Aaron Tyson v. Superintendent Houtzdale SCI ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1391
____________
AARON EDMONDS TYSON,
Appellant
v.
SUPERINTENDENT HOUTZDALE SCI;
ATTORNEY GENERAL PENNSYLVANIA
____________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(D.C. No.: 3-13-cv-02609)
District Judge: Honorable James M. Munley
____________
Argued March 24, 2020
Before: JORDAN, RESTREPO and GREENBERG,
Circuit Judges
(Opinion Filed: September 23, 2020)
Michael Wiseman [ARGUED]
Wiseman & Schwartz
718 Arch Street
Suite 702
Philadelphia, PA 19106
Counsel for Appellant
Andrew M. Kroeckel [ARGUED]
Mark S. Matthews
Monroe County Office of District Attorney
701 Main Street
Second Floor
Stroudsburg, PA 18360
Counsel for Appellee
___________
OPINION OF THE COURT
____________
RESTREPO, Circuit Judge
Aaron Edmonds Tyson handed his gun to Otis Powell
and waited in the getaway car while Powell shot and killed two
men in a stopped van. A jury in Monroe County, Pennsylvania,
convicted Tyson of two counts of first-degree murder as an
accomplice. In seeking post-conviction relief in state court,
Tyson claimed his trial counsel was ineffective for not
objecting to the court’s erroneous instruction, which he argued
allowed the jury to find him guilty without finding he
possessed the requisite intent to kill. After the state court
deemed the claim meritless, Tyson pursued a habeas petition.
The District Court held the state court reasonably applied
2
federal law in finding his trial counsel was not ineffective and
denied relief. For the reasons set forth below, we disagree and
will reverse the District Court.
I. Factual and Procedural Background
The Pennsylvania Superior Court summarized the facts
of this case as follows:
On April 24, 2002, [Tyson], [Powell] and Kasine
George (“George”) were riding in a vehicle. At
some point, [Tyson] exited the car and, when he
returned, stated that two white boys had just
pulled a gun on him. George described [Tyson]
as angry at that time. [Tyson], who was at that
point a passenger in the car, took a 9 millimeter
handgun from the center console. He racked the
slide of the gun, thus arming it. [Tyson] told
Powell, who was driving, to pull out from the
location where the vehicle was parked.
[Tyson] pointed to a van and indicated it was
being driven by the two who had pulled a gun on
him. With Powell driving, the three followed the
van to a club. When the two white men entered
that club, Powell gave George a knife, directing
him to puncture the tires on the van. George did
so to at least one of the tires. When George
returned to the car, [Tyson] was in the driver’s
seat. Powell was now a passenger and he asked
[Tyson] for the gun. After five or ten minutes,
the two white men exited the bar, entered the van
and left the location.
3
With [Tyson] now driving, the three again
followed the van. It eventually stopped due to
the flat tire. At that point, [Tyson] and his two
companions were going to exit the car, but
Powell told the other two to wait. Powell then
walked to the van. As he did so, [Tyson] backed
the car to a point where he and George could see
what was transpiring at the van. At that point,
Powell shot its two occupants, Daniel and Keith
Fotiathis. . .. He then ran back to the car. Powell,
George and [Tyson] left the scene. [Tyson]
drove the vehicle. The three discussed whether
they should go to New York but eventually
decided to return to their nearby home.
Commonwealth v. Tyson, 947 A.2d 834 (Pa. Super. 2008)
(unpublished memorandum) at 6-8, appeal denied, 605 Pa.
686, 989 A.2d 917 (Pa. 2009).
Brothers Daniel and Keith Fotiathis died from the
gunshot wounds inflicted by Powell. Tyson was charged with
being an accomplice to two counts of first and third-degree
murder and tried by jury in May of 2006. Kasine George, who
was later arrested on unrelated drug charges, provided
information to the police and testified for the Commonwealth
at trial. Tyson was found guilty as an accomplice to the first-
degree murders of the Fotiathis brothers. In July 2006, the trial
court sentenced him to the mandatory term of life
imprisonment without parole.
Under Pennsylvania law, the specific intent to kill is an
element of first-degree murder. Commonwealth v. Thomas,
194 A.3d 159, 167 (Pa. Sup. Ct. 2018). To be guilty as an
accomplice in Pennsylvania, a person must act with the same
4
intention of promoting or facilitating the crime as the principal.
18 Pa.C.S. § 306(c), (d). Thus, to be guilty as an accomplice
to first-degree murder, the state must prove the accused
possessed the specific intent to kill. Commonwealth v. Speight,
854 A.2d 450, 460 (Pa. 2004). See also Everett v. Beard, 290
F.3d 500, 513 (3d Cir. 2002) (“Pennsylvania law has clearly
required that for an accomplice to be found guilty of first-
degree murder, s/he must have intended that the victim be
killed.”) (abrogated on other grounds, Porter v. McCollum,
558 U.S. 30, 130 (2009)).
At trial, the Commonwealth’s theory of the case was
that Tyson was guilty because he assisted the principal, Powell.
