McCarthy v. Capozza

EUGENE J. McCARTHY, JR., Petitioner, v. MARK CAPOZZA, Superintendent, THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.

Civil Action No. 2:20-cv-0020

United States District Court, W.D. Pennsylvania, Pittsburgh

January 24, 2022

Ronald M. Wabby, Jr.

Office of the District Attorney

Allegheny County

Mark R. Hornak, Chief United States District Judge

REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

Petitioner, Eugene J. McCarthy, Jr., a prisoner in the custody of the Pennsylvania Department of Corrections, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 6). He is challenging the August 19, 2012, judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, at its criminal case CP-02-CR-0011401-2012. For the reasons outlined below, it is recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.

II. REPORT

A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. That provision allows a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable in a federal habeas action. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

It is McCarthy's burden, as petitioner, to prove he is entitled to the writ. 28 U.S.C. § 2254(a); see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).

B. Relevant and Procedural Background

1. State Court Proceedings

This case arises from the “robbery-induced homicide” of Brandon Johns on August 7, 2012. Commonwealth v. McCarthy, No. 11 WDA 2014, slip op., filed Jan. 15, 2016 (unpublished) (ECF No. 15-5). McCarthy was charged by Criminal Information with one count each of the following: Criminal Homicide, Robbery - Inflict Serious Bodily Injury, Tampering with Physical Evidence, and Criminal Conspiracy (Robbery). McCarthy was represented by Lisa G. Middleman, Esquire, of the Office of Public Defender, during the pre-trial, trial, sentencing, and post-sentencing proceedings. Following a jury trial presided over by the Honorable Anthony M. Mariani, McCarthy was found guilty of Third Degree Murder, Robbery, and Criminal Conspiracy (Robbery) and not guilty of Tampering with Physical Evidence.^[1] On November 1, 2014, McCarthy was sentenced to ten (10) to twenty (20) years' incarceration for third-degree murder and three (3) to six (6) years' incarceration for conspiracy to commit robbery, to be served consecutively to the third-degree murder sentence. No. further penalty was imposed on the robbery conviction.

The Trial Court, in its Rule 1925(a) Opinion, recounted the factual background and evidence that led to McCarthy's arrest and conviction:

The convictions in this case are based heavily on the testimony of Cory Estes. Mr. Estes is the nephew of Quintelle Rankin and he is related to the defendant, Eugene McCarthy, by marriage. At the time of trial, Mr. Estes was 19 years old. At trial, Mr. Estes testified that on August 7, 2012, he was at the Brinton Manor Apartments. He met Mr. Rankin and the defendant around noon that day. They then left that area together in the defendant's car and proceeded to the Hill District area of Pittsburgh attempting to locate someone from whom they could purchase marijuana. Having been unsuccessful in their efforts to obtain marijuana, they then left that area and drove to McKeesport, Pennsylvania, to continue their efforts to purchase marijuana. At approximately 4:00 p.m,, they returned to the Brinton Manor Apartments because they were unsuccessful in reaching their goal to obtain marijuana. While they were still in the car, defendant stated aloud that it appeared as though there were some “licks” in the area. Mr. Estes testified that the term “licks” referred to persons who were potential robbery targets. The defendant parked the car and the three men began to walk around the area. They soon encountered two other men and asked those men if they could get them marijuana. One of the other men, Brandon Johns, directed Mr. Estes, Mr. Rankin and the defendant to follow him into a building. All four men entered the building. Mr. Estes testified that Brandon Johns then sat down on steps and pulled out a scale and large bag of marijuana and discussed cost. The scale and marijuana were recovered from the scene. At that point, the defendant attempted to steal the marijuana by grabbing the bag of marijuana and telling Brandon Johns that “you might as well give me all the shit”. A few seconds later, Mr. Rankin pulled out a gun. Brandon Johns then stated “you can have it all”. He then reached with both hands into his pockets and he pulled out a black handgun. Mr. Estes testified that the defendant and Brandon Johns began to “tussle” over the black handgun. Mr. Estes ran up the steps of the building and, as he was running, he heard a gunshot. He testified that he did not know who fired it. Mr. Estes heard another shot and he observed his uncle, Mr. Rankin, slump over as though he had been shot. Mr. Rankin then fired his weapon at Brandon Johns. Mr. Estes believed he heard three or four gunshots. A nearby witness, who was outside of the building, testified that he heard approximately six gunshots. In total, eight spent cartridges were found at the scene. Six .40 caliber Smith & Weston cartridges were found at the scene and two .380 caliber cartridges were found. Mr. Rankin admitted at trial that he possessed a .40 caliber handgun during the incident and he did shoot Brandon Johns. Mr. Estes testified that immediately after the shooting, the three men left the scene and the defendant drove Mr. Rankin to the hospital. The defendant and Mr. Rankin were subsequently arrested. . . .

