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Title Smith v. Horn

Date 1997

Subject Other\Dissenting

Contents

Page 1

34 of 79 DOCUMENTS

CLIFFORD SMITH v. MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT GREENE, AND; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, District Attorney of Bucks County, Appellant No. 96-

9001; CLIFFORD SMITH, Appellant No. 96-9002 v. MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT GREENE, AND; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW

Nos. 96-9001, 96-9002

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

120 F.3d 400; 1997 U.S. App. LEXIS 19044

March 11, 1997, Argued

July 24, 1997, Filed

SUBSEQUENT HISTORY: **1 As Amended July

28, 1997. Certiorari Denied February 23, 1998, Reported at: 1998 U.S. LEXIS 884.

PRIOR HISTORY: On Appeal from the United States

District Court for the Eastern District of Pennsylvania.

(D.C. No. 95-cv--03671).

DISPOSITION: Reversed in part vacated in part and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioner inmate ap- pealed an order from the United States District Court for the Eastern District of Pennsylvania, which denied in part his request for habeas corpus relief, rejecting his claim that errors in the jury instructions at the guilt phase of his trial violated due process under the U.S. Const. amend. XIV.

OVERVIEW: Petitioner inmate was convicted in state court of first-degree murder and conspiracy to commit murder. The jury sentenced him to death. The district court granted partial federal habeas relief, but rejected petitioner's challenge to jury instructions given during the guilt phase of his trial. On petitioner's appeal, the court reversed the district court 's partial denial of habeas relief and remanded with instructions. From its reading of the jury instructions, the court found a reasonable likelihood that the jury misunderstood the instructions as permitting

it to convict petitioner of first-degree murder without first finding beyond a reasonable doubt that he intended that the victim be killed. The court held that the instructions had the effect of relieving the state of its burden of prov- ing beyond a reasonable doubt one of the elements of first-degree murder under Pennsylvania law, and there- fore deprived petitioner of his right to a fair trial under pursuant to the Due Process Clause of U.S. Const. amend. XIV. Finding that this error was not harmless, the court instructed that petitioner be discharged unless the state decided to retry him for first-degree murder within 180 days.

OUTCOME: The court held that errors in the jury in- structions at the guilt phase of petitioner inmate's trial, concerning the elements of first-degree murder under state law, violated petitioner's federal due process rights. Finding that the constitutional error was not harmless, the court reversed that portion of the district court's judgment rejecting this claim and remanded with directions to grant habeas relief.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Habeas Corpus > Appeals Criminal Law & Procedure > Habeas Corpus > Exhaustion of Remedies

HN1 If the exhaustion issue is never raised in the dis- trict court, the court of appeals is afforded discretion to determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or

120 F.3d 400, *; 1997 U.S. App. LEXIS 19044, **1

Page 2

by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim. The court of appeals must exercise its discretion on a case-by--case basis and with reference to the val- ues of, not only comity and federalism, but also judicial efficiency.

Criminal Law & Procedure > Habeas Corpus > Appeals

HN2 The issue of procedural default may be raised sua sponte by the court of appeals. Whether the court of ap- peals does so is discretionary.

Criminal Law & Procedure > Habeas Corpus > Miscarriage of Justice

Criminal Law & Procedure > Habeas Corpus > Appeals

HN3 It might be inappropriate for a court of appeals to raise the issue of procedural default sua sponte where it is evident that a miscarriage of justice has occurred.

"Miscarriage of justice" in this context should be defined somewhat more loosely than in the nonexhaustion con- text. "Miscarriage of justice" should include cases where the record is well developed and the merits strongly sup- port the petitioner's claim.

Criminal Law & Procedure > Habeas Corpus > Appeals

HN4 In circumstances where relief is plainly warranted and consideration of a procedural default defense would result in undue delay, the court of appeals exercises its discretion to decline to raise that defense sua sponte. Criminal Law & Procedure > Habeas Corpus > Appeals Criminal Law & Procedure > Habeas Corpus > Procedural Default

HN5 In cases in which an issue has not been raised by either party in either the district court or in the court of appeals, the court of appeals will decline to address the issue unless considerations of federalism and comity, ju- dicial efficiency, and the ends of justice clearly indicates that the court of appeals should depart from its standard practice.

Criminal Law & Procedure > Criminal Offenses > Homicide > Felony Murder

Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy

HN6 Under Pennsylvania law, an accomplice or co- conspirator in a crime during which a killing occurs may not be convicted of first-degree murder unless the com- monwealth proves that he harbored the specific intent to kill. This is so even where the identity of the actual killer is unknown. The commonwealth need not prove that the defendant actually performed the killing, but it must prove he intended for the killing to occur. Felony-murder sim- pliciter does not constitute murder in the first degree in Pennsylvania.

Criminal Law & Procedure > Criminal Offenses >

Homicide > Felony Murder

Criminal Law & Procedure > Scienter > Specific Intent

HN7 Specific intent to commit a killing, not simply in- tent to commit some other crime from which a killing results, is a prerequisite to a conviction for first-degree murder in Pennsylvania.

Criminal Law & Procedure > Jury Instructions > Objections

Criminal Law & Procedure > Habeas Corpus > Appeals

HN8 The court of appeals' analysis of jury instructions claimed to impair a constitutional right must focus ini- tially on the specific language challenged. The allegedly constitutionally infirm language must be considered in the context of the charge as a whole. The proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution.

Criminal Law & Procedure > Jury Instructions > Objections

Criminal Law & Procedure > Habeas Corpus > Appeals

HN9 Where an allegedly faulty jury charge implicates a habeas petitioner's federal constitutional rights, the court of appeals had an independent duty to ascertain how a reasonable jury would have interpreted the instructions at issue.

Criminal Law & Procedure > Habeas Corpus > Standards of Review

Constitutional Law > State Autonomy

HN10 A state court's misapplication of its own law, in and of itself, cannot be corrected by a federal court. However, when that misapplication has the effect of de- priving a person of life, liberty, or property without due process of law in violation of U.S. Const. amend. XIV, the resulting federal constitutional error can be corrected by a federal habeas court. On the other hand, errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.

Criminal Law & Procedure > Criminal Offenses > Homicide > Felony Murder

Constitutional Law > State Autonomy

HN11 Pennsylvania may, within certain constitutional limits, define first-degree murder in whatever way the commonwealth sees fit.

Constitutional Law > Procedural Due Process > Scope of Protection

Criminal Law & Procedure > Jury Instructions > Particular Instructions > Reasonable Doubt

HN12 Once a state has defined the elements of an of- fense, the federal Constitution imposes constraints upon the state's authority to convict a person of that offense. The Due Process Clause of U.S. Const. amend. XIV protects

120 F.3d 400, *; 1997 U.S. App. LEXIS 19044, **1

Page 3

the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Constitutional Law > Procedural Due Process > Scope of Protection

Criminal Law & Procedure > Jury Instructions > Objections

HN13 A jury instruction that omits or materially mis- describes an essential element of an offense as defined by state law relieves the state of its obligation to prove facts constituting every element of the offense beyond a rea- sonable doubt, thereby violating the defendant's federal due process rights.

Criminal Law & Procedure > Habeas Corpus > Standards of Review

HN14 Constitutional errors have been categorized as one of two types: structural error or trial error. A struc- tural error is a defect in the trial mechanism itself, af- fecting the entire trial process, and is per se prejudicial. Trial error occurs during the presentation of the case to the jury, and may be qualitatively assessed in the context of all other evidence. Thus, trial errors are subject to a harmless error analysis.

Criminal Law & Procedure > Habeas Corpus > Standards of Review

HN15 In a collateral proceeding, the standard for harm- lessness is whether the error had substantial and injurious effect or influence in determining the jury's verdict. The crucial inquiry is the impact of the error on the minds of the jurors in the total setting. It is thus inappropriate to ask whether there was sufficient evidence to support the re- sult, apart from the phase of the trial affected by the error. The correct inquiry is whether the error had a substan- tial influence on the verdict despite sufficient evidence to support the result apart from the error.

Criminal Law & Procedure > Habeas Corpus > Standards of Review

HN16 If a habeas court concludes from the record that the error had a substantial and injurious effect or influence on the verdict, or if it is in grave doubt whether that is so, the error cannot be deemed harmless.

Criminal Law & Procedure > Habeas Corpus > Standards of Review

HN17 In conducting harmless-error analysis, a court of appeals cannot assume that the jury, having found the accused guilty, believed all properly admitted evidence against him and disbelieved all evidence in his favor.

COUNSEL: David D. Langfitt, Esq., Gerard M. McCabe, Montgomery, McCracken, Walker & Rhoads,

Philadelphia, PA. Billy H. Nolas, Esq. (argued), Yvonne R. Bradley, Center for Legal Education Advocacy & Defense Assistance, Philadelphia, PA, COUNSEL FOR APPELLEE/CROSS APPELLANT.

Stephen B. Harris, Esq. (argued), Office of District Attorney, Doylestown, PA, COUNSEL FOR APPELLANT/CROSS APPELLEE.

JUDGES: BEFORE: MANSMANN, COWEN and ALITO, Circuit Judges. ALITO, Circuit Judge, dissent- ing.

OPINIONBY: COWEN

OPINION: *403 OPINION OF THE COURT

COWEN, Circuit Judge.

This is an appeal from a judgment of the district court granting in part petitioner-appellee/cross--appellant Clifford Smith's petition for a writ of habeas corpus. The district court held that certain comments made by the pros- ecutor at the penalty phase of Smith's trial for first-degree murder violated Smith's rights pursuant to the Eighth and Fourteenth Amendments. The district court further held that the failure of Smith's attorney to object to these com- ments violated Smith's **2 right to the effective as- sistance of counsel pursuant to the Sixth and Fourteenth Amendments. The district court rejected Smith's claim that instructions to the jury at the guilt phase of the trial, concerning the elements of first-degree murder pursuant to Pennsylvania law, violated Smith's right to a fair trial pursuant to the Due Process Clause of the Fourteenth Amendment. Similarly, the district court rejected Smith's arguments that other constitutional errors occurred at the penalty phase.

Respondents-appellants/cross--appellees

("Pennsylvania" or "the Commonwealth") contend that the district court erred in its determination that the prosecutor's closing argument at the penalty phase, and the failure of Smith's attorney to object to that argument, violated Smith's federal constitutional rights. Smith cross-appeals, contending that the district court erred in denying him habeas relief with regard to his conviction for first-degree murder, and in rejecting his other arguments for granting relief based on alleged defects at the penalty phase.

We agree with Smith that errors in the jury instruc- tions at the guilt phase of his trial violated his rights pur- suant to the Due Process **3 Clause of the Fourteenth Amendment.

120 F.3d 400, *404; 1997 U.S. App. LEXIS 19044, **3

Page 4

*404 We thus do not reach the district court's holding that errors at the penalty phase violated Smith's rights pur- suant to the Sixth, Eighth, and Fourteenth Amendments. We also do not reach Smith's arguments concerning other claims of error that occurred at the penalty phase. Accordingly, we will vacate the judgment of the district court in part, reverse in part, and remand with directions to grant habeas relief.

On November 22, 1983, in the Court of Common Pleas, Bucks County, Pennsylvania, Smith was convicted of first degree murder, among other crimes. The evidence at trial showed that on June 17 of that year, Smith and Roland Alston entered a pharmacy with the intention of robbing it, that they forced three persons inside the store to lie in a prone position on the floor as they committed the robbery, and that one of the robbery victims, Richard Sharp, sustained a fatal gunshot wound to the head.

