Railroad v. Beard

R.R., Petitioner, v. JEFFREY BEARD, Commissioner,Pennsylvania Department of Corrections, LOUIS S. FOLINO,Superintendent of the State Correctional Institution at Greene, Respondents.

Civil Action No. 09 - 1102

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

September 30, 2015

District Judge David S. Cercone

MEMORANDUM OPINION

Robert Rega ("Rega", "Mr. Rega", "Petitioner", "Appellant", or "defendant"), a state prisoner currently on death-row for crimes unrelated to the underlying convictions at issue in the instant proceedings,¹ has filed an amended petition for writ of habeas corpus (Pet'r Am. Pet. for Writ of Habeas Corpus, Apr. 5, 2012, ECF No. 21), and supplement thereto (Pet'r Supplement Pet. for Writ of Habeas Corpus, July 20, 2012, ECF No. 25), challenging his judgment of sentence entered on January 28, 2004, in theCourt of Common Pleas of Jefferson County, after he was convicted of forty-nine (49) counts of various child sex offenses and four (4) counts of furnishing malt or brewed beverages to minors.² Commonwealth v. Rega, CP-33-CR-174-2001 (C.P. Jefferson Co.) For the following reasons, his petition will be denied.

I. Facts of the Crime

The facts of the crime, as set forth in the Pennsylvania Superior Court's Memorandum Opinion and Order on direct appeal, dated August 22, 2005, are as follows:

We glean the following facts from the certified record. From June through August of 2000 and in October 2000, Appellant had sexual relationships with four victims, all of whom were under the age of sixteen. During this period, Appellant was thirty-three or thirty-four years old. Victim D.W. was Appellant's neighbor; she was fourteen years old. Her nine or ten sexual encounters with Appellant during the summer included intercourse, oral and anal sex. Victim E.H. was D.W.'s friend. She was twelve years old when she first met Appellant, then turned thirteen during the summer of 2000. Her ten to fifteen sexual encounters with Appellant during the summer included intercourse and oral sex.

E.H. and D.W. babysat Appellant's children. He was friendly toward them. He talked with them, took them to the local swimming hole, downtown, and out to eat; he gave them money and cigarettes. He also furnished them with alcohol, watched pornographic movies and masturbated in their presence. All of E.H.'s and D.W.'s sexual encounters with Appellant occurred in his trailer, except for one episode which took place at the Comfort Inn in Clarion, Pennsylvania. Appellant took the girls there because they wanted to go somewhere with a swimming pool and a hot tub. After buying beer and snacks for them, Appellant had sex witheach of the girls in the motel room and then returned home with them the next morning.

Victim R.H. was E.H.'s sister and D.W.'s friend; she was fourteen years old. She babysat Appellant's children one night in October 2000. That night, Appellant came home after an evening out with friends and pestered R.H. to have sexual intercourse with him. She eventually acceded to his requests. Victim S.S. knew D.W., E.H., and R.H.; she was thirteen years old. The day after R.H. had sexual intercourse with Appellant, S.S. was at his home with R.H. to baby-sit Appellant's children and his girlfriend's children. Appellant provided R.H. and S.S. with alcohol. As he had with the other girls, Appellant propositioned S.S. to have sexual intercourse with him and led her to his bedroom where he engaged her in intercourse and oral sex.

Around January 28, 2001, E.H. was visiting with Susan Jones (Ms. Jones), a former neighbor of Appellant, at Ms. Jones' house. E.H. reported to Ms. Jones her encounters with Appellant. Ms. Jones advised E.H. to think about what she wanted to do, to go to school the next day, and, if she wanted to report Appellant to the police, to come back after school and Ms. Jones would contact the State Police. The next day, E.H., D.W., and S.S. went to Ms. Jones' house after school wanting to report Appellant's conduct to the police. Ms. Jones walked to a nearby convenience store and telephoned Trooper Davis of the Pennsylvania State Police. Trooper Davis immediately responded to Ms. Jones' house and took the initial report from the three girls. Later that night, Trooper Davis took reports from all four victims at the state police barracks.

(Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3.)

II. Procedural History

A. Trial and Sentencing

Rega was represented at trial by Attorney George Zanic ("Attorney Zanic" or "trial counsel") and the District Attorney prosecuting the case for Jefferson County wasAttorney Jeffrey Burkett ("DA Burkett" or "the prosecutor")³.⁴ The jury trial, presided over by the Honorable John H. Foradora ("Judge Foradora"), lasted two days, May 5-6, 2003, at the conclusion of which Rega was found guilty. (Resp't Exs. D-E, Jury Trial Tr., May 5-6, 2003, ECF Nos. 28-1, 29-1.) On January 28, 2004, Rega was found to be a "Sexually Violent Predator" under Pennsylvania's Megan's Law and given an aggregate sentence of 147 to 354 years. (Resp't Ex. B, Tr. of Mot. to Recuse and Mot. for Megan's Law Hr'g, Jan. 28, 2004, ECF No. 27-2); (Resp't Ex. E, Sent. Tr., Jan. 28, 2004, ECF No. 29-1.)