In his closing argument, the prosecutor stated that the “rule” in
Pennsylvania is “if you help a shooter kill, you are as guilty as
a shooter.” A-885. He expounded on this statement with an
analogy:
So in a bank robbery, when there’s a look out
sitting outside the bank and he tells his friends
who are armed now, don’t go shooting any bank
guards. Go and get the money and come back
out. And I am going to stay in the car and we
will drive off and live happily ever after. And
the two friends go in a shoot a bank guard. Guess
what? He is as guilty as they are even though he
told them not to shoot because the law can
sometimes be sensible, especially with a
criminal.
A-885-86. The prosecutor concluded the explanation by
stating that “anyone who is with the shooter . . . either helped
to drive a vehicle, providing the vehicle, handing the gun over,
slashing the tire, any of those acts make those people equally
5
guilty of the criminal offense as a helper, as an accomplice.
That is beyond any doubt whatsoever.” A-886.
The Commonwealth’s explanation of accomplice
liability was a misstatement of Pennsylvania law. The court’s
jury instruction reinforced this misstatement and similarly
failed to convey that an accomplice to first-degree murder must
possess the intent to kill. After emphasizing that Tyson was
charged as an accomplice, not the principal, the court defined
both first and third-degree murder by focusing entirely on the
mental state of “the killer.” A-926. In explaining the elements
of first-degree murder, the court mistakenly identified Powell
as the accomplice and told the jury he committed an intentional
killing, stating that “in this case – not this Defendant – but Otis
Powell killed them as an accomplice with the Defendant,
Aaron Tyson. And this was done with the specific intent to
kill.” A-927. The instruction was further marred by the court
mistakenly naming the elements of first-degree murder as the
elements of third-degree murder.
The court’s instruction for accomplice liability was
general and not tied to either murder charge. Instead, the court
explained that Tyson “is an accomplice if with the intent to
promote or facilitate the commission of a crime he encourages,
requests or commands the other person to commit it or agrees
or aids or agrees to aid or attempts to aid the other person in
planning, organizing, committing it.” A-930 (emphasis added).
The court finished its explanation with a circular statement:
“You may find [Tyson] guilty on the theory that he was an
accomplice as long as you are satisfied beyond a reasonable
doubt that the crime was committed; that [Tyson] was an
accomplice of the person who actually committed the crime.”
A-930. The court failed to mention that, under Pennsylvania
6
law, an accomplice to first-degree murder must intend to
promote or facilitate a killing.
After the instruction concluded, the court entertained
the jury’s request for clarification on the degrees of murder. It
reiterated the elements of first and third-degree murder, this
time correctly, but again focused entirely on the intent of the
“killer” without citing the requisite mens rea of the
accomplice. A-948. It then practically directed the jury to
find for first-degree murder because, “in this particular case,”
the charge of being an accomplice “almost by definition . . .
encompasses the concept of first degree murder,” while the
charge of accomplice to third-degree murder is “offered as
another possibility even though it does not fit as well within
the confines of the explanation because counsel agreed you
may consider that as a possibility.” A-950-51.1
Tyson appealed to the Pennsylvania Superior Court,
raising numerous claims not relevant to this appeal, and the
court affirmed his conviction of two counts of accomplice to
first-degree murder. In November 2010, Tyson filed a timely
pro se petition and accompanying brief in accordance with the
Post-Conviction Relief Act (PCRA) before the trial court. In
his petition, Tyson stated he was “deprived of his
Constitutional Rights to Due Process and right to effective
assistance of counsel.” A-172. In the accompanying brief,
Tyson articulated that Pennsylvania law requires proof that an
accomplice to first-degree murder possess the specific intent to
the kill. A-178. He alleged that the trial court’s instruction did
1
The jury was instructed on third-degree murder after the court
suggested to defense counsel that such an instruction would be
appropriate. A-916-17.
7
not convey this burden of proof to the jury, in violation of his
due process rights under federal law. A-179.
Counsel was appointed and filed an amended PCRA
petition, which expounded upon Tyson’s claim that, based on
federal law, trial counsel was ineffective for failing to object to
the trial court’s instruction. PCRA counsel argued an objection
was warranted because “[t]he instruction as given could easily
have confused the jury as to what kind of intent must be shown
beyond a reasonable doubt.” A-182.
A PCRA hearing was held before the trial court in
October 2011. Tyson’s post-conviction counsel questioned
trial counsel about his failure to object to the accomplice
instruction; trial counsel responded that he did not remember
the charge. A-973. In subsequent briefing, post-conviction
counsel reiterated the ineffective assistance claim, arguing that
trial counsel’s failure to request an instruction on the mens rea
required for accomplice liability “is a tremendously important
point” because the intent to kill “means the difference between
murder in the first degree and murder in the third degree.” A-
188.
The trial court denied Tyson’s PCRA petition finding
that, inter alia, counsel was not ineffective for failing to object
to the jury instruction because it provided a definition of
accomplice liability and the elements of first-degree murder.
Citing portions of the instruction, the court concluded that, on
the whole, it conveyed the Commonwealth’s burden to prove
beyond a reasonable doubt that Tyson possessed “the shared
specific intent to kill the Fotiathis brothers.” A-151. The court
bolstered the denial of the ineffectiveness claim by stating that
the evidence presented to the jury “revealed that [Tyson’s]
conduct was willful, deliberate and premeditated and that he
8
actively participated in the murders by aiding the shooter.” A-
151.
