Gerald Everett v. JEFFREY A. BEARD, Ph.D. WARDEN SCI CAMP HILL

PRECEDENTIAL
Filed May 2, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1662
GERALD EVERETT,
Appellant
v.
JEFFREY A. BEARD, Ph.D. WARDEN SCI CAMP HILL;
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, LYNN ABRAHAM;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA, MICHAEL FISHER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-05538)
District Judge: Hon. Lowell A. Reed, Jr.
Argued October 30, 2001
Before: SLOVITER, NYGAARD and AMBRO, Circuit Judges
(Filed May 2, 2002)
Norris E. Gelman (Argued)
Philadelphia, PA 19106
Attorney for Appellant
Thomas W. Dolgenos (Argued)
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Office of District Attorney
Philadelphia, PA 19l02
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Gerald Everett, who drove the automobile carrying two
men who robbed and then murdered the proprietor of a
grocery store, was convicted of first-degree murder in the

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Court of Common Pleas of Philadelphia County,
Pennsylvania, following a charge that explicitly permitted
the jury to impute to Everett the murderer’s intent to kill.
The Pennsylvania Supreme Court thereafter specifically
held such a charge to be reversible error, although its
holding followed inexorably, as the court itself said, from
previously enunciated state law. The Supreme Court of the
United States has also held that such a charge violates the
Due Process Clause of the United States Constitution. The
question before us is whether we can do anything about
Everett’s conviction for first-degree murder following the
erroneous charge.
No one alleges that Everett intended that anyone would
be shot. Nonetheless, the state trial judge, in charging the
jury, said over and over again that Everett could be found
guilty of intentional murder if his accomplice intended to
cause the death of the victim. Everett’s counsel failed to
object to this charge. In the appeal before us, Everett
challenges the denial of his petition for a writ of habeas
corpus claiming violations of his Sixth Amendment right to
2
effective assistance of counsel by virtue of his counsel’s
failure to object.
II.
FACTS AND EARLIER PROCEEDINGS
On July 17, 1979, Gerald Everett drove Raymond Gray
and Robert Burgess to the 1600 block of Kater Street in
Philadelphia. During the drive Gray and Burgess said they
were going to commit a robbery. Gray and Burgess entered
a candy store owned and operated by Jon Jennings and
drew guns. Jennings attempted to grab the gun of one of
the perpetrators and a struggle ensued. The other
perpetrator walked over to Jennings and shot him once in
the chest, causing his death. When the two men fled the
store, Everett picked them up and drove them away from
the scene. Everett admits that he drove the others to and
from the store and does not deny that he was an
accomplice.
A. State Court Proceedings
Everett was charged with first-degree murder, robbery,
and criminal conspiracy. At Everett’s trial, the prosecutor
said in his opening statement:
At no point in time will I stand here and tell you that
this defendant was the actual shooter; at no point in
time has or is anyone in this case ever going to say
that this defendant was inside Mr. Jennings[’] candy
store that day. He wasn’t. There’s no question about
that. What we are proceeding on is something called an
accomplice theory, accomplice liability and a
conspiracy theory.

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App. at 45. In his closing statement, the prosecutor said:
And the one thing I want to stress to you ladies and
gentlemen, to convict this man of murder you don’t
have to find that they discussed shooting anyone
beforehand because they obviously didn’t. I’m not going
to stand here and make a moron out of myself and tell
you that they planned to shoot Jon Jennings. They
didn’t. It happened.
3
Supp. App. at 598-99.
After the close of trial, the judge charged the jury in
pertinent part as follows:
Now, ladies and gentlemen, I am going to discuss with
you the various concepts of homicide.
The defendant in this case is charged with an offense
involving what we call criminal homicide, which is the
taking of a human life without justification or excuse.
. . . .
It is your duty in this case to determine whether the
victim, Mr. Jennings, died as a result of an act of the
defendant amounting to criminal homicide, or whether
the defendant’s act or that of an accomplice actually
caused the criminal homicide, and if so, if it was done
by the defendant, as you determine the facts, and/or
an accomplice of the defendant, if so, whether the
killing that resulted therefrom, if you were to so find
that it did occur, was murder in the first degree,
murder of the second degree, murder of the third
degree or voluntary manslaughter.
I shall now instruct you in the elements of each of
these offenses. . . .
First: Murder of the first degree: In order to find this
defendant guilty of murder in the first degree, you
must find that all of the following elements have been
established by the Commonwealth beyond a reasonable
doubt: One, that the defendant or an accomplice
caused the death of another person -- in this case Mr.
Jennings; that is, you must find that the death of Mr.
Jennings would not have occurred but for the alleged
acts of the defendant or his accomplices, if there are
any in this case.
Two: that the killing was intentional. A killing is
intentional if it is done by means that are determined
to be willful, deliberate and premeditated. . . .
A killing is willful and deliberate if the defendant
and/or his accomplice, if there were any, consciously

