Twyla Thompson v. Donald Kelchner, Superintendent, Sci Muncy

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 01-3406
__________
TWYLA THOMPSON
v.
DONALD KELCHNER, SUPERINTENDENT, SCI MUNCY;
THE DISTRICT ATTORNEY OF THE COUNTY OF
PHILADELPHIA; THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Appellants
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 00-cv-03466
District Judge: The Honorable Harvey Bartle
__________
Argued April 5, 2002
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Before: SLOVITER, BARRY, and ALARCON, Circuit Judges
(Opinion Filed: May 8, 2002 )
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Robert M. Falin, Esq. (Argued)
Thomas W. Dolgenos, Esq.
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorneys for Appellants
Norris E. Gelman, Esq. (Argued)
6th & Chestnut Streets
Public Ledger Building
Philadelphia, PA 19106
Attorney for Appellee
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OPINION OF THE COURT
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BARRY, Circuit Judge
On April 5, 1986, in the Court of Common Pleas of Philadelphia County, a jury

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convicted Twyla Thompson of the first degree murder of her boyfriend and possession of
an instrument of crime. She was sentenced to life in prison for the murder and given a
concurrent sentence of one-and-a-half to three years for the possession of an instrument
of crime. Thompson unsuccessfully challenged her convictions on direct appeal. She
then sought collateral relief under Pennsylvania’s Post Conviction Relief Act ("PCRA"),
23 Pa. C.S.A. 9541, alleging, as relevant here, that her counsel was ineffective because
he failed to object to two sentences in the trial court’s lengthy instructions to the jury on
reasonable doubt. The PCRA court disagreed and dismissed the petition. After
reviewing the instructions as a whole and concluding that they fairly and completely
advised the jury of the applicable law and, thus, that Thompson’s attack on counsel’s
effectiveness lacked merit, the Superior Court affirmed. Commonwealth v. Thompson,
No. 1295 Phila. 1998 (Pa. Super. Ct. July 8, 1999). The Pennsylvania Supreme Court
subsequently denied Thompson’s request for discretionary review. Commonwealth v.
Thompson, 753 A.2d 818 (Pa. 2000).
On July 10, 2000, Thompson filed a habeas corpus petition under 28 U.S.C.
2254 in the United States District Court, once again alleging that counsel was ineffective
for failing to object to, among other instructions, the aforementioned two sentences. On
April 18, 2001, the Magistrate Judge issued a Report and Recommendation, finding that
Thompson’s various challenges to the instructions were without merit and, thus, that the
ineffective assistance claim failed. The District Court disagreed, however, as to the one
challenge it considered -- the challenge to the reasonable doubt instructions -- and
granted Thompson habeas relief. The Court found that the two sentences pinpointed by
Thompson violated the Due Process Clause of the Fourteenth Amendment and, thus,
counsel’s failure to object to them constituted ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). Based on this finding, the Court went
on to conclude that the Pennsylvania courts that reviewed Thompson’s PCRA petition
had rendered decisions that were "’contrary to’ and an ’unreasonable application of’
Supreme Court precedent regarding the right to the effective assistance of counsel and
the due process right to correct reasonable doubt instructions." Thompson v. Kelcher,
No. 00-3466, at 12 (E.D. Pa. June 20, 2001) (citations omitted). Appellants argue that
the District Court erred. We agree, and will reverse. We have jurisdiction to consider
this appeal under 28 U.S.C. 1291 and 2253(a). Our review is plenary. Johnson v.
Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
Because Thompson filed her federal habeas petition after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, our scope of review is defined by
the Act. The relevant section of the Act states that when reviewing state convictions,
federal courts may grant habeas relief with respect to a claim adjudicated on the merits in
state court proceedings only if 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 United States . . . .
28 U.S.C. 2254(d)(1). A state court decision is "contrary to" clearly established
Supreme Court precedent if the state court either "applies a rule that contradicts the
governing law set forth in our cases," or "confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a
result different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An "unreasonable application" of Supreme Court precedent occurs when the state court
"correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case." Id. at 407-08. The key inquiry here is "whether the state
court’s application . . . was objectively unreasonable." Id. at 409. This inquiry is made
in light of clearly established Supreme Court precedent at the time of the trial.
