Tyson Alan Ditch v. JAMES L. GRACE On Appeal from the United States District Court for the Western…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3614
TYSON ALAN DITCH,
Appellant
v.
JAMES L. GRACE
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-00164E)
District Judge: Hon. Sean J. McLaughlin
Argued October 25, 2006
BEFORE: SMITH, FISHER and COWEN, Circuit Judges
(Filed: March 1, 2007)
Tyson R. Smith, Esq. (Argued)
Winston & Strawn
1700 K Street, N.W.
Washington, DC 20006
Counsel for Appellant

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Douglas W. Ferguson, Esq. (Argued)
Office of District Attorney
Crawford County Courthouse
Meadville, PA 16335
Counsel for Appellee
OPINION
COWEN, Circuit Judge.
Tyson A. Ditch appeals from an order of the United
States District Court for the Western District of Pennsylvania
dismissing his petition for writ of habeas corpus filed under 28
U.S.C. § 2254. For the reasons stated below, we will affirm the
order of the District Court.
I.
At approximately 3:00 a.m. on February 18, 1998, ten
gunshots were fired into the front door of the apartment of Dasha
Yenney, Ditch’s former girlfriend. The police arrived, and, upon
investigation, found bullet fragments and a casing from a nine
millimeter bullet outside of the apartment. Yenney informed the
police that she had recently received harassing telephone calls
from Ditch, and that Ditch had been arrested in the past for
harassing and physically abusing her. While the police were
investigating the crime scene, Ditch telephoned Yenney. When
the police attempted to speak to him, he terminated the call. The
police traced the call to Ditch’s brother’s residence and obtained
warrants to search the residence. Upon execution of the
warrants, the police found Ditch asleep in the attic of the
residence, and, approximately fifteen feet away from him, a nine
millimeter Ruger pistol. The police arrested Ditch and took him
into custody. Later, based upon a ballistics analysis, the
Pennsylvania State Police laboratory determined that the bullet
fragments and casing retrieved from the crime scene were fired
from the same pistol seized from the attic.

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On June 16, 1998, Ditch appeared without counsel at a
preliminary hearing. At the hearing, Ditch asked the presiding
judge for a continuance in order to seek counsel. He related to
the judge that he had made several telephone calls to an attorney,
but had not yet received an answer to his calls. The judge denied
the request, reasoning only that twenty days had elapsed since
the arraignment. After presenting Ditch with a Waiver of
Counsel form, which Ditch refused to sign, the judge proceeded
with the hearing. At the uncounseled hearing, Ronald Fry, a
witness for the Commonwealth, identified Ditch as the
individual he saw leaving the apartment building in the early
morning hours of the day of the incident.
At trial Fry testified that he made a positive identification
of Ditch at the preliminary hearing. He also made a positive
identification of Ditch at trial, but only after he was permitted to
leave the witness stand and approach the defense table. He
testified that he could not identify Ditch from the witness stand
because his eyes are light-sensitive. Fry further admitted that he
was legally blind and was not wearing glasses at the time of the
incident. He testified, however, that he did not have any
difficulty seeing Ditch through his apartment window at the time
of the incident, even though his window was located
approximately ten or fifteen feet away from Yenney’s apartment
door. He testified that the area of the apartment building in
which he saw Ditch was well-lit.
Following trial, Ditch was convicted by a jury of criminal
attempt to commit burglary, reckless endangerment of another
person, and unlawful possession of a firearm. He was also
convicted of the summary offense of criminal mischief. Ditch
was sentenced to an aggregate term of imprisonment of seven-
and-a-half to fifteen years. On May 3, 2001, the Superior Court
of Pennsylvania affirmed Ditch’s convictions, and on December
30, 2003, the Pennsylvania Supreme Court denied Ditch’s
petition for allowance of appeal, which was filed nunc pro tunc.
On June 21, 2004, Ditch filed a petition for writ of habeas
corpus with the District Court under § 2254, challenging several
aspects of his convictions. The District Court denied the petition
and found no basis for issuance of a Certificate of Appealability