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decided to kill the victim, and it is premeditated if the
4
defendant or his accomplice, if there were any
accomplices, possessed a fully informed intent to kill at
the time when the killing took place, even though there
need not have been any appreciable amount of time
between the time when the defendant and/or the
accomplice, if any, first conceived the idea of killing,
and the time when the action took place.
An intentional killing, as I have defined the term for
you, may be found from any expressed words used by
the defendant or his accomplice, if any exist, or may be
implied from the words or conduct of the defendant or
his accomplice.
It should be noted that if the defendant or his
accomplice, if any, intentionally used a deadly weapon,
such as a gun, with bullets in it, on a vital part of the
victim’s body, you may infer from this fact, or these
facts, that the killing was intentional, and therefore
willful, deliberate and premeditated.
App. at 68-71 (emphasis added). In addition, with respect
to accomplice liability generally, the judge instructed the
jury as follows:
You may find the defendant guilty of a crime without
finding that he personally performed the acts or
engaged in the conduct required for the commission of
the crime or crimes that I have already mentioned, or
even that he was personally present when the crime or
crimes were committed.
A defendant is guilty of a crime if he is an accomplice
of another person who commits the crime here
involved, or crimes here involved. Such a defendant is
an accomplice if, with the intent of promoting or
facilitating the commission of the crime or crimes here
involved, he, the defendant, solicits, commands,
encourages or requests that the other person or
persons involved commit the crime or crimes, or he
aids, or agrees to aid, or attempts to aid, or abets in
the other person committing or planning the
commission of the crime. . . .
You may find the defendant guilty of the crime on the
theory that he was an accomplice, as long as you are
5
satisfied, ladies and gentlemen of the jury, beyond a
reasonable doubt that the crime or crimes were
committed and that the defendant was the accomplice
of the person or persons who committed it under the
definitions of an accomplice that I just gave you.

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App. at 82-83.
Trial counsel failed to object to these instructions.
Further, trial counsel complimented the judge on the
fairness of these instructions after the jury left the
courtroom.
Mr. Greene [Everett’s attorney]: I think probably it
would be a waste of time to go over each and every
point. You certainly have covered most everything here,
and --
The Court: I want to cover everything, not most.
. . . .
Mr. Greene: -- I would also like to state for the record
that I consider your charge eminently fair, and my
compliments to the Court for the quality of the charge
that it gave to this jury.
App. at 86. During its deliberations, the jury requested an
explanation of the different degrees of murder. The trial
judge repeated the same instructions. App. at 101-04.
On October 9, 1980, Everett was convicted of first-degree
murder, robbery, and criminal conspiracy. He was
sentenced to life in prison on February 25, 1981.
Represented by the same attorney who represented him at
trial, Everett appealed his conviction. His direct appeal to
Superior Court failed. Commonwealth v. Everett , 445 A.2d
514 (Pa. Super. 1982). The Pennsylvania Supreme Court
denied allocatur. Commonwealth v. Everett, No. 310 E.D.
Alloc. Dkt. 1982.
B. State Collateral Proceedings
Everett then obtained new counsel and, starting on
October 4, 1982, filed post-conviction relief petitions in
accordance with the Post Conviction Relief Act (PCRA), 42
Pa. Cons. Stat. SS 9541-46 (2001). Prior to the PCRA
6
hearing, the lawyer withdrew three of the four claims made
in the last petition and, on the day of the hearing, withdrew
the remaining claim. Relief was denied. Represented by new
counsel, Everett appealed arguing that previous counsel
had poorly served Everett’s interests by withdrawing all his
claims. The Superior Court remanded for further
proceedings. On remand, Everett raised ineffective
assistance of counsel claims. Later, Everett sent this new
counsel a letter instructing her to withdraw the PCRA
petition, which she did. No further appeal was taken.
In 1988, Everett, represented by yet another attorney,
filed a third PCRA petition, which alleged ineffective
assistance of trial counsel. This petition was denied. On

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appeal, the decision was affirmed. Commonwealth v.
Everett, 573 A.2d 1157 (Pa. Super. 1990). Allocatur was
denied. Commonwealth v. Everett, 588 A.2d 507 (Pa. 1991).
In August 1995, Everett’s present counsel filed a fourth
PCRA petition, alleging ineffective assistance at trial, in
particular arguing that counsel’s failure to object to the
definitions for accomplice liability given in the context of
the trial court’s definition of first-degree murder resulted in
a miscarriage of justice. The Court of Common Pleas
reached the merits of this issue,1 holding that the jury
charge was proper and that trial counsel was not
ineffective. App. at 39-41.
With regard to Everett’s ineffective assistance of counsel
claims, that court said that:
With respect to the issue of ineffectiveness, counsel is
presumed to be effective and the defendant has the
burden of proving ineffectiveness. Commonwealth v.
Williams, 524 Pa. 218, 570 A.2d 75 (1990)[.] In order to
carry this burden the defendant must first show that
the claim which counsel failed to raise has arguable
merit and that counsel’s failure to raise it was without
a reasonable basis which would effectuate the
defendant’s best interests. Strickland v. Washington,
_________________________________________________________________
1. The Commonwealth does not argue on appeal that the ineffective
assistance of counsel claim before us was impermissibly repetitive, and
therefore we have not inquired into that issue.
7
466 U.S. 688 (1984)[.] Second, the defendant must
show that counsel’s ineffectiveness worked to his
prejudice.
App. at 40 (citations omitted). The court stated that
Pennsylvania law on jury instructions for first-degree
murder accomplice liability was not settled at the time, and
therefore held that Everett’s counsel was not ineffective
under state law. The Court of Common Pleas did not
address Everett’s due process claim.
The Superior Court affirmed the denial of PCRA relief in
an unpublished memorandum opinion. Commonwealth v.
Everett, 700 A.2d 1024 (Pa. Super. 1997); App. at 33-37.
The Superior Court recognized that the Pennsylvania
Supreme Court had decided that a charge such as that
given by the Everett trial judge was improper, citing
Commonwealth v. Bachert, 453 A.2d 931 (Pa. 1982)
(Bachert II), and Commonwealth v. Huffman, 638 A.2d 961
(Pa. 1994). App. at 36. In Bachert II, the Pennsylvania
Supreme Court stated that "it is necessary to look to [the
accomplice’s] state of mind [which] must be proved beyond
a reasonable doubt to be one which the accomplice
harbored and cannot depend upon proof of intent to kill
only in the principal." 453 A.2d at 935. In Huffman, the

