Full opinion text
OPINION OF THE COURT ALITO, Circuit Judge: Antuan Bronshtein was convicted .in a Pennsylvania court for first-degree murder and sentenced to death. After unsuccessful post-trial litigation in the state courts, he filed the habeas petition now at issue. The District Court found merit in some but not all of Bronshtein’s claims and ordered that a writ of habeas corpus be granted unless Bronshtein was retried within a specified time. The habeas respondent (hereinafter “the Commonwealth”) appealed, and Bronshtein cross-appealed. We reverse the order of the District Court insofar as it required a new guilt-phase trial, but we affirm insofar as it required resentencing. I. In April 1994, Antuan Bronshtein was tried in the Court of Common Pleas of Montgomery County on charges stemming from the robbery and shooting death of Alexander Gutman. The evidence at trial may be summarized follows. At about .5 p.m. on January 11, 1991, Montgomery County police investigated a robbery at a store called Jewelry by Alex in the Valley Forge Shopping Center. See Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907, 911 (1997), cert. denied, 522 U.S. 936, 118 S.Ct. 346, 139 L.Ed.2d 269 (1997). The police discovered that the proprietor, Alexander Gutman, had been killed by two gunshot wounds to the face. Id. Investigators found three fingerprints and a palm-print on one of the intact display cases in the store, and these prints were later identified as Bronshtein’s. Id. On February 27, 1991, Bronshtein contacted Philadelphia police investigators and said that he wanted to discuss the murder of another jeweler, Jerome Slobot-kin, who had been killed in Philadelphia on February 19, 1991. Bronshtein, 691 A.2d at 912. After waiving his Miranda rights, Bronshtein signed a detailed written confession admitting to the Slobotkin murder, and in February 1992, he was convicted for that offense. Id. About a month after Bronshtein confessed to the Slobotkin murder, Montgomery County police met with Bronshtein, at his request, to discuss the Gutman murder. During this interview, Bronshtein denied killing Slobotkin and said that both Slobot-kin and Gutman had been killed by a “Mr. X,” whom Bronshtein described as a high-level member of the “Russian maña.” Id. During this interview, Bronshtein did not disclose Mr. X’s name, but he later identified him as Adik Karlitsky, another jeweler. Id. Although Bronshtein told the Montgomery County police that he had not killed Gutman, Bronshtein admitted that he was acquainted with him and that he knew that he owned a jewelry store. Bronshtein, 691 A.2d at 912. However, Bronshtein denied knowing the location of the store or even that of the Valley Forge Shopping Center, and he claimed that he had not seen Gutman in more than two years. Id. At trial, however, three witnesses identified Bronshtein as a man whom they had seen in or near Gutman’s store on the day of his murder. Laura Sechrist stated that she had passed the store at approximately noon and had seen Bronshtein and another man talking to Gutman. Bronshtein, 691 A.2d at 912. Larry Bainbridge, a postal carrier, testified that he had walked by the store at 12:45 p.m. and had seen Bronsh-tein behind the counter. Id. Alexander Daniels testified that he had passed the store at about 3:15 p.m. and had seen Bronshtein standing outside the store. Id. Finally, a man named Wilson Perez testified about an admission made by Bronsh-tein during January 1991. According to Perez, he and Bronshtein were riding in Bronshtein’s car on Roosevelt Boulevard in Philadelphia when Bronshtein said that he had killed a man in a jewelry store “out past the boulevard” and had taken his jewelry. Bronshtein, 691 A.2d at 912. As the Pennsylvania Supreme Court noted, Roosevelt Boulevard “runs in a northerly and southerly direction through Northeast Philadelphia,” and “[i]n order to travel to Montgomery County from a large section of Northeast Philadelphia, it is necessary to cross ... Roosevelt Boulevard.” Id. at 912 n. 12. Perez further testified that Bronshtein had given unset gemstones to Perez’s brother. Id. at 912. The Commonwealth proceeded on the theory that, although a second person had probably been involved in the robbery of Gutman’s store, it was Bronshtein who intentionally shot and killed Gutman. Bronshtein, on the other hand, contended that Adik Karlitsky shot and killed Gut-man. According to Bronshtein, Karlitsky was a high-level member of a Russian organized crime group. Bronshtein said that he worked for Karlitsky as a jewelry “fence” and had merely accompanied Kar-litsky to Gutman’s store without knowing that Karlitsky was going to kill him. The jury convicted Bronshtein