Charleston v. Gilmore (305 F. Supp. 3d 612, 2018)

Joseph F. Leeson, Jr., United States District Judge

I. Introduction

Brandon Charleston has filed a counseled Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is challenging his August 2009 conviction for murder in the first degree and possession of an instrument of crime, following a trial by jury before the Honorable George W. Overton in the Court of Common Pleas of Philadelphia County. ECF No. 1. The charges arose from the June 15, 2008 shooting death of William Stanton inside the residence located at 2428 North 25th Street in Philadelphia. In September 2009, Judge Overton sentenced Charleston to life imprisonment for the murder and a concurrent term of 3 to 24 months' imprisonment for the weapons offense.

Upon review of Charleston's Petition, United States Magistrate Elizabeth T. Hey issued a Report and Recommendation (R & R) recommending that the Petition be denied. ECF No. 21. Charleston timely filed objections to the R & R. ECF No. 24. After de novo review and for the reasons set forth below, the R & R is adopted in part and the Petition is denied.

II. Factual and Procedural History

The Court adopts the factual and procedural history as summarized by Magistrate Judge Hey in the R & R, as there are no objections to this portion of the R & R.

III. Standard of Review

12 When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) ; Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) ("providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process"). "District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b)." Hill v. Barnacle, 655 Fed.Appx. 142, 147 (3d Cir. 2016). The district court "may accept, reject, or modify, in whole or in part, the findings and recommendations" contained in the report. 28 U.S.C. § 636(b)(1)(C) (2009).

IV. Analysis

Charleston's Petition presents five claims for relief. First, he contends that the Pennsylvania courts acted contrary to clearly established federal law, under Miranda , in allowing the admission at trial of a statement he made to a detective while in custody. Second, he contends that the admission of evidence of his tattoo deprived him of a fundamentally fair trial. Charleston's third, fourth, and fifth claims each assert the ineffective assistance of trial counsel. Specifically, he claims he was deprived of effective assistance of counsel when his counsel (1) failed to request a proper instruction to the jury regarding the hearsay testimony of a witness; (2) failed to object when, in the course of the trial judge's closing instructions to the jury, the judge advised the jury that Charleston's "reputation for telling the truth is bad"; and (3) failed to ask that the jury be instructed as to the possible verdict of involuntary manslaughter.

The Magistrate Judge, in her R & R, recommended denying relief on each of these five claims. Charleston's Statement of Objections to the R & R presents five objections, or sets of objections, to the Magistrate Judge's analysis of each claim. The Court addresses Charleston's objections in turn. As explained below, although the Court agrees with the Magistrate Judge that Charleston is not entitled to relief on any of the five grounds presented in his Petition, the Court departs from the R & R's analysis in some respects and, accordingly, adopts the R & R in part.

A. Objection One, concerning the admission of Charleston's statement, is overruled.

i. Introduction

Charleston's first objection to the R & R concerns the admissibility of a statement he made to Homicide Detective Greg Singleton. As explained in detail below, Charleston was taken into police custody the evening of July 16, 2009, and was questioned by Detective Singleton the following morning. After obtaining some biographical information from Charleston, the detective asked Charleston about the circumstances of Stanton's death, and Charleston "described his involvement in the incident." The detective then provided the Mirandawarnings to Charleston and took a formal statement from him, which the detective transcribed.

In a pretrial motion, Charleston moved to suppress his formal post-warning statement, arguing that it was coerced in violation of Miranda. After a suppression hearing, the motion was denied, and the post-warning statement was read into the record during the trial. The Pennsylvania Superior Court affirmed the trial court's ruling that the statement was admissible.

In his present Petition, Charleston contends that Detective Singleton deliberately withheld the Miranda warnings until after he had obtained a confession (i.e., the initial, pre-warning statement) and that the formal, post-warning statement was therefore inadmissible under the rule established by the United States Supreme Court in the case of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). The Magistrate Judge, in the R & R, found that Charleston's statement was admissible under Seibert and that Charleston was not entitled to relief on this claim. Charleston objects to this analysis and contends that Seibert, properly understood, renders his formal, post-warning statement inadmissible.

ii. Factual and procedural background

The factual background of Charleston's statement is as follows. Around 9:00 p.m. on July 16, 2008, approximately one month after William Stanton's death, Philadelphia Police Officer Anthony Soliman and his partner, responding to a 911 call concerning the presence of a homicide suspect in the area, drove to 25th and Hagert Streets, where they encountered Charleston, who matched the description of the suspect. Suppression Hearing, N.T., Aug. 17, 2009, at 8-34 (hereinafter "Suppr. N.T."). The officers told Charleston that they needed to ask him some questions but that he was not under arrest, and they asked him to sit in their police car. Id.at 10, 30. Charleston agreed to do so. Id.at 10, 30. While Charleston was sitting in the car, Clara Stanton, the mother of the victim, approached the officers and told them that she was the one who had called 911 and that Charleston had murdered her son, William Stanton. Id.at 12-13. Officer Soliman asked Charleston what he knew about William Stanton, and Charleston stated that he knew nothing. Id.at 14, 39, 43-44. Officer Soliman then called the Homicide Unit, and Detective Singleton, who had been investigating the Stanton murder, told Officer Soliman to handcuff Charleston and bring him to the station. Id.at 14, 80; Trial N.T., Aug. 24, at 5-12. Officer Soliman told Charleston that some detectives wanted to talk to him, and the officers brought Charleston to the Homicide Unit of the police station, where they arrived at about 9:35 p.m. Suppr. N.T. at 33, 36.

After Charleston was brought to the station, Officer Soliman, along with Detective Singleton, took Charleston into an "interview room." Id.at 35, 52, 79. Officer Soliman did not know if the door was locked, but both Officer Soliman and Detective Singleton acknowledged that Charleston was not free to leave at that point. Id.at 35, 80.