Yvette Barrow and Cheryl Yancey, who later pled guilty to being accomplices to the robbery, testified that Alston and Smith committed the robbery while Barrow and Yancey waited in Barrow's car. One eyewitness saw Alston and Smith enter and **4 leave the pharmacy at the time of the robbery. A second eyewitness saw the pair walk in the direction of the pharmacy just prior to the robbery. A third eyewitness identified the car in which Smith and Alston were traveling just after the robbery. All three independent eyewitnesses identified the cloth- ing worn by the robbers, which was later found at the homes of Alston, Yancey, and Frances Atkins, Smith's former girlfriend. Items taken from the three robbery vic- tims were later found at the homes of Barrow and Yancey. Although there was evidence that both Alston and Smith carried handguns that day, the evidence tended to show that Smith actually committed the killing. According to the Commonwealth, Barrow testified that immediately after the murder, Alston yelled at Smith,

"Why did you shoot the motherfucker, why did you shoot him?" Appellant's Br. at 11. n1 Smith responded, "He walked into the store and he scared me -- the guy lifted his head and I had to do it, I had to do it." Id. Barrow also testified that Smith told Alston that "since Smith did the murder, he wanted the ring" that was one of the proceeds of the robbery. Id. Yancey similarly testified that Alston

**5 yelled at Smith, "Why did you shoot that moth- erfucker, man? You almost shot me," to which Smith

replied, "I had to." Id. She also testified that Smith stated that "he should have the ring because he's the one that killed the man." Id. There was also evidence that Smith's shoes had human blood on them. Finally, there was ev- idence that unfired cartridges found at Yancey's house had been loaded into and ejected from Alston's pistol, indicating that Alston's weapon had not been fired.

n1 Because Smith has not contested the version of the trial testimony related in the Commonwealth's briefs, we accept this version as accurate for purposes of this appeal. Nonetheless, we feel the need to express our bafflement at the Commonwealth's disregard of 3d Cir. LAR 30.3(a)

(1993) ("Relevant portions of a trial transcript . .

. referred to in the briefs shall be included in the appendix . . . ."). In light of the importance of the testimony in question to the Commonwealth's po- sition, it cannot be disputed that this testimony is

"relevant."

**6

At the guilt phase of the trial, the district attorney made the following comments in closing argument:

Who shot Richard Sharp is of no moment in this trial, because as His Honor will tell you, it makes no difference under the law and un- der the facts. It doesn't make one bit of differ- ence who shot Mr. Sharp, because if you find as a fact, and I suggest you can based on the evidence, that Richard Sharp was killed by either Roland Alston or Clifford Smith, you can find as a fact that there was murder in the first degree. It makes no difference who pulled the trigger. The acts of one accomplice are the acts of the other. The doings of one are the doings of the other.

. . . .

. . . It makes no difference who fired the fatal shot . . . For your purposes, it doesn't make any difference. The act of one is the act of the other. . . .

. . . .

. . .

120 F.3d 400, *405; 1997 U.S. App. LEXIS 19044, **6

Page 5

*405 If you find that this defendant or both defendants or either of them had the con- scious purpose to take human life, you can find as a matter of fact and as a matter of law that it's murder in the first degree. . . .

. . . .

. . . If you find that either Smith or Alston

**7 fired that bullet . . . if you find that either did this, both as conspirators or as accomplices are guilty of the crime of first degree murder.

. . . .

. . . Does the evidence indicate that

Clifford Smith or

Roland Alston, either or both of them, made a conscious decision to take human life, a willful, a deliberate, an intentional killing, no accident?

Cross App. at 1007-08, 1010, 1012-13, 1014, 1017 (em- phasis added).

The court first instructed the jury on homicide without reference to any specific offense or degree:

If . . . you find that Smith and Alston were accomplices of each other, then it is not im- portant for you to determine which one actu- ally pulled the trigger that brought about the killing of Richard Sharp, if you find beyond a reasonable doubt that one of the two did so and were sic acting as the accomplice of each other at the time. In order, however, to find Clifford Smith to be guilty, you need not conclude, as I said, that he was the actor; that is, if I can use the word "shooter," but he was, nevertheless, acting as an accomplice of Alston and it was his intent of promoting or facilitating that **8 act and the killing was done in furtherance of the robberies, if you so find, then he would be guilty as though he were the actual perpetrator. . . .

. . . The Commonwealth must prove all of the elements of the case beyond a reason- able doubt, but they do not have to prove beyond a reasonable doubt which of the two, Smith or Alston, actually brought about the killing of Richard Sharp by showing who pulled the trigger and placing sic the shot in his head. If, and I emphasize this, you find that one was the accomplice of the other and that one of the two actually performed the

killing, you, the jurors, need not agree on the role or roles played by the respective par- ties; that is, by this defendant and his accom- plice, if you find that that was the position of both, provided that each of you is satis- fied that the crime was actually perpetrated by the defendant or by the accomplice of the defendant. Conversely, if you find that one was not the accomplice of the other but that a criminal homicide occurred, then you must determine who performed the act of killing and, of course, it follows that if Alston was the killer and Smith was not his accomplice, he, Smith, would not **9 be guilty of the crime of murder for the Commonwealth has not proven this accomplice theory beyond a reasonable doubt.

Id. at 1030-31, 1031-32 (emphasis added).

The court then instructed the jury specifically on first- degree and second-degree murder:

The elements of first degree murder are the unlawful killing of another person done in- tentionally; that is, willfully, deliberately and with premeditation, plus malice, as I will de- fine that term to you. If these elements have been established beyond a reasonable doubt, you may, on the theory that one was the per- petrator and the other the accomplice, find Clifford Smith guilty of murder in the first degree . .. .

. . . You may find the defendant guilty of second degree murder if you are satis- fied that the following elements have been proven beyond a reasonable doubt: First, again you must find that a person caused the death of Richard Sharp. Secondly, that the defendant, or an accomplice of the defen- dant, was the person who killed him. Thirdly, that the killing was committed while the de- fendant was engaged, or an accomplice was engaged, in the commission of . . . the felony of robbery. Fourth, **10 that the act of the defendant, or the defendant's accomplice, that brought about the killing and death of Richard Sharp was done in furtherance of that robbery. Fifth, that the killing was with malice on the part of the defendant which may be inferred by you if you conclude that the defendant was engaging in, or was an accomplice

120 F.3d 400, *406; 1997 U.S. App. LEXIS 19044, **10

Page 6

*406 in, the commission or attempted com- mission of a felony dangerous to human life

. . . .

Id. at 1035, 1035-36 (emphasis added).

The court then instructed the jury on the crime of con- spiracy, without reference to a specific substantive crime:

You should . . . determine . . . whether there was the requisite intent to enter into this con- spiracy to commit the robbery and the killing which the Commonwealth contends flowed therefrom or whether there was the requisite intent to enter in and be the accomplice with the other in bringing this about. That is to say, did Clifford Smith agree, although not neces- sarily by words, but by conduct and circum- stances to bring about this robbery which, in turn, led to the ultimate shooting, so the Commonwealth contends, and the killing of Richard Sharp? If so, then the major basis of **11 onspiratorial liability exists as to him.

Id. at 1047-48 (emphasis added).

Finally, the court distinguished among the different degrees of murder:

You would . . . have to decide whether the act of the perpetrator, or his accomplice, at the time of the killing was acting sic with malice, as we have defined that term to you. Was he acting willfully, deliberately and with premeditation, although at that time not hav- ing the specific intent to kill, but having the specific intent to inflict grievous bodily harm upon Richard Sharp, because that really is the distinction between third degree murder and first degree murder. . . .

If you would conclude that there was spe- cific intent to take life, you would then have to determine if it was second degree mur- der, or as we call it felony murder, because it involves killing incidental to a felony. . .

. For persons to be accomplices in felony

murder they must have a common design. In other words, the shared intent to commit that felony, the robbery in this case, and in fur- therance thereof the killing was perpetrated as a natural act which flowed from the rob- bery itself. However, . . . even though you

**12 would conclude that there was the felony of robbery committed, but would fur- ther conclude that all of the elements of first degree murder were present, you . . . would be justified in returning a verdict of first degree murder, if you determine beyond a reason- able doubt that the killing was intentional; that is, that there was a specific conscious intent to kill and this was done willfully, de- liberately, and with premeditation.

Id. at 1057-58 (emphasis added).

Smith was convicted of, inter alia, first-degree murder and conspiracy to commit murder. He was not convicted of conspiracy to commit first-degree murder. At the penalty phase of the trial, the jury found two aggravating factors and no mitigating factors. The jury imposed the death penalty, which it was required to do under these circum- stances pursuant to Pennsylvania law. See 42 PA. CONS. STAT. ANN. § 9711(c)(1)(iv) (West 1982).

Smith filed a motion for a new trial, which was denied by the trial court on June 18, 1985. Smith subsequently was sentenced to death. He then appealed his conviction and sentence to the Supreme Court of Pennsylvania. On July 29, 1986, the judgment was affirmed, and **13 Smith's petition to the Supreme Court of the United States for a writ of certiorari was denied thereafter. See Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (Pa.

1986), cert. denied, 480 U.S. 951, 107 S. Ct. 1617 (1987)

("Smith I").

The Governor of Pennsylvania subsequently signed

Smith's death warrant, fixing his execution for November

13, 1990. On October 16, 1991, n2 Smith filed a petition in the Court of Common Pleas, Bucks County, pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"),

42 PA. CONS. STAT. ANN. §§ 9541-9546 (West 1996

Supp.). His execution was stayed several days later. After holding an evidentiary hearing, the court denied the pe- tition. The Supreme Court of Pennsylvania affirmed on November 22, 1994, and the United States Supreme Court

120 F.3d 400, *407; 1997 U.S. App. LEXIS 19044, **13

Page 7

*407 denied Smith's petition for a writ of certiorari. See

Commonwealth v. Smith, 539 Pa. 128, 650 A.2d 863 (Pa.

1994), cert. denied, U.S. , 115 S. Ct. 1799 (1995).

n2 The record does not indicate why Smith's execution was stayed past November 13, 1990.

In May of 1995, the Governor of Pennsylvania again signed Smith's death **14 warrant, fixing July 11, 1995, as the date of execution. On June 30, 1995, the district court granted Smith a stay of execution. Smith subse- quently filed the instant petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 (1994). That court held an evidentiary hearing. On February 22,

1996, the court granted the petition in part and denied it in part on the grounds that the prosecutor's comments in summation at the penalty phase violated Smith's Eighth and Fourteenth Amendment rights pursuant to Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d

231 (1985), and California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983). The district court also held that the failure of Smith's counsel to object to the clos- ing argument constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. The district court rejected Smith's contention, regarding the guilt phase, that the jury instructions on first-degree mur- der denied him due process. It also rejected Smith's ad- ditional arguments concerning the penalty phase that his sentence violated the federal constitution. The court or- dered that Smith be either re-sentenced or released **15 from confinement within 180 days, and stayed its order pending appeal. See Smith v. Horn, 1996 U.S. Dist. LEXIS

4573, No. CIV. A. 95-3671, 1996 WL 172047 (E.D. Pa. Feb. 22, 1996).

This appeal and cross-appeal followed.

II.

As an initial matter, we find it necessary to address two issues raised by the dissent. The dissent suggests, for the first time, that we require the parties to brief the threshold procedural issues of exhaustion of state reme- dies and procedural default. See Dissent slip op. at 38,

40. We note at the outset that the Commonwealth never

raised either of these issues at any time: not in the district court, not in its briefing before this Court, and not at oral argument.

