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            Title Buehl v. Vaughn

 

            Date 1999

            By Alito

            Subject Criminal Law

                

 Contents

 

 

Page 1

LEXSEE 166 F.3D 163

ROGER PETER BUEHL, Appellant, v. DONALD VAUGHN, SUPERINTENDENT OF SCI-GRATERFORD; THE DISTRICT ATTORNEY FOR MONTGOMERY COUNTY; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

No. 97-1241

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

166 F.3d 163; 1999 U.S. App. LEXIS 924

January 28, 1998, Argued

January 20, 1999, Filed

SUBSEQUENT   HISTORY:               **1        As   Corrected

January 26, 1999.

PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES  DISTRICT  COURT  FOR  THE  EASTERN DISTRICT  OF  PENNSYLVANIA.  (D.C.  Civil  Action No.  95-cv--05917).  (District  Judge:   Honorable  John  J. Padova).

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant sought review of a judgment from the United States District Court for the  Eastern  District  of  Pennsylvania,  which  denied  his petition for a writ of habeas corpus.

OVERVIEW: Appellant was convicted in state court for a triple homicide and sentenced to death. Appellant filed a petition for a writ of habeas corpus seeking relief with respect to both the guilty and penalty phase of the pro- ceedings.  The  district  court  granted  habeas  relief  with respect  to  the  penalty  phase;  however  appellant's  peti- tion  was  denied  insofar  as  it  sought  a  new  trial  on  the guilty  phase.  On  review,  appellant  argued  that  his  due process  rights  were  violated  and  that  he  received  inef- fective assistance of counsel at trial and on direct appeal. The court concluded that appellant's ineffective assistance of counsel claims failed to meet the Strickland standard. Specifically, the court found that counsels' alleged errors could not be deemed prejudicial to the outcome of appel- lant's case in light of the overwhelming evidence of his guilt. Further, the court rejected appellant's due process claims.  Accordingly,  the  judgment  of  the  district  court was affirmed.

OUTCOME:  The  judgment,  which  denied  appellant's

petition for a writ of habeas corpus, was affirmed because the  court  concluded  that  appellant's  trial  and  appellate counsel were not constitutionally ineffective and that his due process rights were not violated.

LexisNexis(R) Headnotes

Criminal   Law   &   Procedure   >   Habeas   Corpus   > Standards of Review

HN1   Before  the  enactment  of  the  Antiterrorism  and Effective  Death  Penalty  Act  of  1996,  ineffective  assis- tance of counsel claims present mixed questions of law and fact. State court findings of fact are presumed correct if they are fairly supported by the record, but an effective- ness claim requires the application of a legal standard to the historical-fact determinations, and thus the ultimate question whether counsel was effective is a uniquely legal conclusion subject to de novo review.

Criminal  Law  &  Procedure  >  Counsel  >  Effective

Assistance > Trials

HN2   The  court  reviews  a  claim  of  ineffective  assis- tance of counsel under the two-pronged test announced in Strickland. Defendant must show that his counsel's per- formance was so deficient that it fell below an objective standard of reasonableness under prevailing professional norms. The court is highly deferential and there is a strong presumption  that  counsel's  challenged  actions  is  sound strategy. Then, defendant must then show that the defi- cient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable. To satisfy this test, it must be shown that there is 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 un- dermine confidence in the outcome. Both prongs of the Strickland test must be met before defendant may obtain relief.

166 F.3d 163, *; 1999 U.S. App. LEXIS 924, **1

Page 2

Criminal  Law  &  Procedure  >  Counsel  >  Effective

Assistance > Trials

HN3   It  is  firmly  established  that  a  court  must  con- sider  the  strength  of  the  evidence  in  deciding  whether the Strickland prejudice prong has been satisfied. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. This is necessary because Strickland's prejudice prong requires a court to determine whether there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. A court simply cannot make this determi- nation without considering the strength of the evidence against the accused.

Criminal   Law   &   Procedure   >   Trials   >   Closing

Arguments > Inflammatory Statements

HN4   A  prosecutor's  expression  of  personal  opinion about  the  credibility  of  witnesses  or  the  guilt  of  a  de- fendant creates a risk that the jury will trust the govern- ment's judgment rather than its own view of the evidence. However, the fact that a prosecutor made improper state- ments is insufficient, by itself, to require a new trial. To obtain such relief, a defendant must also demonstrate that the prosecutor's improper statements prejudiced his de- fense. In examining whether the prosecutor's statements prejudiced the defense, the court's precedents have con- sidered whether the comments suggested that the prose- cutor had knowledge of evidence other than that, which was presented to the jury.

Criminal   Law   &   Procedure   >   Habeas   Corpus   > Standards of Review

HN5  A writ of habeas corpus should issue only if the reviewing court concludes that the instructional error had a substantial and injurious effect or influence in determin- ing the jury's verdict.

Criminal  Law  &  Procedure  >  Verdicts  >  Inconsistent

Verdicts

HN6  If a jury returns logically inconsistent guilty ver- dicts and the  defense objects,  the judge is obligated to instruct the jury to retire and cure the inconsistency. Criminal Law & Procedure > Discovery & Inspection > Brady Materials

HN7  Due process requires the prosecution to inform the defense of evidence material to guilt or punishment. The prosecution must also disclose evidence that goes to the credibility of crucial prosecution witnesses. However, the prosecution's failure to disclose such evidence amounts to a violation of due process only if there is a reasonable probability that the jury would have returned a different verdict if the information had been disclosed. The consti- tution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. A Brady violation does not mandate au-

tomatic reversal. A reversal is warranted only where the suppression of the Brady evidence undermines confidence in the outcome of the trial. In evaluating whether the gov- ernment's failure to turn over Brady material undermines confidence  in  the  outcome  of  the  trial,  the  suppressed evidence is considered collectively, not item-by--item.

COUNSEL:           David      Rudovsky              (Argued),               Kairys, Rudovsky,  Epstein,  Messing  &  Rau,  Philadelphia,  PA, Attorney for Appellant.

Mary  MacNeil  Killinger  (Argued),  Executive  Assistant District  Attorney,  Chief,  Appellate  Division,  District Attorney's             Office,     Norristown,            PA,          Attorney                for Appellees.

JUDGES:   Before:               MANSMANN,   COWEN,   and

ALITO, Circuit Judges. OPINIONBY: ALITO OPINION:

*166   OPINION OF THE COURT

ALITO, Circuit Judge:

Roger Peter Buehl appeals the denial of his petition for a writ of habeas corpus. Convicted in state court for a triple homicide, Buehl claims that his due process rights were violated and that he received ineffective assistance of counsel at trial and on direct appeal. Because we con- clude that Buehl's due process rights were not violated and that his ineffective assistance claims fail to meet the standard of Strickland v. Washington,  466 U.S. 668,  80

L.  Ed.  2d  674,  104  S.  Ct.  2052  (1984),  we  affirm  the judgment of the District **2   Court.

I.

On   July   16,   1982,   police   found   the   bodies   of Courtland  Gross,  his  wife  Alexandra  Gross,  and  their housekeeper Catherine VanderVeur shot to death at the Gross estate in Montgomery County, Pennsylvania. The police determined that the murders had occurred in the afternoon or early evening of July 15. The killings ap- peared to have been carried out as part of a robbery, since drawers had been pulled out of cabinets in several rooms and  a  cloth  covering  a  safe  in  the  basement  had  been pulled aside to reveal the dial and handles. The safe was unopened.

The victims at the Gross residence had been shot with

.380  caliber  bullets,  and  the  police  recovered  six  .380 caliber  cartridge  casings  from  the  rooms  in  which  the victims were found. The police found Mr. Gross's body near the top of a flight of steps that led to the cellar. He

166 F.3d 163, *166; 1999 U.S. App. LEXIS 924, **2

Page 3

had  been  shot  in  the  right  foot,  the  abdomen,  and  the cheek.  Mrs.  Gross  had  been  shot  in  the  elbow  and  the eye. Mrs. VanderVeur, who was found tied to a chair in a bedroom, had been shot once in the head. There were no eyewitnesses  to  these  murders,  but  the  Commonwealth assembled the following circumstantial evidence against Buehl.

In  June  1982,        **3        an  acquaintance  of  Buehl's named  Francis  Kelly  purchased  a  .380  caliber  Walther PPK handgun. Kelly test-fired the gun at a junkyard on or about June 7. n1 In   *167   August, after the murders of the Gross household,  Kelly returned to the junkyard with a police officer who retrieved two .380 shell casings for ballistics analysis. This analysis revealed that the shell casings from the junkyard were fired from the gun used in the murders at the Gross estate.

n1 All of the dates mentioned are in 1982.

On July 7, Joseph Dwyer stole a red Buick Skylark in the City of Philadelphia. Dwyer damaged the Buick's front left tire and lost the tire's hubcap, and he then sold the car to Kelly the next day. On July 10, Kelly lent both the Walther PPK handgun and the Buick to Buehl. Dwyer saw Buehl in possession of the PPK and the Buick that same day. Buehl told Dwyer that he intended to commit rob- beries on Pine Street in Philadelphia and in Montgomery County, where he would force people to "open the safe." Buehl invited **4   Dwyer to help in these robberies, but Dwyer declined.