Tyson appealed to the Pennsylvania Superior Court,
which affirmed the findings of the trial court and denied post-
conviction relief. Adopting the “cogent” reasoning of the
lower court, the Superior Court agreed that the ineffective
assistance claim was meritless because the instruction
sufficiently conveyed the requisite mens rea for an accomplice
to first-degree murder. A-052. It affirmed the trial court’s
denial of PCRA relief.
In October 2013, Tyson filed a pro se writ of habeas
corpus in the Middle District of Pennsylvania raising four
claims of ineffective assistance of counsel.2 In deciding the
instant claim regarding counsel’s failure to object to the
accomplice liability instruction, the District Court found that
the Pennsylvania Superior Court assessed the claim on its
merits and it had therefore been exhausted in state courts.
Accordingly, the District Court applied the standard of review
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d)(1), and concluded that the
Superior Court reasonably applied clearly established federal
law in determining that Tyson’s trial counsel was not
2
The District Court stayed Tyson’s habeas petition so that he
could pursue his second and third PCRA petitions in state
court, both of which were denied by the PCRA court as
untimely. The Superior Court affirmed both denials. After the
denial of the third petition, the Pennsylvania Supreme Court
denied leave to appeal.
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ineffective for failing to object to the accomplice liability
instruction. A-12-13.
Tyson appealed to this Court, which granted a
certificate of appealability limited to “his jury instructions
claim under both the Fourteenth Amendment’s Due Process
Clause, see Estelle v. McGuire, 502 U.S. 62, 72 (1991), and the
Sixth Amendment, see Strickland v. Washington, 466 U.S.
668, 687 (1984).” A-23. As per the certificate’s instruction,
the parties addressed the District Court’s determination that the
ineffective assistance of counsel claim had been exhausted in
state court and was not procedurally defaulted. A-22-23.
II. Exhaustion and Procedural Default
Under AEDPA, a federal court may grant habeas corpus
relief if it concludes the petitioner is in custody in violation “of
the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Petitioners in state custody may bring a
habeas petition only if they have properly exhausted the
remedies available in state court, assuming such remedies are
available and can effectively redress the petitioner’s rights. 28
U.S.C. § 2254(b)(1)(A). Exhaustion requires a petitioner to
“fairly present” their federal claim’s “factual and legal
substance to the state courts in a manner that puts them on
notice that a federal claim is being asserted.” Robinson v.
Beard, 762 F.3d 316, 328 (3d Cir. 2014). Because
Pennsylvania law prevents a defendant from raising an
ineffective assistance of counsel claim on direct appeal,
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), a
defendant exhausts an ineffective assistance of counsel claim
in the Commonwealth by raising it in the first petition for
collateral relief under the PCRA, see Bey v. Superintendent
Greene SCI, 856 F.3d 230, 236-37 (3d Cir. 2017).
10
In his pro se PCRA petition, Tyson asserted that his
counsel was ineffective for failing to object to the trial court’s
erroneous instruction, which violated his due process rights
under the Fourteenth Amendment. He cited both this Court’s
decision in Laird v. Horn, 414 F.3d 419, 430 (3d Cir 2004),
which held that an instruction that failed to explain that an
accomplice to first-degree murder must possess the intent to
kill violated the accused’s due process rights, and the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Huffman, 638 A.2d 961 (Pa. 1994), which held that the specific
intent to kill is an element of the crime of accomplice to first-
degree murder that must be proven beyond a reasonable doubt
in accordance with the Supreme Court’s decision In re
Winship, 397 U.S. 358 (1970).
Tyson’s pro se pleading, which was later utilized in his
counseled petition, was sufficient to fairly present his federal
ineffective assistance of counsel claim to the state
court. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999) (“To ‘fairly present’ a claim, a petitioner must present a
federal claim’s factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is being
asserted. … Yet, the petitioner need not have cited ‘book and
verse’ of the federal constitution.”)3
3
Upon denial of his claim by the Superior Court, Tyson was
not required to seek review in the Pennsylvania Supreme Court
in order to exhaust his claim. See Pennsylvania Bulletin:
Exhaustion of State Remedies in Criminal and Post–
Conviction Relief Cases, 30 Pa. Bull. 2582 (2000) (stating
effective immediately, following adverse order from Superior
Court or Supreme Court of Pennsylvania, petition for rehearing
or allowance of appeal no longer required in post-conviction
11
The Commonwealth contests this conclusion, arguing
that both the underlying due process claim and the ineffective
assistance claim must be exhausted before this Court can
conduct habeas review.4 It maintains that Tyson’s due process
challenge was not fairly presented to the state court because it
was not raised on direct appeal. Because the claim would be
deemed waived under Pennsylvania law, the Commonwealth
argues the doctrine of procedural default prohibits this Court
from addressing the alleged due process violation on habeas
review.
We disagree that the due process claim can be regarded
as separate and distinct from the ineffective assistance of
counsel claim. Addressing the claims independently of one
another would require us to disregard the analysis conducted
relief matters to exhaust state court remedies for purposes of
federal habeas proceedings).