The dissent concedes that it is likely an exhaustion argument would fail on the grounds that further state re- view of the due process issue would be foreclosed to Smith. See id. at 37-38. Nevertheless, the dissent presses the point, arguing that this might present a case where the Pennsylvania courts would apply the narrow "miscarriage of justice" exception to the stringent requirements of the PCRA. See Doctor v. Walters, 96 F.3d 675, 681-83 (3d Cir. 1996). In Doctor, 96 F.3d at 683, **16 we con- cluded that we ought to require exhaustion unless there is "no chance that the Pennsylvania courts would find a miscarriage of justice."

However, in that case, the exhaustion issue was raised and addressed in the district court. See id. at 678. HN1 Where the issue was never raised in the district court, we are afforded discretion pursuant to Granberry v. Greer,

481 U.S. 129, 134, 107 S. Ct. 1671, 1675, 95 L. Ed. 2d

119 (1987), to "determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim." See also Evans v. Court of Common Pleas, 959 F.2d 1227, 1233 (3d Cir. 1992); Brown v. Fauver, 819 F.2d 395, 398 (3d Cir. 1987). We must exercise our discretion on a case-by--case basis and with reference to the values of, not only comity and feder- alism, but also "judicial efficiency," Granberry, 481 U.S. at 135, 107 S. Ct. at 1675, and "the ends of justice," Keller v. Petsock, 853 F.2d 1122, 1127 & n.6 (3d Cir. 1988).

The dissent suggests that we ought to exercise our dis- cretion in favor of requiring exhaustion **17 in this case on the ground that it "falls squarely within" the category of cases that "'present an issue on which an unresolved question of fact or of state law might have an important bearing,'" Dissent slip op. at 36 (quoting Granberry, 481

U.S. at 134-35, 107 S. Ct. at 1675) (alteration added), and

"it would be helpful to have the benefit of a

120 F.3d 400, *408; 1997 U.S. App. LEXIS 19044, **17

Page 8

*408 decision by the Pennsylvania courts on the un- derlying issue of state law." Id. See Brown, 819 F.2d at

399; cf. Zettlemoyer v. Fulcomer, 923 F.2d 284, 309-10

(3d Cir. 1991). However, this case presents no "unresolved question . . . of state law." Granberry, 481 U.S. at 134, 107

S. Ct. at 1675. The only question of state law presented -- the elements of first-degree murder in Pennsylvania -- has been resolved by the Pennsylvania Supreme Court, not once but twice. See infra at 16-18. No one disputes that specific intent to kill is one of those elements. All remaining questions presented by this case -- whether there is a reasonable likelihood that the jury understood its instructions in a certain way, whether this understand- ing had the effect of relieving the Commonwealth of the burden of proving this element **18 beyond a reason- able doubt, and whether this error was harmless -- present issues of federal law.

Accordingly, we see no reason to delay review of this petition in order to provide briefing on an issue the Commonwealth never raised in any court and on which even the dissent concedes the Commonwealth has very little chance of succeeding.

The dissent also suggests that we direct the parties to brief the related issue of procedural default. The dissent correctly notes that we and several of our sister circuits have held that HN2 this issue may be raised sua sponte by the court of appeals. See Dissent at 38 (citing Hull v. Freeman, 932 F.2d 159, 164 n.4 (3d Cir. 1991), over- ruled on other grounds by Caswell v. Ryan, 953 F.2d 853

(3d Cir. 1992), Ortiz v. Dubois, 19 F.3d 708, 714 (1st

Cir. 1994), Washington v. James, 996 F.2d 1442 (2d Cir.

1993), and Hardiman v. Reynolds, 971 F.2d 500, 502-04

& n.4 (10th Cir. 1992)). Nonetheless, it is evident from these cases that whether we do so is discretionary, and that our discretion is guided by the same considerations as those discussed in Granberry. See Hull, 932 F.2d at 164 n.4; Washington, 996 F.2d **19 at 1448-49; Hardiman,

971 F.2d at 504.

In Washington, 996 F.2d at 1449-50, the Court of

Appeals for the Second Circuit recognized that HN3 it might be inappropriate for the court to raise the issue of procedural default sua sponte where "'it is evident that a miscarriage of justice has occurred'" (quoting Granberry,

481 U.S. at 135, 107 S. Ct. at 1675). The court also recog- nized that "miscarriage of justice" in this context should be defined somewhat more loosely than in the nonexhaustion context because "unlike in exhaustion cases, if we decline to reach the merits in a procedural default case, the de- fendant has no further recourse to either state or federal relief." Id. at 1450. Nevertheless, the court narrowly lim- ited the application of the miscarriage of justice exception to those cases where the habeas petitioner challenges the validity of the trial itself and not just the conviction, and those cases where the claimed federal violation was the product of malice. See id.; see also Ortiz, 19 F.3d at 715. We believe, as did Judge Oakes in dissent in that case, that the court unduly limited the meaning of "miscar- riage of justice" in contravention of the language **20 of Granberry, 481 U.S. at 135, 107 S. Ct. at 1675. See Washington, 996 F.2d at 1454 (Oakes, J., dissenting). We agree with Judge Oakes, and with Judge Stahl of the Court of Appeals for the First Circuit, that " 'miscarriage of justice' should include cases where the record is well developed and the merits strongly support the petitioner's claim." Id. at 1453 (Oakes, J., dissenting); see also Ortiz,

19 F.3d at 717 (Stahl, J., dissenting).

In this case, not only do the merits strongly support Smith's claim, as we shall demonstrate, but the record as it relates to the merits is as well-developed as it can be. We have been presented with the entirety of the charge de- livered at Smith's trial. We can lay alongside this charge the unequivocal holdings of the Pennsylvania Supreme Court in two separate cases that specific intent to kill is an essential element of first-degree murder.

By contrast, the record with regard to the procedural default issue itself is sparse. For example, we have not been provided with the crucial jury instruction defining first-degree murder requested by Smith's trial counsel and rejected by the trial court. There is

120 F.3d 400, *409; 1997 U.S. App. LEXIS 19044, **20

Page 9

*409 similarly nothing in the record **21 with regard to whether Smith can show "cause" for the alleged default

(such as by showing that appellate counsel was constitu- tionally ineffective) and "prejudice" resulting therefrom, or that the procedural rule does not provide an indepen- dent and adequate basis for precluding habeas review. See Doctor, 96 F.3d at 683. Thus, consideration of the pro- cedural default issue at this late stage in the proceedings would likely require not simply supplemental briefing but a remand to the district court for supplemental fact find- ing. HN4 In these circumstances, where relief is "plainly warranted," Granberry, 481 U.S. at 135, 107 S. Ct. at

1676, and consideration of the procedural default defense would result in undue delay, see Odum v. Boone, 62 F.3d

327, 330 (10th Cir. 1995); Manlove v. Tansy, 981 F.2d

473, 476 n.4 (10th Cir. 1992), we exercise our discretion to decline to raise that defense sua sponte.

With regard to both nonexhaustion and procedural de- fault, we are also persuaded that when the state has never raised an issue in either the district court or this Court we should be even less inclined to raise it sua sponte than when the state either has raised the issue **22 here only belatedly or has raised it in the district court but has not pursued that line of attack in the court of appeals. But see Washington, 996 F.2d at 1448 n.3 (stating that complete failure to raise defense should be treated same as belatedly raising defense); Hardiman, 971 F.2d at 504 n.6 (same). In any of these situations, consideration of the issue contravenes our standard practice. However, where the issue has been raised either in the district court or the court of appeals, we are at least maintaining our roles as judges, addressing only the issues flagged, at some point, by the parties. Moreover, we are often aided in our en- deavor by the fact that the district court has addressed the issue.

By contrast, where the state has never raised the issue at all, in any court, raising the issue sua sponte puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do

so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates. See United States v. Burke, 504 U.S. 229, 246, 112 S. Ct. 1867, 1877,

119 L. Ed. 2d 34 (1992) (Scalia, J., concurring in the judgment) ("The rule that points **23 not argued will not be considered . . . at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one."); accord Hardiman, 971 F.2d at 505. While considerations of federalism and comity sometimes weigh in favor of raising such issues sua sponte, consid- eration of that other great pillar of our judicial system -- restraint -- cuts sharply in the other direction.

We certainly have the discretion to raise these issues sua sponte. As Granberry and its progeny direct, that dis- cretion should be exercised with reference to the values of federalism and comity, judicial efficiency, and the ends of justice. HN5 In cases in which an issue has not been raised by either party in either the district court or in this Court, we will decline to address the issue unless consid- eration of these factors clearly indicates that we should depart from our standard practice. We apply this presump- tion in such cases lest we subtly transform our adversarial system into an inquisitorial one.

The dissent has not persuaded us that consideration of federalism and comity, judicial efficiency, and the ends of justice clearly dictate that we consider the defenses **24 of nonexhaustion and procedural default. Accordingly, we decline to do so.

III.

Smith argues that the jury instructions rendered by the trial court erroneously informed the jury that Smith could be convicted of first-degree murder even if he did not have the specific intent to kill. He asserts that the jury was incorrectly instructed that if it found beyond a rea- sonable doubt that one of the men had the specific intent to kill, and that Smith intended to commit the robbery that resulted in the killing, this would be sufficient to convict Smith of first-degree murder. He further argues that this instruction was incorrect under Pennsylvania law, and that this incorrect instruction violated

120 F.3d 400, *410; 1997 U.S. App. LEXIS 19044, **24

Page 10

*410 his constitutional rights. The district court sum- marily rejected Smith's contention, stating: "Smith has raised several other arguments in his petition concerning both the guilt and penalty phases of his 1983 trial. These we find to be without merit." Smith v. Horn, 1996 WL

172047, at *15.

We conclude from a fair reading of the jury instruc- tions that there is a reasonable likelihood that the jury convicted Smith of first-degree murder without finding beyond a reasonable doubt that **25 he intended that Sharp be killed. Such an instruction is contrary to Pennsylvania law. We hold that these jury instructions had the effect of relieving the Commonwealth of its bur- den of proving beyond a reasonable doubt one of the elements of first-degree murder under Pennsylvania law. The delivery of these improper instructions amounted to a violation of Smith's right to a fair trial pursuant to the Due Process Clause of the Fourteenth Amendment. Finally, we hold that this constitutional error was not harmless and that Smith must be discharged unless the Commonwealth determines to retry him for first-degree murder.

HN6 Under Pennsylvania law, both today and at the time of Smith's trial, an accomplice or co-conspirator in a crime during which a killing occurs may not be con- victed of first-degree murder unless the Commonwealth proves that he harbored the specific intent to kill. See

18 PA. CONS. STAT. ANN. § 2502(a) (West 1983);

Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961,

962-63, 964 (Pa. 1994); Commonwealth v. Bachert,

499 Pa. 398, 453 A.2d 931, 935 (Pa. 1982). This is so even where the identity of the actual killer is un- known. See Huffman, 638 A.2d at 964-65 (Papadakos, J., **26 dissenting). The Commonwealth need not prove that the defendant actually performed the killing, see Commonwealth v. Bachert, 271 Pa. Super. 72, 412

A.2d 580, 583 (Pa. Super. 1979), aff'd in part, rev'd on other grounds in part, 499 Pa. 398, 453 A.2d 931 (Pa.

1982), but it must prove he intended for the killing to occur. In other words, felony-murder simpliciter does not constitute murder in the first degree in Pennsylvania.

In Bachert, 453 A.2d at 933-34, the evidence showed that the defendant and a cohort committed a kidnaping and robbery, during the course of which the cohort killed

the victim. The Pennsylvania Supreme Court wrote that to constitute first-degree murder, the evidence had to show beyond a reasonable doubt that the defendant harbored "a specific intent to kill." Id. at 935. It wrote:

To determine the kind of homicide of which the accomplice defendant is guilty, it is nec- essary to look to his state of mind; the req- uisite mental state must be proved beyond a reasonable doubt to be one which the accom- plice harbored and cannot depend upon proof of intent to kill only in the principal.