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1 We conclude that the certified claims were fairly presented
to the state court on direct review for purposes of the exhaustion
requirement under 28 U.S.C. § 2254(b). See McCandless v.
Vaughn, 172 F.3d 255, 260-61 (3d Cir. 1999).
4
(“COA”).
On December 20, 2005, this Court granted Ditch’s
request for a COA with respect to two issues: (1) whether the
District Court erred in denying his petition for writ of habeas
corpus as to Ditch’s claim that he was denied his constitutional
right to counsel at his preliminary hearing; and (2) whether the
District Court erred in denying his petition for writ of habeas
corpus as to Ditch’s claim that he was deprived of effective
assistance of counsel because trial counsel failed to file a motion
to suppress the identification which occurred at the uncounseled
preliminary hearing. 1 We have jurisdiction to review Ditch’s
claims under 28 U.S.C. §§ 1291 and 2253.
II.
A.
Ditch’s first argument is that the District Court should
have granted his habeas petition because he was denied his right
to counsel at his preliminary hearing in violation of the Sixth
Amendment of the Constitution. For the reasons stated below,
we conclude that while Ditch was denied counsel at his
preliminary hearing, he is not entitled to habeas relief because
the constitutional error was harmless.
1.
We begin our analysis by considering Ditch’s claim that
he had a right to, but was denied, counsel at his preliminary
hearing. In Coleman v. Alabama, 399 U.S. 1, 9-10 (1970), the
Supreme Court held that a defendant was entitled to
representation of counsel at his Alabama preliminary hearing.
The Court reasoned that under Alabama law a preliminary
hearing is a “critical stage” of the criminal prosecution. Id. The

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Court noted that at an Alabama preliminary hearing, the accused
is discharged or held to answer, as the facts may warrant, and
that the hearing seeks to determine whether there is probable
cause to believe that a crime has been committed and serves to
protect the accused from groundless prosecutions, among other
things. Id. at 8. The Court then delineated the advantages of a
lawyer’s assistance at such a hearing:
First, the lawyer’s skilled examination and
cross-examination of witnesses may expose fatal
weaknesses in the State’s case that may lead the
magistrate to refuse to bind the accused over.
Second, in any event, the skilled interrogation of
witnesses by an experienced lawyer can fashion a
vital impeachment tool for use in cross-examination
of the State’s witnesses at the trial, or preserve
testimony favorable to the accused of a witness who
does not appear at the trial. Third, trained counsel
can more effectively discover the case the State has
against his client and make possible the preparation
of a proper defense to meet that case at the trial.
Fourth, counsel can also be influential at the
preliminary hearing in making effective arguments
for the accused on such matters as the necessity for
an early psychiatric examination or bail.
Id. at 9. In light of the defendant’s inability to realize these
advantages on his own, the Court concluded that the defendant
was as much entitled to the aid of counsel at the Alabama
preliminary hearing as at the trial itself. Id.
Applying the reasoning used in Coleman, we conclude
that a Pennsylvania preliminary hearing is also a critical stage in
a criminal prosecution. At a Pennsylvania preliminary hearing,
the Commonwealth may assume charge of the prosecution and
recommend to the issuing authority that the defendant be
discharged or bound over to the court. See Pa. R. Crim. P.
542(A). At the hearing, “the Commonwealth bears the burden of
establishing at least a prima facie case that a crime has been
committed and that the accused is probably the one who
committed it.” Commonwealth v. Oliver, 869 A.2d 1167, 1171