Detective Singleton testified that after he helped place Charleston in the interview room that evening, he briefly spoke with Charleston but declined to interview him at that time because he appeared to be "under the influence of either alcohol or some narcotics substance." Id.at 51-53. Detective Singleton did not mention to Charleston anything about the Stanton killing. Id.at 54. The detective left Charleston alone in the room at about 10:00 p.m. and did not see him again until 10:00 a.m. the next morning. Id.at 78-79, 88.

At 10:00 a.m. the next morning, Detective Singleton, along with another detective, returned to the interview room where Charleston had been placed. Detective Singleton observed that Charleston "appeared to be sober and more coherent," and he gave him a cheese sandwich and water. Id.at 54, 90. He began asking Charleston biographical questions in order to fill out a biographical form. Id.at 54. Charleston was cooperative in answering these questions. Id.at 55. After Detective Singleton completed the biographical form, he "asked [Charleston] about the circumstances surrounding the murder of William Stanton, and [Charleston] explained in some detail what occurred in the house." Id.at 56. Detective Singleton testified that when he first started speaking to Charleston about the incident, Charleston "was immediately receptive." Id.at 71.

Detective Singleton testified that, after Charleston explained what occurred in the house, "[a]t some point, I stopped [Charleston] and read him his rights and prepared the memorandum form for...the sheets, the warnings for his rights, and he signed off on them." Id.at 56. Specifically, Detective Singleton used a "75-331 form," which "reflects the warnings and the information on who's being interviewed, the date, time, location, who's interviewing and who's present at the time of the interview." Id.at 57. Detective Singleton testified that, as reflected on the form, he read a series of warnings to Charleston concerning his rights to remain silent and to have an attorney, and Charleston provided his signature or initials under each warning, signifying that he understood his rights. Id.at 57-60.

Detective Singleton testified that he provided the Miranda warnings to Charleston at approximately 10:20 a.m. See Trial N.T., Aug. 21, at 160. After Charleston signed the forms waiving his Miranda rights, Detective Singleton "then proceeded to take a statement from [Charleston], a formal statement." Suppr. N.T. at 56. In so doing, Detective Singleton asked Charleston a series of questions about the shooting, and the detective transcribed the questions and answers onto the above-mentioned 75-331 form, after which Charleston reviewed and signed the form, as well a "statement adoption attestation form." Id.at 56-70. The interview was completed at 12:20 p.m. Id.at 69. Detective Singleton testified that Charleston "seemed very cooperative and eager to tell his portion of the story" during the course of making his statement. Id.at 70. The interview was completed at 12:20 p.m., about two hours and twenty minutes after it had begun. Id.Later that day, Charleston was formally arrested for Stanton's murder. Id.at 71.

In Charleston's formal statement, which Detective Singleton read into the record during the suppression hearing and at trial, Charleston stated that on June 15, the day of the shooting, he and Stanton were standing outside on the street "talking about the Xanies" (Xanax pills) that Charleston wanted to buy from Stanton, when they decided to enter the residence on 2428 North 25th Street to conduct the transaction. Id.at 62, 65, 66. After they entered the residence, they began to argue about the pills, at which point, according to Charleston's statement, "[Stanton] pulled out the gun and I started rustling with him over the gun. While I was rustling with him, the gun went off about three times. I took the gun and left the house threw it into the sewer right on the corner of [25th] Street." Id.at 63. Charleston stated that the gun was "in both of our hands" when the shots were fired. Id.He added that "[i]t was self-defense" and "[i]t's not like I pointed it at him and shot him or nothing like that." Id.at 69.

Before trial, Charleston moved to suppress his formal, post-warning statement, arguing that, among other things, he was subjected to coercive conditions when he was kept in the interview room overnight. Id.at 105. The trial judge held a suppression hearing, at the conclusion of which he denied the motion, finding that the Miranda warnings were properly given, that there was "no evidence of coercion," and that, on the contrary, there was evidence of a lack of coercion, "given the provisions of food and the ability to sleep to ward off the effects of substances which caused the intoxication."Id.at 115-19.

3 On direct appeal, the Pennsylvania Superior Court affirmed the trial court's denial of Charleston's motion to suppress his statement. See Com. v. Charleston, 16 A.3d 505 (Pa. Super. Ct. 2011), abrogated on other grounds byIn re L.J., 622 Pa. 126, 79 A.3d 1073 (2013). In his present Petition, Charleston contends that the Pennsylvania courts' determination that his statement was admissible at trial was contrary to clearly established federal law, particularly as set forth by the United States Supreme Court in the case of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

iii. United States Supreme Court case law on "two-step interrogations"

The interrogation at issue in this case is an example of what is known as a "two-step interrogation" (or "two-stage interview" or "question-first procedure"), in which officers first elicit a custodial statement without providing Miranda warnings and then, after providing the warnings, elicit a second statement. In this case, as detailed above, Detective Singleton initially elicited a statement from Charleston about his involvement in the Stanton murder and then, after obtaining this initial statement, read Charleston his Miranda rights and obtained a formal statement, which the detective transcribed and which was introduced at trial. In cases involving two-step interrogations, generally the initial, pre-warning statement is clearly inadmissible. Here, as noted above, there was no attempt to introduce Charleston's initial statement at trial. But often a contested issue in such cases, as here, is whether the second, post-warning statement is admissible. As the Magistrate Judge observed, an overview of the relevant United States Supreme Court case law on this issue is helpful in order to understand the parties' arguments concerning what constitutes "clearly established Federal law" in this area.

Two-step interrogations were first specifically addressed by the Supreme Court in the case of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), in which an officer inadvertently elicited a custodial statement prior to administering Miranda warnings and then, after providing the warnings, obtained a more complete statement. Reversing the state court's determination that the second statement must be suppressed, the Supreme Court held that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion" with respect to the second statement. Id.at 314, 105 S.Ct. 1285. Rather, "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made" and, "[a]s in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Id.at 318, 105 S.Ct. 1285. The Court held that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id.at 314, 105 S.Ct. 1285.