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court relied on and quoted from its Bachert II decision for
the relevant statement of accomplice liability for first-degree
murder, holding that the jury charge that an accomplice
may be found guilty of first-degree murder even if he did
not have the specific intent to kill was "quite simply, a
patently erroneous statement of the law." 638 A.2d at 962
(citing Bachert II, 453 A.2d at 935).
Despite this explicit exposition of the relevant law as
enunciated by the Pennsylvania Supreme Court, the
Superior Court in Everett’s case stated that Pennsylvania’s
general rule of retroactivity does not apply to a case on
collateral appeal unless the decision was handed down
during the pendency of the defendant’s direct appeal. App.
at 36-37 (citing Commonwealth v. Gillespie, 516 A.2d 1180
(Pa. 1986)). The Superior Court, in affirming the denial of
Everett’s PCRA petition, concluded that the general rule of
retroactivity was not applicable and that the Pennsylvania
Supreme Court’s decisions in Huffman and Bachert II did
8
not apply to Everett’s case because they were decided after
his trial conviction and appeal.
The Superior Court agreed with the PCRA court that
Everett’s counsel was not ineffective because Pennsylvania
law regarding proper jury instructions for first-degree
murder accomplice liability had not been settled. The
Superior Court analyzed the claim of ineffective assistance
of counsel as follows without citing any federal case law or
United States Supreme Court precedent:
We are first required to determine whether the issue
underlying the claim is of arguable merit.
Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d
1303, 1305 (1991). . . . Even if the underlying claim
has merit, the appellant still must establish that the
course of action chosen by his counsel had no
reasonable basis designed to effectuate the client’s
interests and, finally, that the ineffectiveness
prejudiced his right to a fair trial. Id.; Commonwealth
v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
App. at 35-36. The Superior Court did not address Everett’s
due process claim, which is the constitutional context for
asserting that there was ineffective assistance of counsel in
a state criminal trial.
Everett sought review by the Pennsylvania Supreme
Court. Commonwealth v. Everett, 704 A.2d 634 (Pa. 1997).
Allocator was denied. Id.
C. Federal Habeas Corpus Proceedings
Everett filed a Petition for Writ of Habeas Corpus on
October 19, 1998. He raised one claim: that trial counsel
was constitutionally ineffective for failing to object to the
trial court’s charge on accomplice liability. On June 18,

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1999, the Magistrate Judge assigned to the habeas case
issued a report in which she recommended that the petition
be denied. App. at 14-28. The Magistrate Judge assumed,
without deciding, that the instructions were improper
under current law but concluded that (1) the state court’s
rejection of Everett’s ineffectiveness claim had been
reasonable because the legal basis for an objection to the
accomplice instructions had not yet been developed by the
9
state courts at the time of trial; and (2) to the extent Everett
claimed that counsel had been ineffective for not objecting
to the same instructions on due process grounds (as
opposed to objecting based on state law), the legal grounds
for this federal constitutional claim were also undeveloped
at the time of trial and therefore this ineffectiveness claim
was also meritless.
On May 3, 2000, the District Court issued an order
approving and adopting the recommendations of the
Magistrate Judge and denying Everett’s petition for habeas
relief. App. at 12-13. Everett sought permission to appeal
this ruling with this court, and we issued a Certificate of
Appealability on March 21, 2001.
III.
JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction over
the petition for a writ of habeas corpus pursuant to 28
U.S.C. SS 2241(c)(3) and 2254(a). This court has jurisdiction
pursuant to 28 U.S.C. SS 1291 and 2253.
This court applies a plenary standard of review when a
"district court dismisses a habeas petition based on a
review of the state court record and does not hold an
evidentiary hearing," as in this case. See Duncan v. Morton,
256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S. Ct. 269
(2001) (citing Zilich v. Reid, 36 F.3d 317, 320 (3d Cir.
1994)). In conducting a habeas analysis, a federal court
must presume that the factual findings of both state trial
and appellate courts are correct. 28 U.S.C. S 2254(e)(1). A
habeas petitioner can overcome this presumption only in
the face of clear and convincing evidence to the contrary.
Id.; Duncan, 256 F.3d at 196.
Under the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA), habeas relief on any claim adjudicated on
the merits in state court is precluded unless the
adjudication resulted in a decision "that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
10
United States." 28 U.S.C. S 2254(d)(1). 2 The AEDPA