4
“The doctrine of procedural default prohibits federal courts
from reviewing a state court decision involving a federal
question if the state court decision is based on a rule of state
law that is independent of the federal question and adequate to
support the judgment.” Fahy v. Horn, 516 F.3d 169, 187 (3d
Cir. 2008). “A state procedural rule is ‘adequate’ if it was
firmly established and regularly followed’ at the time of the
alleged procedural default.” Bey, 856 F.3d at 236 n.18 (quoting
Ford v. George, 498 U.S. 411, 424 (1991)). Here, the
Commonwealth argues the due process claim was procedurally
defaulted because a rule of Pennsylvania law would deem it
waived on post-conviction review. For the reasons explained
above, this argument is unpersuasive because the due process
claim was raised within the ineffective assistance claim, which
a rule of Pennsylvania law found cognizable.
12
by the state court. Moreover, because Tyson did not raise the
due process claim on direct appeal, it is only cognizable under
Pennsylvania law through the lens of an ineffective assistance
claim on post-conviction review. The Superior Court held
Tyson’s trial counsel was not ineffective for failing to object to
the court’s instruction because the instruction did not violate
Tyson’s due process rights. Applying the proper standard of
review under AEDPA, the District Court concluded the
Superior Court’s determination constituted a reasonable
application of clearly established federal law as announced in
Strickland v. Washington, 466 U.S. 668 (1984). It is this
conclusion we now review on appeal.
III. Standard of Review
In denying habeas relief, the District Court did not hold
an evidentiary hearing nor engage in independent fact-finding.
Accordingly, “we apply de novo review to its factual
inferences drawn from the state court record and its legal
conclusions.” Mathias v. Superintendent Frackville SCI, 876
F.3d 462, 475 (3d Cir. 2017).
Because we have concluded the state court decided
Tyson’s ineffective assistance claim on its merits, we review it
in accordance 28 U.S.C. § 2254, as amended by AEPDA.5
5
We recognize, in affirming this finding by the District Court,
that there is a presumption that the state court adjudicated a
claim on the merits “in the absence of any indication or state-
law procedural principals to the contrary.” Harrington v.
Richter, 562 U.S. 86, 99 (2011). The presumption holds even
if the state court did not analyze or even cite Supreme Court
decisions in reaching its conclusion. Even “[w]here a state
court’s decision is unaccompanied by an explanation,” the
13
Section 2254(d) provides this Court with the statutory
authority to grant habeas corpus relief for petitioners in state
custody, stating:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
We are concerned here with whether the Pennsylvania
courts’ application of clearly established federal law was
unreasonable. That is an objective inquiry. Williams v.
Taylor, 529 U.S. 362, 409 (2000) (“a federal habeas court
making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established
federal law was objectively unreasonable”). Under AEDPA
review, “a habeas court must determine what arguments or
habeas petitioner has the burden of proving the state court’s
denial of relief was the result of an unreasonable legal or
factual conclusion. Id. at 98.
14
theories supported or, . . . could have supported, the state
court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
[the Supreme] Court.” Harrington, 562 U.S. at 102.
Here, the Superior Court found that Tyson’s trial
counsel was not ineffective. In so doing, it applied
Pennsylvania Supreme Court law that counsel is presumed
effective unless the appellant proves: 1) the underlying claim
has arguable merit; 2) counsel’s course of conduct “did not
have some reasonable basis designed to effectuate [the
appellant’s] interests;” and, 3) “but for counsel’s
ineffectiveness, there is a reasonable probability that the
outcome of the challenged proceedings would have been
different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.
2003); A-48.
This Court has repeatedly recognized that
Pennsylvania’s test for ineffective assistance of counsel is
consistent with the Supreme Court’s decision in Strickland
because it requires “findings as to both deficient performance
and actual prejudice.” Mathias, 876 F.3d at 476. See also
Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir. 2005); Werts v.
Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Here, the Superior
Court found the court’s jury instruction sufficiently conveyed
the Commonwealth’s burden to prove Tyson possessed the
intent to kill. Because the underlying due process claim was
deemed to have no arguable merit, the court held counsel could
not be ineffective for not objecting to the instruction. The
District Court found this decision constituted a reasonable
application of Strickland. We disagree.
15
IV. Ineffective Assistance of Counsel.
A. Counsel’s Performance
We begin our analysis with the first prong of Strickland,
examining whether the Superior Court’s decision that counsel
acted reasonably was contrary to clearly established federal
law. “To establish deficient performance, a person challenging
a conviction must show that ‘counsel’s representation fell
below an objective standard of reasonableness.’” Harrington,
562 U.S. at 104 (quoting Strickland, 466 U.S. at 688). To
obtain relief, Tyson must prove the alleged errors were “so
serious that counsel was not functioning as the ‘counsel’
guaranteed [to him] by the Sixth Amendment.” Strickland, 466
U.S. at 687. “Generally, trial counsel’s stewardship is
constitutionally deficient if he or she ‘neglect[s] to suggest
instructions that represent the law that would be favorable to
his or her client supported by reasonably persuasive authority’
unless the failure is a strategic choice.” Bey, 856 F.3d at 238
(quoting Everett, 290 F.3d at 514).
We recognize that “[e]ven under de novo review, the
standard for judging counsel’s representation is a most
deferential one” and that, under AEDPA review, that deference
is heightened. Harrington, 562 U.S. at 105. “When § 2254(d)
applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Id. See Burt v. Titlow, 571 U.S. 12, 15 (2013)
(“When a state prisoner asks a federal court to set aside a
sentence due to ineffective assistance of counsel …, our cases
require that the federal court use a ‘doubly deferential’
standard of review that gives both the state court and the
16
defense attorney the benefit of the doubt.” (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)).