Nearly twenty years later, in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the Supreme Court again confronted a two-step interrogation, but under a very different set of facts. Whereas the initial interrogation in Elstad had been brief and inadvertent, the technique used in Seibert revealed a police strategy that was, by the officers' own admission, "adapted to undermine the Miranda warnings" and included pre-warning questioning that was "systematic, exhaustive, and managed with psychological skill." See id.at 616, 124 S.Ct. 2601 (2004) (plurality). Although a majority of the Court determined that the suspect's post-warning statements in Seibert must be suppressed, the Justices were unable to agree on a majority opinion. Rather, the result in Seibert included a plurality opinion authored by Justice Souter, in which three other Justices joined; a concurrence by Justice Breyer, who joined the plurality opinion but wrote separately to articulate his own test; and an opinion by Justice Kennedy concurring in the judgment only. The four remaining Justices dissented.

Justice Souter's plurality opinion in Seibert concluded that the admissibility of statements made after a two-step interrogation depends on "whether Miranda warnings delivered midstream could be effective enough to accomplish their object," based on an objective inquiry from the perspective of the suspect, in which the following five factors should be considered:

[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogator's questions treated the second round as continuous with the first.

Id.at 615, 124 S.Ct. 2601 (plurality). The plurality opinion noted that "[b]ecause the intent of the officer will rarely be as candidly admitted as it was here...the focus is on facts apart from intent that show the question-first tactic at work." Id.at 617 n.6, 124 S.Ct. 2601.

Justice Kennedy, concurring only in the judgment, wrote that he agreed with the plurality's decision that Seibert's statements must be suppressed and he "agree[d] with much in the careful and convincing opinion for the plurality," but he wrote separately to set forth his own approach, which differed from the plurality's approach "in some respects." Id.at 618, 124 S.Ct. 2601 (Kennedy, J., concurring). Justice Kennedy explained that he believed that the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations,...cuts too broadly." Id.at 621-22, 124 S.Ct. 2601. In particular, Justice Kennedy believed that applying "a multifactor test...to every two-stage interrogation" could undermine the clarity of Miranda. Id.at 622, 124 S.Ct. 2601. Instead, Justice Kennedy wrote that he "would apply a narrower test applicable only in the infrequent case...in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id. In other words, under Justice Kennedy's approach, the court begins by asking whether a "deliberate two-step strategy has been used." Id. If so, then "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Id. If, however, a deliberate two-step strategy was not employed, then the court should apply the test previously articulated by the Supreme Court in Elstad, and the question simply would be whether the subsequent statement was voluntary. In sum, for Justice Kennedy, "[w]hen an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps." Id.at 621, 124 S.Ct. 2601.

Finally, Justice O'Connor, writing for the four dissenters, rejected the plurality's approach because she believed it gave "insufficient deference to Elstad," but she also disagreed with Justice Kennedy's approach, believing that it placed improper weight on the subjective intent of the officer. Id.at 622-29, 124 S.Ct. 2601 (O'Connor, J., dissenting).

Following the Supreme Court's decision in Seibert, a clear majority of Circuit courts have held that Justice Kennedy's concurrence is the controlling opinion in the case. This majority includes the Third Circuit, which held in United States v. Naranjo, 426 F.3d 221 (3d Cir. 2005), that "Justice Kennedy's opinion provides the narrowest rationale for resolving the issues raised by two-step interrogations where Miranda warnings are not administered until after police obtain an inculpatory statement." Id.at 231-32. But in view of the divided nature of the Seibert decision, a small minority of Circuit courts have indicated that the Seibert case lacks a clear holding. See Reyes v. Lewis, 833 F.3d 1001, 1002 (9th Cir. 2016) (collecting cases).

iv. The Pennsylvania Superior Court's decision, Charleston's Petition, and the Magistrate Judge's Report and Recommendation

In upholding the denial of Charleston's pretrial motion to suppress, the Pennsylvania Superior Court closely examined the United States Supreme Court's decisions in Elstad and Seibert. Specifically rejecting the Third Circuit's holding in Naranjo and similar cases from other Circuits, the Superior Court concluded that "Seibert establishes no new binding precedent." Charleston, 16 A.3d at 525. In this respect, the court stated that it was persuaded by a dissenting opinion authored by the Honorable Marsha S. Berzon of the Ninth Circuit, who reasoned that "while Justice Kennedy's was the crucial fifth vote for the result...Justice Kennedy's opinion is notthe narrowest opinion embodying a position supported by at least five Justices in the majority" because his intent-based approach was "squarely rejected by seven Justices," i.e., the four dissenters as well as three of the four Justices who joined the plurality opinion. Id.at 525 (quoting United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138-40 (9th Cir. 2005) (Berzon, J., dissenting) ). The Superior Court concluded that because Seibert did not establish new precedent, the court was required to apply the standard set forth in the Supreme Court's earlier Elstadcase. Id.

Applying that standard, the Superior Court focused on whether Charleston's post-warning statement was knowing and voluntary. The court reviewed Detective Singleton's testimony that he read Charleston his rights, that Charleston was "immediately receptive" and was "very cooperative and eager to give his portion of the story," and that Charleston was given something to eat and drink during the interrogation. Id.at 526. "Under these circumstances," the court had "no difficulty concluding that [Charleston's] waiver of his rights and the subsequent statement were both knowing and voluntary." Id.

Charleston contends that the Superior Court's decision was contrary to clearly established federal law. That is, he contends that Justice Kennedy's concurrence in Seibert is clearly established federal law and that, under that standard, he was entitled to the suppression of his statement. In particular, he contends that the "sequence of interrogation demonstrates that the detectives deliberately withheld Miranda warnings until after obtaining a confession"; in other words, "the initial violation of Miranda was not merely hapless or inadvertent but was clearly the result of an intentional withholding designed to prevent [him] from invoking his rights in order to obtain a confession." Pet'r's Mem. Supp. 3, 5, ECF No. 9.