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standard of review does not apply unless it is clear from the
face of the state court decision that the merits of the
petitioner’s constitutional claims were examined in light of
federal law as established by the Supreme Court of the
United States. Hameen v. Delaware, 212 F.3d 226, 248 (3d
Cir. 2000), cert. denied, 532 U.S. 924 (2001). When, as
here, AEDPA does not apply for that reason, the pre-AEDPA
standards of review apply. Id. Under that standard, a
federal habeas court owes no deference to a state court’s
resolution of mixed questions of constitutional law and fact;
see Williams v. Taylor, 529 U.S. 362, 400 (2000) (O’Connor,
J., concurring) (citing Miller v. Fenton, 474 U.S. 104, 112
(1985)),3 whereas the state court’s factual findings are
presumed to be correct unless, inter alia, the state court’s
findings are not "fairly supported by the record." Pemberthy
v. Beyer, 19 F.3d 857, 864 (3d Cir. 1994) (quoting 28 U.S.C
S 2254(d)(8)). But, of course, as the Supreme Court has
recognized, "a state court’s incorrect legal determination
has [never] been allowed to stand because it was
reasonable." Williams, 529 U.S. at 402 (O’Connor, J.,
concurring) (quoting Wright v. West, 505 U.S. 277, 305
(1992)). Indeed, in her opinion in Williams, Justice
O’Connor reiterated, "[w]e have always held that federal
courts, even on habeas, have an independent obligation to
say what the law is." Id. (internal quotation omitted).
_________________________________________________________________
2. The second exception set forth in the statute covering an adjudication
that "resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state
court proceeding," 28 U.S.C. S 2254(d)(2), is not at issue here.
3. No single opinion in Williams garnered a majority of the court. Parts
I, III and IV of Justice Stevens’ opinion garnered a six-judge majority.
Williams, 529 U.S. at 367-374, 390-399. Part II of Justice O’Connor’s
opinion (with the exception of a footnote) garnered a five-judge majority.
Williams, 529 U.S. at 402-413 (interpreting the clause of 28 U.S.C.
S 2254(d)(1) that refers to "contrary to, or involved an unreasonable
application of, clearly established Federal law"). Six justices agreed that
the Strickland test governed the claim of ineffective assistance of counsel
in Williams’ habeas petition.
11
IV.
DISCUSSION
Everett’s habeas petition was filed on October 19, 1998,
after AEDPA’s effective date. Both the Court of Common
Pleas and the Superior Court of Pennsylvania reached the
merits of Everett’s underlying state law claim of ineffective
assistance of counsel based on failure to object to the jury
instructions on first-degree murder accomplice liability.
Were we reviewing Everett’s state law claim, it would
therefore be assessed under the standards contained in
AEDPA. Williams v. Taylor, 529 U.S. 362, 412 (2000).
With respect to both Everett’s state law claim and his

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federal due process claim, the threshold question is
whether the habeas petitioner seeks to apply a rule of law
that was clearly established by the United States Supreme
Court at the time his or her state-court conviction became
final. Everett seeks relief due to ineffective assistance of
counsel, which is squarely governed by Strickland v.
Washington, 466 U.S. 668 (1984). The Strickland test
qualifies as "clearly established Federal law, as determined
by the Supreme Court." Williams, 529 U.S. at 391; id. at
413 (O’Connor, J., concurring).
Applying Strickland, this court recently has held that in
order to establish a claim of ineffective assistance of
counsel,
the petitioner must establish both that his counsel’s
performance was deficient and that the deficient
performance prejudiced his trial to the extent that it
undermined confidence in the trial’s outcome. The
standard by which we judge deficient performance is
an objective standard of reasonableness, viewed to the
extent possible from the attorney’s perspective at the
time, without "the distorting effects of hindsight."
Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001) (citing
and quoting Strickland, 466 U.S. at 687-90)). To
demonstrate prejudice, the habeas petitioner must show a
"reasonable probability that, but for [his] counsel’s
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
12
In addressing the reasonableness of an attorney’s
representation, reviewing courts must be deferential in their
scrutiny and scrupulously avoid the distortions of hindsight
by viewing performance from counsel’s perspective at the
time. Id. at 689-90. Furthermore, claimants must identify
specific errors by counsel, and the court must indulge a
strong presumption that counsel’s conduct was reasonable.
Id. at 690.
Everett argues that his trial counsel did not meet the
Strickland standard for an effective counsel given then-
current Pennsylvania law regarding accomplice liability for
first-degree murder and then-current federal due process
jurisprudence. Further, he argues that counsel’s failure to
act as effective counsel was directly responsible for his
conviction for first-degree murder. We turn to the searching
review we must give to Everett’s federal due process claim.
A. Federal due process claim
Everett argues that his trial counsel was ineffective for
failing to raise an objection to the jury instructions based
on both due process and Pennsylvania law. Everett’s claim
under the Strickland ineffective assistance standard was
addressed by neither the Court of Common Pleas nor the
Superior Court of Pennsylvania. We will therefore review de

