Stringer v. Louis Folino & the Attorney Gen. of Pa.

ROBERT STRINGER, Petitioner, v. LOUIS FOLINO and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 13 - 221

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 1, 2016

District Judge Terrence F. McVerry

Magistrate Judge Lisa Pupo Lenihan

REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 12) be denied and that a Certificate of Appealability also be denied.

II. REPORT

Pending before the Court is a Petition for Writ of Habeas Corpus ("Petition") filed by Robert Stringer ("Petitioner" or "Stringer" or "defendant" or "appellant") pursuant to 28 U.S.C. § 2254. Petitioner challenges his judgment of sentence for first degree murder and related crimes at Allegheny County Court of Common Pleas CC Nos. 200401070 and 200402866. For the following reasons, the Petition should be denied.

A. Facts of the Crime

The facts of the crime, as set forth by Judge Cashman in his Pa. R.A.P. 1925(b) Opinion dated April 30, 2007, are as follows.

In January of 2004, Stringer was a twenty-year old, unemployed African-American with severe crack cocaine addiction. He was living in various residences in Charleroi, Pennsylvania. On January 6, 2004, Stringer met Joy Cochran, a twenty-seven year old, white female and the two of them took up residence at a hotel in Charleroi, Pennsylvania, so that they could party. Their concept of partying consisted of drinking alcohol and smoking crack cocaine, in addition to having sexual relations. After several days of partying, they had run out of both crack cocaine and money so they decided that they would drive to Pittsburgh in the hopes of obtaining crack cocaine and more money to buy the crack cocaine.

On January 11, 2004, Cochran's nephew drove them to Stringer's sister's residence, an apartment in the East Hills section of Pittsburgh. Stringer told Cochran that he wanted to go to Homewood to rip off a drug dealer so that he could get some crack cocaine but Cochran told him that she was scared to do that, so that plan was abandoned. Stringer next suggested that they could go to the Giant Eagle and carjack somebody in the parking lot. Again, Cochran rejected that plan as being too dangerous. Stringer then told her that he was going down to the Giant Eagle and he would be back shortly. Approximately twenty minutes to one-half hour later, Cochran heard a horn blow outside Stringer's sister's apartment and when she looked out the window, she saw Stringer waving and motioning for her to come and get in the car. Cochran got into the back seat of the car and noticed that Stringer was driving the car and that an unknown older white male was sitting in the front passenger seat.

After Cochran got into the car, Stringer told them that they were going to a MAC machine and asked the front seat passenger for his ATM card, which he turned over to Stringer. Stringer, in turn, gave the card to Cochran and demanded that she get as much money as she could. Cochran told Stringer that she did not know the appropriate PIN number to allow these transactions and Stringer then asked the front seat passenger what the PIN number was and he supplied that number. Cochran, on her first attempt, received two hundred and twenty dollars which she pocketed since she was afraid that Stringer might abandon her in Pittsburgh and she would have no way to get back to Charleroi. On the second attempt, she received two hundred dollars; however, when she attempted to get another two hundred dollars, the machine would not authorize that transaction. Cochran gave Stringer two hundred dollars and the ATM card, which card Stringer gave to the front seat passenger. After Cochran got into the car, Stringer said that they were going back to his sister's house but, instead of going to his sister's house, they went to a park and Stringer then told the front seat passenger to get out, which he did, and the two of them went to the back of the car and then went into the woods. Cochran stayed in the car and waited for approximately five to ten minutes when Stringer finally got back in the car. Cochran asked Stringer where the other guy was and Stringer replied only that he had stayed in the park.

Stringer and Cochran then went back to Stringer's sister's house and he gave her forty dollars since he owed that money to someone else. Stringer then got back into the car and proceeded to buy some gas, cigarettes and blunt wrappers. Stringer made a couple of phone calls on a cellular phone to arrange a meeting to purchase drugs. Stringer made a couple purchases of crack cocaine and then he and Cochran headed back to Charleroi. During the drive back to Charleroi, Stringer turned to her and told her that he had killed the guy and left him in the park. At that point Stringer handed her a Giant Eagle plastic bag that contained a knife. Cochran threw the bag and the knife out the window on their ride back to Charleroi. When they arrived back at Charleroi, they went to one of Stringer's uncle's homes, stayed there about twenty minutes and then got into an argument and Stringer pulled a gun, putting it to her head and told her to get out.