Tyson argues that counsel’s inaction permitted the court
to instruct the jury that they could convict him of first-degree
murder as an accomplice without finding he possessed a
specific intent to kill – in effect, allowing the Commonwealth
to not prove an element of the crime. The Due Process Clause
of the Fourteenth Amendment requires the government to
prove each element of an offense beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 364 (1970). “This bedrock,
‘axiomatic and elementary’ principle” prohibits a jury
instruction that lessens the prosecution’s burden of proof.
Francis v. Franklin, 471 U.S. 307, 313 (1985) (quoting In re
Winship, 397 U.S. at 363). If the instruction contains “some
‘ambiguity, inconsistency, or deficiency,’” such that it creates
a “reasonable likelihood” the jury misapplied the law and
relieved the government of its burden of proving each element
beyond a reasonable doubt, the resulting criminal conviction
violates the defendant’s Constitutional right to due process.
Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 285
(3d Cir. 2018) (citing Waddington v. Sarausad, 555 U.S. 179,
190-91 (2009) (internal citations omitted)).
When a habeas petitioner claims the jury instruction
was unconstitutional, “we have an independent duty to
ascertain how a reasonable jury would have interpreted the
instructions at issue.” Smith v. Horn, 120 F.3d 400, 413 (3d
Cir. 1997) (citing Francis, 471 U.S. at 315-16). We exercise
this duty by “focus[ing] initially on the specific language
challenged,” Francis, 471 U.S. at 315, and then considering the
“allegedly constitutionally infirm language . . . in the context
of the charge as a whole” to determine whether there is a
reasonable likelihood the jury applied the instructions in a
17
manner violative of the accused’s due process rights. Smith,
120 F.3d at 411.
Reading the instant instruction through this lens, we
find a strong likelihood the jury convicted Tyson as an
accomplice to first-degree murder without finding he
possessed the specific intent to kill. Indeed, we could find no
language in the instruction that would lead the jury to connect
the requisite intent to kill to the role of an accomplice.
The instruction began with the court’s definition of
malice, the mens rea element for murder, as encompassing
“one of three possible mental states which the law regards as
being bad enough to make a killing a murder.” A-926. It
instructed the jury to find malice “if the killer acts with the
intent to kill, or secondly, with an intent to inflict serious bodily
harm, or third, [with] that wickedness of disposition . . ..” A-
926 (emphasis added). The instruction therefore conveyed to
the jury that the only relevant mental state was that of the killer;
it neither referenced nor explained the requisite mental state of
an accomplice.
The court next provided confusing definitions of the
different degrees of murder, initially identifying the elements
of first-degree as third-degree murder. From there, the
instruction affirmatively informed the jury that Powell – whom
it mistakenly identified as an accomplice – possessed the intent
to kill:
With third degree murder the elements of the
offense . . . that the Commonwealth must prove
is that Daniel and Keith Fotiathis are dead – and
I think there’s not a question that they are dead. .
. . Secondly, that in this case – not this Defendant
18
– but Otis Powell killed them as an accomplice
with the Defendant, Aaron Tyson. And this was
done with [the] specific intent to kill. Malice.
Specifically, specific intent to kill is a fully-
formed intent to kill. And one who does so is
conscious of having that intention. But also a
killing with specific intent is killing with malice.
If someone kills in that manner that is willful,
deliberate [and] premeditated like in this case
stalking or lying in wait or ambush, that would
establish specific intent.
A-927 (emphasis added). Defense counsel did not object to the
court’s mistake as to the degree of murder, which likely
confused the jury but arguably did not prejudice Tyson. The
absence of an objection to the court’s explanation of the mens
rea element of first-degree murder, however, is indefensible.
The court inadvertently identified the actual shooter as an
accomplice, and then informed the jury the facts of record
established the killings were intentional. The instruction
comes close to identifying Tyson, who the court had already
identified as the alleged accomplice, as presumptively guilty of
first-degree murder. The court in no way conveyed the
Commonwealth’s burden to prove that Tyson acted with the
specific intent to kill. It instead conveyed to the jury that
Powell’s presumed intent to kill would render Tyson guilty as
an accomplice to first-degree murder.
The court’s instruction on third-degree murder led the
jury further astray:
In third degree murder the killer must again act
in such a manner that there is malice [and] that
the person who is the victim must be dead. And,
19
again, the connection with the person who did
the killing is such that there has to be a direct
connection. Remember what I said about
malice? . . . It is a shorthand way of referring to
three different possible mental states that the
killer may have that the law would regard making
a killing a murder.
A-927 (emphasis added). As with the instruction on first-
degree murder, the court identified the requisite intent of “the
killer” without mentioning the mens rea of the accomplice.
The circuitous reference to an accomplice as someone with a
“connection with the person who did the killing” implies guilt
so long as the connection is “direct.” But a “direct connection”
does nothing to convey that Tyson and “the killer” must each
have had a specific intent to commit murder. Instead both
instructions imply the jury must only determine Powell’s state
of mind in determining Tyson’s guilt as an accomplice.