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(Pa. Commw. Ct. 2005) (citations omitted). Moreover, as in
Alabama, a principal function of the hearing in Pennsylvania is
to protect the accused’s right against an unlawful arrest and
detention. Id.
Because the Pennsylvania preliminary hearing is a critical
stage of a criminal prosecution, we likewise conclude that Ditch
was entitled to the assistance of effective counsel at that hearing.
See Coleman, 399 U.S. at 9-10; Commonwealth v. Carver, 436
A.2d 1209, 1211 (Pa. Super Ct. 1981) (“It is axiomatic that the
preliminary hearing is a ‘critical stage’ of a criminal proceeding,
at which [the accused] is entitled to the assistance of effective
counsel.”); Commonwealth v. Rines, 372 A.2d 901, 902 (Pa.
Super. Ct. 1977) (“It is, of course, well settled that a defendant is
entitled to the effective assistance of counsel at a preliminary
hearing.”); see also Commonwealth v. Sawyer, 357 A.2d 587,
589 (Pa. Super Ct. 1976); Commonwealth v. Redshaw, 323 A.2d
92, 93 (Pa. Super. Ct. 1974).
Based upon the record before us, it is clear that Ditch was
denied his right to counsel at the preliminary hearing. At the
beginning of the hearing, Ditch informed the state court judge
that he wished to secure representation and requested a
continuance to do so, but the judge denied the request, reasoning
only that twenty days had elapsed since the arraignment. There
is nothing in the record to suggest that Ditch waived or forfeited
his right to counsel. Thus, we conclude that Ditch was denied
his right to counsel at his preliminary hearing in violation of the
Sixth Amendment.
2.
Having concluded that Ditch was denied his right to
counsel, there remains the question of relief. Ditch argues that
the denial of counsel warrants automatic vacatur of his
conviction. In support, he argues that a preliminary hearing is a
critical stage of the prosecution and that at his preliminary
hearing a witness made a positive identification of him which
was later used against him at trial. For the reasons given below,
we conclude that the test to be applied in this case is whether the
denial of counsel at the preliminary hearing was harmless error.

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A denial of counsel at a preliminary hearing does not
automatically entitle an accused to vacatur and a new trial. See
Coleman, 399 U.S. at 11. In Coleman, the Supreme Court found
that the defendants were denied their right to counsel at their
preliminary hearing, but remanded for a determination of
“whether the denial of counsel at the preliminary hearing was
harmless error.” Id. Indeed, Coleman stands for the proposition
that even though a preliminary hearing may be a critical stage in
the criminal process, a denial of counsel at the preliminary
hearing does not automatically warrant vacatur.
Ditch’s other argument in support of vacatur is more
persuasive, albeit ultimately unavailing. Ditch underscores that
a witness identification made at the uncounseled preliminary
hearing was later used against him at trial. He claims that the
lack of counsel under these circumstances infected the entire
proceeding and warrants vacatur. See Satterwhite v. Texas, 486
U.S. 249, 256 (1988) (stating that only those “Sixth Amendment
violations that pervade the entire proceeding” can never be
considered harmless” (emphasis added)).
Notably, Coleman does not address the appropriate relief
in a case involving a denial of counsel at a preliminary hearing
where evidence obtained from the hearing is later used against
the defendant at trial. In Coleman, the state trial court prohibited
the use at trial of any of the evidence gathered at the
uncounseled pretrial proceeding. Indeed, in prescribing a
harmless error analysis, the Coleman Court specifically noted
that the trial court had scrupulously observed that prohibition.
399 U.S. at 10 (citing for comparison the case of White v.
Maryland, 373 U.S. 59 (1963)). Thus, while as a general
proposition Coleman provides support for application of a
harmless error standard in cases involving the denial of counsel
at preliminary hearings, we cannot rest our conclusion solely on
that case.
Insofar as evidence obtained from the uncounseled
preliminary hearing was later used against Ditch at trial, this
case resembles White, supra. In White, the defendant’s
admission of guilt entered at a preliminary hearing without
counsel was later used against the defendant at trial. 373 U.S. at