Respondents contend that, despite the Third Circuit's holding in Naranjo, Justice Kennedy's opinion is not clearly established federal law in light of the diversity of approaches that other federal Circuit courts (and state courts) have taken to Seibert. Further, Respondents contend that even if Justice Kennedy's concurrence were clearly established federal law, Charleston would not be entitled to relief, because there is no evidence that Detective Singleton deliberately withheld the Miranda warnings prior to Charleston's initial statement. Finally, Respondents contend that even if the state court's ruling was contrary to clearly established federal law, Charleston cannot show that the admission of his statement "had substantial and injurious effect or influence in determining the jury's verdict," under the standard set forth by the United States Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

The Magistrate Judge reviewed the relevant case law in this area, including the Third Circuit's decision in Naranjo, and ultimately concluded that the Court need not decide whether Justice Kennedy's concurrence is clearly established federal law. Rather, the Magistrate Judge agreed with Respondents that, even under Justice Kennedy's approach, Charleston's statement would be admissible because "there is no evidence in the record that Detective Singleton's failure to Mirandize Charleston was purposeful or part of a two-stage technique as in Seibert." R & R 23. The Magistrate Judge proceeded to review the Superior Court's analysis under Elstad and concluded that the Superior Court's decision was neither contrary to nor an unreasonable application of Elstad, nor did it result in an unreasonable determination of the facts.

Objecting to the Magistrate Judge's analysis, Charleston contends that "[t]he absence in the record of any specific reason for the omission of Miranda warnings prior to the first stage of interrogation should be held against the Respondent, not the Petitioner, as the Magistrate Judge has apparently concluded." Pet'r's Statement of Objections 11, ECF No. 24 (hereinafter "Pet'r's Objections"). He argues that there "should be no presumption that the failure to provide warnings was not deliberate, especially in a case where the detective conducts a second interview with full warnings." Id.at 11-12.

v. De novo review

At the outset, this Court acknowledges that the question of whether Justice Kennedy's concurrence is "clearly established Federal law" for the purposes of habeas corpus review is not easy to resolve. As mentioned above, a clear majority of the Circuit Courts-including the Third Circuit-have held that Justice Kennedy's concurrence constitutes the holding in Seibert. Dissenting from this majority, however, one Circuit court has held that Seibert lacks a clear holding, see United States v. Ray, 803 F.3d 244, 272 (6th Cir. 2015) ("[W]e conclude that Seibert did not announce a binding rule of law with respect to the admissibility standard for statements given subsequent to midstream Miranda warnings."), and a number of other Circuit courts have found the matter to be uncertain, see United States v. Widi, 684 F.3d 216, 221 (1st Cir. 2012) ("[H]ow to read the split decision in Seibert may be an open question."); United States v. Heron, 564 F.3d 879, 885 (7th Cir. 2009) ("In the case of Seibert, the only thing we know for sure is that at least seven members of the Court rejected an intent-based approach and accepted some kind of exception to Elstad, even if the scope of that exception remains unclear."); United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) ("[A]rguably Justice Kennedy's proposed holding in his concurrence was rejected by a majority of the Court.").

4 Disagreement among the Circuits on a given issue "may be indicative of a lack of clarity in the Supreme Court's jurisprudence." See Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012). But such disagreement does not necessarily mean that there is an absence of clearly established federal law on that issue. See Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc) (holding that it was clearly established federal law that inadmissible evidence could be the basis for a Brady violation, despite the fact that a minority of Circuit courts had held that only admissible evidence could be the basis for such a violation); see alsoWilliams v. Bitner, 455 F.3d 186, 193 (3d Cir. 2006) (stating, in the context of a qualified immunity analysis, that "[e]ven if our sister circuits had in fact split on the issue, we would not necessarily be prevented from finding that the right was clearly established"); but seeGarrus v. Sec'y of Pennsylvania Dep't of Corr., 694 F.3d 394, 416 (3d Cir. 2012) (Hardiman, J., dissenting) ("The existence of a circuit split demonstrates that it is wrong to conclude that fairminded jurists could not disagree on the correctness of the state court's decision in this case." (internal quotation marks and alterations omitted) ); see generallyRuth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts, 82 U. Cin. L. Rev. 831, 847 (2014). Ultimately, however, the Court agrees with the Magistrate Judge that it need not resolve the question of whether Justice Kennedy's concurrence is "clearly established Federal law" because, even under Justice Kennedy's standard, Charleston's formal statement was admissible.

56 As set forth above, the threshold question in Justice Kennedy's test is whether a "deliberate two-step strategy has been used" or, in other words, if "the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." In applying Justice Kennedy's test, courts have "review[ed] the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness." United States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010) ; see United States v. Shaird, 463 Fed.Appx. 121, 124 (3d Cir. 2012) (considering "the surrounding circumstances and [the officer's] testimony of his own actions and motivation" to determine deliberateness). Where credible subjective evidence of the officer's intent is available, it will "of course be persuasive, and often decisive." See United States v. Moore, 670 F.3d 222, 230 n.3 (2d Cir. 2012) ; Shaird, 463 Fed.Appx. at 124 ("Critically, [the officer] testified that his [pre-warning] conversation with the [defendant] was a deliberate strategy to elicit a confession"). But because such evidence often will be unavailable, "in most instances, the inquiry will rely heavily, if not entirely, upon objective evidence." Capers, 627 F.3d at 479 (2d Cir. 2010). In seeking guidelines for how to assess "objective evidence" in this context, courts have turned to the five factors articulated by the Seibert plurality, namely:

[1] the completeness and detail of the questions and answers in the first round of interrogation[;]

[2] the overlapping content of the two statements[;]

[3] the timing and setting of the first and the second [interrogations;]

[4] the continuity of police personnel[;] and

[5] the degree to which the interrogator's questions treated the second round as continuous with the first.