On  July  13,  Buehl  purchased  50  cartridges  of  am- munition for the PPK at Pearson's Sporting Goods Store. Because Buehl initially purchased ammunition that was incompatible with the PPK, he exchanged his original pur- chase for compatible ammunition and received a credit slip in the amount of $4.50. Buehl signed the form re- quired to buy the ammunition, but his signature was il- legible. The store's assistant manager therefore asked for Buehl's driver's license and printed Buehl's name on the form. This manager later identified Buehl as the man who purchased the ammunition.

After Buehl purchased ammunition for the PPK, he used the Buick and the gun to rob the Good Scents Shop on Pine Street in Philadelphia. During the robbery, Buehl shot Nathan Cohn in the ankle and exclaimed:  "I'm not playing around." As Buehl left the store, he told an em- ployee:  "If anybody comes out here, I'll blow your eyes out."  Buehl  was  observed  leaving  the  store  and  driv- ing away in the Buick. Buehl admitted to this robbery, and a ballistics analysis determined that the shell casings ejected from the PPK at the store were fired in the same gun  as  that  used   **5    at  the  junkyard  and  the  Gross

residence.

On July 15 at around 2:00 p.m., David Mazzocco wit- nessed  a  red  car  that  was missing  its  front  left  hubcap driving slowly down Berks Road in Worcester Township. Around  this  same  time,  Richard  Kirkpatrick  returned home  to  find  a  red  Buick  Skylark  parked  in  the  drive- way of his home on Berks Road. When he entered his home, Kirkpatrick was accosted by a man with a pistol. This gunman told Kirkpatrick:  "I've shot two other peo- ple. I'll shoot you also. I'll start with your leg and work up." He also warned Kirkpatrick:  "I'm not fooling." The robber  took  jewelry  from  Kirkpatrick's  house  and  fled. Kirkpatrick initially identified a photograph of someone other than Buehl as the robber and made no identifica- tion  at  Buehl's  trial.  However,  on  the  same  day  as  the Kirkpatrick robbery, Buehl sold jewelry stolen from the Kirkpatrick home to a jeweler in Philadelphia. Moreover, a ballistics expert determined that the .380 cartridge cas- ings found at the Kirkpatrick home came from the gun that was fired at the junkyard, the Pine Street robbery, and the Gross residence.

The Kirkpatrick home is less than a half hour away by car from the Gross residence. At approximately **6

2:30 p.m. on July 15, an elderly woman wearing a straw hat and a flowered dress bought a box of Domino pow- dered sugar at the Liberty Bell Meat Market near the Gross residence. When the police discovered Mrs. Gross's body at  her  home,  she  was  wearing  a  flowered  dress,  and  a straw  hat  was  found  near  her  head.  A  box  of  Domino sugar was in a paper bag with the receipt on the kitchen counter. Catherine Fitzgerald, who cleaned house for the Gross family,  testified that Mrs. Gross always put gro- ceries away as soon as she came home.

Between 3:30 and 4:00 p.m. on July 15, Buehl arrived at Joseph LaMotte's office in an agitated state and asked if he could borrow LaMotte's gray Datsun because he had

"just pulled a job" and "had to go back and wipe off the fingerprints." Buehl told LaMotte that he could not drive the red Buick because he was afraid of being stopped by the police. When LaMotte refused to loan Buehl his car, Buehl said:  "Look, this is my life we're talking about. I just wasted three people and I want your car." LaMotte noticed that Buehl had a gun in his waistband   *168   and asked where Buehl had gotten it. Buehl replied that he had obtained it from Kelly. LaMotte loaned **7   Buehl his car but said that he needed it back at about 5:00 p.m. Buehl told LaMotte that he would be driving to Conshohocken. A police officer testified at trial that the Conshohocken exit of the Schuylkill Expressway is about 1.5 miles from the Gross residence. The officer also testified that it was possible to drive from the Gross residence to LaMotte's office in 36 minutes, observing all speed limits. At about

166 F.3d 163, *168; 1999 U.S. App. LEXIS 924, **7

Page 4

4:45 p.m., Buehl called LaMotte to say that he was on the way back. At about 5:00 p.m., a witness near the Gross residence observed a small gray car that appeared to be a Datsun speeding toward the expressway. Buehl returned to meet LaMotte near his office between 5:00 and 5:30 p.m. Buehl still had a pistol in his waistband. LaMotte and Buehl then picked up Mary Treat, who testified that Buehl looked nervous.

On July 17, Buehl called LaMotte from Atlantic City and asked him about "any big burglaries or anything on the news." When LaMotte said that he didn't remember any such news, Buehl said:  "Think. It's important." LaMotte then inquired whether Buehl knew anything about an at- tempted burglary in which three people were killed, but Buehl did not answer.

On that same day,   **8    Buehl met a man named Duon Miller in Atlantic City. Miller noticed that Buehl had in his possession a gold money clip engraved with the image of St. Christopher. Mrs. Gross carried a gold money clip with such an engraving,  but it was missing after her murder. Miller testified that Buehl told him that he had killed people with a PPK and had thrown it into a lake or river. Buehl asked Miller if he had ever heard of the Gross family,  and he offered Miller the gold St. Christopher money clip. Miller testified that he and Buehl argued about money and that Buehl threatened to "get his PPK and come back and blow Miller  away."

Peter  Ross  met  Buehl  on  July  19  in  the  Tropicana Hotel in Atlantic City. Ross observed Buehl arguing with Miller and threatening to kill him with a PPK. Buehl told Ross  that  he  had  Miller's  vehicle  registration  and  thus could  track  Miller  down  and  kill  him.  Buehl  also  told Ross  that  he  had  killed  people  before,  and  he  asked if Ross wanted him to kill anyone.

Buehl was arrested on July 30, 1982 for burglary. At the  time  of  his  arrest,  Buehl  had  in  his  possession  the credit slip from Pearson's Sporting Goods Store; a paper with  Miller's  name,  address  and  phone   **9    number; and  Miller's  vehicle  registration.  A  police  officer  testi- fied  at  trial  that,  while  Buehl  was  being  transferred  to Broadmeadows prison, Buehl asked one of the detectives if the police could match shell casings.

Based on this evidence, Buehl was convicted of the first  degree  murder  of  Mr.  and  Mrs.  Gross  and  Mrs. VanderVeur,  n2  and  he  was  sentenced  to  death.  The Pennsylvania Supreme Court affirmed Buehl's conviction on direct review.  Commonwealth v. Buehl, 510 Pa. 363,

508 A.2d 1167 (Pa. 1986). Buehl then filed a petition un- der the Pennsylvania Post Conviction Relief Act (PCRA), which was denied by the state trial court. The Supreme Court of Pennsylvania affirmed the trial court's decision.

Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (Pa.

1995).  Thereafter,  Buehl  filed  a  petition  for  a  writ  of habeas corpus in federal court, seeking relief with respect to  both  the  guilt  and  penalty  phases  of  the  state  pro- ceedings. The District Court granted habeas relief with respect to the penalty phase of Buehl's trial and ordered a new penalty hearing. The Commonwealth did not appeal that ruling. However,  the District Court denied Buehl's petition **10   insofar as it sought a new trial on the guilt phase of the state proceedings, and Buehl then took the present appeal.

n2 He was also convicted of several lesser of- fenses.

II.

A.  Buehl's  ineffective  assistance  of  counsel  claims. We   turn   first   to   Buehl's   contention   that   his   Sixth Amendment  rights  were  violated  because  his  trial  and appellate counsel were ineffective. Because Buehl filed his federal habeas petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), this case must be decided under the law as it

*169   existed before the AEDPA became effective. See

Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2068, 138

L. Ed. 2d 481 (1997) (stating that the AEDPA's amend- ments  to  Chapter  153  of  Title  28  generally  apply  only to cases filed after the AEDPA became effective); Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35 (3d Cir. 1997) (concluding that Pennsylvania is not an "opt- in"  state  for  purposes  of  the   **11    AEDPA  and  that therefore  the  AEDPA's  amendments  to  Chapter  154  of Title 28 do not apply to habeas petitions in capital cases from Pennsylvania). Under that law, HN1  ineffective as- sistance of counsel claims present mixed questions of law and fact. See Berryman v. Morton, 100 F.3d 1089, 1095

(3d Cir. 1996); McAleese v. Mazurkiewicz,  1 F.3d 159,

166 (3d Cir. 1993). State court findings of fact are pre- sumed correct if they are fairly supported by the record, see 28 U.S.C. § 2254(d) (1994); Berryman, 100 F.3d at

1094, but "an effectiveness claim requires the application of a legal standard to the historical-fact determinations," and thus the ultimate question whether counsel was ef- fective is a uniquely legal conclusion subject to de novo review. See id. at 1095 (quoting Townsend v. Sain, 372

U.S. 293, 310 n.6, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963)); United States v. Cleary,  46 F.3d 307,  309-10 (3d Cir.), cert. denied, 516 U.S. 890, 133 L. Ed. 2d 165, 116 S. Ct.

237 (1995).