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novo whether Everett’s trial counsel should have objected to
the jury instructions.
In addressing the issue of ineffective assistance of
counsel, the parties have focused primarily on the question
whether, at the time of Everett’s trial, it was established
under federal law and/or Pennsylvania law that a judge
must instruct the jury that in order to find a defendant
charged as an accomplice guilty of first-degree murder, it
must find that the defendant had the intent to kill the
victim. Strickland teaches that the standard by which
counsel is to be judged is that of "a reasonably competent
attorney," 466 U.S. at 687 (quotation omitted), in criminal
cases, and that even if counsel has not met that standard
s/he will not be labeled constitutionally ineffective unless
the defendant has been prejudiced. Id. at 691.
Of course, the state of the law is central to an evaluation
of counsel’s performance at trial. A reasonably competent
13
attorney patently is required to know the state of the
applicable law, so the parties’ focus upon the state of the
law at the time of Everett’s trial is not misplaced.
At the time of Everett’s conviction, the primary relevant
case on due process for a criminal defendant was In re
Winship, 397 U.S. 358 (1970). In that case, the Supreme
Court stated: "Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard, we
explicitly hold that the Due Process Clause protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged." 397 U.S. at 364. Several
years later and still before Everett’s trial, the Court applied
the principle of Winship to jury instructions, holding that
jury instructions that suggest a jury may convict without
proving each element of a crime beyond a reasonable doubt
violate the constitutional rights of the accused. Sandstrom
v. Montana, 442 U.S. 510, 523 (1979) (citing Winship, 397
U.S. at 364). Clearly, a reasonably competent lawyer in
1980 would have carefully scrutinized jury instructions to
make sure that the instructions required proof beyond a
reasonable doubt of each element of a crime.
Because Everett was charged with murder under state
law, we must necessarily reference the elements of
accomplice liability for first-degree murder under
Pennsylvania law in 1980 in order to evaluate the
effectiveness of Everett’s trial counsel. According to
Pennsylvania law, "[a] person is guilty of criminal homicide
if he intentionally, knowingly, recklessly or negligently
causes the death of another human being," 18 Pa. Cons.
Stat. S 2501 (1973); "[a] criminal homicide constitutes
murder of the first degree when it is committed by an
intentional killing," 18 Pa. Cons. Stat. S 2502(a) (1974); and
an intentional killing is "[k]illing by means of poison, or by
lying in wait, or by any other kind of willful, deliberate and

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premeditated killing." Id. S 2502(d).
This law was interpreted by the Pennsylvania Superior
Court in a decision filed on October 19, 1979, eleven
months prior to Everett’s conviction. Commonwealth v.
Bachert, 412 A.2d 580 (Pa. Super. 1979) (Bachert I), aff ’d
in part and rev’d in part on other grounds, 453 A.2d 931
14
(Pa. 1982). Among the issues in Bachert was whether an
accomplice had to have the specific "deliberate, willful and
premeditated" intent to kill in order to be found guilty of
first-degree murder or whether this intent could be
transferred to an accomplice. Bachert I, 412 A.2d at 583.
Pennsylvania Supreme Court Justice Robert Nix, sitting by
designation on the Superior Court and writing for that
court in Bachert I, held that "[s]ince first degree murder
requires the existence of a specific intent to take life, the
evidence must show that the shared intent included the
design to take the life of the victim." Id. This decision
applied a well-established principle of Pennsylvania law and
found that the case before it was closely analogous to prior
cases that had considered the principle. The decision in
Bachert I did not impose new obligations on the prosecution
in first-degree murder cases.
The Bachert I court discussed Pennsylvania Supreme
Court cases where defendants were charged with first-
degree murder on an accomplice theory. Id. at 583-84. In
each of the cases cited, the court had addressed the
necessity of finding that the defendant had the requisite
specific intent before finding the defendant guilty of first-
degree murder via accomplice liability. In Commonwealth v.
Smith, 391 A.2d 1009 (Pa. 1978), decided two years prior to
Everett’s conviction, the Supreme Court of Pennsylvania
sustained a finding of first-degree murder as to an
accomplice because the evidence provided a basis for the
jury to find that he had formed a specific intent to assist
the taking of the life of the deceased. Bachert I, 412 A.2d at
584 (discussing the Smith decision). The facts that proved
the requisite intent for first-degree murder in Smith were:
(1) Smith armed himself for the express purpose of seeking
out the victim and shooting him; (2) Smith heard a member
of his group state, "Who do I shoot;" (3) Smith himself
asked, "Which one is Bruce?" (the victim); and, (4) during
the shooting Smith had his weapon drawn and discharged
it several times. Id. at 584.
The Bachert I court also discussed Commonwealth v.
Hampton, 341 A.2d 101 (Pa. 1975), decided five years
before Everett was convicted. Bachert I, 412 A.2d at 584. In
Hampton, the defendant twice aimed a gun at the victim
15
but failed to shoot. He gave the gun to an accomplice who
said, "Give me the gun. I’ll show you how it’s done."

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Hampton, 341 A.2d at 103. The defendant’s accomplice
then shot the victim to death. Id. The Supreme Court of
Pennsylvania affirmed the jury conviction of first-degree
murder after finding that Hampton had exhibited the
requisite intent to kill the victim. Bachert I , 412 A.2d at
584. Applying the analysis of the Pennsylvania Supreme
Court in these cases, the Pennsylvania Superior Court
reversed Bachert’s conviction.
In 1982, the Pennsylvania Supreme Court reversed part
of the Superior Court’s 1979 decision in Bachert I.
Commonwealth v. Bachert, 453 A.2d 931 (Pa. 1982)
(Bachert II).4 Importantly, however, the Pennsylvania
Supreme Court agreed with the holding of the Superior
Court of significance to the present case. In other words,
the Supreme Court of Pennsylvania disagreed with the
application of the rule of law, but not with the rule of law
itself.
Superior Court decisions are (and, in 1980, were) the law
of the Commonwealth. As the Pennsylvania Supreme Court
has held,
it is well established that a Superior Court decision
which has not been overruled or reversed is binding
authority on this Commonwealth’s trial courts. In re
Townsend’s Estate, 349 Pa. 162, 36 A.2d 438 (Pa.
1944). In In re Townsend’s Estate, we stated that "a
lower court has no right to ignore the latest decision of
the Superior Court of this Commonwealth on an issue
which has been squarely decided. Until that decision
should be overruled by the Superior Court itself or
_________________________________________________________________
4. The Pennsylvania Supreme Court disagreed with the Superior Court
about whether the particular evidence offered by the Commonwealth was
sufficient to prove the accomplice’s state of mind. The Superior Court
thought that certain statements made by Bachert did not bear on
whether he had "the requisite intent to kill the victim at the time of the
killing by [the principal]." Bachert I , 412 A.2d at 584. In contrast, the
Supreme Court held that these statements were sufficient to support the
inference that Bachert intended to facilitate the murder. Bachert II, 453
A.2d at 936.
16
overruled by the Supreme Court, it is still the law of
this Commonwealth . . . ." Id. at 168, 36 A.2d at 441.
Keblish v. Thomas Equip., Ltd., 660 A.2d 38, 42-43 (Pa.
1995). Thus, although Bachert I had been appealed to the
Pennsylvania Supreme Court at the time of Everett’s trial,
it was the Pennsylvania Superior Court’s decision in
Bachert I that represented the state of Pennsylvania law on
the elements needed to convict an accomplice of first-degree
murder.
Everett argues that the instructions that the trial court
gave to the jury improperly relieved the Commonwealth of