Strickland, 466 U.S. at 689 (noting that we must make "every effort . . . to eliminate the
distorting effects of hindsight . . . [and] evaluate the [counsel’s] conduct from counsel’s
perspective at the time" of the trial).
Long before Thompson’s trial in 1986, the Supreme Court explicitly stated the
constitutional requirement that the reasonable doubt standard of proof be strictly applied.
In 1970, the Court held "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 [one] is charged." In re Winship, 397 U.S. 358, 364

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(1970). This was hardly a startling proposition, for sixteen years earlier the Court had
held that "the prosecution must always prove the criminal charge beyond a reasonable
doubt." Holland v. United States, 348 U.S. 121, 126, 138 (1954). It goes without
saying, of course, that the constitutional rationale of Winship requires that the jury be
instructed on the necessity of proof beyond a reasonable doubt. Cool v. United States,
409 U.S. 100, 104 (1972); Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978); Jackson v.
Virginia, 443 U.S. 307, 318 (1979); Francis v. Franklin, 471 U.S. 307, 313 (1985).
There is no contention here that the trial court failed to instruct the jury that it
must find proof beyond a reasonable doubt before it could convict, nor could there be for
the trial court told the jury dozens of times throughout its 109 page instructions that this
was the standard of proof. A failure to have so instructed the jury would, of course, and
without more, warrant relief. Cool, 409 U.S. at 104; Jackson, 443 U.S. at 318. Rather,
the argument is that the instructions were deficient because the jury was told in the two
challenged sentences that reasonable doubt had to arise from or be based on the evidence
(the "unconstitutional" instruction) and was also told that reasonable doubt could arise
from or be based on the lack of evidence (the "constitutional" instruction). The
"unconstitutional" instruction, the District Court found, reduced the government’s
burden of proof and because the "unconstitutional" and the "constitutional" instructions
were contradictory, the argument goes, it is impossible to determine which the jury
followed. Appellee’s Br. at 31-32. Thus, Thompson concludes, counsel’s failure to
object violated her Sixth Amendment right to the effective assistance of counsel.
To successfully bring an ineffective assistance of counsel claim, a convicted
defendant must show: (1) that counsel’s performance was deficient; and (2) that such
performance so prejudiced the defendant that he or she was deprived of a trial with a
reliable result. Strickland, 466 U.S. at 687. An attorney’s performance is deficient if it
falls "below an objective standard of reasonableness." Id. at 688. Failure to object to
jury instructions that would deprive a defendant of the protections of the reasonable
doubt standard would be objectively unreasonable.
The jury was instructed as follows as to reasonable doubt and the presumption of
innocence, with the challenged language highlighted:
You have certainly heard many times heretofore during the course of
this trial that the defendant comes before you presumed to be innocent of
the crimes for which she has been charged. Presumption of innocence
alone sufficient to acquit any defendant, unless the jury is satisfied that the
prosecution has proved each and every element of the offense or offenses
charged beyond a reasonable doubt.
Further, the presumption of innocence is not a mere formality. Each
and every one of you as jurors is bound to entertain it conscientiously,
sincerely, candidly and without any mental reservation or deviation
whatsoever; and to give the defendant the full benefit of such a
presumption of innocence. A65.
* * *
[T]he law does not require the defendant to prove that he or she is
innocent of the crime for which that information was returned. But, on the
contrary, the law places upon the commonwealth the sole and only burden
of proving the defendant’s guilt beyond a reasonable doubt. A66-67.
* * *
The burden of proving the defendant’s guilt requires the
Commonwealth to prove each and every element necessary to make out the
crimes charged. And as I shall later explain to you with respect to the
criminal information charged, murder generally, the burden of proof relates
to including the degree and grade of crime, and this proof must be beyond a
reasonable doubt. So, I will tell you later, before you can find any accused
in a criminal homicide proceeding guilty of any grade of criminal
homicide, you must find that the Commonwealth’s evidence proved beyond

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a reasonable doubt each and every element of the that specific grade or
kind of criminal homicide.