HN2  We review a claim of ineffective assistance of counsel under the **12    two-pronged test announced in Strickland v. Washington, supra. Under that standard,

166 F.3d 163, *169; 1999 U.S. App. LEXIS 924, **12

Page 5

the defendant must first show that his counsel's perfor- mance  was  so  deficient  that  it  fell  below  an  objective standard of reasonableness under prevailing professional norms.    466  U.S.  at  688.  "This  requires  showing  that counsel made errors so serious that counsel was not func- tioning as the 'counsel' guaranteed the defendant by the Sixth  Amendment."  Id.  at  687.  In  evaluating  counsel's performance, we are "highly deferential" and "indulge a strong presumption" that, under the circumstances, coun- sel's challenged actions "might be considered sound . . . strategy." Id. at 689; see also Sistrunk v. Vaughn, 96 F.3d

666,  670 (3d Cir. 1996). Because counsel is afforded a wide range within which to make decisions without fear of  judicial  second-guessing,  we  have  cautioned  that  it is "only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).   **13  If a defendant succeeds in establishing that his or her counsel's performance was deficient, the defendant must then show that the deficient performance prejudiced the defense. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To satisfy  this  test,  it  must  be  shown  that  "there  is  a  rea- sonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been dif- ferent. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Both prongs of the Strickland test must be met before the de- fendant may obtain relief.  United States v. Nino, 878 F.2d

101, 103-104 (3d Cir. 1989).

B.  Trial  counsel's  alleged  failure  to  request  a  lim- iting  instruction.  Buehl's  first  Sixth  Amendment  claim is  that  his  trial  counsel  was  constitutionally  ineffective in  failing  to  request  a  limiting  instruction  with  respect to certain "other crimes" evidence. The Commonwealth introduced  evidence  of  the  Pine  Street  and  Kirkpatrick robberies to identify **14    Buehl as the killer, n3 and at this stage, Buehl does not maintain that the admission of this evidence to establish identity was improper. Buehl contends, however, that his trial attorney was ineffective because he neglected to request a limiting instruction. The District Court assumed that Buehl's trial counsel failed to request a limiting instruction and stated that this failure was a "serious   *170   lapse in . . . assistance." Buehl v. Vaughn, 1996 U.S. Dist. LEXIS 19509, at *49, No. 95-

5917, slip op. at 37 (E.D. Pa. Dec. 31, 1996). However, the District Court concluded that Buehl did not receive ineffective assistance of counsel because his defense was not sufficiently prejudiced to satisfy the second prong of the Strickland test. The Court stated that "the evidence of Buehl's  guilt was so strong that it rendered any such

error harmless and thus there was no prejudice." Id.

n3 Buehl argues that his trial attorney was inef- fective in failing to object to inadmissible evidence regarding  other  crimes  and  bad  acts.  We  address this argument separately in part III of this opinion.

**15

As noted above,  the first issue in analyzing Buehl's ineffectiveness claim is whether his trial counsel's perfor- mance fell outside the wide bounds of reasonably com- petent assistance. When evidence of a defendant's other crimes is introduced to show identity, there is "sometimes

. . . a substantial danger of unfair prejudice" because the jury may consider the evidence as proof of bad character or propensity to commit the crime charged.  United States v. Murray, 103 F.3d 310, 316 (3d Cir. 1997), cert. denied,

142 L. Ed. 2d 209,  119 S. Ct. 254 (1998). To alleviate this risk,  counsel may request a cautionary instruction. See generally Lesko v. Owens, 881 F.2d 44, 55 (3d Cir.

1989), cert . denied, 493 U.S. 1036, 107 L. Ed. 2d 775,

110 S. Ct. 759 (1990). In some circumstances,  such an instruction may be strongly advisable; in others, counsel may  reasonably  conclude  that  it  is  strategically  prefer- able to omit such a request  since the instruction  might have the undesired effect of highlighting the other crimes evidence.

In this case, there has been some uncertainty through- out Buehl's post-trial litigation as **16   to whether his trial  attorney  did  in  fact  request  a  limiting  instruction. As the District Court noted, the Court of Common Pleas, in ruling on Buehl's PCRA petition,  stated that Buehl's lawyer requested a limiting instruction with regard to the Pine  Street  and  Kirkpatrick  robberies  but  that  the  trial court  inadvertently  neglected  to  give  one.  See  Buehl  v. Vaughn, 1996 U.S. Dist. LEXIS 19509, *49, No. 95-5917, slip op. at 37 & n.7 (E.D. Pa. Dec. 31, 1996). The District Court, however, assumed that the Court of Common Pleas was in error on this point because, when the Pennsylvania Supreme  Court  reviewed  the  Court  of  Common  Pleas' decision  on appeal,  the  Justices  appeared  to  take  it for granted that Buehl's trial counsel had not sought such an instruction. See id.

From  our  review  of  the  record,  we  conclude  that Buehl's  trial  counsel  did  in  fact  request  that  the  trial judge  caution  the  jury  about  the  proper  use  of  the  ev- idence  in  question.  The  record  contains  a  colloquy  be- tween trial counsel and the court that was conducted in chambers following the jury charge. In that discussion, Buehl's counsel complained that he had previously asked the court "to instruct the **17    jury that the murders at  the  Gross  estate   have  nothing  to  do  with   the  rob-

166 F.3d 163, *170; 1999 U.S. App. LEXIS 924, **17

Page 6

beries at  Worchester Township or Pine Street" but that the court neglected to give this instruction. Joint App. at

180-81. The judge responded that he realized that he had

"not restricted the jury's  purview to the homicides of the Grosses." Id. at 181. This colloquy is somewhat confusing because it refers to a request that Buehl's counsel appar- ently made in an unrecorded pre-instruction conference and because the objection was bound up with a discussion of a separate issue, i.e., whether the judge's charge had improperly implied to the jury that the homicides legally qualified  as  murders.  Nevertheless,  we  believe  that  the record shows that Buehl's counsel did in fact request that the trial judge instruct the jury on the proper use of the evidence of Buehl's other crimes. n4 The trial judge re- sponded to   *171   this objection by giving a brief sup- plementary instruction that Buehl has not challenged in this appeal.

n4 Buehl's counsel requested that the court ad- dress  his  objections  by  cautiously  instructing  the jury in a way that would avoid "highlighting" the court's alleged errors. Joint App. 181. The court's clarifying instruction stated:

If  I  inadvertently  used  any  loaded nouns,  pronouns or adjectives let me caution  you  that  all  the  charges  sur- round  incidents  alleged  to  have  oc- curred on 7/15/82 at 1230 Arrowmink Road,                the   residence   of   Mr.   and Mrs.  Courtland  Gross  and  Catherine VanderVeur. The charges arise out of the alleged three killings and with re- spect to the responsibility, degree and proof of these alleged crimes are for you, the jury, as fact finders and are to be determined from the evidence and the evidence alone. Any language by me or counsel referring to these inci- dents are terms used by me or counsel, and  are  not  to  infringe  on  your  fact finding  function  in  any  way  whatso- ever.

Joint App. at 184-85.

This instruction only briefly cautioned the jury to focus on the killings at the Gross residence and not any acts committed elsewhere. However, Buehl has  taken  the  position  that  his  counsel  never  re- quested  a  limiting  instruction;  he  has  not  argued that his counsel was ineffective for failing to object to this remedial instruction. Moreover, given coun- sel's reasonable concern that the court not highlight the evidence of other crimes or the court's use of

the term "murders," the failure to object to the in- struction would not fall outside the wide bounds of professionally-competent assistance.

**18

As stated above,  when a state prisoner's habeas pe- tition  alleging  ineffective  assistance  of  counsel  is  con- sidered  under  pre-AEDPA  law,  state  court  findings  of fact made in the course of determining the ineffectiveness claim are subject to deference so long as they are fairly supported by the record. See, e.g., Berryman, 100 F.3d at  1094-95.  Here,  although  the  Pennsylvania  Supreme Court stated that Buehl's counsel failed to request a cau- tionary instruction, the Court did not discuss the record or acknowledge that the Court of Common Pleas had found that  trial  counsel  made  such  a  request,  see  Buehl,  658

A.2d at 777-79, and our review of the record convinces us that the Pennsylvania Supreme Court's contrary state- ment is not fairly supported by the record. Accordingly, since the record reveals that Buehl's counsel did request a limiting instruction and that the trial court was aware of his request, we reject Buehl's argument that his counsel was ineffective for failing to request an instruction.

Moreover,  even  if  the  manner  in  which  trial  coun- sel handled the issue of the limiting instruction fell be- low Sixth Amendment standards, we agree **19   with the District Court's conclusion that Buehl cannot satisfy Strickland's  prejudice  prong.  See  Buehl,  No.  95-5917, slip  op.  at  37,  54-59  (E.D.  Pa.  Dec.  31,  1996).  n5  In view of   *172    the magnitude of the evidence that the Commonwealth  presented,  Buehl  cannot  show  that  the absence of a limiting instruction deprived him a "a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.

n5 Noting that "the verdict in this case had over- whelming support," the District Court summarized the evidence as follows:

Petitioner admitted to having commit- ted  the  robbery  at  the  Good  Scents Shop  with  a  Walther  PPK,  and  the bullet casings found at that site were fired  from  the  same  gun  that  was used  in  crimes  two  days  later  at  the Kirkpatrick  residence  and  the  Gross estate. On the day of the Good Scents Shop  robbery,   Petitioner  purchased ammunition for the Walther at a sport- ing goods shop.