Seibert, 542 U.S. at 615, 124 S.Ct. 2601 (plurality). Although these factors "were developed by the [Seibert ] plurality to gauge whether the later Miranda warnings 'could be effective enough to accomplish their object,' " courts have found that they "likewise will often serve as helpful indicia for whether an alleged two-step interrogation was intended to circumvent Miranda." See Moore, 670 F.3d at 230.

A review of the evidence in this case leads the Court to conclude that Respondents have shown by a preponderance of the evidence that the detectives did not engage in a deliberate two-step strategy to deprive Charleston of his Miranda rights. The Court begins by observing that the record lacks any subjective evidence of Detective Singleton's intent. As set forth above, Detective Singleton testified that, prior to administering the Miranda warnings, he asked Charleston "about the circumstances surrounding the murder of William Stanton," in response to which Charleston "explained in some detail what occurred in the house," and that "at some point" thereafter the detective provided the Miranda warnings to Charleston. But Detective Singleton did not testify as to whyhe did not provide the Miranda warnings before asking Charleston about the circumstances of Stanton's murder, nor did he testify as to why he chose to administer the warnings when he did.

Turning to the objective evidence, the first Seibert factor considers the "completeness and detail of the questions and answers in the first round of interrogation." In particular, courts have found that where the pre-warning questioning is "systematic, exhaustive, and managed with psychological skill," as in Seibert, it is more likely that the omission of the Miranda warnings was deliberate. See United States v. Aguilar, 384 F.3d 520, 525 (8th Cir. 2004) (concluding that, under Seibert, "the Miranda warnings between the two questioning sessions did not serve the purpose of the dictates in Miranda," where, inter alia, "the first questioning session consisted of more than routine booking questions, included some good cop/bad cop questioning tactics, and lasted approximately ninety minutes"). Conversely, when an interrogation is brief, it is more likely that the omission of Miranda warning was not deliberate. See United States v. Williams, 681 F.3d 35, 44 (2d Cir. 2012) (determining that omission of Miranda warnings was not deliberate when, among other factors, the initial questioning was "brief and spare"); United States v. Materas, 483 F.3d 27, 33 (1st Cir. 2007) (determining that omission of Miranda warnings was not deliberate where, among other factors, "the first questioning was not at all systematic or extensive" (internal quotation marks omitted) ); United States v. Street, 472 F.3d 1298, 1314 (11th Cir. 2006) (determining that the omission was not deliberate where, among other factors, the pre-warning questioning was "brief and general"); but see United States v. Young, No. 15-50158, 720 Fed.Appx. 846, 848-49, 2017 WL 6603511, at *2 (9th Cir. Dec. 27, 2017) (finding detectives deliberately engaged in a two-step interrogation where, among other things, they interrogated the defendant "at the police station for at least twenty minutes without providing any Miranda warnings"). Similarly, where the pre-warning questioning is non-confrontational, it is more likely that the omission of Miranda warnings was not deliberate. See United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007) (determining that there was "no evidence of a deliberate attempt to employ a two-step strategy" when "[a]ll evidence suggests that [the suspect] was calm and cooperative, and the agents did not act with aggressiveness or hostility" during brief pre-warning questioning).

Here, Detective Singleton testified that he administered the Miranda warnings about twenty minutes after he entered the interview room that morning. Within that twenty-minute period, Detective Singleton gave Charleston water and a cheese sandwich, asked Charleston a series of biographical questions, and then asked Charleston about his involvement in the shooting. Moreover, within this brief span of time, there is no evidence that Detective Singleton's questioning of Charleston was in any respect systematic or "managed with psychological skill." Rather, according to Detective Singleton's testimony, he simply "asked [Charleston] about the circumstances surrounding the murder of William Stanton," and Charleston, in response, "seemed eager to tell his portion of the story" and "explained in some detail what happened in the house." Likewise, as indicated above, the trial judge found that there was no evidence of coercion before or during the questioning. The brief and non-confrontational pre-warning questioning in this case, then, is in sharp contrast with the intensive and extended pre-warning interview in Seibert, a factor that weighs in favor of finding that Detective Singleton's omission of the Miranda warnings was not deliberate.

The fifth Seibert factor-concerning the degree to which the interrogator's questions treated the second round as continuous with the first-also weighs in favor of a finding of non-deliberateness in this case. In Seibert, as Justice Kennedy observed, the officer's intent to subvert Miranda was evidenced by the fact that the post-warning questioning "resembled a cross-examination" in which the officer "confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them." See Seibert, 542 U.S. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring); United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1136 (11th Cir. 2006) ("Thus the type of two-step questioning that falls within Justice Kennedy's narrow concurrence is the type used in Seibert, where officers in a calculated manner first obtained unwarned incriminating statements from a suspect, and then used those incriminating statements in the warned interrogationin order to undermine the midstream Miranda warnings." (emphasis added) ). Here, by contrast, Detective Singleton's post-warning questions were open-ended in nature; the detective did not pressure Charleston to conform his answers to his earlier statement, nor did the detective even refer back to that statement.

In addition to the first and fifth Seibert factors, there are other considerations weighing in favor of a finding of non-deliberateness in this case. As Respondents point out, Detective Singleton had declined to interview Charleston the previous night because he believed Charleston was not sober. Arguably, if Detective Singleton had been intent on subverting Miranda, he would have seized the opportunity to question Charleston when his judgment was possibly impaired. Further, as detailed above, on the night Charleston was taken into custody he told Officer Soliman that he knew nothing about the Stanton killing. Although the record does not reflect whether Detective Singleton and Officer Soliman discussed Charleston's answer, it is a fair assumption that they had done so, given that they worked together on the evening that Charleston was brought to the station. Accordingly, Detective Singleton might well have expected that Charleston, in response to a neutrally-worded question about "the circumstances surrounding the murder of William Stanton," would continue to claim that he knew nothing about the incident.