[The] Commonwealth’s burden of proving the defendant’s guilt
beyond a reasonable doubt never shifts, and remains upon the
Commonwealth throughout the entire trial of the case until such time as the
jury, after deliberations, and after consideration of all of the evidence,
arguments of counsel, and the final charge or instructions from the court,
conclude that the defendant is guilty of the crime or crimes charged beyond
a reasonable doubt.
Further, there is a continuing presumption of innocence with the
defendant, not only at the beginning of the trial, but throughout all of the
stages, even while you as jurors are deliberating, and [the] Commonwealth
has a never shifting burden of proving guilt beyond a reasonable doubt.
This presumption of innocence is founded upon the first principle of justice
and not a mere technicality, but a substantial and significant part of the law.
As stated, the law presumes a defendant to be innocent of a crime.
Thus, a defendant, although accused, begins a trial with no evidence
against him[.] The law permits nothing but legal and competent evidence
presented before the jury to be considered in support of any charge against
the accused. So the presumption of innocence by itself is sufficient to
acquit a defendant unless you, as jurors, are satisfied beyond a reasonable
doubt of the defendant’s guilt.
What is reasonable doubt? Note initially, that although the
Commonwealth has the burden of proving the defendant is guilty, this does
not mean the Commonwealth must prove its case beyond all doubt or to a
mathematical certainty, or must it demonstrate the complete impossibility
of innocence. A reasonable doubt is such a doubt as would cause a
reasonably [prudent], careful and sensible person to pause, hesitate and
restrain himself or herself before acting upon a matter of highest
importance in his or her own affairs. Reasonable doubt is such a doubt as
would cause a person to hesitate in arriving at a conclusion of a matter of
importance to that person. Therefore, should you, after you consider all of
the evidence, have in your mind such a doubt as would cause you to
hesitate in arriving at a conclusion of matters of importance to yourself,
then it is your duty to give the defendant the benefit of that reasonable
doubt and find the defendant not guilty.
The doubt, to be reasonable, must be one which fairly strikes the
mind, a conscientious mind, and cloud[s] the judgment, not such a doubt as
one may dig up, conjure up, or summon up out of nowhere for the purpose
of escaping the consequences of an unpleasant verdict, but a doubt which is
reasonable and honest, a real doubt fairly arising out of the evidence that
was presented or out of the void, absence, or lack of evidence presented
with respect to some element of the crime.
Reasonable doubt is not merely any imagined or passing fancy that
may come into the mind of the juror, it must be doubt rising arising from
the evidence that is substantial and well founded on reason and common
sense; a reasonable doubt such as would be taken notice of by a juror in
deciding a case or a question or issue in a case is of the same nature as
doubt that would cause a reasonable man or reasonable woman, in the
conduct of his or her own affairs or matters of importance to herself or
himself, to stop, hesitate and seriously consider as to whether he should or
she should do a certain thing before finally acting. Further, a reasonable
doubt is something different and much more serious than a possible doubt.
During the course of our living day to day, and during the course of our

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acquisition of worldly knowledge about people, persons, things, matters of
life, we have all learned of a possible doubt exist [sic] in all things, and it’s
impossible to almost impossible to possess any human knowledge and
come to any conclusion to a certainty beyond a reasonable doubt.
The Commonwealth is not required to prove its case beyond all
doubt. If you as jurors cannot find evidence on which to base doubt, then it
is not a doubt arising from the evidence and not a reasonable doubt; simply
a possible doubt. And being so, therefore, it’s not such a doubt as would
justify a conscientious juror from hesitating or rendering a verdict where
the mind is fairly satisfied [except] for the existence of such a doubt.