On the afternoon of the murders, Petitioner  came  to  Joseph  LaMotte's

166 F.3d 163, *172; 1999 U.S. App. LEXIS 924, **19

Page 7

office asking to borrow LaMotte's car. He  told  LaMotte  he  had  "just  pulled a job" and "had to go back and wipe off  the  fingerprints."  When  LaMotte refused  his  request,  Petitioner  said,

"Look,  this  is  my  life  we're  talking about. I just wasted three people and I want your car." LaMotte noticed that Petitioner had a gun in the waistband of  his  jeans.  LaMotte  lent  Petitioner his car, a small grey Datsun, and told him he needed the car back about 5:00 p.m. A car matching the description of the  one  LaMotte  lent  Petitioner  was seen  speeding  from  the  direction  of the Gross estate toward the direction of  the  expressway  to  Philadelphia  at about 5:00 p.m. on the day of the mur- ders. Petitioner returned LaMotte's car between 5:15 and 5:30.

There       was          evidence                  linking Petitioner   to   the   robbery   at   the Kirkpatrick   residence,         which   was committed  on  the  same  afternoon  as the  murders  at  the  Gross  estate  and with  the  same  gun.  The  day  of  the robbery  at  the  Good  Scents  Shop, Petitioner               told          LaMotte he                             was driving a red Buick, and LaMotte saw the  car  from  his  office  window.  A red  Buick  Skylark  had  been  stolen several days before the robbery at the Good Scents Shop; at the time it was recovered,  it had a missing left front hubcap. A similar car had been seen near the Good Scents Shop at the time of the robbery there. A witness saw a man  he  later  identified  as  Petitioner run from the area of the Good Scents Shop  at  the  time  of  the  robbery  and speed  away  in  a  red  Buick  Skylark. The  man,   whom  the  witness  later identified  as  Petitioner,  was  carrying a  shopping  bag.  A  similar  red  car, missing a left front hubcap, was also seen on Kirkpatrick's street and a red Skylark  was  seen  at  the  Kirkpatrick residence  at  about  the  time  of  the robbery   there.   Items   stolen   at   the Kirkpatrick    and    Gross    residences were linked to Petitioner. The evening of   the   robbery   at   the   Kirkpatrick residence,             Petitioner              sold         some

jewelry  to  a  jeweler  in  Philadelphia, and most of it was later identified as having  been  stolen  in  the  robbery  at the  Kirkpatricks'  residence.  A  gold St. Christopher money clip that Mrs. Gross always used was missing when her  body  was  found.  Duon  Miller testified   that   Petitioner   had   tried to  give  him  a  gold  St.  Christopher money  clip,  that  he  had  refused,  but that he later found the clip in his car and  put  it  in  his  brief  case.  Another witness, Eros Peter Simone, saw such a  money  clip  in  Miller's  briefcase  in Zurich some days later.

There   were   similarities   in   the crimes committed at the Good Scents Shop,  the  Kirkpatrick  residence,  and the Gross estate. In all three, robbery appeared  to  be  the  motive,  the  same gun was used, and in the first two rob- beries, there was substantial evidence that the same car was used. In all three, the robber shot or threatened to shoot someone in the leg or foot, and there was evidence of a plan of shooting a victim first in a lower limb and work- ing up to the head or eye. In addition, there were numerous other more minor items of evidence that further strength- ened the prosecution's case.

Buehl, No. 95-5917, slip op. at 37, 54-59 (E.D. Pa. Dec. 31, 1996).

**20   HN3

It   is   firmly   established   that   a   court   must   con- sider  the  strength  of  the  evidence  in  deciding  whether the  Strickland  prejudice  prong  has  been  satisfied.  In Strickland, the Supreme Court emphasized that "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." 466 U.S. at 695. This is necessary because Strickland's prejudice prong re- quires a court to determine whether there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. See Flamer v. Delaware,

68 F.3d 710, 728, 730 (3d Cir. 1995) (citing Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S. Ct. 838, 842, 122

L. Ed. 2d 180 (1993); Strickland, 466 U.S. at 695, 104 S. Ct. at 2068), cert. denied, 516 U.S. 1088 (1996); Todaro v. Fulcomer, 944 F.2d 1079, 1085 (3d Cir. 1991). A court simply cannot make this determination without consider- ing the strength of the evidence against the accused. As the

166 F.3d 163, *172; 1999 U.S. App. LEXIS 924, **20

Page 8

Supreme Court stated in Strickland, "a verdict or conclu- sion only weakly supported by the record is more likely

**21  to have been affected by errors than one with over- whelming record support." Strickland, 466 U.S. at 696. We note that every other circuit has also recognized that, in analyzing Strickland's prejudice prong,  a court must consider the magnitude of the evidence against the de- fendant. See, e.g., Huffington v. Nuth, 140 F.3d 572, 578

(4th Cir.), cert. denied, 142 L. Ed. 2d 399, 119 S. Ct. 444

(1998); Totten v. Merkle, 137 F.3d 1172, 1175 (9th Cir.

1998); United States v. Ortiz, 136 F.3d 161, 166-67 (D.C. Cir. 1998); United States v. Prows, 118 F.3d 686, 692-93

(10th Cir. 1997); Hays v. Alabama, 85 F.3d 1492, 1496

(11th Cir. 1996), cert. denied, 520 U.S. 1123, 117 S. Ct.

1262, 137 L. Ed. 2d 341 (1997); United States v. Gregory,

74 F.3d 819, 823 (7th Cir. 1996); Scarpa v. DuBois, 38

F.3d 1,  16 (1st Cir. 1994), cert. denied,  513 U.S. 1129,

130 L. Ed. 2d 885, 115 S. Ct. 940 (1995); United States v. Royal, 972 F.2d 643, 650 (5th Cir. 1992) ("The over- whelming **22    evidence of Defendant's guilt further supports our conclusion that he suffered no prejudice as a result of his counsel's performance."), cert. denied, 507

U.S.  911,  122  L.  Ed.  2d  655,  113  S.  Ct.  1258  (1993); Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991); Otey v. Grammer, 859 F.2d 575, 580 (8th Cir. 1988), cert. denied, 497 U.S. 1031, 111 L. Ed. 2d 796, 110 S. Ct. 3288

(1990); Krist v. Foltz, 804 F.2d 944, 947 (6th Cir. 1986). We thus agree with the District Court that Buehl is not entitled to habeas relief based on trial counsel's failure to request a limiting instruction relating to the other crimes evidence. n6

n6  In  arguing  that  the  Strickland's  prejudice prong is met in this case, Buehl contends that in his appeal from the denial of PCRA relief a majority of the Justices of the Pennsylvania Supreme Court concluded  that  this  prong  was  satisfied.  Buehl's brief (which was filed prior to the Supreme Court's decision in Lindh) then argues that "if the habeas statute requires deference because the state court finding  is  factual  in  nature  or  because  deference is otherwise to be accorded to this state court res- olution  of  a  legal  issue,  petitioner  must  prevail." Appellant's Br. at 21. In Part II C of this opinion

(dealing with Buehl's contention that his appellate counsel was ineffective), we will address in some detail the Pennsylvania Supreme Court's discussion of the prejudicial effect of trial counsel's asserted error. For present purposes, however, it is enough to note that under the pre-AEDPA version of 28

U.S.C. § 2254, a state court's conclusion regarding either prong of the Strickland test must be reviewed de novo.  Berryman, 100 F.3d at 1094.

**23

C. Appellate counsel's failure to argue on direct appeal that trial counsel was ineffective in not seeking a limiting instruction. Buehl's next argument is that his right to ef- fective assistance of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 393-94, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985),   *173   was violated because the attorney who represented him at that stage failed to argue that trial counsel had rendered ineffective assistance in neglecting to request the cautionary instruction discussed above. In making this argument, Buehl relies chiefly on the manner in which the Pennsylvania Supreme Court treated this ar- gument when Buehl raised it in his appeal from the denial of his PCRA petition. Six justices heard the appeal, and as previously noted, all of them seem to have proceeded on  the  erroneous  assumption  that  Buehl's  trial  attorney never requested a cautionary instruction. The plurality, in an opinion written by Justice Montemuro and joined by Justices Zappala and Castille, first stated that Buehl's "trial counsel was ineffective for failing to request a cautionary instruction regarding these crimes because it cannot be said with any **24   reasonable certainty that but for the this sic  omission the outcome of Buehl's  trial would not have been different." 658 A.2d at 778-79. The plural- ity noted, however, that under a provision of the PCRA, a defendant in Buehl's position was entitled to relief "only in those instances in which counsel's ineffectiveness 'so undermined  the  truth-determining  process  that  no  reli- able adjudication of guilt or innocence could have taken place.' " 658 A.2d at 779 (quoting 42 Pa. Cons. Stat. Ann.

§ 9543(a)(2)(ii) (West 1998)). The plurality then wrote: In  the  instant  case,  the  circumstantial  evi- dence presented by the Commonwealth, in- cluding the evidence linking the bullets and

shell casings from the robberies of the Good Scents Shop and the Kirkpatrick home to the murder weapon, created overwhelming evi- dence  of  Appellant's  guilt.  Thus,  while  we are able to say that due to the prejudicial na- ture of the evidence in question the outcome of Appellant's trial may have been different had counsel requested a cautionary instruc- tion,  we  are  unable  to  say  that  due  to  this omission the adjudication of guilt is unreli- able. As a result, appellant's claim does not

**25   constitute a basis for relief under the

PCRA.