Id. (emphasis added).

In Huffman, 638 A.2d at 962, the **27 trial court had advised the jury that

"in order to find a Defendant guilty of mur- der in the first degree, you must find that the Defendant caused the death of another per- son, or that an accomplice or co-conspirator caused the death of another person . That is, you must find that the Defendant's act or the act of an accomplice or co-conspirator is the legal cause of death of the victim , and therefore you must determine if the killing was intentional."

(quoting trial transcript) (emphasis added) (alteration in original). This, the Pennsylvania Supreme Court held, was

"patently erroneous" and "an outright misstatement of the law on a fundamental issue relating to culpability." Id. The court wrote that Bachert "expressly and unambiguously" held that an accomplice to an underlying felony that re- sults in death could be convicted of first-degree murder only if the Commonwealth proves that the accomplice specifically intended to kill. Id. at 962-63.

The Commonwealth cites in its reply brief two cases in support of the proposition that a shared intent to enter into a conspiracy to commit a crime is sufficient to confer criminal liability for a killing **28 that is the natural and probable result of the conspiracy, even if the killing were not shown to be specifically

120 F.3d 400, *411; 1997 U.S. App. LEXIS 19044, **28

Page 11

*411 intended by the defendant. See Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867, 870 (Pa. 1976); Commonwealth v. La, 433 Pa. Super. 432, 640 A.2d 1336,

1345-46 (Pa. Super. 1994). However, neither of these cases involved first-degree murder. See Roux, 350 A.2d at 868 (second-degree murder and conspiracy); n3 La,

640 A.2d at 1340 (third-degree murder and conspiracy); see also Huffman, 638 A.2d at 964 n.9 (criticizing dissent for relying on cases involving manslaughter and lesser de- grees of murder). As the Commonwealth unambiguously conceded at oral argument, Huffman and Bachert make clear that HN7 specific intent to commit a killing, not simply intent to commit some other crime from which a killing results, is a prerequisite to a conviction for first- degree murder in Pennsylvania. Cf. Tison v. Arizona,

481 U.S. 137, 175 n.13, 107 S. Ct. 1676, 1697 n.13, 95

L. Ed. 2d 127 (1987) (Brennan, J., dissenting) (listing Pennsylvania as a jurisdiction that "restricts the impo- sition of capital punishment to those who actually and intentionally kill").

n3 Additionally, the events in Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867, 869 (Pa. 1976), took place on November 10, 1973. Before March

26, 1974, the definition of murder in the first de- gree in Pennsylvania included felony-murder. See

18 PA. CONS. STAT. ANN. § 2502, Historical Note

(1983). Thus, Roux would be inapposite even if the defendant there had been convicted of first-degree murder.

**29

B. HN8 Our analysis of jury instructions claimed to impair a constitutional right "must focus initially on the specific language challenged." Francis v. Franklin, 471

U.S. 307, 315, 105 S. Ct. 1965, 1971, 85 L. Ed. 2d 344

(1985); see also Rock v. Zimmerman, 959 F.2d 1237, 1246

(3d Cir. 1992) (en banc). The allegedly constitutionally infirm language must be considered in the context of the charge as a whole. See Estelle v. McGuire, 502 U.S. 62,

72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385 (1991); Flamer v. Delaware, 68 F.3d 736, 752 (3d Cir. 1995); Kontakis v. Beyer, 19 F.3d 110, 115-16 (3d Cir. 1994). The proper inquiry is " 'whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way' that violates the Constitution." Estelle, 502 U.S. at 72, 112

S. Ct. at 482 (quoting Boyde v. California, 494 U.S. 370,

380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990))

(emphasis added); see also Victor v. Nebraska , 511 U.S.

1, 6, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994); Flamer, 68 F.3d at 752.

A fair reading of the jury instructions given in this case permitted the jury to convict Smith of murder in the first degree without first finding beyond a reasonable doubt that Smith **30 intended that Sharp be killed. Portions of the instructions are ambiguous as to the requi- site finding of intent. Other portions affirmatively inform the jury that it need not find beyond a reasonable doubt that Smith specifically intended that the victim die in or- der for Smith to be guilty of murder in the first degree. Taken as a whole, there is a reasonable likelihood that the jury understood the instructions in this way.

One of the two portions of the jury charge that specif- ically mentions first-degree murder reads as follows:

Cross App. at 1035 (emphasis added). Taken in isolation, this charge might convey the idea that the jury must find that Smith harbored the specific intent to kill Sharp. This interpretation would be reasonable only if **31 the jury were to understand the word "accomplice" to mean

"accomplice in the killing," and not simply "accomplice in the robbery." Only in that way would the instructions convey the critical idea that Smith must be found to have intended to kill Sharp for Smith to be found guilty of first- degree murder.

Taken together with the remainder of the pertinent in- structions, it is clear that jury was not made to understand

"accomplice" in this way. In other portions of the charge, in

120 F.3d 400, *412; 1997 U.S. App. LEXIS 19044, **31

Page 12

*412 which the trial court mentioned the killing but did not specifically discuss first-degree murder, the court generally did not clarify whether it was using "accom- plice" in reference to the robbery, the killing, or both. Further, when it did make the meaning of "accomplice" reasonably clear, it appears that the court was using that term in reference to the robbery only.

For example, the court instructed:

The Commonwealth must prove all of the elements of the case beyond a reasonable doubt, but it does not have to prove beyond a reasonable doubt which of the two, Smith or Alston, actually brought about the killing of Richard Sharp by showing who pulled the trigger and placed the shot in his head. **32 If, and I emphasize this, you find that one was the accomplice of the other and that one of the two actually performed the killing, you, the jurors, need not agree on the role or roles played by the respective parties; that is, by this defendant and his accomplice, if you find that that was the position of both, provided that each of you is satisfied that the crime was actually perpetrated by the defendant or by the accomplice of the defendant.

Conversely, if you find that one was not the accomplice of the other but that a crimi- nal homicide occurred, then you must de- cide who performed the act of killing and, of course, it follows that if Alston was the killer and Smith was not his accomplice, he, Smith, would not be guilty of the crime of murder for the Commonwealth has not proven this ac- complice theory beyond a reasonable doubt.

Id. at 1031-32 (emphasis added). The court also in- structed:

to find Clifford Smith to be guilty, you need not conclude, as I said that he was the actor; that is, if I can use the word "shooter," but he was, nevertheless, acting as an accomplice of Alston and it was his intent of promoting or facilitating that and the killing was done in furtherance of the robberies, if you so find, then he would be guilty as though he were the actual perpetrator.

Id. at 1030-31 (emphasis added).

The jury was further instructed on "the distinction be- tween third degree murder and first degree murder." Id. at

1057. Murder in the third degree occurs where "the per- petrator, n4 or his accomplice . . . was . . . acting willfully, deliberately and with premeditation, although . . . not hav- ing the specific intent to kill." Id. (emphasis added). The clear implication is that first-degree murder occurs where

"the perpetrator, or his accomplice" did have "the specific intent to kill."

n4 The court presumably meant "the defen- dant": by definition, the "perpetrator" necessarily did the "acting."

**34

In these portions of the charge, the court did not clarify whether "accomplice" means "accomplice in the killing,"

"accomplice in the robbery," or both. The charge thus blurred the distinction between "accomplice in the rob- bery" and "accomplice in the killing," leading the jury to believe that an accomplice for one purpose is an ac- complice for all purposes. This confusion was exacer- bated when, in the course of enumerating the elements of second-degree murder, the court repeatedly used the word "accomplice" to mean "accomplice in the robbery." Without an explicit disclaimer, it is extremely unlikely that the jury understood the same word to have two dif- ferent meanings when used only moments apart in the same charge. The charge thus allowed Smith to be con- victed of first-degree murder if the jury found that either he or his accomplice in the robbery intended to kill Sharp. Additionally, with regard to the conspiracy counts, the court instructed: "You should . . . determine . .. whether there was the requisite intent to enter into this conspiracy

to commit the robbery and the killing which the

120 F.3d 400, *413; 1997 U.S. App. LEXIS 19044, **34

Page 13

*413 Commonwealth contends flowed therefrom or whether there was the requisite intent **35 to enter into and be the accomplice with the other in bringing this about" Id. at 1047 (emphasis added). In this portion of the charge, it is unclear whether one could have the "req- uisite intent to enter into the conspiracy to commit the robbery," without also having the "requisite intent to en- ter into the conspiracy to commit the . . . killing which the Commonwealth contends flowed" from the robbery. It is likely that a reasonable juror would have inferred that the

"requisite intent to enter into the conspiracy to commit the robbery" also necessarily establishes the "requisite intent to enter into the conspiracy to commit . . . the killing which

. . . flowed therefrom." The court's conflation of the two independent requirements of intent was aggravated by the court's next instruction that the jury determine "whether there was the requisite intent to enter into and be the ac- complice with the other in bringing this about," without clarifying whether the "this" referred to the robbery, the killing, or both.

The court immediately attempted to explain the above instruction, but in doing so it conveyed the impression that Smith was criminally liable for conspiracy to commit

**36 murder if he intended to enter into a conspiracy to commit robbery:

That is to say, did Clifford Smith agree, al- though not necessarily by words, but by con- duct and circumstances to bring about this robbery which, in turn, led to the ultimate shooting, so the Commonwealth contends, and the killing of Richard Sharp? If so, then the major basis of conspiratorial liability ex- ists as to him.

Id. at 1047-48 (emphasis added). The court did not clarify to which crime this "conspiratorial liability" ap- plies; the charge was given in the context of the general conspiracy instruction. Thus, it is likely that the jury un- derstood this charge as instructing that Smith could be found guilty of conspiracy to commit first-degree murder if he intended to commit the robbery, even if he did not intend that the killing be committed.

The closest the court came to instructing the jury that specific intent on the part of Smith was necessary to con- vict him of first-degree murder was the following: "You .

. . would be justified in returning a verdict of first degree murder, if you determine beyond a reasonable doubt that the killing was intentional; that is, that there **37 was a specific conscious intent to kill and this was done will- fully, deliberately, and with premeditation." Id. at 1058

(emphasis added). However, this language fails to convey the crucial point that the jury must find that Smith, as opposed to Alston, intended the killing to occur in order for Smith to be found guilty of murder in the first de- gree. Thus, this portion of the charge is "not rhetorically inconsistent," Rock, 959 F.2d at 1248, with the portions that convey the idea that an intent on the part of Alston to kill, coupled with Smith's participation in the robbery, rendered Smith guilty of first-degree murder.

The Commonwealth contends that we are bound by the Pennsylvania Supreme Court's determination, on Smith's direct appeal, that the instructions fairly conveyed to the jury the elements of first-degree murder. The court wrote: "We have reviewed the record in the present case and find no inadequacies in the trial court's instructions as to elements of the crime of murder of the first degree and as to pertinent requirements of criminal culpability." Smith I, 513 A.2d at 1377. Nonetheless, HN9 where an allegedly faulty jury charge implicates a habeas peti- tioner's **38 federal constitutional rights, as we con- clude in the next section this charge did, we have an in- dependent duty to ascertain how a reasonable jury would have interpreted the instructions at issue. See Francis, 471

U.S. at 315-16, 105 S. Ct. at 1972; Sandstrom, 442 U.S.

510 at 516-17, 99 S. Ct. 2450 at 2455, 61 L. Ed. 2d 39; Kontakis, 19 F.3d at 116.

