainted by an unduly suggestive identification procedure and fruit of the arrest without probable cause;

(3) The trial court erred by allowing impeachment based on adjudications of delinquency made when defendant was 13 years old;

(4) The evidence of record was insufficient to support the verdict of first degree murder; and

(5) The verdict was against the weight of the evidence.

See Commonwealth's Answer in Response to Petitioner's Supplemental Brief at 3.

In May, 1998 Petitioner filed his Notice of Appeal and in July, 1999, Petitioner, represented by counsel, properly filed a Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) and the Court issued its Opinion on the Concise Statements on July 29, 1999. See Commonwealth Exhibit 8.

On October 4, 1999 Petitioner's counsel filed a Brief for Appellant with the Pennsylvania Superior Court raising the following claims:

1. Identification of Tinsley was improperly admitted in light of uncounseled and suggestive one-on-one confrontation.

2. Juvenile delinquency adjudication was improperly admitted where it occurred eight years prior to trial when Lowry was 13.

On April 13, 2000, the Pennsylvania Superior Court affirmed the judgment of sentence. See id. at 5 (citing Opinion attached as Ex. 11) (hereafter "April 13, 2000 Superior Court Opinion on Direct Appeal"). Petitioner's Petition for Allowance of Appeal to the Pennsylvania Supreme Court on these two issues was filed on May 19, 2000 and denied on August 30, 2000. The Petitioner did not file a Petition for Writ of Certiorari with the Supreme...