658 A.2d at 779 (footnote omitted).

In a concurrence, Chief Justice Nix stated that he did not see "a substantive distinction between the prejudice prong of the test for ineffectiveness of counsel and the

166 F.3d 163, *173; 1999 U.S. App. LEXIS 924, **25

Page 9

language  contained  in  42  Pa.C.S.  §  9543(a)(2)(ii)"  on which the plurality relied.  658 A.2d at 782. Pointing to the "overwhelming proof of Buehl's  guilt," Chief Justice Nix concluded that Buehl had not "met his burden of es- tablishing that he was prejudiced by counsel's failure to request  a  cautionary  instruction."  658  A.2d  at  782-83

(Nix, C.J., concurring).

Justice Cappy,  joined by then-Justice Flaherty,  dis- sented.  658 A.2d at 783-86 (Cappy J., dissenting). Like Chief Justice Nix,  Justice Cappy saw no difference be- tween the prejudice prong of the test for ineffective as- sistance of counsel and the PCRA provision cited by the plurality.  Id.  at  785.  Referring  to  Justice  Montemuro's opinion,  he  wrote  that  "the  Majority  does  not  explain why the adjudication of guilt is reliable if the outcome would  have  been  different."  Id.  (emphasis  in  original). Then,   **26    without discussing the evidence against Buehl, he concluded that the PCRA petition should have been granted.  Id. at 786.

Based  on  these  opinions,  Buehl  argues  that  he  re- ceived ineffective assistance of counsel on direct appeal because, if the attorney who represented him at that stage had  argued  that  trial  counsel  had  rendered  ineffective assistance in failing to request a cautionary instruction, the Pennsylvania Supreme Court would have reversed his conviction and ordered a new trial. Looking at the votes of the justices in the PCRA appeal, Buehl states:  "Three Justices stated that a new trial would have been ordered if the issue was raised on direct appeal and two Justices would  have  ordered  a  new  trial  on  direct  or  collateral attack." Appellant's Br. at 23.

We reject Buehl's argument because he has not satis- fied the first prong of the Strickland test. In order to meet the requirements of that prong, he was required to show that  his  appellate  counsel's  failure  to  raise  the  caution- ary instruction argument on appeal fell outside "the wide range  of  reasonable  professional  assistance;  that  is, he would have to  overcome the presumption that, under the circumstances,  the   **27    challenged  action  'might  be considered sound appellate  strategy.' " Strickland, 466

U.S. at 689   *174    (citation omitted). One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise. In this case, an appellate attorney familiar with the record could not have ethically argued that trial counsel's handling of the cautionary instruction issue was constitutionally defi- cient without calling to the attention of the Pennsylvania Supreme  Court  the  passages  in  the  record  that  we  dis- cussed above and that convince us that Buehl's trial attor- ney did in fact request a cautionary instruction. Knowing this, a competent appellate attorney could have reasonably concluded he was unlikely to convince the Pennsylvania

Supreme Court that trial counsel was constitutionally in- effective in his handling of the cautionary instruction issue and that it was strategically inadvisable to select that ar- gument as one of those to be raised. Furthermore, even if appellate counsel believed that he could convince the Pennsylvania Supreme Court that trial counsel's perfor- mance was deficient,  appellate counsel could have rea- sonably   **28    concluded  that  it  was  unlikely  that  he could satisfy Strickland's prejudice prong and that it was therefore strategically unwise to select this argument as one of those to be raised.

As previously noted,  our examination of the record convinces us that there is no reasonable probability that the jury's verdict would have been any different if a more explicit cautionary instruction had been given. After care- fully reviewing the record, the District Court reached the same conclusion. And while we have given careful con- sideration to the opinions written by Justices Montemuro and Cappy in Buehl's PCRA appeal, those opinions do not convince that competent appellate counsel could not have concluded  that  the  likelihood  of  satisfying  Strickland's prejudice prong was not high enough to justify raising the argument in question. We note that Justice Montemuro characterized that evidence against Buehl as "overwhelm- ing" and that Justice Cappy's opinion does not discuss the evidence and does not explain why there is a reasonable probability  that  a  stronger  or  more  explicit  cautionary instruction would have caused the jury to return a differ- ent verdict. Consequently, we hold that appellate **29  counsel did not render constitutionally ineffective assis- tance.

D. Pennsylvania Supreme Court's alleged violation of due process. In conjunction with his Sixth Amendment argument regarding his representation on direct appeal, Buehl raises a related due process issue. Buehl contends that  the  Pennsylvania  Supreme  Court  violated  his  due process rights because the plurality's interpretation of the standard  for  obtaining  PCRA  relief  was  "untenable  or amounts to a subterfuge to avoid federal review of a con- stitutional violation." Appellant's Br. at 25-26. As previ- ously noted, the plurality invoked 42 Pa. Cons. Stat. Ann.

§ 9543(a)(2)(ii) (West 1998), which authorizes PCRA re- lief for "ineffective assistance of counsel which,  in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Buehl suggests that the plurality deliberately ignored another provision of the same statute, 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(v)

(repealed 1995), which permitted relief to be granted for

" a  violation of the provisions of the Constitution, law or treaties of the United States which would require **30  the granting of Federal habeas corpus relief to a State pris- oner." Indeed, Buehl charges that the plurality went "so far

166 F.3d 163, *174; 1999 U.S. App. LEXIS 924, **30

Page 10

as to ellipse this provision  out of the statutory quotation in its opinion . . . ." Appellant's Br. at 26. Buehl contends that the plurality's misinterpretation of the PCRA was "

'untenable or amounted to a subterfuge to avoid federal review of a constitutional violation,' " that his due process rights were therefore violated,  and that "federal habeas relief is mandated." Appellant's Br. at 26 (quoting Taylor v. Kincheloe, 920 F.2d 599, 609 (9th Cir. 1990)).

We  are  not  persuaded  by  this  argument.  First,  the Pennsylvania Supreme Court plurality's interpretation of the PCRA was neither "an 'obvious subterfuge to evade consideration  of  a  federal  issue,'  "  Mullaney  v.  Wilbur,

421 U.S. 684, 691 n.11, 44 L. Ed. 2d 508, 95 S. Ct. 1881

(1975) (quoting Radio Station WOW, Inc. v. Johnson, 326

U.S. 120,  129,  89 L. Ed. 2092,  65 S. Ct. 1475 (1945)) nor  a  "plainly  untenable"  interpretation  in  the   *175  sense possibly relevant here. n7 See Ward v. Love County,

253  U.S.  17,  22,  64  L.  Ed.  751,  40  S.  Ct.  419  (1919).

**31    Buehl's charge of subterfuge flies in the face of the errors that the plurality made in his favor -- i.e., its er- roneous factual assumption that trial counsel never sought a limiting instruction and its erroneous legal conclusion that  Strickland's  prejudice  prong  was  met.  His  sugges- tion that the plurality deliberately failed to mention 42

Pa. Cons. Stat. Ann § 9543(a)(2)(v) (repealed 1995) in order to reach the result it desired overlooks the fact that the two dissenting justices, who would have granted re- lief, also relied exclusively on 42 Pa. Cons. Stat. Ann §

9543(a)(2)(ii) (West 1998) and never mentioned 42 Pa. Cons. Stat. Ann § 9543(a)(2)(v) (repealed 1995). Thus, we find the charge of subterfuge to be groundless.

n7  The  Supreme  Court's  decision  in  Ward  v. Love County, 253 U.S. 17, 23, 40 S. Ct. 419, 64 L. Ed. 751 (1919), seems to be the origin of the Ninth Circuit's statement in Taylor, 920 F.2d at 609, that a federal court need not accept a state court's inter- pretation of state law if that interpretation is "un- tenable." (Taylor cited Knapp v. Cardwell, 667 F.2d

1253, 1260 (9th Cir.), cert. denied, 459 U.S. 1055,

74 L. Ed. 2d 621, 103 S. Ct. 473 (1982), which in turn cited Ward.)

**32

Nor do we agree with Buehl that the plurality's inter- pretation of the PCRA was "plainly untenable." Assuming for the sake of argument that a federal habeas court may reject a state court's "plainly untenable" interpretation of state  law,  we  find  that  this  demanding  test  is  not  met. Since 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(ii) (West 1998) specifically addresses claims of ineffective assistance of counsel, it was not "plainly untenable" for the plurality

(and, indeed, for the entire Pennsylvania Supreme Court)

to treat that provision, rather than the more general rule set out in 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(v) (repealed

1995),  as  the  governing  provision.  Nor  was  it  "plainly untenable"  for  the  plurality  to  view  the  test  prescribed in 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(ii) (West 1998)

(whether  the  ineffective  assistance  "so  undermined  the truth-determining  process  that  no  reliable  adjudication of guilt or innocence could have taken place") as more demanding  than  Strickland's  prejudice  prong  (whether

"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different"). 466 U.S. at 694. **33  We express no view as to (a) whether we would agree with the plural- ity's interpretation of the PCRA if it were our prerogative to  review  that  interpretation  de  novo  or  (b)  whether  it seems to us that this interpretation was consistent with prior state cases. Limiting ourselves to the narrow ques- tion  whether  the  plurality's  interpretation  was  "plainly untenable," we hold that it was not.