Trial evidence included the defendant's tan cargo shorts. DNA analysis confirmed that there were two blood spots on the shorts that matched his DNA profile. There was also a blood stain on the rear of the shorts that matched the DNA profile of Brandon Johns.

Trial testimony also established that Brandon Johns died from multiple gunshot wounds to his neck and chest. He was shot seven times. He was shot twice in the neck. One wound was in the back of the neck and one was in the front of the neck. Because of the gunpowder stippling on the skin, trial testimony indicated that these shots had been fired within four inches of the skin. He was also shot in the right shoulder, the right upper back, the right lower chest, the left posterior shoulder and the right anterior thigh.

Although Mr. Rankin admitted that he shot Brandon Johns, his trial testimony differed from the testimony of Mr. Estes. Mr. Rankin testified that once Mr. Estes, the defendant and he entered the building, Brandon Johns sat on the steps. The defendant asked his two companions if they were going to “pitch in” for marijuana. Mr. Rankin advised that he wanted to buy his own marijuana. Then, according to Mr. Rankin, Brandon Johns pulled out a gun. Mr. Rankin testified that the defendant then began to scuffle with Brandon Johns at which time a shot went off from Brandon Johns' gun. A second shot from that gun was fired. Mr. Rankin testified that he began firing shots from his gun. He testified that [he] closed his eyes and began firing his weapon “uncontrollably”. At that point, according to Mr. Rankin, the defendant ran up the steps. After he realized that Brandon Johns was no longer firing his weapon and was slumped against the stairway wall, Mr. Rankin, Mr. Estes and the defendant left the scene to take Mr. Rankin to the hospital.

The defendant also presented the testimony of Georgia Ford, a caretaker of the daycare facility that the defendant's child attended. Ms. Ford testified that she saw the defendant sometime after 4:00 - 4:30 pm on the day of the shooting while he was waiting to pick up his child from daycare.

Trial Court 1925(a) Opinion, No. 201211401, slip op. (C.P. Allegheny, July 17, 2014) (ECF No. 14-5).

On December 31, 2013, McCarthy, represented by Scott B. Rudolf, Esquire, of the Office of Public Defender, appealed his convictions to the Pennsylvania Superior Court, presenting four (4) issues for review, each challenging the sufficiency of the evidence:

1. Was Appellant erroneously convicted of Third Degree Murder and Robbery via Serious Bodily Injury Inflicted or Threatened given that the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant's co-defendant Quintelle Rankin, did not act justifiably when he shot and killed the decedent, Brandon Johns such action being justifiable since it was taken in defense of himself and of Appellant)?

2. Was Appellant erroneously convicted of Third Degree Murder given that the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant was vicariously liable for Brandon Johns' death under either the rule of accomplice liability or the rule of conspiratorial liability, given that (a) Appellant did not act with recklessness or extreme indifference to the value of human life, as was necessary in order to convict him of Third Degree Murder under the rule of accomplice liability; (b) the rule of conspiratorial liability did not survive the enactment of the Crimes Code; and (c) even if conspiratorial liability was a viable option, Quintelle Rankin's fatal shooting of Johns was not foreseeable to Appellant since Appellant was unaware, so far as the evidence indicated, that Rankin was even armed?

3. Was Appellant (a) erroneously convicted of Robbery via Serious Bodily

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