The dissent contends that the trial court's initial rendition of the meaning of "accomplice" pursuant to Pennsylvania law adequately conveyed to the jury that each subsequent use of the term was offense-specific. See Dissent slip op. at 42-43. The court instructed:

An accomplice is a person if with the intent of promoting or facilitating the commission of a crime he solicits, commands,

120 F.3d 400, *414; 1997 U.S. App. LEXIS 19044, **38

Page 14

*414 encourages or requests the other person or persons to commit that crime or crimes, or aids, agrees to aid, or attempts to aid the other person in the planning or com- mitting the sic crime.

App. at 1029. Yet nothing in this charge would lead the jury to think that, when the court instructed the jury on murder, and the court used the word "accomplice," that word meant only "accomplice in the murder." Indeed, this charge reinforces the notion that an **39 accomplice for one purpose is an accomplice for all purposes. There is at least a reasonable likelihood that, without further elaboration, the jurors understood the instruction as stat- ing that if Smith harbored "the intent of promoting or facilitating the commission of a crime robbery and he solicited, commanded, encouraged or requested Alston to commit that crime robbery or aided, agreed to aid, or attempted to aid Alston in . . . planning or committing the crime robbery ," then Smith is "an accomplice." Id.

(emphasis added). The dissent seeks mightily to read into this charge the additional words that might have conveyed the correct impression -- "an accomplice in that crime" or

"an accomplice for purposes of that crime." That critical impression, however, was not conveyed.

The Commonwealth urges that, taken as a whole, the charge informed the jury that it must find that Smith in- tended for the killing to occur in order to convict him of first-degree murder. However, the Commonwealth has cited us no additional language from the charge concern- ing the elements of first-degree murder. Indeed, we have quoted above the entirety of the **40 charge as pertinent to the first-degree murder count and, taken as a whole, we must conclude that there is at least a reasonable likeli- hood that the jury understood the charge as imposing upon the Commonwealth no burden of proving that Smith in- tended for the victim to die in order to convict Smith of first-degree murder.

Having determined that the jury instructions in this case were incorrect, we must further determine whether the error is of constitutional magnitude. "'It is well estab-

lished that a state court's misapplication of its own law does not generally raise a constitutional claim. The federal courts have no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'" Johnson v. Rosemeyer, 117

F.3d 104, 1997 U.S. App. LEXIS 13913, No. 96-1861,

1997 WL 318064, at *5 (3d Cir. June 13, 1997) (quoting

Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992)

(en banc)) (alteration and emphasis added). However, this does not foreclose the possibility that, in the rare case, "a state court's misapplication of its own law" may itself re- sult in a "wrong of constitutional dimension." In other words, HN10 a state court's misapplication **41 of its own law, in and of itself, cannot be corrected by a federal court. However, when that misapplication has the effect of depriving a person of life, liberty, or property without due process of law in violation of the Fourteenth Amendment, the resulting federal constitutional error can be corrected by a federal habeas court. See Gilmore v. Taylor, 508 U.S. 333, 348-49, 113 S. Ct. 2112, 2121,

124 L. Ed. 2d 306 (1993) (O'Connor, J., concurring in the judgment). On the other hand, "errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnson, 1997 WL 318064 at

*6. We conclude that the jury instruction at issue here was not merely an error of state law. By removing the Commonwealth's burden of proving beyond a reasonable doubt one of the essential elements of the crime of first- degree murder, the instruction also contravened the Due Process Clause of the Fourteenth Amendment.

It is axiomatic that HN11 Pennsylvania may, within certain constitutional limits, define first-degree murder in whatever way the Commonwealth sees fit. See McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 2415-

16, 91 L. Ed. 2d 67 (1986); Johnson, 1997 WL 318064 at *6. It certainly **42 may include within that defini- tion felony-murder. Indeed, many states do include such killings in their definitions of first-degree murder. See Tison, 481 U.S. at 152-54 & nn.5-9, 107 S. Ct. at 1683-86

& nn.5-9. Pennsylvania itself defined first-degree murder in this way until 1974. See 18 PA. CONS. STAT. ANN. §

2502,

120 F.3d 400, *415; 1997 U.S. App. LEXIS 19044, **42

Page 15

*415 Historical Note. The Supreme Court has held that the inclusion of felony-murder within the definition of first-degree murder, and the consequent imposition of the death penalty, does no violence to the federal Constitution so long as the defendant was a major participant in the felony and exhibited a reckless indifference to human life. See Tison, 481 U.S. at 158, 107 S. Ct. at 1688.

However, HN12 once the state has defined the el- ements of an offense, the federal Constitution imposes constraints upon the state's authority to convict a person of that offense. It is well-settled that "the Due Process Clause of the Fourteenth Amendment protects the ac- cused against conviction except upon proof beyond a rea- sonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397

U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368

(1970); **43 see also Victor, 511 U.S. at 5, 114 S. Ct. at 1242; Francis, 471 U.S. at 316-17, 105 S. Ct. at 1973-

74; Sandstrom v. Montana, 442 U.S. 510, 520-22, 99 S. Ct. 2450, 2457-58, 61 L. Ed. 2d 39 (1979). HN13 A jury instruction that omits or materially misdescribes an essential element of an offense as defined by state law relieves the state of its obligation to prove facts consti- tuting every element of the offense beyond a reasonable doubt, thereby violating the defendant's federal due pro- cess rights. See Carella v. California, 491 U.S. 263, 265,

109 S. Ct. 2419, 2420, 105 L. Ed. 2d 218 (1989) (per curiam); Rock, 959 F.2d at 1245-46; see also Polsky v. Patton, 890 F.2d 647, 651 (3d Cir. 1989) (no due pro- cess violation where jury instruction "did not omit any essential element of the crime charged").

This result is not inconsistent with Johnson, 1997 WL

318064 at *6-8. In that case, the federal habeas petitioner contended that the jury instructions concerning justifi- cation rendered at his Pennsylvania trial for aggravated assault, and later affirmed by an intermediate appellate court, violated his rights pursuant to the Due Process Clause. See id. at *3-5. We noted that a conviction for aggravated **44 assault in Pennsylvania required that the Commonwealth prove beyond a reasonable doubt that the defendant acted with malice. See id. at *6. We further

noted that justification on the part of the defendant would necessarily negate a showing of malice. See id. Thus, the Commonwealth was required to prove that the de- fendant acted without justification. See id. The petitioner argued that, by misdescribing justification pursuant to Pennsylvania law, the trial court violated his Due Process rights. See id. He reasoned that the allegedly erroneous instruction allowed the Commonwealth to convict him of the offense without having proved every element, as properly defined, beyond a reasonable doubt. See id.

We rejected this argument, holding that no federal is- sue was raised. See id. at *8. We further held that a federal habeas court is bound by the definition given a state crim- inal offense even by intermediate state appellate courts. See id. at *10-13. However, in Johnson the Pennsylvania Supreme Court had not yet defined justification pursuant to state law. See id. at *4. The petitioner simply chal- lenged the definition of that term rendered by the state

**45 trial and intermediate appellate courts, urging that the Pennsylvania Supreme Court would rule differently. Thus, Johnson stands for the unremarkable proposition that the states are free to define criminal offenses in any way they see fit, within certain constitutional limitations, even through their lower courts. This is so even if the def- inition they choose makes it somewhat easier to convict a person of the offense than would be the case under a different definition. Johnson most emphatically does not stand for the proposition that, once a state has defined a criminal offense, the state may then proceed to convict a person of that offense on anything less than proof be- yond a reasonable doubt of all the elements of the offense. Thus, whether a state is relieved of that burden via an in- struction that omits an element of an offense, materially misdescribes that element, or shifts to the defendant the burden of proof on that element, the result is the same -- the defendant has been denied his federal constitutional rights.

The dissent accuses us of holding that "the Due Process Clause is violated whenever a state trial judge, in instructing a jury on an

120 F.3d 400, *416; 1997 U.S. App. LEXIS 19044, **45

Page 16

*416 element of a state **46 offense, gives an ambiguous instruction that prejudices the defendant." Dissent slip op. at 45-46. We do no such thing. First, rather than being "ambiguous," the language must be such that "there is a reasonable likelihood that the jury has" understood and applied it in a certain way. Supra at 18 (emphasis and internal quotation marks omitted). Second, we require more than that the defendant simply be "prejudiced." Our recent holding in Johnson, 1997 WL

318064 at *6-8, makes this clear. The standard requires that the defendant be prejudiced in a very particular way- it requires that the erroneous instructions have operated to lift the burden of proof on an essential element of an offense as defined by state law.

The dissent notes that the Supreme Court has never expressly held that a jury charge that eases the state's burden of proof on an element of an offense by omitting or materially misdescribing it violates the Due Process Clause. The proposition is true as far as it goes. If our duty as a court of appeals were simply to sustain only those claims the legal bases for which have already been settled by the Supreme Court, the dissent's observation would have some relevance. **47 However, our duty also extends to predicting, in circumstances where there is no specific guidance, how that Court would decide if it were to consider the case before us.

Contrary to the dissent's assertions, our holding fol- lows inexorably from the Supreme Court's decisions in Sandstrom, Franklin, and Carella. As the dissent recog- nizes, those cases "held that the Due Process Clauseis violated where jury instructions in a criminal case set out either a conclusive presumption or a mandatory re- buttable presumption that relieves the prosecution of the burden of persuasion on the presumed fact." Dissent slip op. at 46. Here, the jury was not instructed on an essential element of first-degree murder -- Smith's intent. Instead, as we read the charge (and we understand the dissent dis- putes this point) the jury was instructed that as long as either Smith or Alston killed Sharp, and as long as Smith and Alston were accomplices in the robbery, Smith could be found guilty of first-degree murder. This charge was the functional equivalent of an instruction that as long as

either Smith or Alston killed Sharp, and as long as Smith and Alston were accomplices in the robbery, **48 the jury should conclusively presume that Smith had the in- tent to kill Sharp, and therefore he could be found guilty of first-degree murder. Yet the dissent apparently would find that the former charge does not violate Smith's con- stitutional rights, because it is not identical in form to the latter, which indisputably is repugnant to the Due Process Clause under Sandstrom, Franklin, and Carella.

In this case, there is no dispute that Pennsylvania law requires the Commonwealth prove specific intent to kill on the part of the defendant in order to convict him of first-degree murder. The Commonwealth unambiguously conceded as much at oral argument. However, the jury was instructed that Smith could be found guilty of first- degree murder even if it did not find beyond a reason- able doubt that Smith intended for a killing to take place. The instruction thus relieved the Commonwealth of the burden of proving beyond a reasonable doubt facts neces- sary to constitute every element of the offense with which Smith was charged. The instruction therefore constituted error pursuant to the Due Process Clause of the Fourteenth Amendment.

Finally, we must determine whether **49 the con- stitutional error that occurred in this case was harmless.

We must first determine whether a jury charge that omits or misdescribes an element of an offense can ever be harmless. We have explained that

HN14

constitutional errors have been categorized as one of two types: structural error or trial error. A structural error is a defect in the trial mechanism itself, affecting the entire trial process, and is per se prejudicial. Trial error occurs during the presentation of the case to the jury, and may be qualitatively assessed in the context of all other evidence. Thus, trial errors

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Page 17

*417 are subject to a harmless error anal- ysis.

Yohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996) (cita- tions omitted); see also Arizona v. Fulminante, 499 U.S.

279, 307-10, 111 S. Ct. 1246, 1264-65, 113 L. Ed. 2d

302 (1991). n5

n5 In Kontakis v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994), we stated broadly that "unconstitutional jury instructions" constitute trial error. There is at least one type of erroneous jury instruction, how- ever, that constitutes structural error. See Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S. Ct. 2078,

2082, 124 L. Ed. 2d 182 (1993) (defective rea- sonable doubt charge). While most erroneous jury instructions that rise to the level of constitutional error will be trial error, we undertake to determine how to classify the specific type of instructional error that occurred here.