The court’s instruction on accomplice liability only
made it more likely that a reasonable juror would
misapprehend the law. Rather than convey the crucial point
that an accomplice must intend to kill to be guilty of first-
degree murder, the court’s explanation was general and defined
an accomplice as one who intends to promote or facilitate “a
crime:”
You may find the defendant guilty of the crime
without finding that he personally performed the
acts required for the commission of that crime.
The Defendant is guilty of a crime if he is an
accomplice of another person who commits the
crime. He is an accomplice if with the intent to
promote or facilitate the commission of a crime
20
he encourages, requests or commands the other
person to commit it or agrees or aids or agrees to
aid or attempts to aid the other person in
planning, organizing, committing it.
You may find the Defendant guilty of a crime on
the theory that he was an accomplice as long as
you are satisfied beyond a reasonable doubt that
the crime was committed; that the Defendant was
an accomplice of the person who actually
committed the crime.
A-930 (emphasis added).6 Tyson argues that this general
instruction on accomplice liability directs the jury to find him
6
This instruction is substantially different than the current
Pennsylvania Suggested Standard Criminal Jury Instructions
for accomplice liability for the crime of first-degree murder,
which reads:
A person can also be guilty of first-degree
murder when he or she did not cause the death
personally when the Commonwealth proves
beyond a reasonable doubt that he or she was an
accomplice in the murder. To be an accomplice
in a murder, the defendant must have himself or
herself intended that a first-degree murder occur
and the defendant then [[solicits] [commands]
[encourages] [[[[[[[[requests] the other person to
commit it] [or] [[aids] [agrees to aid] [[[[or]
[[[[[attempts to aid] the other person in planning
or committing it].
PA-JICRIM 8.306(B)(4). In the accompanying note, the
committee recognizes that accomplice liability “is offense
specific,” meaning that guilt attaches to the charge if the
21
guilty of first-degree murder if he intended to assist with the
commission of any crime. He contends a reasonable juror
could have interpreted this instruction to mean Tyson was
guilty as an accomplice if he intended to confront the victims,
but not kill them, or intended to enable a separate crime, such
as Powell’s illegal possession of a firearm or threatening the
victims with a crime of violence.
We agree. This Court has previously held that, when a
specific intent instruction is required, a general accomplice
instruction lessens the state’s burden of proof and is therefore
violative of due process. Smith, 120 F.3d at 412-14. As with
the instruction in Smith, the trial court here did not identify the
crime to which accomplice liability should attach; nothing in
the charge tied the mental state of an accomplice to that of a
murderer. The result was an implication that if Tyson was an
accomplice to “a” crime, he was an accomplice to any crime
also committed, including first-degree murder. Smith, 120 F.3d
at 414 (instruction violative of due process because it was
reasonably likely jurors convicted Smith of first-degree murder
based on the finding that he was an accomplice to robbery).7
accomplice had the intent to assist in the commission of the
specific offense. See note, PA-JICRIM 8.306(a).
7
Tyson argues the instruction created a “strong likelihood” that
the jury believed “his life as a drug dealer” constituted “a
crime” with regard to his accomplice liability. Appellant’s Br.,
26. However, the court instructed the jury not to infer guilt
from evidence of his drug dealing. It directed jurors to find
Tyson guilty if they believe “he did, in fact, act as accomplice
in the death of Keith and Daniel Fotiathis and not because
[they] believe he is convicted [of] or committed these drug
22
After the instruction concluded, the jury understandably
requested the court to clarify the difference between first and
third-degree murder. In response to this request, the court
reinforced the inference that Tyson’s mens rea was not relevant
in deciding his guilt:
First degree murder is when a killer has a specific
intent to kill. And there are three elements. The
first is that Keith and Daniel Fotiathis are dead. .
. . And the second is that the killer actually killed
them. That would not be Mr. Tyson. But the
killer actually killed these people. Mr. Tyson is
an accomplice, is what the Commonwealth
charges. And, thirdly, that these killings were
accomplished with a specific intent to kill and
with malice.
A-948-49 (emphasis added). The court distinguished Tyson’s
role from that of “the killer” but omitted the requirement that
the jury find beyond a reasonable doubt that Tyson intended
for the Fotiathis brothers to be killed. The instruction
repeatedly and consistently instructed that the only relevant
inquiry is whether “the killer” acted with specific intent. It
stated that “[a]ll that is necessary is they have enough time so
the killer does actually form the intent to kill;” and “[y]ou can
infer [the specific intent to kill] from the evidence if you find
the killer used a deadly weapon in this case.” A-950. The
offenses.” A-944. The jury is presumed to follow a court’s
instruction and we therefore conclude the jury did not find him
guilty due to evidence of his drug dealing. See Weeks v.
Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987)).
23
instruction altogether eliminated the mens rea element of
accomplice liability for first-degree murder.
Finally, the trial court ended its clarification by
discouraging the jury against finding that the double shooting
constituted the lesser offense of third-degree murder:
In this particular case because there is a charge
of an accomplice almost by definition it
encompasses the concept of first-degree murder
by its very definition, an accomplice with the
planning and the coordination if you, in fact,
found to be so indicate [sic] that was first degree
murder. But third-degree murder offered as
another possibility even does not fit well within
the confines of the explanation because counsel
agreed you may consider that a possibility.