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59-60. In White, unlike the case in Coleman, the Supreme Court
found structural error and vacated the defendant’s criminal
conviction without a showing of prejudice. Id. at 60. However,
as with Coleman, this case is factually distinguishable from
White, in that the tainted evidence here was a witness’s positive
identification of the accused, not an irreversible admission of
guilt. Thus, the question of relief presented by the facts of this
case is not squarely addressed by either Coleman or White.
Although neither Coleman nor White is apposite, we find
solace in another line of Supreme Court case law which clearly
prescribes a harmless error standard in cases involving the
admission of evidence at trial of uncounseled pretrial
identifications. See Gilbert v. California, 388 U.S. 263, 274
(1967) (prescribing a harmless error standard to the admission at
trial of testimony of an uncounseled pretrial identification);
Moore v. Illinois, 434 U.S. 220, 232 (1977) (“In view of the
violation of petitioner’s Sixth and Fourteenth Amendment right
to counsel at the pretrial corporeal identification, and of the
prosecution’s exploitation at trial of evidence derived directly
from that violation, we reverse the judgment of the Court of
Appeals and remand for a determination of whether the failure to
exclude that evidence was harmless constitutional error . . . .”).
In both Gilbert and Moore, the Supreme Court opined that the
ultimate admission of evidence of an identification made at a
pretrial proceeding without counsel is subject to a harmless error
standard.
Since the ultimate admission of evidence of an
uncounseled identification is subject to a harmless error
standard, we conclude by extension of Gilbert and Moore, that
the underlying denial of counsel is also subject to a harmless
error analysis. Unlike the irreversible admission of guilt in
White, the admission of an uncounseled identification does not
necessarily “pervade the entire proceeding,” Satterwhite, 486
U.S. at 256, nor is it “necessarily unquantifiable and
indeterminate,” Sullivan v. Louisiana, 508 U.S. 275, 281-82
(1993). In sum, based upon the confluence of Coleman, Gilbert
and Moore, we hold that the denial of counsel at Ditch’s
preliminary hearing is subject to a harmless error standard, even
though evidence of the identification made at the hearing was

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later used against him at trial.
3.
Next, we address Ditch’s related contention that even if
no structural error occurred, he is entitled to a presumption of
prejudice under United States v. Cronic, 466 U.S. 648 (1984). In
Cronic, the Supreme Court “identified three situations
implicating the right to counsel that involved circumstances ‘so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.’” Bell v. Cone, 535 U.S.
685, 695 (2002) (quoting Cronic, 466 U.S. at 658-59). The
Cronic Court said that the first and “[m]ost obvious” situation in
which a presumption of prejudice applies is a “complete denial
of counsel.” 466 U.S. at 659. The Court explained that a trial
would be presumptively unfair where the accused is denied the
presence of counsel at “a critical stage.” Id. Ditch argues that
because he was denied counsel at a “critical stage” of litigation,
he is entitled to an automatic presumption of prejudice under
Cronic.
Ditch’s argument has some appeal. Under an expansive
reading of Cronic, a denial of counsel at any critical stage,
including a preliminary hearing, would warrant a presumption of
prejudice. However, we conclude that Cronic should be read in a
more limited fashion. We agree with the Court of Appeals for
the Fourth Circuit in United States v. Owen, 407 F.3d 222 (4th
Cir. 2005), which case is discussed below, that Cronic prescribes
a presumption of prejudice only with regard to those critical
stages of litigation where a denial of counsel would necessarily
undermine the reliability of the entire criminal proceeding.
In Owen, the defendant claimed that he was denied his
right to counsel at his criminal arraignment and that he was
entitled to a presumption of prejudice under Cronic. Id. at 225,
228. The Owen court disagreed with the defendant’s claim that
he was denied his right to counsel, but indicated that even if he
had been denied his right to counsel, he was not entitled to a
presumption of prejudice under Cronic and the error was
harmless. Id. at 225-229. The court opined that Cronic relies on
a narrow usage of the phrase “critical stage” to mean a