So, to summarize, you may not find a defendant guilty based on
mere guess, suspicion or conjecture of guilt. As stated, a conviction may
not be based upon suspicion or conjecture. The evidence must be such as
reasonably justifies an inference of guilt of the accused; must be of such
volume and quality as to overcome the presumption of innocence.
The Commonwealth has the burden of proving the defendant guilty
beyond a reasonable doubt. If it meets that burden, the defendant is no
longer presumed innocent and you must find her guilty. On the other hand,
if the Commonwealth does not meet its burden, then you must find the
defendant not guilty, unless and until outweighed by evidence to the
contrary. The law presumes a person is innocent of a crime or criminal
wrong and that the law has been obeyed.
Therefore, if, after a consideration of all of the evidence, arguments
of counsel and charge of this court, the jury has reasonable doubt of the
defendant’s guilt, you must find the defendant not guilty. But if the jury,
after such same consideration, has no reasonable doubt of defendant’s
guilt, you must in turn find the defendant guilty. A69-74
* * *
It’s your duty to determine from the evidence what facts have been
proved, what facts have not been proved. That means you are going to
have to scrutinize the evidence, examine the evidence, sift out the evidence,
weigh the evidence; and you have to determine how much of it is true or
whether any of it is false . . . It’s for you and you alone to decide this case
based on the evidence as it was presented from the witness stand and in
accordance with the instructions which I’m now giving you. A76-77.
We repeat the snippets of these lengthy instructions isolated for challenge:
"Reasonable doubt is not merely any imagined or passing fancy that may come into the
mind of a juror, it must be doubt arising from the evidence that is substantial and well
founded on reason and common sense," and "If you as jurors cannot find evidence on
which to base doubt, then it is not doubt arising from the evidence and not reasonable
doubt; simply a possible doubt." The District Court concluded that it is reasonably likely
that this language led the jury to conclude that reasonable doubt could not arise from an
absence of evidence, thereby depriving her of the protections of the reasonable doubt
standard. We could not more strongly disagree.
It has long been established that "a single instruction to a jury may not be judged
in artificial isolation, but must be viewed in the context of the overall charge." Cupp v.
Naughten, 414 U.S. 141, 146-47 (1973) (citing Boyd v. United States, 271 U.S. 104, 107
(1926)); see also Holland v. United States, 348 U.S. 121, 140 (1954). The Court stressed
that each instruction forms "but one of many such instructions" and, therefore, the
disputed instructions must be viewed in the context of the instructions as a whole. Cupp,
414 U.S. at 147.
While the District Court paid lip service to this principle, it did not apply it. When
applied, we find that the jury instructions in this case -- instructions as comprehensive as

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we have seen -- did not deprive Thompson of the protections of the reasonable doubt
standard of proof. Over and over again, the instructions made clear that the burden of
proving Thompson’s guilt beyond a reasonable doubt was on the Commonwealth. The
instructions stressed that Thompson was presumed innocent and that this "presumption
of innocence by itself is sufficient to acquit a defendant." The instructions went on to
define reasonable doubt, explicitly stating that reasonable doubt could arise "out of the
void, absence, or lack of evidence presented with respect to some element of the crime."
When the instructions subsequently stated that reasonable doubt "must be doubt arising
from the evidence," it was merely to distinguish reasonable doubt from "an imagined or
passing fancy that may come into the mind of a juror." Similarly, when the instructions
stated that if "jurors cannot find evidence on which to base doubt, then it is not doubt
arising from the evidence and not reasonable doubt; simply a possible doubt," it was to
distinguish reasonable doubt from speculation or "possible doubt," as the preceding and
succeeding sentences made clear. When read in context, those sentences challenged
simply because they did not repeat the "void, absence, or lack of evidence" language
cannot be fairly read to eviscerate or contradict the extensive and correct instructions
given by the trial court. As the Holland Court put it, "[w]e believe the instruction as
given was not of the type that could mislead the jury into finding no reasonable doubt
when in fact there was some." Holland, 348 U.S. at 140. Indeed, we believe that the
argument Thompson makes here is a paradigm example of the "technical hairsplitting"
condemned in Boyd v. California, 494 U.S. 370, 380-81 (1990), and that there is no
reasonable likelihood that the jury understood the instructions to permit conviction on
anything other than proof beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 6
(1994).