Furthermore,   even  if  we  were  to  conclude  oth- erwise,   we  would  still  not  hold  that  Buehl  is  enti- tled  to  federal  habeas  corpus  relief.  Buehl  wants  us  to overrule  the  Pennsylvania  Supreme  Court's  interpreta- tion  of  Pennsylvania  law  (the  PCRA)  while  deferring to  that  court's  interpretation  of  federal  law  (the  Sixth Amendment standard for ineffective assistance of coun- sel). We see no basis for such an approach. If we were to  hold  that  Buehl  was  entitled  to  PCRA  relief  on  his ineffective assistance of counsel claim if he could estab- lish  "a  violation  of  the  federal  Constitution  that  would require the granting of Federal habeas corpus relief," 42

Pa. Cons. Stat. Ann. § 9543(a)(2)(v) (repealed 1995), we would go on to consider whether he had established such a constitutional violation. And as we have already **34  discussed, we conclude that he has not.

E. Trial counsel's failure to object to additional "other crimes" evidence. Buehl next argues that his trial counsel was constitutionally ineffective because he failed to object to the introduction of evidence regarding crimes other than the Pine Street and Kirkpatrick robberies. Buehl asserts that his trial attorney should have objected to the admis- sibility of Peter Ross's testimony that Buehl possessed a knife and killed with a knife, Ross's testimony that Buehl offered to kill Ross's enemies, Detective Richard Natoli's reference to the service of a search warrant on Buehl while he was incarcerated at Delaware County Prison, Miller's testimony that Buehl threatened to "get his PPK" and kill Miller  and  his  friends,  and  Richard  Kirkpatrick's  testi- mony that the person who   *176    robbed him claimed to have shot two other people. Buehl argues that none of this testimony was admissible and that it was introduced solely to demonstrate his bad character and his propensity to commit murder.

166 F.3d 163, *176; 1999 U.S. App. LEXIS 924, **34

Page 11

Observing   that   these   references   to   other   crimi- nal  activity  were  "neither  extensive  nor  detailed,"  the Pennsylvania Supreme Court rejected Buehl's argument

**35  on two grounds. Commonwealth v. Buehl, 540 Pa.

493, 658 A.2d 771, 778 n.6 (Pa. 1995). First, it held that Buehl  failed  to  satisfy  Strickland's  performance  prong, since his counsel might have had a reasonable basis for electing  not  to  object  to  these  statements.  Because  the statements were fleeting, the Court noted that "trial coun- sel may have wished to avoid emphasizing what might have gone relatively unnoticed by the jury." Id. Second, the Court concluded that there was no reasonable prob- ability that these references changed the outcome of the case. The Court therefore held that any prejudice created by these fleeting remarks was insufficient to establish con- stitutional violation. See id.

We  agree  with  the  Pennsylvania  Supreme  Court's analysis.  An  objection  to  these  brief  portions  of  testi- mony might have simply highlighted the statements for the jury. Accordingly, Buehl's claim fails the first prong of the Strickland analysis because he cannot overcome the presumption that his trial counsel's actions "might be con- sidered sound trial strategy." Strickland, 466 U.S. at 689. Moreover, as the District Court noted, several of **36  the statements appear to have been admissible. For ex- ample, Miller's testimony that Buehl threatened to get his PPK is relevant to show that Buehl was in possession of the type of gun used in the murders. However, even if none of this evidence was properly admissible, since the testi- mony was such a small part of the inculpatory evidence presented against Buehl, there is no reasonable probabil- ity that the result of Buehl's trial would have been different if the evidence had been excluded, and therefore Buehl's argument also fails Strickland's prejudice requirement.

F. Trial counsel's failure to object to prosecutor's sum- mation. We next consider Buehl's claim that his trial coun- sel was ineffective for failing to object to the prosecutor's closing  argument.  n8  Claiming  that  the  prosecutor  im- properly  vouched  for  witnesses  and  expressed  his  per- sonal  opinion  regarding  Buehl's  guilt,  Buehl  maintains that his counsel's failure to object was unprofessional and prejudiced his defense.

n8 The Commonwealth asserts that Buehl failed to exhaust this issue and the issue discussed below regarding inconsistent jury verdicts. However, we conclude that these issues were exhausted because they were presented to the Pennsylvania Supreme Court in Buehl's pro se brief.

**37   HN4

A prosecutor's expression of personal opinion about

the credibility of witnesses or the guilt of a defendant cre- ates a risk that the jury will "trust the Government's judg- ment rather than its own view of the evidence." United States v. Young, 470 U.S. 1, 18-19, 84 L. Ed. 2d 1, 105

S. Ct. 1038 (1985). However, the fact that a prosecutor made improper statements is insufficient, by itself, to re- quire a new trial. To obtain such relief, a defendant must also  demonstrate  that  the  prosecutor's  improper  state- ments prejudiced his defense. See United States v. Gross,

961 F.2d 1097, 1108 (3d Cir. 1992) (citing United States v.  Swinehart,  617  F.2d  336,  339  (3d  Cir.  1980)),  cert. denied, 506 U.S. 965 (1992). In examining whether the prosecutor's statements prejudiced the defense, our prece- dents have considered whether the comments suggested that the prosecutor had knowledge of evidence other than that which was presented to the jury. See id.

In this case, the prosecutor stated that the police in- vestigation had sought the truth, that several of the gov- ernment witnesses were credible, and that the prosecutor had **38   put his "heart and soul" into the case. These comments did not suggest to the jury that the prosecutor possessed evidence of guilt other than that which had been presented in open court. Rather, the comments merely ex- pressed a belief that the evidence presented to the jury was credible. We have previously held this kind of comment insufficient to establish prejudice to the defense. See id. Furthermore,  given  the  weight  of  the  evidence  against Buehl,  a  reasonable  jury  would  not  have  found  Buehl innocent had the prosecutor   *177   refrained from mak- ing these assertions. Accordingly, we conclude that Buehl cannot show the requisite prejudice to establish ineffec- tive assistance of counsel on this claim.

G. Trial counsel's failure to object to an instruction on intent. Buehl's next argument is that his trial counsel's failure to object to the trial court's instruction on intent deprived him of effective assistance of counsel and de- nied him due process of law. Buehl complains that the following jury charge,  which was delivered by the trial court,  improperly established a mandatory presumption of intent:

In the trial of a person for committing or at- tempting to commit **39    a crime of vi- olence  the  fact  that  he  was  armed  with  a firearm,  used  or  attempted  to  be  used  and had no license to carry the same shall be ev- idence of his intention to commit said crime of violence.

Joint App. 145. Buehl complains that the written ver- dict slip that the court gave to the jury contained the same language.

Buehl is correct that a state may not establish a manda-

166 F.3d 163, *177; 1999 U.S. App. LEXIS 924, **39

Page 12

tory presumption of intent, see Francis v. Franklin, 471

U.S.  307,  311-12,  85  L.  Ed.  2d  344,  105  S.  Ct.  1965

(1985), and the use of the term "shall," rather than "may be," in the instruction at issue seems to offend that rule. Nevertheless, under the harmless error standard set out in Brecht v. Abrahamson, 507 U.S. 619, 632, 637-38, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993), it is clear that Buehl is not entitled to relief. HN5  A writ of habeas corpus should issue only if the reviewing court concludes that the instructional error "had a substantial and injurious ef- fect or influence in determining the jury's verdict." Id. at

623. In this case, the nature of the prosecution's evidence and Buehl's defense rendered the error in this instruction harmless. Both the **40    prosecution and defense ei- ther expressly or impliedly conceded that the killings at issue  were  done  intentionally,  and  therefore  the  matter of Buehl's intent to kill was not an issue in his defense. Rather, Buehl based his entire defense on a claim of mis- taken identity--that he was not the person who committed the murders.

Moreover,   it   cannot   reasonably   be   doubted   that the  assailant  who  attacked  the  Gross  family  and  Mrs. VanderVeur intended to kill them. The victims were shot repeatedly at close range. One of the victims was shot in the head at close range, and another was tied to a chair before being shot. Accordingly,  this case turned on the jury's assessment of the evidence regarding the identity of the killer. We therefore conclude that the court's in- structional error on intent did not have a substantial and injurious effect on the jury's verdict.

H.  Failure  to  object  to  allegedly  inconsistent  guilty verdicts. Buehl argues that his counsel was also consti- tutionally  ineffective  because  he  failed  to  object  to  the entry  of  inconsistent  verdicts.  With  respect  to  each  of the three victims, the jury found Buehl guilty of first de- gree murder, third degree murder, and involuntary **41  manslaughter. n9 Buehl notes that first and third degree murder under Pennsylvania law requires an intent to kill and  malice,  whereas  involuntary  manslaughter  requires neither. n10 Consequently,   *178   Buehl argues that the verdicts  are  inconsistent  and  that  the  trial  court  would have been required to vacate them if his trial counsel had raised a timely objection. n11

resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he negligently or acciden- tally causes the death of the individual killed.

n10 18 Pa. Cons. Stat. Ann. § 2502 (West 1998)

provides:

(a)  Murder  of  the  first  degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

. . .

(c)  Murder  of  the  third  degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

(d) Definitions.--As used in this sec- tion the following words and phrases shall have the meanings given to them in this subsection:

. . .

"Intentional killing." Killing by means of poison,  or by lying in wait,  or by any  other  kind  of  willful,  deliberate and premeditated killing.