**50

In California v. Roy, U.S. , , 136 L. Ed. 2d 266,

117 S. Ct. 337, 339 (1996) (per curiam), the Supreme Court characterized "an error in the instruction that de- fined the crime" as a trial error rather than a structural error. In that case, the defendant was accused of aiding a confederate in committing first-degree murder. See id. at , 117 S. Ct. at 337. The trial court had instructed the jury the defendant could be convicted if it found beyond a reasonable doubt that he had knowledge of his cohort's unlawful purpose and that the defendant aided him in the commission of the act. See id. at , 117 S. Ct. at 337-38. The instruction was erroneous under state law because it failed to convey the critical idea that the defendant must also have intended to aid in the commission of the crime in order to be found guilty. See id. at , 117 S. Ct. at 338. The Roy Court arguably did not decide that all "er- rors in the instruction that define the crime" constitute trial error, id. at , 117 S. Ct. at 339, but only that that label attaches "to errors that concern fairly narrow de- partures from proper charge language." Peck v. United States, 102 F.3d 1319, 1325 **51 (2d Cir. 1996) (en banc) (per curiam) (Newman, C.J., concurring); see also id. at 1326 (Newman, C.J., concurring). It may be that

a "mere" misstatement of an element of an offense is a trial error, while a complete omission of an element is a structural error. See Roy, U.S. at , 117 S. Ct. at 339; see also Waldemer v. United States, 106 F.3d 729, 736 n.3 (7th Cir. 1997); United States v. Wiles, 102 F.3d 1043,

1059 (10th Cir. 1996) (en banc), modified, 106 F.3d 1516

(10th Cir.), petition for cert. filed, 65 U.S.L.W. 3632 (U.S. Mar. 10, 1997) (No. 96-1430); cf. Peck, 102 F.3d at 1325

(Newman, C.J., concurring).

However, we need not decide this issue. The charge error in the instant case is so similar to the one at is- sue in Roy that we believe that this case is controlled by that decision. In addition, several pre-Roy decisions from both the Supreme Court and this Court all hold that sim- ilar types of instructional error constitute trial error. See Yates v. Evatt, 500 U.S. 391, 402, 111 S. Ct. 1884, 1892,

114 L. Ed. 2d 432 (1991) (instructions that impermissibly impose mandatory, rebuttable presumption on element of offense); Carella, 491 U.S. at 266, **52 109 S. Ct. at 2421 (mandatory, conclusive presumption); Rose v. Clark, 478 U.S. 570, 579-82, 106 S. Ct. 3101, 3106-

08, 92 L. Ed. 2d 460 (1986) (mandatory, rebuttable pre- sumption); Pope v. Illinois, 481 U.S. 497, 501-03, 107 S. Ct. 1918, 1921-22, 95 L. Ed. 2d 439 (1987) (instructions that misdescribe element of offense in violation of First and Fourteenth Amendments); United States v. Edmonds,

80 F.3d 810, 824 (3d Cir. 1996) (en banc) (instructions that effectively abridge federal criminal defendant's Sixth Amendment right to jury unanimity); Kontakis, 19 F.3d at 116 (instructions that alter burden of proof on element of offense). We conclude that the error that occurred here was trial error, not structural error.

HN15 In a collateral proceeding, the standard for harmlessness is "whether the error had substantial and injurious effect or influence in determining the jury's ver- dict." Roy, U.S. at , 117 S. Ct. at 338 (internal quota- tion marks omitted); see also Brecht v. Abrahamson, 507

U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353

(1993); Yohn, 76 F.3d at 523; Alston v. Redman, 34 F.3d

1237, 1252 (3d Cir. 1994).

Pursuant to the Brecht standard,

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Page 18

*418 the crucial inquiry is the **53 im- pact of the error on the minds of the jurors in the total setting. It is thus inappropriate to ask whether there was sufficient evidence to support the result, apart from the phase of the trial affected by the error. The correct inquiry is whether the error had a substan- tial influence on the verdict despite sufficient evidence to support the result apart from the error.

Yohn, 76 F.3d at 523 (citations omitted); see also Alston,

34 F.3d at 1252.

The Supreme Court has held that if a habeas court "is in grave doubt as to the harmlessness of an error," habeas relief must be granted. O'Neal v. McAninch, 513 U.S.

432, , 130 L. Ed. 2d 947, 115 S. Ct. 992, 995 (1995). Thus, HN16 if the court concludes from the record that the error had a "substantial and injurious effect or influ- ence" on the verdict, or if it is in "grave doubt" whether that is so, the error cannot be deemed harmless. See Roy,

U.S. at , 117 S. Ct. at 338.

We now apply the harmless error analysis set forth above to the facts of this case. The Commonwealth urges that this error was harmless because the jury's findings, in light of the evidence, embrace the finding that Smith actu- ally killed Sharp **54 and intended to do so. According to the Commonwealth, the harmlessness of the error fol- lows syllogistically: (1) the trial court essentially in- structed the jury that Smith was guilty of first-degree murder if at least one of the robbers both killed Sharp and intended to kill him; (2) by finding Smith guilty of first-degree murder, the jury necessarily found beyond a reasonable doubt that either Smith or Alston killed Sharp and intended to do so; and (3) because there was evi- dence that Smith killed Sharp, and no evidence that Alston killed Sharp, the jury found beyond a reasonable doubt that Smith both killed Sharp and intended to do so.

While this reasoning has some superficial appeal, it does not withstand close scrutiny. The fundamental flaw

arises in the leap from step two to step three of the anal- ysis. The jury was never asked to evaluate the respective probabilities that Smith or Alston killed Sharp. The ver- dict demonstrates that the jury found beyond a reasonable doubt that one of them killed Sharp. The evidence sup- porting this verdict demonstrates that it is more likely that Smith, rather than Alston, killed Sharp. However, this evidence and the factual findings it **55 supports are not the " 'functional equivalent' " of, nor do they

"effectively embrace ," a finding beyond a reasonable doubt that Smith killed Sharp. Edmonds, 80 F.3d at 824

(quoting Carella, 491 U.S. at 271, 109 S. Ct. at 2423-

24 (Scalia, J., concurring in the judgment)), cert. denied, U.S. , 117 S. Ct. 295 (1996) (alteration added); Roy, U.S. at , 117 S. Ct. at 339 (Scalia, J., concurring). We cannot say that a finding that either Smith or Alston killed Sharp is " 'so closely related' " to a finding that Smith killed Sharp, in light of the evidence presented, that " 'no rational jury' " that made the former finding would have failed to make the latter finding. Edmonds,

80 F.3d at 824 (quoting Carella, 491 U.S. at 271, 109 S. Ct. at 2423-24 (Scalia, J., concurring in the judgment)). The strongest evidence that Smith actually killed Sharp were his admissions, made immediately after the robbery, related at trial by Barrow and Yancey. These two witnesses were admitted accomplices to the robbery whose credibility was therefore in question. Smith's par- ticipation in the robbery was well established by inde- pendent evidence-the jury did not **56 need to believe either Barrow or Yancey in order to find him guilty of robbery and therefore (because of the erroneous jury in- structions) first-degree murder. It is thus unclear whether and to what extent the jury believed or disbelieved Barrow and Yancey. Since the jury charge did not necessitate that the jury make this determination, we can only speculate as to its conclusion with regard to Barrow and Yancey's credibility. HN17 We cannot assume that the jury, hav- ing found Smith guilty, "believed all properly admitted evidence against him and disbelieved all evidence in his favor." ROGER J. TRAYNOR, THE RIDDLE OF

HARMLESS ERROR (1970).

The situation here is analogous to the one contem- plated in Yates, 500 U.S. at 405-06,

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Page 19

*419 111 S. Ct. at 1894. In that "mandatory rebuttable presumption" case, the Supreme Court cautioned that if it appears that the jury did not consider

all the evidence bearing on the issue in ques- tion , before it made the findings on which the verdict rested . . . an examination of the entire record would not permit any sound conclusion to be drawn about the significance of the error to the jury in reaching the ver- dict. . . . The terms of some presumptions

**57 so narrow the jury's focus as to leave it questionable that a reasonable juror would look to anything but the evidence establish- ing the predicate fact in order to infer the fact presumed.

Id. (footnote omitted). Analogously, the effect of the instructions here was to "so narrow the jury's focus as to leave it questionable that a reasonable juror would" endeavor to answer the rather difficult question whether Smith killed Sharp, rather than to rest upon the answers to the relatively straightforward questions whether Smith participated in the robbery and whether either Smith or Alston killed Sharp.

Moreover, the Commonwealth proceeded on the the- ory that Smith was guilty of first-degree murder whether or not he intended the victim to be killed. Although the prosecutor in summation contended that Smith commit- ted the killing, he also repeatedly admonished the jury that it need not consider whether Smith actually killed Sharp. See Cross App. at 1007-08, 1010, 1012-13, 1014,

1017. Having repeatedly urged the jury to base its verdict on a theory predicated on a fundamental constitutional error, the Commonwealth cannot now seriously contend that that error had no "substantial **58 and injurious effect or influence" on the verdict. See Yohn, 76 F.3d at

523-24 (repeated emphasis by prosecution on importance of erroneously admitted evidence demonstrated error was not harmless).

For these reasons, our harmless-error analysis leads inexorably to the conclusion that the error here was not harmless. Upon a review of the record, we cannot say that the error had no "substantial and injurious effect or influence" on the jury's verdict.

IV.

The judgment of the district court will be reversed to the extent that it denied Smith habeas relief with regard to his conviction for first-degree murder. The judgment will be vacated in all other respects. The matter will be remanded to the district court with directions that it con- ditionally order Smith released from confinement. Smith shall be released unless the Commonwealth retries him for the crime of first-degree murder within 180 days. n6

n6 We express no opinion whether, following the grant of habeas relief, the Commonwealth may properly move to resentence Smith for any lesser included homicide (such as murder or manslaugh- ter where specific intent is not an element of the crime). Nor do we express an opinion concerning the propriety of the Commonwealth moving to re- sentence Smith on the other crimes for which he was convicted along with first-degree murder.

**59

DISSENTBY: ALITO

DISSENT:

ALITO, Circuit Judge, dissenting.

The majority's decision in this case is troubling. In

1983, Clifford Smith was convicted in state court for first- degree murder. At his trial, the prosecution introduced strong evidence that Smith and another man, Roland Alston, robbed a pharmacy and that, after the pharma- cist was ordered to lie face down on the floor, Smith proceeded to execute him with a gunshot to the head. Fourteen years later, when retrial will almost certainly be difficult at best, the majority holds that Smith's federal habeas petition must be granted based on a perceived am- biguity in the jury instructions. According to the majority, certain references to the concept of an "accomplice" are ambiguous in that they could be interpreted to mean either

" 'accomplice in the killing,' 'accomplice in the robbery,' or both." Maj. Op. at 20-21. This supposed ambiguity, the majority concludes, not only created confusion about the requirements of state law but rose to the level of a federal due process violation. The majority takes this course even though (1) the trial judge, before making the references to "accomplice" that the majority finds to be ambiguous, **60 provided an accurate and detailed definition of that term which, if read into all of the challenged references,

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Page 20

*420 renders them accurate; (2) Smith's attorney did not object at trial to the relevant portions of the jury charge; and (3) Smith never argued in either of his two appeals to the Pennsylvania Supreme Court that these portions of the jury instructions violated ei- ther state law or the Due Process Clause. Under these circumstances, I cannot agree with the majority's deci- sion.