of first-degree murder, robbery, theft of movable property, and possession of an instrument of crime, as well as conspiracy to commit murder, robbery, and theft. At the penalty phase, the jury found two aggravating circumstances: that Bronshtein had “committed [the] killing while in the perpetration of a felony,” 42 Pa. Cons.Stat. § 9711(d)(6), and that he had “a significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa. Cons.Stat. § 9711(d)(9). The jury found three mitigating circumstances: extreme mental or emotional disturbance, poor childhood upbringing, and “a possibility that the defendant did not pull the trigger.” App. VI at 1969; see 42 Pa. Cons.Stat. § 9711(e)(2), (8). However, the jury found that the aggravating circumstances outweighed the mitigating circumstances and accordingly returned a sentence of death for the first-degree murder conviction. The trial court subsequently imposed the death sentence along with consecutive terms of imprisonment for the other convictions. The Pennsylvania Supreme Court affirmed, Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907 (1997), and the United States Supreme Court denied certiorari on October 20, 1997. 522 U.S. 936, 118 S.Ct. 346, 139 L.Ed.2d 269 (1997). On December 3, 1997, the Center for Legal Education, Advocacy and Defense Assistance (“CLEADA”) filed a “pro se ” Post-Conviction Relief Act (“PCRA”) petition on Bronshtein’s behalf (“pro se PCRA petition”), The petition did not state any claim for relief; it merely stated: “This is not a counseled PCRA petition, but a request to initiate review, filed pro se. A counseled petition shall be filed later pursuant to the court’s order.” App. VII at 2126. The petition was signed by a CLEADA attorney, purportedly with Bronshtein’s authorization. Shortly after the “pro se ” PCRA petition was filed, Bronshtein personally informed the trial court “that he wished to waive his right to appeal and to terminate the PCRA proceedings so that the sentence of death could be carried out immediately.” Id. at 2121. He later told the court that the CLEADA attorneys “had been misleading him and acting contrary to his instructions[.]” Id. at 2121 n. 2. On January 26, 1999, after extensive litigation over Bronshtein’s competency to waive his rights under the PCRA, the trial court issued an order dismissing the “pro se” PCRA petition with prejudice. The court found that Bronshtein had “knowingly, intelligently and voluntarily” sought to withdraw the petition. Id. at 2125. Bronshtein’s mother and sister filed a next friend appeal from the trial court’s order. On April 16, 1999, the appeal'was denied by the Pennsylvania Supreme Court, which held that the appellants had failed to show that Bronshtein was incompetent. Commonwealth v. Bronshtein, 556 Pa. 545, 729 A.2d 1102 (1999). On April 23, 1999, Bronshtein’s mother and sister filed a petition for a writ of habeas corpus in the District Court and asked the Court to issue a stay of execution. On April 29, 1999, during a hearing on the petition, Bronshtein informed the District Court that he had changed his mind and wished to pursue post-conviction relief. The District Court stayed Bronshtein’s execution, appointed counsel for him, and gave him 120 days to prepare and file his own federal habeas petition. On June 9, 1999, Bronshtein filed with the state trial court a petition styled as an “Amended Petition For Habeas Corpus Relief Under Article I, Section 14 Of The Pennsylvania Constitution And For Statutory Post Conviction Relief Under The Post Conviction Relief Act.” The trial court treated the petition as a second PCRA petition and dismissed it for lack of jurisdiction, holding both that Bronshtein had “irrevocably waived” his right to seek post-conviction relief and that the petition was untimely. App. VII at 2111-13. The Pennsylvania Supreme Court affirmed, stating that it “agree[d] with the PCRA court that [Bronshtein’s] petition [was] untimely, leaving [it] without jurisdiction to reach [Bronshtein’s] issues.” Commonwealth v. Bronshtein, 561 Pa. 611, 752 A.2d 868, 871 (2000). The Pennsylvania Supreme Court found that Bronshtein’s “judgment became final on October 20, 1997, the date that the United States Supreme Court denied certiorari.” . Id. at 870. The state supreme court therefore reasoned that Bronshtein “was required to file his petition for post-conviction relief within one year of October 20, 1997, that is by October 20,1998, in order for his PCRA petition to be timely filed.” Id. The Pennsylvania Supreme Court did not address the question whether Bronshtein had “irrevocably waived” his right to seek post-conviction relief, as the trial court had held. Bronshtein filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 27, 1999. The petition asserted 15 claims, but only seven are at issue in this appeal. The following claims (numbered as they were in the petition) are before us: I. The trial court violated due process by erroneously instructing the jury that Bronshtein’s specific intent could be inferred from the actions of his co-conspirator. III. Bronshtein’s death sentence violates the Eighth Amendment because it was based in part on an aggravating circumstance (42 Pa. Cons.Stat. Ann. § 9711(d)(6)) that the jury did not find beyond a reasonable doubt. IV. The trial court violated Bronsh-tein’s federal constitutional rights by excluding material and relevant defense evidence. V. The trial court’s admission of “other crimes” evidence violated Bronshtein’s federal constitutional rights. VI. Bronshtein’s due process rights were violated by repeated acts of prosecutorial misconduct. VII. The prosecution violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising a peremptory strike against a potential juror of Russian-Jewish heritage. IX. The trial court violated the Eighth Amendment by failing to inform the jury that a life sentence in Pennsylvania means life without the possibility of parole. The District Court handed down a decision without holding an evidentiary hearing. See Bronshtein v. Horn, 2001 WL 767593, 2001 U.S. Dist. LEXIS 9310 (E.D.Pa. July 5, 2001). Before reaching the merits of Bronshtein’s claims, the District Court first addressed the issue of procedural default. Although some of Bronshtein’s claims had been raised in the state courts for the first time in the second PCRA petition, which the state supreme court had found to be untimely, the District Court held that these claims were not procedurally defaulted, “because the procedural rule that the Supreme Court of Pennsylvania relied upon in rejecting his claims was not clearly established or regularly followed at the time of his alleged default, [and] therefore was not sufficiently ‘adequate’ to bar federal habeas review.” App. I at 3, 7-21. Turning to the merits, the District Court concluded that the trial court’s instructions on co-conspirator liability had violated Bronshtein’s due process rights by permitting the jury to convict Bronshtein of first-degree murder without finding that he had the specific intent to kill, and the District Court found that this error was not harmless. See id. at 25-34. The District Court next concluded that the trial court had violated Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), by failing to inform the jury that a Pennsylvania prisoner sentenced to life imprisonment may not be paroled. See id. at 35-41. Finally, the Court concluded that Bronshtein’s death sentence violated the Eighth Amendment because it was based in part on an invalid aggravating circumstance (42 Pa. Cons.Stat. § 9711(d)(6) (commission of the killing while in the perpetration of a felony)). The Court ordered that a writ of habeas corpus be issued if the Commonwealth did not retry Bronshtein within 180 days, and in light of this relief, the Court found it unnecessary to address the other claims raised in the petition. See App. I at 46 n.33. The Court stated that Bronshtein had not argued “that his convictions for robbery, theft, and conspiracy were constitutionally flawed,” and the Court therefore did “not consider those convictions[.]” Id. at 47 n. 35. Bronshtein filed a motion to alter or amend the judgment pursuant to Fed. R.Civ.P. 59(e). He argued that his § 2254 petition did in fact raise claims — specifically, Claims IV, V, VI and VII — challenging his robbery, theft, and conspiracy convictions. The District Court denied the motion and held that the “voluminous and carefully crafted submissions on [Claims IV, V and VI] can only be read to challenge the murder conviction.” Bronshtein v. Horn, 2001 WL 936702 (E.D.Pa. Aug.16, 2001). However, the Court agreed with Bronshtein that Claim VII addressed the other convictions, but the Court rejected that claim on the merits. Id. The Commonwealth has appealed the District Court’s order granting relief on Claims I, III, and IX. Bronshtein has filed a cross-appeal, and he requests a certificate of appealability on Claims IV, V, VI and VII. His request was referred to this panel and is now before us along with the Commonwealth’s appeal. II. We first consider the claims (i.e., Claims I, III, and IX) on which the District Court granted relief. All of these claims were raised for the first time in the state courts in the second PCRA petition and, as noted, the Pennsylvania Supreme Court affirmed the dismissal of that petition on the ground that it was untimely. The Commonwealth therefore