B. Post-Sentence and Direct Appeal Proceedings

After sentencing, Attorney George Daghir ("Attorney Daghir" or "post-sentence counsel" or "direct appeal counsel") was appointed to represent Rega in post-sentence proceedings and on direct appeal. Post-sentence motions were filed on February 5, 2004; February 9, 2004; February 11, 2004; March 8, 2004; and April 28, 2004. (Resp't Exs. F-J, Post-Sentence Mots., ECF Nos. 29-2, 29-3, 30-1, 30-2, 30-3, 30-4.) Regaraised twenty-six (26) separate issues in his post-sentence motions. The claims raised in those motions that are relevant to this habeas proceeding are summarized as follows:

• Improper impeachment of Helaine Flockerzi;

• Trial court error in refusing to grant a mistrial after Susan Jones implicated defendant in an unrelated homicide;

• Violation of defendant's Miranda rights;

• Ineffective assistance of trial counsel for failing to object to Trooper Davis' testimony regarding not having any evidence to charge Susan Jones in the Gateway Lodge homicide and the trial court's failure to strike Trooper Davis' testimony regarding same;

• The Commonwealth knowingly presented perjured testimony through Trooper Davis; and

• Ineffective assistance of trial counsel for calling a deputy sheriff to testify as to defendant's genital abnormality instead of a medical doctor.

A post-sentence hearing was conducted on April 28, 2004, after which all of the motions were denied by Opinion and Order dated June 29, 2004. (Res't Ex. M, Tr. of Post Sentence Mot. Hr'g, Apr. 28, 2004, ECF No. 31-2); (Res't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1.)

Rega filed a direct appeal from his judgment of sentence to the Pennsylvania Superior Court. Commonwealth v. Rega, 1280-1312 WDA 2004 (Pa. Super. Ct.). Briefs were filed by both parties. (Resp't Ex. N, Br. for Appellant, Oct. 13, 2004, ECF No. 32-1); (Resp't Ex. O, Br. for Appellee, ECF No. 32-2.)

Rega raised ten (10) issues on direct appeal. The following are relevant to this habeas proceeding:

• Appellant was denied a fair trial due to the improper impeachment of Appellant's key witness, Helaine Flockerz.

• The trial court committed reversible error in refusing to grant a mistrial when, on cross-examination, the Commonwealth witness, Susan Jones, implicated Appellant in an unrelated homicide.

• Trial counsel was ineffective by failing to object and request a mistrial when the Commonwealth introduced the testimony of Trooper Davis that he did not have any evidence to charge Susan Jones as an accomplice to a homicide, or that Trooper Davis did not have sufficient evidence to charge Susan Jones with the destroying of evidence (gun).

(Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3.)

The Pennsylvania Superior Court affirmed Rega's judgment of sentence by Opinion and Order dated August 22, 2005. (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3); Commonwealth v. Rega, 885 A.2d 583 (Table) (Pa. Super. Ct. Aug. 22, 2005). Judge Klein, however, filed a dissenting Opinion concluding that "the sentencing court abused its discretion in imposing an aggregate sentence of 147 to 354 years' imprisonment, which [he believed] [was] unreasonable under the circumstances of this case." (Resp't Ex. W, Pro Se Appellant Br. Ex. Q, Jun. 18, 2007, ECF No. 55 at pp.188-92.)

Rega then filed a Petition for Allowance of Appeal asking the Pennsylvania Supreme Court for discretionary review. (Resp't Ex. Q, Pet. for Allowance of Appeal, Aug. 22, 2005, ECF No. 33-1.) The petition was denied on December 29, 2005. Commonwealth v. Rega, 892 A.3d 822 (Pa. 2005).

C. First PCRA Proceedings

On September 6, 2006, in the Court of Common Pleas of Jefferson County, Rega filed a pro se "Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution and Statutory Post-Conviction Relief under 42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law". (Resp't Ex. R, Pro Se PCRAPet., Sept. 6, 2006, ECF No. 33-2.) This petition was construed as a petition filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. ("pro se PCRA petition" or "first PCRA petition").

Rega raised thirteen (13) claims in his pro se PCRA petition. The following claims are relevant to this habeas proceeding:

• Police obtained statements from defendant in violation of Miranda and used those statements to impeach Helaine Flockerzi, a key defense witness at trial, and trial and appellate counsel were ineffective for failing to raise this claim.

• Susan Jones, a Commonwealth witness, implicated defendant in an unrelated homicide, the trial court abused its discretion in denying trial counsel's motion for a mistrial, and appellate counsel was ineffective

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