Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2009

Wells v. Varner
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3752




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"Wells v. Varner" (2009). 2009 Decisions. Paper 1368.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1368


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 03-3752
                                      ___________

                                   RODNEY WELLS,
                                                        Appellant

                                            v.

                 BEN VARNER; THE DISTRICT ATTORNEY
                 OF THE COUNTY OF PHILADELPHIA; THE
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 03-CV-00727)
                        District Judge: Honorable Jan E. Dubois
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 21, 2009
                 Before: BARRY, SMITH and GARTH, Circuit Judges

                              (Opinion filed: May 14, 2009)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Rodney Wells appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, which denied his petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254, and which declined to issue him a certificate of

appealability (COA). On March 15, 2004, we granted Wells a COA “as to the single

issue of whether [Wells] has demonstrated his actual innocence of the Pennsylvania

Corrupt Organizations Act offense so as to overcome the procedural default of the

ineffectiveness of appellate counsel and due process/corrupt organizations offense

claims.” We held the decision in abeyance pending a decision in Kendrick v. Attorney

General of Philadelphia County, C.A. No. 02-3158. Kendrick was decided on June 7,

2007. See Kendrick v. Attorney General of Philadelphia County, 

(3d Cir.

2007). The case is now fully briefed.

         The parties are already familiar with the facts of this case. Therefore, we limit our

discussion to those facts essential to our decision. In 1986, Wells was convicted of third-

degree murder, aggravated assault, conspiracy, possession of an instrument of crime, and

violation of Pennsylvania’s Corrupt Organizations Act (PCOA),1 in the Philadelphia

Court of Common Pleas. He was sentenced to life imprisonment for murder, consecutive

terms of 5 to 10 years for aggravated assault and conspiracy, and a suspended sentence

for the PCOA count. The Pennsylvania Superior Court affirmed the conviction, and the

Pennsylvania Supreme Court denied allocatur. In 1993 and again in 1997, Wells filed

requests for production of grand jury minutes. The requests were denied as Wells had

been provided portions of the minutes. The Superior Court affirmed the denial, and Wells



   1
       18 Pa. C.S. § 911.

                                               2
did not seek allocatur.

         Meanwhile, in December 1996, Wells filed a pro se petition pursuant to

Pennsylvania’s Post-Conviction Relief Act (PCRA),2 seeking information regarding the

grand jury proceedings and alleging the prosecutor offered perjured testimony to the

grand jury. Counsel was appointed and made additional requests for grand jury notes.

The PCRA court denied the petition, denying the request for grand jury notes and finding

no merit to the allegation of prosecutorial misconduct during the grand jury proceedings.

On appeal, Wells was granted leave to proceed pro se, and argued (a) ineffective

appellate counsel for failing to allege trial court error in overruling defense counsel’s

objections to a witness’ reference to Wells’ “killings”; (b) violation of due process in that

the Commonwealth failed to prove every element of the corrupt organization offense; (c)

error in dismissing the PCRA petition; and (d) ineffectiveness of PCRA counsel for not

raising the first two claims in the PCRA court. The Superior Court affirmed, finding the

first two claims waived for failure to raise them in the PCRA court, and the third claim

previously litigated on the appeal from the denial of the grand jury requests. The

Superior Court did not explicitly address the ineffectiveness of PCRA counsel claim. The

Supreme Court denied allocatur.

         In 2003, Wells filed his habeas petition in the District Court alleging once again

that (1) appellate counsel was ineffective for failing to allege trial court error in



   2
       42 Pa. C. S. § 9541, et seq.

                                               3
overruling defense counsel’s objections to a witness’ reference to Wells’ “killings”; and

(2) that his right to due process was violated in that the Commonwealth failed to prove

every element of the corrupt organization offense. Wells also raised a third claim: that he

was denied due process when the PCRA court failed to grant his petition to review grand

jury evidence. The Magistrate Judge recommended denying the petition as the claims

were procedurally defaulted. The District Court adopted the recommendation and denied

the petition.