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proceeding at which a denial of counsel would necessarily
undermine the reliability of the entire criminal proceeding. Id. at
228. The Owen court observed that, in other cases such as
Coleman, the Supreme Court has used the phrase “critical stage”
in a broader sense, to refer to all proceedings at which the Sixth
Amendment right to counsel attaches, including those at which
the denial of such is subject to harmless error analysis. Id. Thus,
while Owen’s arraignment was a “critical stage” of litigation at
which the right of counsel attaches under Coleman, an
uncounseled arraignment would not necessarily undermine the
entire criminal proceeding requiring a presumption of prejudice
under Cronic. Id. at 228-29. Accordingly, citing to Coleman,
the Owen court applied a harmless error analysis. Id.
Like our sister court in Owen, we read Cronic in a limited
fashion. A denial of counsel at any critical stage at which the
right to counsel attaches does not require a presumption of
prejudice. Rather, a presumption of prejudice applies only in
cases where the denial of counsel would necessarily undermine
the reliability of the entire criminal proceeding. See also
Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir. 1987)
(interpreting Cronic in a limited fashion); Takacs v. Engle, 768
F.2d 122, 124 (6th Cir. 1985) (“Coleman’s harmless error
analysis remains good law.”). Because we cannot conclude that
the denial of counsel at the preliminary hearing necessarily
undermined the entire criminal proceeding, we will apply a
harmless error analysis in this case.
4.
We now turn to the salient question of whether the denial
of Ditch’s right to counsel at his preliminary hearing was
harmless error. To determine whether constitutional error in a
habeas case was harmless, we must decide whether the error
“had substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623
(1993); see also Hassine v. Zimmerman, 160 F.3d 941, 953 (3d
Cir. 1998) (holding that “a federal habeas court performing a
harmless error inquiry on collateral review must employ the
standard for harmless error articulated in Brecht, even if the state
courts have never reviewed the error on direct appeal.”).

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In making the harmless error determination, “the crucial
inquiry is the impact of the error on the minds of the jurors in the
total setting.” Hassine, 160 F.3d at 955 (citations and internal
quotation marks omitted). “While the nature of the evidence
against [Ditch] is important, we must also examine the phases of
the trial affected by the error, and determine whether the error
had a substantial influence on the verdict despite sufficient
evidence to support the result apart from the error.” Id. “In
doing so, we must of necessity weigh the impact of evidence on
the jury and cannot help but make a judgment as to how the jury
would reasonably perceive [Ditch’s] version of the events with
and without the [denial of counsel] violation.” Id.
The record before us indicates that the evidence of guilt at
trial was substantial. The Commonwealth presented
unchallenged expert ballistics testimony. The ballistics expert
testified that bullet fragments and a shell casing found at the
crime scene matched the nine millimeter Ruger hand gun which
the police found later that same morning within fifteen feet of
Ditch. As even Ditch conceded in one of his briefs filed in state
court, “[t]here is no question that the most ‘damming’ evidence
received by the jury at trial was the ballistics evidence linking the
crime scene evidence to a firearm discovered at the home of Mr.
Ditch’s brother, where, apparently, Mr. Ditch the[n] resid[ed].”
(Memorandum in Support of Defendant’s Motion for Post
Conviction Collateral Relief at 8.)
In addition to the unchallenged ballistics evidence, the
Commonwealth presented evidence linking Ditch to Dasha
Yenney in the evening hours before the crime. As noted in
Section I above, Yenney, a formal girlfriend of Ditch, lived in
the apartment into whose door the gunshots were fired. The
Commonwealth presented evidence that Yenney had received
harassing telephone calls from Ditch in the evening of February
17, 1998, and that Ditch had been arrested in the past for
harassing and physically abusing her. Thus, the weight of the
evidence against Ditch at trial was substantial.
Even if the evidence against Ditch was substantial, the
conviction must be vacated and a new trial ordered if the denial
of counsel had a substantial influence on the verdict despite the