18 Pa. Cons. Stat. Ann. § 2504(a) (West 1998)

provides:

A   person   is   guilty   of   involuntary manslaughter  when  as a  direct result of  the  doing  of  an  unlawful  act  in  a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

n9 The jury found Buehl not guilty of volun- tary manslaughter. 18 Pa. Cons. Stat. Ann. § 2503 defines voluntary manslaughter as follows:

**42

n11 The District Court reconciled Buehl's mur-

(a) General Rule. -- A person who kills an individual without lawful justifica- tion commits voluntary manslaughter if at the time of the killing he is act- ing under a sudden and intense passion

der  and  involuntary  manslaughter  convictions  by reference  to  the  Supreme  Court's  statement  in United  States  v.  Powell,  469  U.S.  57,  83  L.  Ed.

2d  461,  105  S.  Ct.  471  (1984),  that  a  court  may let stand inconsistent guilty and not-guilty verdicts

166 F.3d 163, *178; 1999 U.S. App. LEXIS 924, **42

Page 13

because it is possible that "the jury, convinced of guilt,  properly reached its conclusion on the of- fense  for  which  the  guilty  verdict  was  returned , and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion of the offense for which it returned the not-guilty verdict ." See Buehl,  No.  95-5917,  slip  op.  at  68-69  (E.D.  Pa. Dec.  31,  1996)  (citing  Powell,  469  U.S.  at  64); see also,  e.g.,  United States v. Wilson,  1993 U.S. App. LEXIS 4584, 1993 WL 55193 (9th Cir. Mar.

3,  1993). As noted below,  however,  the Supreme Court has expressly reserved decision on the ques- tion whether this rationale applies to cases where the jury returns inconsistent guilty verdicts, and we have stated that logically incompatible guilty ver- dicts  may  not  stand.  See  United  States  v.  Gross,

961  F.2d  1097,  1106  (3d  Cir.),  cert.  denied,  506

U.S. 965, 113 S. Ct. 439, 121 L. Ed. 2d 358 (1992).

**43

In order to determine whether Buehl's trial attorney fell below the minimum level of competence demanded by the Sixth Amendment, we must first consider the gov- erning legal rules regarding inconsistent guilty verdicts at the time when Buehl's trial ended in January 1983. The rule in the federal courts and in the courts of Pennsylvania had long been that a guilty verdict could not be attacked on the ground that it was inconsistent with a not-guilty verdict, see Dunn v. United States, 284 U.S. 390, 76 L. Ed. 356, 52 S. Ct. 189 (1932); Commonwealth v. Kline,

107 Pa. Super. 594, 164 A. 124 (1933), n12 and in Harris v. Rivera, 454 U.S. 339, 70 L. Ed. 2d 530, 102 S. Ct. 460

(1981), the Supreme Court had held that this rule (gen- erally called the Dunn Rule) was consistent with consti- tutional requirements. In a decision handed within a year after the Buehl verdicts, the United States Supreme Court reaffirmed  the  Dunn  rule  and  disapproved  decisions  of several courts of appeal that had "begun to carve excep- tions"  to  it.   United  States  v.  Powell,  469  U.S.  57,  63,

83  L.  Ed.  2d  461,  105  S.  Ct.  471  (1984).  However,  in

**44   a footnote, the Powell Court noted that its opinion was  not  "intended  to  decide  the  proper  resolution  of  a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other." Id. at 69 n. 8. Years later, our court wrote that this exception to the Dunn rule "only operates in those situations where a jury has convicted a defendant of two crimes and those convictions are mu- tually exclusive." United States v. Gross, 961 F.2d 1097,

1107 (3d Cir.), cert. denied, 506 U.S. 965, 121 L. Ed. 2d

358, 113 S. Ct. 439 (1992). We added that "such a result would be patently unjust because a defendant would be convicted of two crimes, at least one of which he could not

have committed." See also Masoner v. Thurman, 996 F.2d

1003, 1005 (9th Cir.)  ("a due process challenge to a jury verdict on the ground that convictions of multiple counts are inconsistent with one another will not be considered if the defendant cannot demonstrate that the challenged verdicts are necessarily logically inconsistent. If based on evidence presented to the jury any **45    rational fact finder could have found a consistent set of facts support- ing both convictions,  due process does not require that the convictions be vacated."), n13 cert. denied, 510 U.S.

1028, 126 L. Ed. 2d 602, 114 S. Ct. 643 (1993).

n12  In  this  situation,  the  Supreme  Court  has reasoned, it is impossible to determine whether the prosecution or defense is prejudiced. It is entirely possible that the guilty verdict represents the jury's true assessment of the evidence and that the not- guilty verdict is based on "mistake, compromise, or lenity." Powell, 469 U.S. at 65. Therefore, it is not assumed that it is the defendant who is prejudiced, but the defendant is protected by the "independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67.

n13 Other courts, however, have expressed the view that the Dunn rule extends to cases in which the  jury  returns  inconsistent  guilty  verdicts.  See United States v. Grier, 866 F.2d 908, 929 (7th Cir.

1989).

**46

*179   Because the Powell footnote and our opinion in Gross postdate the return of the verdicts at issue here, they are of little relevance in assessing the performance of Buehl's trial attorney. For present purposes, however, we will assume that Pennsylvania law at the time of Buehl's trial,  as opposed to the federal constitution,  recognized that as a general rule, HN6  if a jury returned logically inconsistent guilty verdicts and the defense objected, the judge was obligated to instruct the jury to retire and cure the inconsistency. See Commonwealth v. Brightwell, 492

Pa. 424, 424 A.2d 1263 (Pa. 1981). Nevertheless, we do not believe that Buehl's trial counsel "fell outside the wide range of professionally competent assistance," Strickland,

466 U.S. at 690, in failing to object that the jury's verdicts of guilty on the charges of first and third degree murder

"logically excluded a finding of guilt" n14 on the charge of involuntary manslaughter, and vice versa.

n14 Powell, 469 U.S. at 69 n.8.

**47

An  examination  of  the  statutory  definitions  of  first

166 F.3d 163, *179; 1999 U.S. App. LEXIS 924, **47

Page 14

degree  murder,  third  degree  murder,  and  involuntary manslaughter  does  not  reveal  any  apparent  logical  in- consistency in the verdicts. To be sure, the minimum req- uisite  mens  rea  for  each  of  these  offenses  differs,  but the  Pennsylvania  Criminal  Code  generally  follows  the Model  Penal  Code  rule  that  a  lesser  mens  rea  may  be satisfied  by  proof  of  a  greater  one.  See  18  Pa.  Cons. Stat.  Ann.  §  302(e)  (West  1998);  Model  Penal  Code  §

2.02(5). n15 Thus, although involuntary manslaughter re- quires  only  recklessness  or  gross  negligence,  n16  that element may be satisfied by proof that the defendant in- tentionally killed the decedent, as the first degree murder statute requires. See 18 Pa. Cons. Stat. Ann. § 2502(a)

(West 1998). Accordingly, a finding that Buehl intention- ally killed the victims (which is implicit in the verdicts of  guilty  of  first  degree  murder)  is  logically  consistent with  a  finding  that  the  he  caused  their  deaths  through recklessness or gross negligence.

n15 Model Penal Code § 2.02(5) provides:

(5)            Substitutes              for            Negligence, Recklessness  and  Knowledge.  When the   law   provides   that   negligence suffices  to  establish  an  element  of an   offense,   such   element   also   is established if a person acts purposely, knowingly    or             recklessly.                               When recklessness                suffices  to             establish an   element,   such   element   also   is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

Similarly,  18  Pa.  Cons.  Stat.  Ann.  §  302(e)

(West 1998) states:

Substitutes  for  negligence,  reckless- ness and knowledge. -- When the law provides that negligence suffices to es- tablish an element of an offense, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is estab- lished if a person acts intentionally.

**48

n16 See footnote 10, supra.

In much the same way, the recklessness or gross neg-

ligence required for involuntary manslaughter could be viewed as subsumed within the element of malice needed for murder, which "may be found if the homicide is com- mitted with an intent to kill, with an intent to inflict serious bodily harm, or with reckless disregard of the likelihood of death or serious bodily harm manifesting extreme indif- ference for the value of human life." n17 Justice Roberts's plurality  opinion  in  Commonwealth  v.  Garcia,  474  Pa.

449, 378 A.2d 1199, 1205-07 & n.14 (Pa. 1977), made precisely this point. Justice Roberts carefully explained why the state of mind that   *180    suffices to establish the commission of involuntary manslaughter constitutes a lesser included kind of culpability with respect to the mal- ice that is an essential element of murder, and he therefore concluded that the offense of involuntary manslaughter is included within the offense of murder. Id. It is difficult to see how involuntary manslaughter can be included within the  offense  of  murder   **49    and  yet  be  logically  in- consistent  with  that  offense.  For  this  reason,  courts  in other  jurisdictions  have  recognized  that  multiple  guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive. See, e.g., United States v. Wilson, 1993 U.S. App. LEXIS 4584, 1993

WL 55193 (9th Cir. Mar. 3, 1993) (holding that verdicts will not be vacated where an alleged inconsistency flows from a conviction on a lesser included offense); Engram v. Hallahan, 1997 U.S. App. LEXIS 23946, 1997 WL 579112

(9th Cir. Sept. 11, 1997) (same).

n17 Commonwealth v. Garcia, 474 Pa. 449, 378

A.2d 1199,  1206 n.11 (Pa. 1977) (plurality opin- ion). Pennsylvania cases define malice as "wicked- ness of disposition, hardness of heart, wanton con- duct, cruelty, recklessness of consequences and a mind regardless of social duty." Commonwealth v. Lopez,  426 Pa. Super. 625,  627 A.2d 1229,  1230

(Pa. Super. Ct. 1993). Malice may also be found

"where the principal acts in gross deviation from the  standard  of  reasonable  care,  failing  to  per- ceive that such actions might create a substantial and unjustifiable risk of death or serious bodily in- jury." Stidham v. Millvale Sportsmen's Club,  421

Pa.  Super.  548,  618  A.2d  945,  951  (Pa.  Super.