On the other hand, several of the Seibert factors weigh in the opposite direction. In particular, under the third and fourth Seibert factors, the two interrogations occurred at the same place and time and the same police personnel were present at each interrogation, considerations that weigh in favor of a finding of deliberateness. On balance, however, the Court finds that there is a preponderance of evidence that Detective Singleton's initial omission of Miranda warnings was not a deliberate attempt to subvert Miranda. Particularly in view of the brief and non-confrontational nature of the initial questioning and the open-ended and similarly non-confrontational nature of the second questioning, the Court finds the detective's initial failure to read Charleston his Miranda rights, "though unfortunate and unexplained, seems much more likely to have been a simple failure to administer the warnings rather than an intentional withholding that was part of a larger, nefarious plot." See Reinert v. Larkins, 379 F.3d 76, 91 (3d Cir. 2004). Accordingly, the two-step interrogation in this case does not present the Court with "the infrequent case...in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning."

789 Finally, the Court finds that even if Charleston's statement was erroneously admitted, the admission did not have "[a] substantial and injurious effect or influence in determining the jury's verdict," under the standard set for by Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under this test, the court may grant relief only if it has a "grave doubt" as to whether the error at trial had a substantial and injurious effect or influence. See Johnson v. Lamas, 850 F.3d 119, 133 (3d Cir. 2017). In other words, "[t]here must be more than a 'reasonable probability' that the error was harmful." Id. (quoting Davis v. Ayala, --- U.S. ----, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015) ). The court's role is to ask whether the constitutional error "substantially influenced the jury's decision." See Adamson v. Cathel, 633 F.3d 248, 259-60 (3d Cir. 2011) (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) ). "If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand."Id. (quoting O'Neal,513 U.S. at 437, 115 S.Ct. 992 ). "The Supreme Court has cautioned that 'the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict.' " Id. (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. 992 ).

As indicated above, Respondents contend that the admission of Charleston's statement did not cause Brecht prejudice in this case. This is because, in their view, Charleston's statement was not a "confession" but rather was a "substantially exculpatory explanation of events," Charleston "freely admitted at trial that he shot the victim (or at least that the gun discharged while he struggled for control of it)," and the evidence that Charleston murdered Stanton "would have been overwhelming even in the absence of his statement to police and testimony." Resp. 28-29, ECF No. 18.

Charleston, on the other hand, contends that the admission of the statement did cause Brecht prejudice in view of the fact that the statement was read to the jury, and that the prosecutor, in her closing argument, "argued that [Charleston] had drastically changed his story" at trial:

The prosecutor pointed out that in the Petitioner's statement to the police, he had told Detective Singleton that both of the parties had their hands on the firearm while all three shots were fired; however, after hearing the ballistician testify that the firearm would have jammed in that scenario, the Petitioner testified at the trial that his hand was on the victim's arm and not on the firearm. Additionally, the prosecutor argued that in the police interview, the Petitioner had said that he had told his mother about self-defense, yet at trial, the Petitioner testified that he had not so informed his mother.

Pet'r's Objections 12.

The Court finds that, in light of the evidence presented at trial, the admission of Charleston's statement did not have a substantial and injurious effect or influence in determining the jury's verdict under Brecht. Charleston is correct that the prosecutor, in her closing argument, pointed out several inconsistencies between Charleston's statement and his trial testimony. But this was by no means the focus of the prosecutor's argument, nor was this the only evidence that served to undermine Charleston's credibility. Rather, there was a wide range of evidence pointing to Charleston's guilt and undermining his credibility.

Above all, the prosecutor showed that the account of the shooting that Charleston presented in his testimony at trial was not believable in light of common sense and the other evidence presented at trial. As in his statement to Detective Singleton, Charleston testified at trial that on the day of the shooting, after he and Stanton had entered the home at 2428 North 25th Street to conduct a purchase of Xanax pills, they got into an argument about the pills and Stanton pulled out a gun, which Charleston attempted to wrestle away from him. See Trial N.T., Aug. 24, at 33-41, 52-110. Charleston testified that during the struggle over the gun, his hands were on Stanton's wrists and forearm. Id.at 48, 101-110. (As indicated above, this differed from his statement, where he indicated that both of their hands were on the gun.) Charleston further testified that the gun fired several times and Stanton fell to the ground, facedown. Id.at 42-43, 109-119. As Stanton was lying on his stomach, Charleston asked Stanton if he was ok, but Stanton did not respond, and Charleston was not sure if Stanton had been shot. Id.at 112-118. After Stanton failed to respond to him, Charleston took the gun out of Stanton's hand, exited the home with the gun concealed under his shirt, and then threw the gun into a sewer. Id.at 44, 120-124. He testified that he threw the gun in a sewer because he was concerned that one of the neighborhood children might come across it if he left it in the house. Id.at 122-123.

As the prosecutor contended in her closing argument, common sense and the evidence presented at trial contradicted every aspect of this story. First, with respect to the shooting itself, forensic evidence showed that Stanton had been shot three times, in the chest, lower abdomen, and right thigh, and that the gunshot to his chest was fired from two to six inches away and traveled horizontally straight through Stanton's heart and lungs. See N.T., Aug. 21, at 62-114. The evidence also showed that the gun from which the shots were fired requires that the trigger must be pulled for each shot fired, with a force of six to seven pounds. Trial N.T., Aug. 21, at 124-30. Given these facts, it is nearly impossible to imagine that the shooting occurred as Charleston testified that it did. That is, it is not credible that Charleston, who was smaller than Stanton, controlled Stanton's forearm and wrist in such a way that he caused Stanton to shoot himself three times-including one shot straight through the chest, from two to six inches away-applying six to seven pounds of pressure on the trigger each time. In short, as the prosecutor argued, Charleston's testimony that Stanton "shoots himself and then continues to shoot himself" does not make sense. See Trial N.T., Aug. 24, at 176.