A-950-51 (emphasis added). There is a reasonable likelihood
the jury understood this passage as a strong suggestion by the
court to convict Tyson of first-degree murder, and that finding
him guilty of third-degree murder would be inappropriate. The
court ostensibly urged the jury to find Tyson guilty as an
accomplice to first-degree murder because it believed the facts
supported such a verdict.
We have not found, and the Commonwealth has not
provided, a portion of the charge that corrects these consistent
misrepresentations of the law. The instruction conveyed that
Tyson’s guilt as an accomplice hinged upon the principal’s
mental state until it finally “removed the discretion that the jury
could have otherwise exercised” and directed it to find Tyson
guilty as an accomplice to first-degree murder. Bey, 856 F.3d
at 239. Because the instruction eradicated the prosecution’s
24
burden to prove the mens rea element of an intentional killing,
it plainly violated Tyson’s due process rights.
In light of the instruction’s profound impropriety, we
conclude that trial counsel acted unreasonably in failing to
object. The failure to object was particularly glaring given that
the prosecutor’s closing argument contained the same
erroneous interpretation of Pennsylvania law. The prosecutor
told the jury that “whoever was involved in this shooting is a
murderer. Either the shooter, or any helper, who under
Pennsylvania law, is an accomplice.” A-885. Through the
analogy of the look-out who told his co-conspirators not to
shoot the bank guards but was still guilty of the bank guard’s
murder, the prosecutor informed the jury that a “helper” who
plainly did not possess the intent to kill was guilty of murder
as an accomplice. Although the counsel’s arguments “‘carry
less weight with the jury’ than the trial court’s instructions,”
the Commonwealth’s blatant misstatement of the law certainly
“increased the likelihood that the jury interpreted the charge so
as to relieve the Commonwealth of its burden of proof.”
Bennett, 886 F.3d at 287-88 (citing Sarausad, 555 U.S. at 195)
(internal citations omitted).8
8
The prosecutor’s argument confounded general accomplice
liability with accomplice liability. To be guilty as an
accomplice under Pennsylvania law, there must be evidence
that the defendant intended to aid or promote the underlying
offense, and that the defendant actively participated in the
crime by “soliciting, aiding, or agreeing to aid the principal.”
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004).
To be guilty as a co-conspirator, a defendant must enter into an
agreement with another to engage in the crime, and he or a co-
conspirator must commit an “overt act” in furtherance of the
25
Despite the absence of any instruction directing the jury
to find an essential element of an offense defined by
Pennsylvania law, the Superior Court held the trial court’s
charge did not warrant counsel’s objection. We conclude that
this holding constitutes an unreasonable application of
Strickland. While we recognize there are “countless ways to
provide effective assistance in any given case,” we cannot
fathom a strategic reason for counsel’s failure to object to an
instruction that eliminates the state’s burden to prove an
element of a crime that carries a mandatory sentence of life
imprisonment. Strickland, 466 U.S. at 689. Even if we
“evaluate the conduct from counsel’s perspective at the time,”
we hold his inaction constituted a serious enough error that his
representation fell outside the “‘wide range’ of reasonable
professional assistance.” Harrington, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 689). Given the nature and
circumstances of this particular instruction, the state court’s
finding to the contrary constitutes an unreasonable application
of clearly established law.
crime. Id. at 1238 (citing 18 Pa.C.S. § 903). If a different crime
is committed in furtherance of the agreed-upon crime – for
example, if a bank guard is killed while the agreed-upon bank
robbery is underway -- a co-conspirator is liable for the murder.
See Commonwealth v. Strantz, 195 A. 75, 79 (1937). An
accomplice in the same circumstance, however, is guilty of
murder only if he intended to aid or promote the shooting of
the bank guard and had the same kind of culpability as the
principal. See 18 Pa.C.S. § 306(c)(1) & (d).
26
B. Prejudice
We now turn to Strickland’s prejudice prong. To
establish prejudice, Tyson must prove “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
Counsel’s errors must be “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at
687. Under Strickland, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Harrington, 562
U.S. at 112.
Here, the Pennsylvania Superior Court did not assess
whether Tyson suffered prejudice because it found counsel’s
performance reasonable. Tyson, as a habeas petitioner, must
nonetheless meet his burden under AEDPA review of
“showing there was no reasonable basis for the state court to
deny relief.” Harrington, 562 U.S. at 98; see also id. (AEDPA
review “applies when a ‘claim,’ not a component of one, has
been adjudicated.”). The question is not whether a finding of
no prejudice would have been incorrect, it is whether such a
decision would have been unreasonable, which is “a
substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009).
We have already concluded that counsel’s failure to
object to the court’s instruction led to the likelihood that the
jury interpreted the law in a way that lessened the
Commonwealth’s burden of proof. Tyson appears to argue that
reaching this conclusion is enough to establish prejudice. But
AEDPA review demands a more comprehensive analysis to
determine whether it would be unreasonable to find the
27
instruction did not render Tyson’s conviction unfair.
Harrington, 562 U.S. at 111-12. We therefore look to the
record to determine whether the instruction interfered with the
jury’s assessment of the evidence to the extent that, but for the
incorrect statements of law, there is a substantial likelihood
that a different verdict would have been reached. Id. at 112.