An important threshold question is whether Smith ex- hausted state remedies. Although the Commonwealth has not raised this issue, I believe that we should neverthe- less address it under the circumstances present here. n1 In Granberry v. Greer, 481 U.S. 129, 134-35, 95 L. Ed. 2d

119, 107 S. Ct. 1671 (1987), the Supreme Court stated that

"both comity and judicial efficiency" might make it appro- priate for a court to raise the issue of exhaustion on its own where a case "presents an issue on which an unresolved question of fact or of state law might have an impor- tant bearing." 481 U.S. at 134-35. The present case falls squarely within this description. As noted, the majority's decision is founded upon its conclusion that the jury in- structions **61 inaccurately explained Pennsylvania's rule of accomplice liability. Before considering whether this purported misstatement of state law rose to the level of a federal due process violation, it would be helpful to have the benefit of a decision by the Pennsylvania courts on the underlying issue of state law.

n1 In this opinion, I rely on the caselaw re- garding exhaustion and procedural default as they existed prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

104-132, 110 Stat. 1221, which became law on April 24, 1996, after Smith's federal habeas peti- tion was filed. Under a provision of that Act appli- cable to a state prisoner under a capital sentence, a district court is generally precluded from consid- ering a claim unless it was "raised and decided on the merits in the State courts." 28 U.S.C. §

2264(a). This provision applies to federal habeas petitions already pending when the Act became law. See Lindh v. Murphy, 1997 WL 338568 (U.S. Sup. Ct. June 23, 1997). However, this provision applies only if a state satisfies certain conditions, see U.S.C. § 2261, and in Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35, 36 (3d Cir.

1997), the Commonwealth declared, and our court agreed, that Pennsylvania did not meet the require- ments of § 2261 as of January 31, 1997. It therefore appears that § 2264(a) is inapplicable here. Under the current version of 28 U.S.C. § 2254(b)(3), con- sideration of the issue of exhaustion would be re-

quired. However, Smith's petition was filed before this provision took effect. See Lindh, supra.

**62

We have no such decision, however, because Smith did not challenge the relevant portions of the jury in- structions on any ground in either of his two appeals to the Pennsylvania Supreme Court. Not only did he fail to raise the federal due process claim on which the major- ity's decision rests, but he did not even contend that the instructions misstated state law. n2

n2 On direct appeal, Smith argued that the trial judge erred in refusing to give three instructions requested by the defense, namely, Nos. 8, 11, and

12. Number 8 defined first degree murder; number

11 defined involuntary manslaughter; and number

12 defined the terms "intentionally," "knowingly,"

"recklessly," and "negligently." None of these re- quested instructions related to the claim on which the majority relies.

The Supreme Court of Pennsylvania rejected Smith's argument regarding the requested instruc- tions on involuntary manslaughter on the ground that the evidence at trial did not support such a charge. Commonwealth v. Smith, 511 Pa. 343,

513 A.2d 1371, 1377-78 (Pa. 1986). The court re- jected Smith's argument concerning the other two requested instructions on the ground that the sub- stance of those requests was adequately covered by the trial judge. The state supreme court wrote:

It is established that a trial court is not required to accept points submitted by counsel verbatim, but rather is free to select its own forms of expression. Commonwealth v. McComb, 462 Pa.

504, 509, 341 A.2d 496, 498 (1975).

"The only issue is whether the area is adequately, accurately and clearly pre- sented to the jury for their considera- tion." Id. We have reviewed the record in the present case and find no inade- quacies in the trial court's instructions as to elements of the crime of murder of the first degree and as to pertinent requirements of criminal culpability.

513 A.2d at 1377.

This passage cannot reasonably be interpreted to mean that the state supreme court sua sponte con-

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Page 21

sidered the federal due process claim now before us. Indeed, it would be utterly unrealistic to inter- pret the court's statements to mean even that it had rejected all possible objections to the instructions that might be raised under state law. To go further

and read that statement as a rejection of an unraised federal due process claim would be absurd.

**63

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Page 22

*421 Although Smith did not exhaust state remedies,

" a petitioner's failure to exhaust state remedies is . . . excused . . . when state law 'clearly forecloses state court review of the unexhausted claims.' " Doctor v. Walters,

96 F.3d 675, 680 (3d Cir. 1996) (quoting Toulson v. Beyer,

987 F.2d 984, 987 (3d Cir. 1993)). Here, the Pennsylvania courts might well hold that review of Smith's claim is fore- closed under the Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. S. §§ 9541-46 (Supp. 1996). In Doctor, 96 F.3d at 681, we explained that under Pennsylvania law

"an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on ap- peal or in a prior state postconviction pro- ceeding." 42 Pa. Cons. Stat. Ann. §

9544(b). As the Pennsylvania courts have noted, "nearly all claims are waived under the PCRA since nearly all claims potentially could have been raised on direct appeal . . . . Commonwealth v. Eaddy, 419 Pa. Super. 48,

614 A.2d 1203, 1207-08 (1992), appeal de- nied, 534 Pa. 636, 626 A.2d 1155 (1993); ac- cord Commonwealth v. Stark, 442 Pa. Super.

127, 658 A.2d 816, 820 (1995).

**64

We recognized, however, that PCRA review might not be foreclosed if a petitioner is "able to demonstrate a 'mis- carriage of justice' warranting 'departure from the PCRA's stringent eligibility requirements.' " Doctor, 96 F.3d at 681

(quoting Commonwealth v. Fiore, 445 Pa. Super. 401, 665

A.2d 1185, 1193 (1995) (Hoffman, J., concurring) (cita- tions omitted), appeal denied, 675 A.2d 1243 (1996)). I question whether at this time the Pennsylvania courts would entertain Smith's challenge to the jury instructions, but I would certainly request briefing from the parties on this question.

If, as seems likely, PCRA review is foreclosed because of Smith's failure to raise his federal due process claim in the prior state-court proceedings, we should consider the doctrine of procedural default. See Coleman v. Thompson,

501 U.S. 722, 735, 115 L. Ed. 2d 640, 111 S. Ct. 2546 n. *

(1991). This doctrine, like exhaustion, has not been raised by the Commonwealth, but I believe that we should apply this doctrine nevertheless. Our court, see Hull v. Freeman,

932 F.2d 159, 164 n.4 (3d Cir. 1991), and many others have held that procedural default may be raised sua sponte by a court of appeals. See, e.g., Ortiz **65 v. Dubois, 19

F.3d 708, 714 (1st Cir. 1994); Washington v. James, 996

F.2d 1442 (2d Cir. 1993); Hardiman v. Reynolds, 971 F.2d

500, 502-04 & n.4 (10th Cir. 1992). n3 In Washington , the Second Circuit explained that "principles of comity and federalism bear on the relations between court sys- tems, and those relations will be affected whether or not the litigants have raised the issue themselves." 996 F.2d at

1448. In Hardiman, the Tenth Circuit, quoting our opin- ion in Brown v. Fauver, 819 F.2d 395, 398 (3d Cir. 1987)

(holding that a court could raise exhaustion sua sponte), stated that it was appropriate for a court to raise the issue of procedural default because it implicates " 'values that may transcend the concerns of the parties to the action.'

" 971 F.2d at 502.

n3. Cf. Caspari v. Bohlen, 510 U.S. 383, 389,

127 L. Ed. 2d 236, 114 S. Ct. 948 (1994) (non- jurisdictional Teague rule may but need not be raised by federal court sua sponte; Granberry, 481

U.S. at 134-35 (same for exhaustion); Patsy v. Board of Regents of Fla., 457 U.S. 496, 515 n.19,

73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982) (same for Eleventh Amendment defense). Compare Trest v. Whitley, 94 F.3d 1005 (5th Cir. 1996), petition for cert. granted, 117 S. Ct. 1842 (1997) (present- ing question whether court of appeals is required to raise procedural default). The petition in Trest argues that, under Gray v. Netherland, 135 L. Ed.

2d 457, 116 S. Ct. 2074, 2082 (1996), procedural default is an affirmative defense that is lost if not properly raised by the state. But while it is cer- tainly true that a state may lose the "right" to have the doctrine of procedural default considered if it does not properly raise that issue, see Gray, 116

S. Ct. at 2082, it is far from clear that Gray meant to go further and say that the lower federal courts lack the discretion to raise the issue on their own. See id. (citing Schiro v. Farley, 510 U.S. 222, 227-

28, 127 L. Ed. 2d 47, 114 S. Ct. 783 (1994) (refus- ing as a matter of discretion to consider Teague bar where not raised at cert. petition stage), and Jenkins v. Anderson, 447 U.S. 231, 234 n.1, 65 L. Ed. 2d

86, 100 S. Ct. 2124 (1980) (refusing to consider procedural default where raised for the first time in Supreme Court).

**66

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Page 23

*422 In Ortiz, the First Circuit, when confronted with a federal constitutional claim closely resembling Smith's, held that it was appropriate to raise the issue of proce- dural default on its own motion. The petitioner in Ortiz, argued that "his right to due process was violated because the jury was not properly instructed on the elements of felony-murder under Massachusetts law, and therefore did not find every element of the offense beyond a rea- sonable doubt." 19 F.3d at 710. Although the petitioner ar- gued on direct appeal that the instructions were deficient, the Supreme Judicial Court of Massachusetts declined to review his claim on the merits because he had not ob- jected to the instructions at trial. Id. at 713. Instead, the Supreme Judicial Court "limited its inquiry to whether the error gave rise to a substantial likelihood of miscarriage of justice." Id. at 714. Accordingly, the First Circuit found that "the state procedural default was clear on the face of the record," and thus found it unnecessary to review the merits of the petitioner's claim. n4

n4 The First Circuit did state that it would have rejected the claim even if it had reached the merits.

**67

Like the First Circuit in Ortiz, I think that it is appro- priate for us to raise the issue of procedural default in this case on our own motion, particularly since Smith's fed- eral constitutional claim is grounded on an issue of state law. Since Smith has not had an opportunity to address the issue of procedural default, I would request further briefing on that issue before determining whether there is any basis for excusing default in this case.

The majority refuses to consider the issues of exhaus- tion and procedural default -- indeed, refuses even to re- quest briefing on these serious issues. The majority voices concern that consideration of these issues would "result in undue delay." Maj. Op. 13; see also id. at 12. This concern is curious -- and not only because of the pace of the postconviction proceedings to date. Consideration of procedural default would not simply delay a decision on

the merits of Smith's claim; rather, it holds the potential for precluding a decision on the merits of that claim. If the claim is procedurally defaulted, if Smith cannot show cause and prejudice, and if no other exception applies

(questions on which I express no view without **68 hearing from the parties), then neither the state nor the federal courts would decide the merits of Smith's claim. Obviously, then, the refusal to consider procedural default cannot be defended on the ground that to do so would only delay an inevitable decision on the merits.

The majority also contends that the jury instructions resulted in a "miscarriage of justice." As I show below, however, the instructions at issue here were at most am- biguous -- and that is undoubtedly why they did not even elicit an objection from Smith's trial counsel, why chal- lenges to these instructions were not included among the numerous arguments raised in Smith's two appeals to the Supreme Court of Pennsylvania, and why the district court judge in this federal habeas corpus proceeding thought that the alleged errors that the majority is willing to label

"a miscarriage of justice" were meritless and did not even warrant discussion. See Smith v. Horn, 1996 U.S. Dist. LEXIS 4573, 1996 WL 172047 (E.D. Pa. 1996), page 12. There is one reasonable argument that can be made in support of the conclusion that we should not raise the doc- trines of exhaustion and procedural default on our own, i.e., that these doctrines, which serve to **69 protect state prerogatives, should be raised by the state's attor- neys. But, as I previously noted, our court and others have recognized that the values served by these doctrines

"may transcend the concerns of the parties to an action."

Brown v. Fauver, 819 F.2d at 398.