1992),  appeal  denied,  637  A.2d  290  (Pa.  1993). The  Pennsylvania  Supreme  Court  has  stated  that malice "consists of either an express intent to kill or  inflict  great  bodily  harm."  Commonwealth  v. Paquette,  451  Pa.  250,  301  A.2d  837,  840  (Pa.

1973); see also Commonwealth v. Seibert, 424 Pa. Super. 242, 622 A.2d 361, 366 (Pa. 1993) (citing Commonwealth  v. Pigg,  391 Pa. Super. 418,  571

A.2d 438 (Pa. Super. Ct. 1990); Commonwealth v. Kersten ,  333 Pa. Super. 343,  482 A.2d 600 (Pa. Super. Ct. 1984)).

166 F.3d 163, *180; 1999 U.S. App. LEXIS 924, **49

Page 15

**50

In view of these authorities, a lawyer whose perfor- mance met the Strickland standard of professional com- petence could have easily failed to perceive at the time in question that the Buehl verdicts might be attacked as inconsistent. This is not to say that Pennsylvania case law provided  no  basis  for  such  argument.   Commonwealth v.  Brightwell,  492  Pa.  424,  424  A.2d  1263,  1264  (Pa.

1981),  which  suggested  that  guilty  verdicts  for  murder and voluntary manslaughter were inconsistent, n18 fur- nished such a basis. n19 But a lawyer's failure to perceive the ground for crafting an argument that might have suc- ceeded is very different from the failure to meet the level of  competence  required  by  the  Sixth  Amendment.  We thus hold that Buehl has failed to meet the first prong of the Strickland test.

n18 A defendant may be convicted of voluntary manslaughter if he acted "under a sudden and in- tense passion resulting from serious provocation . .

. ." 18 Pa. Cons. Stat. Ann. § 2503(a) (West 1998). A  defendant  may  also  be  convicted  of  voluntary manslaughter if he intentionally or knowingly kills the  victim  based  on  the  unreasonable  belief  that the  killing  is  justified.  Id.  The  presence  of  these affirmative elements might be viewed as logically inconsistent with malice, but the offense of invol- untary manslaughter contains no similar elements.

**51

n19 See also Commonwealth v. Kemmerer, 526

Pa. 160, 584 A.2d 940, 945 (Pa. 1991), which came well after the Buehl verdicts.

Nor do we think that the second Strickland prong is satisfied.  If  Buehl's  trial  attorney  had  objected  that  the verdicts were inconsistent,  the most that the trial judge might have done was to direct the jury to retire and re- consider  its  verdict.   Brightwell,  424  A.2d  at  1264.  In light of the evidence in this case -- which left little doubt that  the  perpetrator  acted  with  a  greater  mens  rea  than that required for involuntary manslaughter --  we see no substantial likelihood that the jury (which subsequently sentenced Buehl to death) would have retracted its ver- dicts  of  first  and  third  degree  murder  and  found  Buehl guilty  of  involuntary  manslaughter  only.  It  seems  very likely that the jury initially found Buehl guilty of invol- untary  manslaughter,  not  because  it  concluded  that  he killed the victims unintentionally, but because it believed that his intent to kill, while more than required to prove involuntary manslaughter, was nevertheless **52   suf-

ficient. We thus hold that Buehl's trial attorney did not violate his client's Sixth Amendment rights by failing to object to the verdicts as inconsistent.

I. Cumulative prejudice. As a final Sixth Amendment argument,  Buehl  contends  that,  in  applying  Strickland, we  must  consider  the  cumulative  prejudicial  impact  of the constitutional violations that he alleges. However, af- ter conducting this review, we conclude that the District Court  correctly  determined  that  the  overwhelming  ev- idence  of  Buehl's  guilt  prevents  him  from  satisfying Strickland's prejudice prong.

III

We turn now to Buehl's claim that the prosecution vi- olated his due process rights by improperly withholding exculpatory and impeaching evidence. Buehl asserts that the prosecution did not inform his counsel that county de- tectives had overheard prosecution witness Joseph Dwyer state that he had seen Kelly in possession of his PPK a few weeks after the Gross family was murdered. Buehl also  asserts  that  the  government  failed  to  disclose  the full extent of Kelly   *181    and Dwyer's criminal his- tories, LaMotte's active probation status, and several al- leged favors that the Commonwealth provided to **53  Dwyer.  Since  Buehl's  defense  proceeded  on  the  theory that Kelly--who was the owner of the PPK--was the real killer,  Buehl asserts that the prosecution's failure to re- veal  this  information  deprived  him  of  exculpatory  evi- dence and impeachment material and thus denied him a fair trial.

HN7  Due process requires the prosecution to inform the defense of evidence material to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215,

83 S. Ct. 1194 (1963). The prosecution must also disclose evidence that goes to the credibility of crucial prosecution witnesses. See Giglio v. United States, 405 U.S. 150, 154,

31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984). However, the prosecution's failure to disclose such evidence amounts to a violation of due process only if there is a reasonable probability that the jury would have returned a different verdict if the information had been disclosed, or, stated differently, if "the Government's evidentiary suppression undermines confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995). **54   "The Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." Id. at

436-37; see also United States v. Pelullo, 14 F.3d 881, 886

(3d Cir. 1994) ("a Brady violation . . . does not mandate automatic reversal. . . . A reversal is warranted only where the suppression of the Brady evidence undermines confi- dence in the outcome of the trial."). In evaluating whether

166 F.3d 163, *181; 1999 U.S. App. LEXIS 924, **54

Page 16

the government's failure to turn over Brady or Giglio ma- terial undermines confidence in the outcome of the trial, the suppressed evidence is "considered collectively, not item-by--item." Kyles, 514 U.S. at 436.

In this case, the Commonwealth admits that it did not provide  the  information  listed  above  but  asserts  that  it was not required to provide all of that information. The Commonwealth argues that it was not required to inform Buehl of Dwyer's alleged statement because the prose- cution was unable to verify whether Dwyer in fact made such a statement. When the prosecution investigated the detectives' report,  Dwyer denied making the statement, and Kelly denied having possession **55    of the PPK after the killings.

The Commonwealth's argument misses the point. If Buehl's counsel had known about Dwyer's alleged state- ment, he could have asked Dwyer on cross-examination whether he had seen Kelly with the gun after the murders. If Dwyer had denied seeing Kelly in possession of the gun, the prior statement overheard by the detectives could have been used for impeachment, and the statement itself might have been admissible depending on how the detec- tives recorded Dwyer's statement. See Commonwealth v. Sholcosky, 719 A.2d 1039, 1044 (Pa. 1998) (prior incon- sistent statement is admissible as substantive evidence if it is embodied in an electronic, audiotaped or videotaped recording).

Nevertheless, we conclude that Buehl's Brady argu- ment lacks merit because the prosecution's failure to dis- close  the  information  is  not  sufficient  to  "undermine  confidence in the outcome of the trial." Kyles, 514 U.S. at 434. Dwyer's statement that Kelly had the PPK several weeks after the murders does not seriously undercut the evidence that Buehl was in possession of the gun at the time of the murders. Buehl admitted that he used the PPK to rob **56   the shop on Pine Street just two days before the Gross murders. On the same afternoon as the murders, the same PPK was used to rob the Kirkpatrick home, and

Buehl sold jewelry stolen from the Kirkpatricks that same evening. On the afternoon of the murders, Buehl appeared in LaMotte's office with a gun in his waistband and stated that he had just killed three people. Within a few days of the killings, Buehl told Miller that he had killed three people with a PPK, and Buehl threatened to "blow Miller away" with the same weapon. In light of this overwhelm- ing evidence that Buehl had the PPK at the time of the killings and that he was the murderer, we conclude that Buehl  was  not  seriously  prejudiced  by  the  inability  to use  Dwyer's  statement  for  impeachment   *182    or  to show that Kelly possessed the gun several weeks after the killings.

Additionally, the government's failure to disclose its witnesses'  complete  criminal  histories  does  not  suffi- ciently undermine confidence in the outcome of his case because Buehl was informed that Dwyer had been con- victed of theft and receiving stolen property and that Kelly had at least two prior convictions. Consequently, Buehl had an opportunity to **57   discredit the government's witnesses.  In  fact,  as  the  District  Court  noted,  Buehl's counsel was able to discredit Dwyer and Kelly effectively at trial.

Moreover,    the   government's   failure   to   disclose Dwyer's alleged statement, the witnesses' complete crim- inal histories, and the alleged favors provided to Dwyer is offset by the significant amount of evidence presented against Buehl. Given the weight of this evidence and the mitigating factors  discussed  above,  Buehl  cannot  show that  the  government's  failure  to  disclose  the  informa- tion undermined confidence in the outcome of the trial. Accordingly, we reject Buehl's claim.

IV.

For the reasons set out above, we conclude that Buehl's trial and appellate counsel were not constitutionally inef- fective and that his due process rights were not violated. We therefore affirm the judgment of the District Court.

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