In denying relief, the Superior Court adopted the PCRA
court’s characterization of the evidence as “reveal[ing] that
[Tyson’s] conduct was willful, deliberate and premeditated and
that he actively participated in the murders by aiding the
shooter.” A-51. While the state courts correctly recognized
Tyson’s intent to kill could be proven through circumstantial
evidence, they ignored circumstantial evidence that could have
supported the opposite conclusion. Kasine George, the only
eyewitness to testify, stated that Tyson handed his gun to
Powell at Powell’s request as they followed the Fotiathis
brothers’ van. Once the van stopped, Tyson stopped the car in
a nearby alley and Powell exited the car with the gun. When
George and Tyson started to join him, Powell stopped them and
told them to wait in the car. Rather than accompany Powell,
George and Tyson stayed behind while Powell went alone and
shot the victims. George testified that he anticipated a
confrontation, but that neither Tyson nor Powell discussed any
intention to kill the Fotiathis brothers. George stated that,
while following behind the disabled van, they never discussed
a plan for when they eventually caught up with and
encountered the victims. From this account, a jury could have
reasonably concluded that Tyson, like George, anticipated a
28
confrontation of some kind but that Powell alone possessed the
intent to kill.9
At trial, counsel recognized the absence of any concrete
evidence of Tyson’s intention to commit murder. In moving
for a judgment of acquittal on the accomplice to first-degree
murder charge, counsel argued that George’s testimony failed
to establish “any express or real implied agreement” that the
men were “going to, in fact, kill the Fotiathis brothers.” A-
849. The trial court denied the motion, finding that an intent
to kill could be inferred by the circumstances.10 In light of this
exchange, counsel’s failure to object to the instruction, which
did not require the jury to find any agreement to kill, is
inexplicable. Had counsel requested the court include the mens
rea element of accomplice liability in its instruction, there is a
substantial probability that the jury could have found that
Tyson lacked the intent to kill. Strickland, 466 U.S. at 693-6.
Because the deficient instruction hindered the jury’s
assessment of important circumstantial evidence, it would be
unreasonable to conclude that Tyson was not prejudiced by
counsel’s failure to object. See, e.g., Bey, 856 F.3d at 244
(finding that Bey was prejudiced by counsel’s failure to object
to a deficient instruction).
9
The lead detective on the case, Detective Richard Wolbert,
stated that Kasine George provided the “best information”
regarding Tyson’s role in the shooting. A-823.
10
In denying the motion, the court acknowledged George’s
testimony that Tyson gave his gun to Powell prior to the
shooting. The trial court, in rejecting counsel’s argument that
there was no agreement as to what to do with the gun, replied,
“[t]hey were not deer hunting.” A-0850.
29
This case is distinguishable from our decision in
Mathias, which held a state court’s denial of an ineffective
assistance claim arising from an alleged erroneous instruction
was reasonable under AEDPA review. The instruction in
Mathias, which the petitioner claimed allowed him to be
convicted of first-degree murder without a finding of specific
intent, made inconsistent statements regarding accomplice
liability, with some portions properly instructing jurors to find
shared intent and others incorrectly implying the principal’s
intent to kill was grounds for convicting the accomplice.
Mathias, 876 F.3d at 467, 478. Reading the instruction as a
whole, the state court concluded that Mathias’ due process
claim would not have succeeded on appeal because portions of
the instruction “properly articulated the specific intent
requirement.” Id. at 478-79. In reviewing this decision under
AEDPA, the Mathias Court found that “tension between”
Supreme Court decisions addressing “ambiguous” jury
instructions meant the denial of the ineffective assistance claim
did not constitute an unreasonable application of Strickland.
Id. at 478 -9.
Here, we find no such tension in federal law that would
allow the Superior Court’s denial of Tyson’s claim to
withstand even AEDPA’s deferential review. The instruction
was not ambiguous. It instead provided a consistently
incorrect statement of the law that in effect absolved the
prosecution from having to prove a key element of the status
of an accomplice to first-degree murder. Unlike the instruction
in Mathias, no portion of the instruction articulated the correct
mens rea. The Commonwealth cited the instruction at length
and stated that accomplice liability instruction was rooted
“within [the] context of the actual charge of first-degree
murder.” Br. Appellee, 14. The plain text of the instruction,
30
however, shows that the charge of first-degree murder did not
articulate the intent requirement of the accomplice. Given the
likelihood that the jury here convicted Tyson on the mistaken
belief that the mens rea for first-degree murder did not apply
to him, we cannot find the conclusory reasoning of the state
court amounted to a reasonable application of Strickland.
IV. Conclusion
Because the court’s instruction did not require the
Commonwealth to meet its burden of proof, we find counsel’s
failure to object constituted deficient representation. Tyson
established prejudice because there is a reasonable probability
that, but for his counsel’s inaction, he would not have been
convicted as an accomplice to first-degree murder and
sentenced to life in prison. The profound errors in the
instruction were compounded by the prosecutor’s misguided
closing argument and the inconclusive circumstantial evidence
presented to the jury, rendering the state court’s finding that
counsel was not ineffective to be an unreasonable application
of Strickland.
We will therefore reverse the District Court’s order
denying habeas corpus relief and remand with instructions to
grant a conditional writ of habeas corpus regarding Tyson’s
conviction for accomplice to first-degree murder so that the
matter may be remanded to state court for further proceedings
consistent with this opinion.
31