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the burden of proving the most critical element of state law
for accomplice liability for first-degree murder, i.e., the
specific intent to kill, and therefore the charge violated due
process. The Commonwealth in turn argues that the jury
instructions were not deficient because the trial court had
correctly instructed the jury on accomplice liability
generally, which it contends, in effect, cured any error in
the instructions for first-degree murder. The
Commonwealth argues that the jury instructions should be
read as a whole, and in particular that jury instructions on
accomplice liability and first-degree murder should be read
together to evaluate the propriety of the instructions. See,
e.g., Commonwealth v. Hannibal, 753 A.2d 1265, 1269-70
(Pa. 2000), cert. denied, 532 U.S. 1039 (2001) (assessing
jury instructions regarding accomplice liability for first-
degree murder "as a whole").
There can be no dispute that the propriety of jury
instructions is to be determined by assessing the entire set
of instructions. That proposition has been established by
both the Supreme Court, see, e.g., Victor v. Nebraska, 511
U.S. 1, 5 (1994), and by this court, see, e.g. , United States
v. Isaac, 134 F.3d 199, 203 (3d Cir. 1998). However, the
assessment must be made on a case-by-case basis. The
mere fact that the law was correctly stated in one part of
the charge will not automatically insulate the charge from
a determination of error.
In Hannibal, on which the Commonwealth places much
emphasis, the jury was instructed that to find the
defendant guilty of first-degree murder, it must be satisfied
17
that "the defendant, his accomplice or co-conspirator
[killed] with the specific intent to kill and with malice." 753
A.2d at 1270. Although the jury was also instructed on
accomplice liability with incorrect words similar to those
used by Everett’s trial judge when he instructed the jury on
accomplice liability, the Pennsylvania Supreme Court noted
that the trial court "consistently and in understandable
language referred to the need to consider whether each
individual in the case possessed the requisite specific intent
to kill." Id. at 1271. It appears that the Hannibal court
believed that the trial court’s instructions on accomplice
liability sufficed to counterbalance the mistaken
instructions on first-degree murder.
In contrast, at Everett’s trial the judge offered the
instruction on accomplice liability once, but instructed the
jury twelve times (six times in the actual jury instructions
and six times in response to a query from the jury during
deliberations) that it could convict Everett of first-degree
murder based on the principal’s intent to kill without
regard to Everett’s own intent. The error cannot be either
erased or minimized, as the Commonwealth suggests.
The Commonwealth’s principal argument is that
Pennsylvania law regarding jury instructions for accomplice

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liability for first-degree murder was not clearly established
at the time of Everett’s trial and therefore the trial judge
was not required to explain to the jury that to find an
accomplice guilty of first-degree murder, it must find that
the accomplice shared the killer’s specific intent to kill. The
Commonwealth contends that Pennsylvania did not clearly
establish this rule until Commonwealth v. Huffman, 638
A.2d 961, 962-63 (Pa. 1994), fourteen years after Everett’s
trial. It contends that Bachert I is inapposite here because
Bachert I did not involve a challenge to a jury instruction
on accomplice liability but rather involved a claim that the
evidence was insufficient to prove that the defendant was
guilty as an accomplice.
Everett takes issue with the Commonwealth’s view of the
applicable Pennsylvania law at the time. He argues that
even though the Superior Court’s opinion in Bachert I did
not directly discuss jury instructions but concerned the
sufficiency of the Commonwealth’s evidence that Bachert
18
committed first-degree murder, questions of sufficiency
necessarily require consideration of the elements of the
crime and the need to prove each of the elements beyond a
reasonable doubt.
Further, Everett argues, contrary to the Commonwealth,
that Huffman did not establish new law but merely
articulated the law that existed at the time of Bachert I and
described therein. He contends that Pennsylvania law since
the enactment of the 1972 Criminal Code required proof of
specific intent to kill on the part of an accomplice, and cites
in support Commonwealth v. Wayne, 720 A.2d 456 (Pa.
1998). Indeed, in Wayne, the Pennsylvania Supreme Court,
after discussing Bachert II and Huffman on the required
intent to kill by an accomplice, held that the state
legislature, in "delineat[ing] the elements distinguishing the
various degrees of homicide," clearly did not intend that an
accomplice "could be culpable for first degree murder
without proof that [s/he] shared the specific intent to kill."
Id. at 464. Wayne confirms Everett’s contention that since
the legislature drafted the law on first-degree murder, 18
Pa. Cons. Stat. S 2502 (drafted 1972; revised 1974),
Pennsylvania law has clearly required that for an
accomplice to be found guilty of first-degree murder, s/he
must have intended that the victim be killed. See also
Commonwealth v. Chester, 733 A.2d 1242, 1253 n.12 (Pa.
1999) ("The holding of Huffman . . . did not create new
law.").
Moreover, the decisive issue here is not whether the trial
court’s instruction failed to accurately set forth the state of
Pennsylvania law in 1980 but whether Everett’s counsel
was ineffective for failing to object to the instructions. A
competent defense lawyer prepared for trial of an
accomplice for first-degree murder in 1980 should have
known about Bachert I, as it was filed well before Everett’s
trial, and should have, on that basis, demurred to the