         As noted above, we granted a COA on the sole issue of whether Wells had

demonstrated his innocence of the PCOA offense so as to overcome his procedural

default of the first two claims listed above.3 Failure to raise a claim before the state

courts may be excused in “extraordinary instances when a constitutional violation

probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant,

, 494 (1991). “To establish actual innocence, a petitioner must show that it

is more likely than not that no reasonable juror would have found petitioner guilty beyond

a reasonable doubt [and] must also support his allegations of constitutional error with new

reliable evidence . . . that was not presented at trial.” Wright v. Vaughn, 

, 92

(3d Cir. 2006) (quoting Schlup v. Delo, 

, 327-28 (1995)) (internal citations

and quotations omitted). Where the record supports a claim of actual innocence, the

proper procedure is to remand to the district court to determine whether the petitioner is



   3
       We denied a COA on the third claim.

                                              4
actually innocent. United States v. Garth, 

, 109 (3d Cir. 1999) (remanding

where record showed movant might be actually innocent of firearms offense). “[O]ur

examination of the record does not amount to a determination of whether there is

sufficient evidence to convict . . . [but] whether it supports a claim of factual innocence

such that remand is required to allow [the petitioner] an opportunity to establish his actual

innocence.” 

       In Commonwealth v. Besch, 

(Pa. 1996), the Supreme Court of

Pennsylvania held that the PCOA did not apply where the conduct at issue involved only

wholly illegitimate businesses. Soon thereafter, the Pennsylvania legislature responded to

Besch by amending the PCOA to apply to businesses with wholly illegitimate operations;

see 18 Pa.C.S.A. § 911 (1997); McKeever v. Warden SCI-Graterford, 

, 83-84

(3d Cir. 2007). This Court filed a Petition for Certification of a Question of Law with the

Pennsylvania Supreme Court in conjunction with the appeal in Kendrick, asking whether

Besch “establish[ed] a new rule of law that cannot be applied retroactively to cases on

collateral review?” 

. The Court responded that Besch did not

establish a new rule of law, but only explicated the meaning of the scope and term from

the PCOA’s original enactment in 1973. 

Wells was involved only with a

wholly illegitimate business, his conduct did not violate the PCOA.

       Appellees disingenuously argue, quoting Besch, that the Commonwealth can prove

a violation of the PCOA by presenting evidence of “an intention on the part of any


                                              5
individual within th[e] particular ‘enterprise’ to use their revenue from the drug sales to

infiltrate any business within Pennsylvania,” or “evidence that connects this drug

enterprise even remotely to a legitimate business or any attempt to infiltrate a legitimate

business.” Appellee’s Brief at 38, quoting 

(emphasis added

by Appellees). As is evident from footnote 18 of Appellees’ brief, Appellees have taken

these quotes completely out of context. The Court in Besch was not explaining what

proof would be sufficient to show a violation of the PCOA; rather, it was noting that in

the case before it, the Commonwealth had fallen far short of whatever proof was

necessary–it had failed to prove that any individual within the enterprise had attempted to

infiltrate any business, and had failed to produce any evidence even remotely connecting

the drug enterprise to a legitimate business. We find it highly unlikely that the

Pennsylvania courts would find “evidence that connects [a] drug enterprise even remotely

to a legitimate business or any attempt to infiltrate a legitimate business” sufficient for a

PCOA conviction under the unamended PCOA statute.

       In fact, given the fact that the holding of Besch applies only to a few cases,4 it is

not surprising that there is very little case law concerning what the Commonwealth must

show to prove that a legitimate business was involved. In many cases, the

Commonwealth simply conceded that the enterprise in question was wholly illegitimate.



   4
    See 

(“the very fact of the General Assembly’s prompt
response to Besch ensured that Besch-related claims would be finite and would decrease
with the passage of time.”).

                                              6
See, e.g., 

; Commonwealth v. Williams, 

, 25 (Pa.

2007); Commonwealth v. Shaffer, 

, 841 n.2 (Pa. 1999). In Commonwealth

v. Hunter, 

, 1142 (Pa. Super. Ct. 2001), evidence was introduced to show

that the Edenborn Social Club, which was the headquarters of a drug enterprise, also

served alcoholic beverages and food, had a pool table, video games and pinball machines,

and employed at least one person to tend bar. The Court held that this evidence was

sufficient to demonstrate that the Edenborn Social Club was a legitimate business for

purposes of a PCOA conviction. 

Commonwealth v. Rickabaugh, 

, 845 (Pa. Super. Ct. 1997), the Court held that where the defendant used his bar

as the base of his cocaine operation, used the proceeds from his drug sales to remodel the

bar, and gave an associate money from the bar’s cash register to go and purchase drugs,

the evidence was sufficient to show that the defendant’s activities infiltrated a legitimate

business. 