Charleston's testimony concerning his conduct after the shooting is similarly incredible. As the prosecutor emphasized in her closing argument, the notion that Charleston did not realize that Stanton had been shot when, by Charleston's own account, Stanton was lying on the ground in an unresponsive state, is not believable. Moreover, according to Charleston's testimony, Stanton was his friend. But, as the prosecutor pointed out, after the shooting, Charleston made no effort to call 911 or otherwise seek help. Likewise, Charleston's account of his decision to dispose of the gun also makes little sense when, if Charleston's testimony about the circumstances of the shooting were true, the gun would have had only Stanton's fingerprints on it, which would have been powerful evidence in support of Charleston's account. Finally, the jury heard evidence that Stanton's body was found with only a set of keys, a cell phone, and $3 on his person. See Trial N.T., Aug. 20, at 96. But according to Stanton's mother, Stanton had over $500 on him earlier in the day, and Charleston testified that Stanton had Xanax pills. As the prosecutor argued, the fact that Stanton was found without the money and pills supports the prosecution's theory that Charleston robbed Stanton.

The jury also heard testimony that, in the hours after the shooting, Charleston denied to several persons that he had been at 2428 North 25th Street or that he knew what had happened to Stanton. See Trial N.T., Aug. 19, at 88-89, 168-70. In particular, Stanton's mother testified that on the afternoon of the shooting, after trying unsuccessfully to reach her son by phone, she saw Charleston walk by her house, coming from the direction of 2428 North 25th Street. Trial N.T., Aug. 21, at 48-61. She asked Charleston if he had seen her son, as the two were good friends and she considered Charleston to be like a son to her. Id.at 48-52, 60-61. Charleston replied "no" and kept walking. Id.at 48-52.

In short, even in the absence of Charleston's statement, there was overwhelming evidence of Charleston's guilt and lack of credibility, and the prosecutor drew upon all of this evidence in making her closing argument. In particular, the prosecutor closely examined the account of the shooting that Charleston presented in his testimony and showed that even if one takes that account on its own terms-setting aside its contradictions with Charleston's statement-it is not believable. Accordingly, the Court finds that the admission of Charleston's statement did not have a substantial and injurious effect or influence in determining the jury's verdict under Brecht. Even without Charleston's statement, there was overwhelming evidence that Charleston murdered Stanton. Charleston's first objection is overruled.

B. Objection Two, concerning the admission of tattoo evidence, is overruled.

10 Charleston's second objection concerns his claim that his due process rights were violated by the admission of evidence that he had a tattoo of the words "By any means necessary, f--- it, s--- happens." He contends that the admission of this evidence deprived him of a fundamentally fair trial because the prosecutor used this evidence to improperly launch an attack on his character.

The Magistrate Judge determined that Charleston procedurally defaulted on this claim because he failed to present this claim to the state courts. Rather, at the state level, Charleston challenged the admission of the tattoo evidence as being an error only in state evidentiary rulings, not a federal due process violation. The Magistrate Judge acknowledged that Charleston's brief in support of his direct appeal at the state level cited a federal case, namely, Boliek v. Delo, 912 F.Supp. 1199 (W.D. Mo. 1995), but the Magistrate Judge determined that Charleston's citation to Boliek, by itself, did not serve to notify the state courts that he was challenging the admission of the tattoo evidence on due process grounds. This is because the relevant finding in Boliek was that counsel's failure to object to the admission of irrelevant tattoo evidence violated the defendant's right to effective assistance of counsel, not that the admission of such evidence violated the defendant's due process rights.

Charleston objects that the Boliek opinion "went beyond the question of effective assistance of counsel in order to determine whether or not the underlying claim of the [defendant's] had arguable merit." Pet'r's Objections 17. But the Boliek opinion was clear that the issue on which it was ruling was the ineffectiveness of counsel: "This Court finds that trial counsel was ineffective. His performance and the prejudice petitioner suffered as a result of his performance undermine this Court's confidence in the outcome of the trial and of the penalty phase." Boliek, 912 F.Supp. at 1214. The Boliek court made no determination as to whether admission of the tattoo evidence violated the defendant's due process rights. Accordingly, Charleston's citation to Boliek alone did not alert the state court that he was challenging the tattoo evidence on due process grounds, and Charleston's objection on this point is overruled.

C. Objections Three through Five, concerning the ineffective assistance of counsel, are overruled.

Charleston's final three objections concern claims of ineffective assistance of counsel.

i. Objection Three, concerning counsel's failure to object to the trial court's limiting instruction for Clara Stanton's testimony, is overruled in part.

Charleston's first ineffectiveness of counsel objection concerns trial counsel's failure to object to a limiting instruction the trial court gave concerning the testimony of Clara Stanton, the mother of the victim.

During the trial, the prosecution called to the stand a witness named Nashua Sanders, a friend of Charleston and an acquaintance of the victim and the victim's mother, Clara Stanton. The prosecutor asked Ms. Sanders whether she had told Ms. Stanton that she (Sanders) had a conversation with Charleston in which Charleston stated that he planned to rob the victim. Trial N.T., Aug. 20, at 36. Sanders denied that she said this to Ms. Stanton, and she also denied that Charleston had ever told her such a thing. Id.