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Commonwealth’s case, saying that Everett simply could not
be convicted of first-degree murder given the
Commonwealth’s proffered evidence because the
Commonwealth did not claim that Everett had the requisite
mental state.
19
Even if the Superior Court’s decision in Bachert I was not
Pennsylvania’s final word on the state of the law in
Pennsylvania, by itself a questionable proposition, an
effective lawyer would have noted that it was authored by
a justice of the Pennsylvania Supreme Court, sitting by
designation, and thereby been on notice that he should
object to jury instructions that were directly contrary to the
latest applicable Pennsylvania appellate court decision.
Counsel’s status as a reasonably competent attorney is
not strictly confined to the law as enunciated by the
decisions of the jurisdiction’s highest court. More is
expected from a reasonably competent attorney, especially
one in a major criminal case, than merely to parrot
Supreme Court cases. A law student could do as much.
Instead, a reasonably competent attorney will have reason
to rely on authority, especially favorable authority, even if
it had not yet been enunciated by the United States
Supreme Court or the state’s supreme court.
Finally, a reasonably competent lawyer at the time of
Everett’s trial in 1980 should have noted the glaring lack of
evidence that Everett had the requisite intent to kill and
should have objected to the charge as inconsistent with due
process, as enunciated in Winship and Sandstrom. We thus
agree with Everett that his trial counsel did not perform as
effective counsel should have.
Strickland involved a claim of ineffectiveness based on
"conduct of . . . counsel at and before [the habeas
petitioner’s] sentencing proceeding," 466 U.S. at 698, not a
claim based on counsel’s trial decisions. The Supreme
Court case that applies the Strickland ineffective assistance
of counsel analysis to evaluate counsel’s decisions at trial
is Kimmelman v. Morrison, 477 U.S. 365 (1986). Counsel for
the defendant convicted of rape had failed to file a timely
motion for the suppression of the bed sheet that had been
illegally seized. Counsel’s failure to file a motion to
suppress was not due to trial strategy considerations, but
was due to counsel’s ignorance because he had failed to
conduct any pretrial discovery. Id. at 369. The Supreme
Court noted that Strickland required "assess[ing] counsel’s
overall performance throughout the case in order to
determine whether the ‘identified acts or omissions’
20
overcome the presumption that counsel rendered
reasonable professional assistance." Id. at 386 (quoting
Strickland, 466 U.S. at 690). The Supreme Court agreed

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with both the district court and this court that"counsel’s
performance fell below the level of reasonable professional
assistance," id., and agreed that the case should be
remanded for a determination of prejudice. Id. at 390.
While the Supreme Court in Strickland intentionally did
not "establish mechanical rules" for determining whether
counsel was ineffective, 466 U.S. at 696, certain general
principles can be noted with respect to counsel’s obligation
as to the charge. Counsel must not file frivolous objections
but at the same time counsel must not neglect to suggest
instructions that represent the law that would be favorable
to his or her client supported by reasonably persuasive
authority. Every trial judge knows that a competent
criminal lawyer will find a fruitful source of potentially
favorable instructions not only in decisions of the highest
court of the jurisdiction but certainly in decisions of the
intermediate appellate court of that very jurisdiction.
Everett’s counsel failed to do that at his trial.
Other courts of appeals that have concluded that trial
counsel’s performance was ineffective in failing to propose
accurate instructions or to object to erroneous instructions
have then granted a habeas petition. The Court of Appeals
for the Fourth Circuit observed that "an erroneous jury
charge may form the basis of a habeas petition, either
independently or in conjunction with an ineffective
assistance of counsel claim, where the instruction‘so
infected the entire trial that the resulting conviction violates
due process’ by rendering the trial fundamentally unfair."
Luchenburg v. Smith, 79 F.3d 388, 391 (4th Cir. 1996)
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). In
that case, the Fourth Circuit granted a habeas petition due
to the ineffectiveness of petitioner’s counsel for failing to
request an expanded jury instruction that more accurately
described state law. Id. at 393. More recently, the Court of
the Appeals for the Sixth Circuit, in a post-AEDPA habeas
case, found trial counsel ineffective for failure to object, on
both constitutional and evidentiary grounds, to jury
instructions on the consideration of pre-arrest silence as
21
substantive evidence. Combs v. Coyle, 205 F.3d 269, 286
(6th Cir.), cert. denied, 531 U.S. 1035 (2000).
Several other of our sister circuits have granted habeas
petitions on the grounds that counsel was ineffective for
failing to object to or to propose jury instructions. See, e.g.,
Burns v. Gammon, 260 F.3d 892, 897 (8th Cir. 2001)
(granting habeas on ineffective assistance grounds due to
counsel’s failure to object and thus to prompt a curative
cautionary jury instruction); Freeman v. Class , 95 F.3d
639, 642 (8th Cir. 1996) (granting habeas on ineffective
assistance grounds due to counsel’s failure to request
cautionary instructions on accomplice testimony); United
States v. Span, 75 F.3d 1383, 1389-90 (9th Cir. 1996)
(finding ineffective assistance because counsel failed to
request a significant jury instruction); Harris v. Wood, 64

