Filed: Sep. 15, 2021
Latest Update: Sep. 16, 2021
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1142
_____________
OSCAR ALVARADO,
Appellant
v.
SUPERINTENDENT SOMERSET SCI;
DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA
______________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-17-cv-03283)
District Judge: Honorable Nitza I. Quinones Alejandro
______________
Argued July 16, 2021
______________
Before: McKEE, GREENAWAY JR., and RESTREPO, Circuit Judges
(Opinion filed: September 15, 2021)
Eleanor R. Barrett
Jean W. Galbraith
Benjamin Brown-Harkins
Jenifer Norwalk
Rebecca Wallace [Argued]
University of Pennsylvania Carey Law School
Appellate Advocacy Clinic
3501 Sansom Street
Philadelphia, PA 19104
Ilana H. Eisenstein
DLA Piper
1650 Market Street
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Counsel for Appellant
David Napiorski [Argued]
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Superintendent Somerset SCI, District Attorney Philadelphia,
Attorney General Pennsylvania
_______________________
OPINION*
_______________________
McKEE, Circuit Judge.
Oscar Alvarado was convicted of second degree murder after his non-testifying
co-defendant’s statement was admitted in their joint trial and used against him in
violation of his Sixth Amendment Confrontation Clause rights under Bruton v. United
States.1 The Government concedes that admitting the improperly redacted statement did
violate Alvarado’s rights under Bruton, that Alvarado’s trial counsel was constitutionally
ineffective for failing to object or otherwise cure the violation, and that any procedural
default at the federal habeas stage is excused under Martinez v. Ryan.2 Accordingly, the
*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
1
391 U.S. 123 (1968).
2
566 U.S. 1 (2012).
2
only issue before us is whether, under the second prong of Strickland v. Washington, the
unconstitutionally admitted statement prejudiced Alvarado.3 We conclude that it did not.
Thus, we will affirm the District Court.4
I.
Oscar Alvarado was accused of robbing a drug dealer and shooting another person
afterward. At trial, defense counsel argued that Alvarado was guilty of third-degree
murder rather than second degree because the prosecution had not proven the predicate
felony of robbery. The jury convicted him of second-degree murder. Alvarado argues
that the incriminating, improperly redacted statement of his co-defendant, Cynthia
Alvarado, provided the “linchpin” for the government’s robbery case.5 We disagree.
The Government was able to establish the predicate offense of robbery with the
testimony of Edwin Schermety, who witnessed Oscar Alvarado enter the park and take
something from a drug dealer while holding a gun to his stomach, and Margie Beltran,
who testified that Oscar Alvarado returned from the park with thirty Xanax he did not
previously have. Beltran also testified that before Oscar Alvarado went into the park,
she told him to try to get extra free pills because they had purchased a large number of
3
466 U.S. 668 (1984). Habeas petitioners “are not entitled to habeas relief based on trial
error unless they can establish that it resulted in actual prejudice.” Brecht v.
Abrahamson,
507 U.S. 619, 638 (1993).
4
The District Court had jurisdiction to consider Alvarado’s petition under 28 U.S.C.
§§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We
review the underlying merits de novo because Alvarado did not present the issue to the
state courts. Bey v. Superintendent Greene SCI,
856 F.3d 230, 236 (3d Cir. 2017).
5
Appellant’s Br. at 4.
3
pills earlier that day. Beltran testified that Cynthia Alvarado then told Oscar Alvarado to
pull out his gun if he was not offered a deal.
Accordingly, although Cynthia’s improperly admitted statement confirmed
Schermety’s and Beltran’s testimony, the Government was able to establish the elements
of robbery independent of her statement. In fact, her statement was unnecessary to prove
Oscar Alvarado committed second degree (or felony) murder beyond a reasonable doubt.6
Alvarado relies upon Johnson v. Superintendent Fayette SCI in arguing that
Cynthia’s statement improperly corroborated the unreliable testimony of Schermety and
Beltran.7 However, there, the credibility of a witness who testified about Johnson’s
motive and an eyewitness were each severely impeached by testimony from other
witnesses.8 In contrast, here, the main elements of Beltran’s and Schermety’s testimony
were not contradicted.
The main inconsistencies between Schermety and Beltran’s testimony were not
sufficient to cause a reasonable juror to doubt their credibility. Schermety testified that
Oscar robbed a man, but Beltran testified that a woman’s voice said, “[H]e took my
pills.”9 However, regardless of how typically masculine or feminine the voice was, the
witnesses agreed that someone stole his/her pills.
6
“A criminal homicide constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in the perpetration of a
felony.” 18 Pa. Cons. Stat. § 2502(b). Robbery is established when, as relevant here, the
person “in the course of committing a theft . . . threatens another with or intentionally
puts him in fear of immediate bodily injury.” 18 Pa. Cons. Stat. § 3701(a)(ii).
7
949 F.3d 791, 797 (3d Cir. 2020).
8
Id. at 803.
9
JA 158.
4
Next, Schermety testified that Oscar shot from the driver’s side window. That was
corroborated by another witness as well as the medical examiner’s analysis. However,
Beltran testified that Oscar put his hand over the roof of the car before shooting. But,
Beltran admitted that she “didn’t really see because [she] ducked and [she] threw
[her]self on the baby” who was in the back of the car with her.10
Finally, Schermety testified he saw the back of the shooting victim’s head “open
up” when in reality she was shot in the chest.11 However, both a responding police
officer and another witness also thought she had been shot in the face. Thus, the fact that
Schermety believed she was shot in the head does nothing to undermine Schermety’s
testimony.12
II.
Accordingly, we will affirm the District Court’s denial of Alvarado petition for a
writ of habeas corpus.
10
JA 159.
11
JA 111.
12
Alvarado also argues, relying on Brown v. Superintendent Greene SCI, 834 F.3d 506
(3d Cir. 2016), that Beltran’s credibility is worrisome as she ingested several Xanax pills
before the events to which she testified. This Court noted in Brown, however, that the
witness had substantial credibility issues because he was impaired from both marijuana
and Xanax, changed his narrative, and had a motive to lie. 834 F.3d at 250. Whereas
here, Beltran’s testimony was generally consistent with other witnesses, and she had
ingested Xanax only at the time of the events. Therefore, the concern as to credibility
does not rise to the level of that in Brown.
5