Following Nashua Sanders's testimony, the prosecutor called Ms. Stanton as a witness. When the prosecutor began to ask Ms. Stanton about whether she had a conversation with Nashua Sanders about what had happened to her son, defense counsel objected and a sidebar discussion was held concerning whether Ms. Stanton could testify about what Ms. Sanders had purportedly said to her. Id.at 63. The trial judge deferred issuing a definitive ruling on the matter and later that same afternoon heard further argument from the parties. The prosecutor argued that Ms. Stanton's testimony would be admissible under Pennsylvania Rule of Evidence 613(b), which permits the admission of extrinsic evidence of a witness's prior inconsistent statement under certain circumstances. See id.at 103. The prosecutor argued that this testimony was "classic impeachment," i.e., she would be impeaching Nashua Sanders by providing evidence of a prior inconsistent statement that she made to Ms. Sanders. Id.at 105. The trial court ruled that the testimony was admissible as extrinsic evidence of a prior inconsistent statement, but advised the attorneys that because the statement was hearsay, he would "give a limiting instruction because just [sic] the statement was said does not mean it's true." Id.at 108. The prosecutor then stated that she was not "asking for it to come in substantively. It's for impeachment purposes," id.at 108, to which the trial court responded, "I'll allow it under that limited circumstances and I'll give a limited instruction." Id.at 109. Defense counsel stated, "Yes, your Honor." Id.

Ms. Stanton was then recalled to the stand, where she testified that about three weeks after her son's death, Ms. Sanders told her about a conversation that she (Sanders) had with Charleston about a week before the shooting, in which Charleston said that he planned to rob the victim. Id.at 111-12. Following Ms. Stanton's testimony, the trial court gave the following limiting instruction:

Ladies and gentlemen, with regard to the testimony that you just heard, I'm just going to give you an instruction and that evidence is not necessarily to be accepted for the truth of the statements made by Ms. Sanders to Ms. Stanton, okay. It doesn't-they were statements and you will be given additional instructions at the appropriate time.

Id.at 116. There were no objections made to this instruction. No further instruction regarding this testimony was included in the closing instructions.

The parties agree that Ms. Stanton's testimony was admissible solely for the purpose of impeaching Ms. Sanders under Pennsylvania Rule of Evidence 613. Charleston contends that the trial court's instruction that Ms. Stanton's statements were "not necessarily" to be accepted for the truth of the matter asserted was erroneous and prejudicial, and that trial counsel's failure to request a proper instruction deprived him of the effective assistance of counsel.

In its review of Charleston's appeal under Pennsylvania's Post-Conviction Relief Act (PCRA), the Superior Court determined that Charleston had waived this claim for two reasons. See Com. v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. Ct. 2014). First, the Superior Court determined that Charleston had failed to adequately develop an argument under Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), which requires that, in order to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. The Superior Court determined that Charleston's briefing (1) "fail[ed] to develop an argument or present pertinentauthority that the court's use of the colloquial expression 'not necessarily' rendered its instruction fatally equivocal"; (2) "fail[ed] to develop an argument that counsel had no reasonable basis not to request an additional instruction,"; and (3) failed to develop an argument that there exists a "a reasonable probability that, but for counsel's alleged unprofessional error in not requesting a second instruction, the result of the proceedings would have been different." Charleston, 94 A.3d at 1021. Second, the Superior Court indicated that Charleston waived this claim under Pennsylvania Rule of Appellate Procedure 2119(a). This is because Charleston "merely assume[d] that the statement at issue was introduced by the Commonwealth as substantive evidence of [his] intent to commit 'murder and robbery,' rather than as evidence of an inconsistent statement" and because he merely "relie[d] on a lengthy quotation from the prosecutor's closing argument" in support of this claim. Id.at 1022.

In addition to its waiver analysis, the Superior Court also determined that Charleston's "challenge to the jury instruction which the trial court actually gave does not have merit," in view of the broad discretion that trial courts have in phrasing their instructions under Pennsylvania law. Id.at 1021. Moreover, the court found that "trial counsel had an obvious reasonable basis not to seek an additional instruction, which would have necessarily reminded the jury of the underlying statement that [Charleston] planned to rob the victim." Id. Accordingly, the court concluded that Charleston's claim "is waived and would not merit relief." Id.

In reviewing this claim as presented in Charleston's habeas corpus Petition, the Magistrate Judge initially considered the question of whether the Court has an independent duty to review the Superior Court's determination that Charleston waived this claim under Pennsylvania law. As the Magistrate Judge observed, several courts in this Circuit have determined that the question of whether a habeas corpus petitioner complied with state appellate rules "is a matter of state law, beyond [the federal court's] review." SeeKlein v. Kelchner, No. CIV.A. 02-8451, 2003 WL 22204561, at *3 (E.D. Pa. Sept. 4, 2003) ; see alsoLeake v. Dillman, 594 Fed.Appx. 756, 759 (3d Cir. 2014) ("[E]ven if the Superior Court incorrectly deemed waived certain of Petitioner's ineffective assistance claims ... habeas relief would not be warranted, as it is 'well established that a state court's misapplication of its own law does not generally raise a constitutional claim.' " (quoting Taylor v. Horn, 504 F.3d 416, 448 (3d Cir. 2007) ) ). Nevertheless, relying on Rolan v. Coleman, 680 F.3d 311 (3d Cir. 2012), the Magistrate Judge determined that the Court has a duty to independently review the Superior Court's analysis of the waiver issue. R & R at 21.

Applying that analysis, the Magistrate Judge reached the same conclusion as the Superior Court, namely that Charleston waived this claim by failing to adequately develop his Pierce argument in his state court briefing. Specifically, the Magistrate Judge determined that Charleston failed to adequately present an argument that he had suffered actual prejudice, as his sole argument on this point in his state court briefing was that "[s]ince intent was the key issue for the jury to resolve, he was surely prejudiced." R & R at 53 (quoting Appellant's Brief at 12-13). Because Charleston "offered no argument or pertinent caselaw to establish that the admission of such hearsay evidence regarding motive could result in a different result," the Magistrate Judge concluded that he failed to substantially comply with Pennsylvania's appellate rules. R & R at 35-36.

Charleston objects that his PCRA briefing did, in fact, fairly present his argument on this issue. In particular, he directs this Court's attention to the dissenting opinion of the Honorable Judith Olson of the Superior Court, who disagreed with the conclusion of Superior Court majority's opinion that Charleston had waived this issue.

1112 Reviewing this issue de novo, first, with respect to the waiver issue, the Court agrees with the Magistrate Ju