We note, albeit in passing, that the trial court, while obliged to tell the jury that it
could convict only on proof beyond a reasonable doubt, was not obliged to define that
term. United States v. Hernandez, 176 F.3d 719, 728 (3d Cir. 1999). As long ago as
Miles v. United States, 103 U.S. 304 (1880), the Supreme Court recognized that
"attempts to explain the term ’reasonable doubt’ do not usually result in making it any
clearer to the minds of the jury." Miles, 103 U.S. at 312. Indeed, district courts in
certain circuits have been admonished not to give an explanation of reasonable doubt to
avoid creating confusion. The Seventh Circuit perhaps said it best: "[T]he phrase is self-
defining, . . . every attempt to explain renders an explanation of the explanation
necessary . . . the better practice is not to attempt the definition . . . any effort at furth
elucidation tends to misleading refinements." United States v. Lawson, 507 F.2d 433,
443 (7th Cir. 1974). See also United States v. Headspeth, 852 F.2d 753, 755 (4th Cir.
1988).
We note, as well, that when definition of reasonable doubt is attempted, that
definition must, of course, be correct, but there is no requirement, at least as a matter of
federal law, that the jury be instructed that reasonable doubt can be based on a lack of
evidence. Indeed, of those circuits that have adopted pattern jury instructions, only one
circuit the Ninth refers to the absence of evidence in the course of its instructions on
reasonable doubt. Moreover, Devitt & Blackmar, the "bible" on which it is fair to say
most federal judges most heavily rely, does not even allude to an absence of evidence in
its model instructions on reasonable doubt, to wit:
The burden is always upon the prosecution to prove guilt beyond a
reasonable doubt. This burden never shifts to a defendant for the law never
imposes upon a defendant in a criminal case the burden or duty of calling
any witnesses or producing any evidence. The defendant is not even
obligated to produce any evidence by cross-examining the witnesses for the
government.
It is not required that the government prove guilt beyond all possible
doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt
based upon reason and common sense the kind of doubt that would make
a reasonable person hesitate to act. Proof beyond a reasonable doubt must,
therefore, be proof of such a convincing character that a reasonable person
would not hesitate to rely and act upon it in the most important of his or her
own affairs.

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Unless the government proves, beyond a reasonable doubt, that the
defendant has committed each and every element of the offense charged in
the indictment, you must find the defendant not guilty of the offense. If the
jury views the evidence in the case as reasonably permitting either of two
conclusions one of innocence, the other of guilt the jury must, of
course, adopt the conclusion of innocence.
1 Devitt & Blackmar, Federal Jury Practice and Instructions, 12.10 (4th Ed. 1992). As
the Second Circuit observed, "Trial judges would be exceedingly well advised to use the
[Devitt & Blackmar] model instructions." United States v. Gatzonis, 805 F.2d 72, 74 (2d
Cir. 1986).
The jury was instructed innumerable times within the lengthy reasonable doubt
instructions and throughout the course of the entire 109 page jury charge on the
government’s burden proof and the meaning of reasonable doubt was thoroughly and
accurately explained. Given that the two sentences challenged here, whether viewed in
isolation or viewed in the context of the reasonable doubt instructions and the
instructions as a whole, were not deficient, the fact that counsel did not object cannot be
considered "deficient performance" under Strickland. The state courts so found in the
PCRA proceedings, concluding that the instructions, viewed in their entirety, fairly and
completely advised the jury of the law regarding reasonable doubt. That conclusion was
neither "contrary to" nor an "unreasonable application of" clearly established Supreme
Court precedent. 28 U.S.C. 2254(d)(1).
We will reverse the order of the District Court granting habeas corpus relief to
Thompson, and will remand for the Court to address the remaining claims raised in the
petition.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne T. Barry
Circuit Judge

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