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F.3d 1432, 1438 (9th Cir. 1995) (finding ineffective
assistance due, inter alia, to "failure to propose, or except
to, jury instructions"); Gray v. Lynn, 6 F.3d 265, 271 (5th
Cir. 1993) (finding ineffectiveness because counsel failed to
object to erroneous jury instructions).
Everett’s counsel was deficient for not challenging the
jury instructions on accomplice liability for first-degree
murder.5 Countless times we have seen lawyers object to
_________________________________________________________________
5. As an additional basis to show that Everett’s trial counsel was not
ineffective, the Commonwealth notes that he did cite Bachert I in his
direct appeal in support of his argument that the evidence offered at trial
was insufficient to support Everett’s conviction. Supp. App. at 709. At
oral arguments, Everett’s current counsel conceded that Everett’s trial
counsel did mention Bachert I in his appeal, although the appellate court
did not address any of the issues relating to Bachert I. Commonwealth v.
Everett, 445 A.2d 514 (Pa. Super. 1982). Everett’s current counsel noted,
however, that (a) Everett’s trial counsel did not object to the jury
instructions and did not refer to Bachert I or the relevant principle from
it at the crucial moment and (b) when Everett’s counsel did cite Bachert
I in his brief on direct appeal, he "got it wrong." While the trial counsel’s
characterization of Bachert I in his brief for the direct appeal is not
obviously incorrect, from the context in which he cites it and the brief
discussion he gives to it, it seems clear that Everett’s counsel did not
adequately appreciate the strength and relevance of Bachert I. In any
event, that Bachert I was cited in Everett’s brief on direct appeal does not
by itself undermine Everett’s claim of ineffective assistance of counsel for
failing to object to the incorrect instructions at trial.
22
instructions on patently flimsy grounds. This was not a
flimsy ground.
B. Prejudice
We have concluded that Everett’s counsel was deficient
for failing to object to the jury instructions. To find
ineffective assistance of counsel, it is also necessary to find
prejudice, as the Supreme Court noted in Kimmelman, 477
U.S. at 387. In some cases, that may require a remand, but
the record here is clear as to Everett’s prejudice.
Everett was convicted of first-degree murder despite the
fact that no evidence was adduced at trial that he
possessed the requisite intent to kill the victim.
Additionally, the prosecutor’s trial strategy was based on
the premise that even though Everett was not in the store,
and even though he had not at any time discussed with his
conspirators the use of force, much less deadly force, he
could be held liable simply because he participated in the
crime by driving the getaway car. This is evident in the
prosecutor’s closing remarks where he said, "I’m not going
to stand here and make a moron out of myself and tell you
that they planned to shoot Jon Jennings. They didn’t. It
happened." App. at 61. Everett’s counsel’s failure to object
to the jury instructions allowed for the conviction of Everett

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based on the specific intent of the actual killers themselves.
The standard established in Strickland for prejudice is
whether there is a reasonable probability that, but for
counsel’s deficiency, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694. In this
case, but for the failure of counsel to object to the jury
instructions, there is more than a reasonable probability
that Everett would not have been convicted of first-degree
murder because there was no evidence that he possessed
the requisite specific intent to kill. We recognize that the
Pennsylvania courts rejected Everett’s claim of ineffective
assistance of counsel on appeal of the denial of Everett’s
PCRA petition. But they did that on the basis of their
interpretation of Pennsylvania state law.6 We, on the other
_________________________________________________________________
6. Not only are these state court decisions in tension with later state
court decisions, in particular Wayne and Chester, an inconsistency
23
hand, are applying federal due process which encompasses
the requirement of effective assistance of counsel. On that
issue, we need not defer to the state courts. We note, once
again, that the state courts did not discuss the due process
issue.
In light of our conclusion that under Strickland trial
counsel was ineffective for failing to raise objections to the
jury instructions, we do not need to reach the question of
whether Everett’s trial counsel was ineffective under state
law for failing to raise state law objections to the jury
instructions.
V.
CONCLUSION
Everett’s counsel was ineffective by virtue of his failure to
press the issue of whether an accomplice who did not have
the intent to kill can be found guilty of first-degree murder
based on accomplice liability, generally, and, in particular
as this issue related to the instructions the trial court gave
to the jury. Everett was clearly prejudiced by his counsel’s
ineffectiveness. Everett is serving a life sentence for first-
degree murder despite jury instructions that failed to
charge, in accordance with the law of both Pennsylvania
and the United States, that such a conviction requires proof
of an accomplice’s intent to kill and despite the
Commonwealth’s failure to prove that Everett had an intent
to kill or even claimed that he did. This must be an
instance such as that referred to in Duncan, citing
Strickland, where counsel’s deficient performance
"undermine[s] confidence in the trial’s outcome." Duncan,
256 F.3d at 200 (citing Strickland, 466 U.S. at 687).
The judgment of the District Court will therefore be
reversed to the extent that it denied Everett’s petition for

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_________________________________________________________________
about which there is little we can do, see, e.g. , Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (interpretation of state law must be left to the state
courts), but the state courts addressed the question of whether Bachert
II could be applied retroactively to Everett’s case and simply ignored
Bachert I.
24
habeas relief with regard to his conviction for first-degree
murder. We will remand this matter to the District Court
for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
25

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