Aiming to curb federal habeas corpus abuses, particu- larly in death penalty cases, Congress endorsed this view when it enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1221. In capital cases subject to chapter 154, 28 U.S.C. §§ 2261-

66, Congress prohibited federal courts from considering a claim unless it was "raised and decided on the merits

120 F.3d 400, *423; 1997 U.S. App. LEXIS 19044, **69

Page 24

*423 in the State courts." 28 U.S.C. § 2264(a). In other cases, Congress provided that a state may not be deemed to have waived exhaustion unless it does so expressly. 28

U.S.C. § 2254(b)(3). These new provisions do not apply here (see footnote 1, supra), but they are animated by the same respect for the state court systems that informed our court's prior decisions. Accordingly, I believe that we should not proceed to review the merits of Smith's due process claim without considering the issues of exhaus- tion and procedural default. **70 However, since the majority has skipped over these questions and plunged into the merits of Smith's federal constitutional claim, I will address the merits of that claim as well.

II.

A. The Pennsylvania rule of accomplice liability is as follows:

When causing a particular result is an el- ement of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with re- spect to that result that it is sufficient for the commission of the offense.

18 Pa. Cons. Stat. Ann. § 306(d) (emphasis added). An

"accomplice" is defined in pertinent part as follows: A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it.

18 Pa. Cons. Stat. Ann. § 306(c) (emphasis added). Thus, in order for an "accomplice" to be criminally responsi- ble for a particular offense, the "accomplice" must **71 have "the intent of promoting or facilitating the offense"--

which means that the accomplice must at a minimum pos- sess the intent necessary for conviction of that offense as a principal.

In this case, Smith was charged with first degree mur- der, robbery, possession of instruments of crime, and con- spiracy. The trial judge instructed the jury on the elements of all of these offenses, as well as the lesser included homicide offenses of second and third degree murder and voluntary manslaughter.

Before setting out the elements of these offenses, how- ever, the trial judge instructed the jury on the principles of accomplice liability, which were relevant, not only to the first degree murder charge, but to all of the other substan- tive offenses as well. The trial judge accurately stated that an accomplice is criminally responsible for the acts of the principal. CA 1028. "Therefore," the court stated, "it is necessary that you understand and that we spell out what is meant under our Crimes Code by the term accomplice." See CA 1028-29. Tracking the language of 18 Pa. Cons. Stat. Ann. § 306(c)(1), the trial judge then explained that a person is an accomplice "if with the intent of promot- ing **72 or facilitating the commission of a crime he solicits, commands, encourages or requests the other person or persons to commit that crime or crimes, or aids, agrees to aid, or attempts to aid the other person in the planning or committing the crime." Id. (emphasis added). Under this instruction, as under 18 Pa. Cons. Stat. Ann. §

306(c), a person can be an accomplice with respect to the commission of a particular crime only if that person has

"the intent of promoting or facilitating" the commission of "that crime."

When a trial judge, in instructing a jury, provides a definition of a complicated legal term, the judge is not generally required to repeat that definition every time the term is subsequently employed. Rather, the judge may reasonably rely on the prior definition, and that is what the trial judge did here -- without objection. If the previously provided definition is read into the instructions whenever the judge referred to an "accomplice," the judge's instruc- tions are correct. Under this procedure, every reference to "an accomplice" should be read as a reference to an

"accomplice" with respect to the particular offense or of- fenses that the judge is discussing. **73 In finding that certain references to the

120 F.3d 400, *424; 1997 U.S. App. LEXIS 19044, **73

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*424 concept of an "accomplice" are ambiguous, the majority ignores the significance of the definition that preceded these references.

For example, the majority holds (Maj. Op. 18-19) that the trial judge violated due process when he gave the following instruction:

The elements of first degree murder are the unlawful killing of another person done in- tentionally; that is, willfully, deliberately and with premeditation, plus malice, as I will de- fine that term to you. If these elements are established beyond a reasonable doubt, you may, on the theory that one was the perpetra- tor and the other the accomplice, find Clifford Smith guilty of murder in the first degree . . .

CA 1035. The majority finds this instruction objection- able because it did not clearly convey the message that, if Alston pulled the trigger, Smith could be convicted of first degree murder only if Smith was Alston's " 'accom- plice in the killing' and not simply his accomplice in the robbery.' " Maj. Op. 19. But if the previously supplied definition of an "accomplice" is applied, this alleged am- biguity is dispelled. As noted, an "accomplice" must have the intent **74 required for the offense in question (see Pa. Cons. Stat. Ann. § 306(c); CA 1029); therefore, to be an accomplice in a first degree murder a person must have the intent required for that offense, i.e., the person must act intentionally, willfully, deliberately, and with premeditation. 18 Pa. Cons. Stat. Ann. §§ 2502(a), (d).

To be sure, if Smith's trial attorney had objected to this and the other instructions at issue on the ground that they were suspectable to the misinterpretation that troubles the majority, if the trial judge had overruled this objection, if the objection had been raised on direct appeal, and if we sat on a Pennsylvania appellate court, rather than a fed- eral court, I could understand a decision requiring a new trial. But for a federal appeals court to order a new trial

14 years later based on such a previously unchallenged ambiguity is shocking.

The remaining portions of the instructions that the majority has singled out are similar. The majority objects

(Maj. Op. 19-20) to certain instructions in which the trial judge attempted to explain in generic terms the applica- tion of the principles of accomplice liability to any of

the homicide offenses **75 that were before the jury, i.e., first, second, and third degree murder and voluntary manslaughter. See CA 1030-32. Probably because he was speaking about all of these offenses at the same time, the judge did not at this point specify the intent required for conviction for each offense (he did that a few pages later), but if the definition of an accomplice that he gave on the previous page is applied, the challenged instructions were correct. In retrospect, one might argue that it was inadvis- able for the trial judge to have attempted to explain in one breath how the principles of accomplice liability relate to all four of the homicide offenses that were before the jury, and one might fault the particular language that the judge chose. But I see nothing in these instructions that justifies federal habeas relief. n5

n5 The majority goes so far as to cite alleged ambiguities in the instructions on criminal conspir- acy as support for its decision to strike down Smith's first degree murder conviction. See Maj. Op. 18-19; CA 1047-48. This argument is far-fetched indeed. By this point in the instructions, the trial judge had turned to the last "remaining crimes in the Information, . . . the crimes of criminal conspir- acy to commit the various robberies . . . criminal conspiracy to commit first degree murder and mur- der and criminal conspiracy to commit the act of possession of instruments of crime." CA. 1043. If there were any serious flaws in these instructions -- and I see none -- they could at most undermine Smith's conspiracy conviction, not his conviction for first degree murder.

**76

Having identified what is at most an ambiguity in the jury instructions on a point of state law, the major- ity alchemizes this ambiguity into a violation of the Due Process Clause. The majority writes:

In this case, the misapplication of state law resulted in a federal constitutional error. It is well-settled that "the Due Process Clause of the Fourteenth Amendment protects the ac- cused against conviction except upon proof beyond a reasonable doubt of every fact nec- essary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364,

90 S. Ct. 1068,

120 F.3d 400, *425; 1997 U.S. App. LEXIS 19044, **76

Page 26

*425 1073, 25 L. Ed. 2d 368 (1970); see also Victor, v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 114 S. Ct. 1239, 1242 (1994); Francis, 471 U.S. at 317, 105 S. Ct. at 1973; Sandstrom v. Montana, 442 U.S. 510, 521,

99 S. Ct. 2450, 2458, 61 L. Ed. 2d 39 (1979). A jury instruction that omits or materially misdescribes an essential element of an of- fense as defined by state law relieves the state of its obligation to prove facts constituting every element of the offense beyond a rea- sonable doubt, thereby violating the defen- dant's federal due process rights. See Carella v. California, 491 U.S. 263, 265, 109 S. Ct.

2419, 2420, 105 L. Ed. 2d 218 (1989) **77

(per curiam); Rock, 959 F.2d at 1245-46; see also Polsky v. Patton, 890 F.2d 647, 651 (3d Cir. 1989) (no due process violation where jury instruction "did not omit any essential element of the crime charged").

Maj. Op. at 25.

In essence, the majority holds that the Due Process Clause is violated whenever a state judge, in instructing a jury on an element of a state offense, gives an ambiguous instruction that prejudices the defendant -- even if de- fense counsel does not object. None of the decisions cited by the majority supports this holding. In Winship, the Supreme Court held that the Due Process Clause requires proof beyond a reasonable doubt to support a finding that a juvenile committed an act that would constitute a crime if committed by an adult. Sandstrom, Francis, and Carella all held that the Due Process Clause was violated where jury instructions in criminal cases set out either a conclusive presumption or a mandatory rebuttable pre- sumption that relieved the prosecution of the burden of persuasion on the presumed fact. Victor reviewed instruc- tions that defined the concept of reasonable doubt. No Supreme Court case cited by the majority **78 -- or any other Supreme Court decision of which I am aware -- has held that the Due Process Clause is violated whenever a state trial judge, in instructing a jury on the elements of a state offense, uses ambiguous language that prejudices the defendant. Nor is the majority's decision supported by either of the Third Circuit cases it cites. In Rock, 959 F.2d at 1245-46, we merely restated in dicta the holdings of

Winship and Sandstrom. In Polsky, we held that a partic- ular instruction conveyed the essence of the element that was allegedly omitted. 890 F.2d at 651.

Although not cited by the majority, the Supreme Court opinion that appears to be most closely on point, Henderson v. Kibbe, 431 U.S. 145, 52 L. Ed. 2d 203,

97 S. Ct. 1730 (1977), cuts against the majority's argu- ment. In Henderson, a federal court of appeals, relying on Winship, ordered that federal habeas corpus relief be granted because the trial judge (without objection) failed to instruct the jury on an essential element of the offense of second-degree murder. Reversing, the Supreme Court wrote:

Orderly procedure requires that the re- spective adversaries' views as to how the jury should be instructed be presented to the trial

**79 judge in time to enable him to de- liver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.

The burden of demonstrating that an er- roneous instruction was so prejudicial that it will support a collateral attack on the con- stitutional validity of a state court's judg- ment is even greater than the showing re- quired to establish plain error on direct ap- peal. The question in such a collateral pro- ceeding is "whether the ailing instruction by itself so infected the entire trial that the result- ing conviction violates due process," Cupp v. Naughten, 414 U.S. 141 at 147, 38 L. Ed. 2d

368, 94 S. Ct. 396, not merely whether "the instruction is undesirable, erroneous, or even

'universally condemned,'" id. at 146.

431 U.S. at 154 (footnotes omitted).

Here, the instructions cited by the majority did not "'so infect the entire trial that the resulting conviction vio- lates due process.'" Id. (citation omitted). Thus, I would reject Smith's due process claim.

120 F.3d 400, *426; 1997 U.S. App. LEXIS 19044, **79

Page 27

*426 It is a cardinal principle that "it is not the province of a federal **80 habeas court to reexamine state court determinations on state law questions. In conduct- ing habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S.

62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991). Our court has emphasized this important rule. Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992) (en banc); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3rd Cir.

1991). Cf. Johnson v. Rosemeyer, 1997 WL 318064, (3d Cir. June 13, 1997). The majority's extension of Winship and related precedents threatens to undermine this im-

portant principle and to claim for a federal habeas court the power to decide, long after a state trial has been com- pleted, whether previously unchallenged jury instructions set out the requirements of state law with sufficient clarity to satisfy the federal court's taste. "It is difficult to think of a greater intrusion on state sovereignty than when a fed- eral court instructs state officials on how to conform their conduct to state law." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct.

900 (1984). The majority's decision here not only works an injustice **81 in an important case but it creates a dangerous precedent. I must therefore dissent.

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