In the early evening of Sunday, January 11, 2004, Eileen Driscoll called her brother Daniel Lynch, to remind him that he had a surgical procedure scheduled at Mercy Hospital at 11:00 the following morning. Since this procedure would require anesthesia, she had agreed that she would drive him home. Mrs. Driscoll was unable to reach her brother; however, [she] did leave a message on his answering machine. Daniel Lynch was a fifty-nine year old Caucasian who had worked for thirty-five years at Mellon Bank [and] had been promoted to vice president. In addition to his regular employment, Lynch had an antique business with William McAffey, who was not only his business partner but, also, his life partner for more than twenty years. Daniel Lynch had gone out of town during the weekend of January 9 through the 11, 2004, apparently to look for additional antiques for his business.

On January 12, 2004, Lynch did not report to work nor did he make his appointment for his surgery at Mercy Hospital. His sister and brother-in-law then contacted the Wilkinsburg Police, asking if they would check his residence. When the police went to that residence, there was no sign of obvious entry; however, there was a back door to the residence that was slightly ajar. There was nothing missing in the residence that could be gleaned from an initial inspection and when William McAffee confirmed later that day that he had not seen nor heard from Lynch, a missing persons report was filed. In addition, a BOLO report was put out on Lynch's automobile, a copper-colored Pontiac Aztec.

Mellon Bank Security then began its own investigation since Lynch had a number of accounts at Mellon Bank, in addition to having an ATM card. Mellon also contacted Citizens Bank and PNC Bank and came up with the information that Lynch's card had been used at 9:07 p.m. to make a small twenty dollar purchase and at 9:51 p.m., 9:52 p.m. and 9:53 p.m., transactions with respect to the amounts of two hundred twenty dollars, two hundred dollars, and two hundred dollars were made or attempted to be made. Surveillance photographs with respect to those ATM transactions revealed a white female with a hoodie as the individual who was withdrawing or attempting to withdraw the money.

Sprint was the service provider for Lynch's cellular phone and an emergency request was made for information concerning any calls that were made to or from that phone. Sprint provided the records to the police and two telephone numbers located in Charleroi, Pennsylvania, appeared to have been repeatedly called after January 11, 2004. One of the two phone numbers was registered to Robert Kalbaugh, who lived in the Charleroi area and the other was to Frances Savko, who also lived in Charleroi. Allegheny County homicide detectives then went to the residence of Mr. Kalbaugh to inquire as to whether or not he had received any phone calls that were being made from Daniel Lynch's phone. Mr. Kalbaugh informed the detectives that he was a jitney driver and that he had received a phone call from Bridget Wallace requesting a ride.

After talking to Mr. Kalbaugh, the detectives then went to the residence of Kevin Savko and as they pulled up to his house, they noticed Lynch's copper Pontiac Aztec automobile parked in front of that house. Just then Kevin Savko and Jennifer Patterson were walking toward the vehicle and the detectives, after introducing themselves, asked them who had the car. Jennifer Patterson indicated that she had the keys to the car since she had obtained the car from Stringer in exchange for some crack cocaine. Patterson also indicated that she had made several phone calls on a cell phone that Stringer was using. After learning that Stringer and Bridget Wallace had dated for a period of time, the detectives attempted to find Bridget Wallace. When the police located Wallace, she informed the detectives that although she had been with Stringer, he was not with her now but she could contact him and tell him to contact the police. Several hours later, Bridget Wallace contacted the detectives and informed them that Stringer was at his residence and the police went to that residence to talk to Stringer about Lynch's murder.

Detectives took Stringer to the local police department so that they could interview him with respect to what, if any, knowledge he had regarding Lynch's murder. During the course of that interview, Stringer provided the detectives with five different stories. In the first version, Stringer indicated that he had no knowledge of Lynch's death and that he believed that Lynch's car was, in fact, Kevin Savko's car and that he had asked to buy it. In addition, he said that he bought the cellular telephone that he was using from Savko for sixty dollars.

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