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substantial evidence. Here, the phase of trial most directly
impacted by the denial of counsel was Fry’s testimony. Fry
testified that he had identified Ditch at the preliminary hearing
and again identified him at trial, and he did give some details
about the night of the incident, including a general description of
the clothing that the individual was wearing.
However, Fry’s identification testimony was not a
particularly strong part of the Commonwealth’s case, for at least
two reasons. First, Fry admitted on the stand that he was legally
blind and was not wearing glasses at the time of the incident.
Second, Fry admitted at trial that he could not see Ditch from the
witness stand. Fry was not able to identify Ditch until the judge
permitted him to leave the witness stand and approach the
defense table. Even the judge noted for the record that “[i]t was
obvious from the witness stand that he couldn’t see anybody out
in the courtroom.” (App. at 57.) Thus, the record is clear that
there were substantial weaknesses in Fry’s identification
testimony which were brought out at trial.
Admittedly, the guiding hand of counsel at the
preliminary hearing would have been beneficial to the
defendant’s case at trial. At the preliminary hearing, trained
counsel would have conducted a cross-examination of Fry to
expose weaknesses in his testimony and for use as an
impeachment tool at trial.
Nevertheless, we conclude that the denial of counsel
ultimately did not have a substantial or injurious effect on the
jury’s ultimate verdict. There was substantial evidence of guilt,
and the jury was well-apprised of the weaknesses in Fry’s
identification testimony. For these reasons, we conclude that the
constitutional error was harmless.
B.
Ditch’s second and final claim is that trial counsel was
constitutionally ineffective for failing to seek to suppress the
identification made at the preliminary hearing without counsel.
Because a Pennsylvania state court adjudicated his ineffective
assistance of counsel claim, we may grant habeas relief only if

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the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see Williams v. Taylor, 529 U.S. 362
(2000). For the reasons stated below, we conclude that the state
court’s decision was not contrary to, nor an unreasonable
application of, clearly established law as determined by the
Supreme Court, and thus habeas relief is inappropriate.
In considering Ditch’s ineffective assistance of counsel
claim, we are guided by the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). Under the first prong of
that test, “the defendant must demonstrate that counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 688. Under the second prong, the
defendant must show that the deficient performance prejudiced
the defense. Id. at 687. In other words, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
In determining whether the second prong has been met, we
consider “the totality of the evidence before the judge or jury,”
mindful that “a verdict or conclusion only weakly supported by
the record is more likely to have been affected by errors than one
with overwhelming record support.” Id. at 695-96.
Applying the first prong of the Strickland test, we
conclude that Ditch’s trial counsel’s performance fell below an
objective standard of reasonableness. As discussed above, Ditch
was unquestionably denied his right to counsel at the preliminary
hearing at which the identification was made. Moreover, it is
clearly established law that evidence of an uncounseled pretrial
identification is subject to a per se exclusionary rule. See
Gilbert, 388 U.S. at 273 (holding that identification testimony
given at a pretrial line-up without counsel is per se inadmissible
and that the state is not entitled to an opportunity to show that the
testimony had an independent source); Moore, 434 U.S. at 231
(“Gilbert held that the prosecution cannot buttress its
case-in-chief by introducing evidence of a pretrial identification
made in violation of the accused’s Sixth Amendment rights, even

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2 See supra Section II.A.3 for a discussion as to why a
presumption of prejudice does not apply.
14
if it can prove that the pretrial identification had an independent
source.”) (applying the strict rule of Gilbert to identification
testimony given at an uncounseled preliminary hearing).
Under the strict exclusionary rule of Gilbert, supra, the
identification made at the preliminary hearing without counsel
was per se inadmissible, and the Commonwealth would not have
been entitled to an opportunity to show that the identification had
an independent source. Accordingly, we conclude that trial
counsel’s performance fell below an objective standard of
reasonableness when he did not file a motion to suppress the
identification. Hence, the first prong of the Strickland test is
satisfied.
The second prong of the Strickland test, which requires us
to determine whether “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different,” 466 U.S. at 694, however, is not
satisfied.2 As discussed in detail in Section II.A.4 of this
opinion, the jury’s verdict was supported by overwhelming
evidence of guilt, including unchallenged ballistics evidence.
Moreover, as also discussed therein, given Fry’s admittedly poor
eyesight, the pretrial identification evidence proved to be a
relatively weak aspect of the Commonwealth’s case. For these
reasons, we cannot say that there is a reasonable probability that
the result of the proceeding would have been different.
In sum, based upon an application of the Strickland test,
we conclude that trial counsel was not constitutionally
ineffective for failing to seek to suppress the identification made
at the preliminary hearing. We, therefore, hold that the trial
court’s decision was not contrary to, nor an unreasonable
application of, Supreme Court precedent, and thus habeas relief
may not be granted.
III.

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For the foregoing reasons, the judgment of the District
Court entered on June 29, 2005, will be affirmed.

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