Commonwealth states that it “presented voluminous evidence of the

strong connection between the criminal activities of Wells and the other members of ‘the

Family’ (murder, drug trafficking, robbery, witness intimidation, etc.) and the Family’s

legitimate business dealings.” Appellee’s Brief at 39. Appellees point to four possible

connections to legitimate businesses. First, they point to trial testimony concerning

members of the Family who were connected with a company called #9 Production

Enterprises, Ltd. Appellees contend that this company was used to “launder the gang’s


                                              7
proceeds from its criminal activities.” Appellees’ Brief at 39. However, Appellees do

not point to any evidence showing that Wells had any ties to #9 Production Enterprises.

See Commonwealth v. Donahue, 

, 1245 (Pa. Super. Ct. 1993) (“in order to

sustain a conviction for corrupt organizations, the Commonwealth must prove that there

was an ongoing organization engaged in commerce and that the associates of the

organization functioned as a continuing unit”). Second, the Commonwealth notes

testimony that Charles Harris, who had a record production company and managed

recording groups, had conversations with Wells and others about how they “could take

drug money and launder it through promoting concerts and record production with

different groups.” Appellees’ Brief at 40, S.A. 1101. However, the Commonwealth

points to no evidence that Wells followed through with the money laundering. Third,

Appellees state that the Mark V Bar is another “legitimate, or at least quasi-legitimate

business[] corrupted by the activities of Wells and the Family,” but they again point to no

evidence that Wells was connected with the bar. Appellees’ Brief at 42.

       Fourth, Appellees state that “the Commonwealth’s investigation produced

evidence that Commonwealth witness Renee Jones had knowledge that [one of Wells’

codefendants], with whom she had lived, ‘sold drugs out of [Wells’s] variety store.’”

Appellees’ Brief at 43. Appellees’ only evidence of this assertion is a sidebar conference

where the Assistant District Attorney cautions another attorney (it is not clear whom he

was addressing) to not “get into the basis of how [Commonwealth witness Renee Jones]


                                             8
knows that [the attorney’s client] sold drugs out of Hop’s variety store.” S.A. 847.5

There are a number of problems with this “evidence.” First, although Appellees may be

correct in substituting “Wells’s” for “Hop’s,” they have not pointed to evidence in the

record showing that Wells is the same as “Hop.” Second, it appears that Wells’ attorney

was objecting to any introduction of such evidence, because the evidence concerned

events that occurred outside the two-year statute of limitations for PCOA activity. S.A.

847. Although the objection was overruled, the Court did note that it believed “part of

her testimony is certainly within the statute.” S.A. 848-49 (emphasis added). Thus, it is

not clear whether any such evidence would be relevant to Wells’ PCOA conviction.

Wells also argues that considering this evidence would violate Crawford v. Washington,

(2004), which generally bars admission of out-of-court testimonial

statements by witnesses who have not been available for cross-examination.

         We conclude that the record as it now stands supports Wells’ claim that he is

actually innocent of the PCOA count. We will therefore remand to the District Court to

allow Wells the opportunity to prove his actual innocence 6 and to give the

Commonwealth “the opportunity to produce any additional evidence to refute such a

claim.” 

. In the District Court, the Commonwealth “may present


   5
       Appellees acknowledge that Jones was not questioned on this topic on the record.
   6
     Wells need not produce evidence, but may rest on the record as it stands now and
require the Commonwealth to present additional “admissible evidence” of his factual
guilt. 

n.13 (citing Bousley v. United States, 

, 624
(1998)).

                                              9
whatever admissible evidence it has to rebut [Wells’] claim, even if the evidence was not

previously admitted.” 

District Court concludes that Wells has met his burden

of establishing actual innocence of the PCOA count, then it must consider his claim that

his due process rights were violated when the Commonwealth failed to prove every

element of the corrupt organization offense.7

       Accordingly, we remand for further proceedings consistent with this opinion.8




   7
     It appears that Wells’ ineffective assistance of appellate counsel claim is unrelated to
his PCOA conviction, and that procedural default of that claim would therefore not be
excused, even if Wells establishes actual innocence of the PCOA count. Because we do
not have the state court record available to us, we leave it to the District Court to make
this determination in the first instance.
   8
     We grant Wells’ motion for a remand solely to the extent that it requests a remand;
all other requests contained therein and all other pending motions filed by either side are
denied.

                                             10