contends that federal habeas review of the merits of these claims is blocked by the doctrine of procedural default. The procedural default doctrine precludes a federal habeas court from “reviewpng] a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546,115 L.Ed.2d 640 (1991) (emphasis added). The United States Supreme Court has employed a variety of tests to determine whether a state ground is “adequate.” Among other things, state procedural rules have been held to be inadequate if they are not “firmly established and regularly followed,” Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51,104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964), or if they are “novel[ ]” and unforeseeable. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also Ford, 498 U.S. at 424, 111 S.Ct. 850. First, the test ensures that federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule. As we said in Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.1999), “a petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar him from advancing them in a federal court.” Second, the “ ‘firmly established and regularly followed’ test” prevents discrimination. “Novelty in procedural requirements,” NAACP v. Alabama ex rel. Patterson, 357 U.S. at 457, 78 S.Ct. 1163, can be used as a means of defeating claims that are disfavored on the merits. If inconsistently applied procedural rules sufficed as “adequate” grounds of decision, they could provide a convenient pretext for state courts to scuttle federal claims without federal review. The requirement of regular application ensures that review is foreclosed by what may honestly be called “rules” — directions of general applicability — rather than by whim or prejudice against a claim or claimant. In this case, as noted, the District Court held that the state procedural rule on which the Pennsylvania Supreme Court based its decision was not “firmly established and regularly followed” at the relevant time. The Court’s analysis proceeded in three steps. First, the Court identified the relevant rule as “the rule that § 9545(b)(1) operates as an absolute, jurisdictional bar to hearing the merits of a late PCRA petition, and that no exceptions outside those in the statute may save a petition filed more than one year after the date judgment becomes final.” App. I at 13. Second, the Court concluded that the relevant point in time was “the moment petitioner violated the procedural rule; that is, at the time Bronshtein’s one-year window under § 9545(b)(1) closed.” Id. Since direct review of Bronshtein’s conviction and sentence ended when the United States Supreme Court denied his petition for a writ of certiorari on October 20, 1997, the District Court concluded that the critical date was October 20, 1998. Finally, the Court found that the state procedural rule applied by the Pennsylvania Supreme Court was not “firmly established and regularly followed” on that date. We agree with the District Court that the rule applied by the Pennsylvania Supreme Court was not firmly established and regularly applied until after Bronsh-tein missed the PCRA’s one-year filing deadline. To be sure, the pertinent statutory provision, 42 Pa. Cons.Stat. Ann. § 9545(b), which took effect on January 16, 1996, appears on its face to impose a one-year deadline in all cases except those falling within three categories (none of which is applicable here). Nevertheless, as the District Court observed, strict enforcement of the provision did not begin immediately. Well before the enactment of this provision, the Pennsylvania Supreme Court had begun to apply a “relaxed waiver rule” in capital cases. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). In McKenna, the Court stated that it bore a “duty to transcend procedural rules” in capital cases because of the “overwhelming public interest” in preventing unconstitutional executions. Id. at 180-81. As we have observed, McKenna for a time “firmly established that a claim of constitutional error in a capital case would not be waived by a failure to preserve it.” Szuchon v. Lehman, 273 F.3d 299, 326 (3d Cir.2001). Twenty years later, on November 23, 1998, the state supreme court changed course in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). After noting that it had long been the Court’s “ ‘practice’ to decline to apply ordinary waiver principles in capital cases,” the Court stated that this rule had “in effect, virtually eliminated any semblance of finality in capital cases.” Id. at 700. The Court concluded that the “benefits of relaxed waiver at the PCRA appellate stage” were greatly outweighed by the need for finality and judicial efficiency, and the Court announced that the relaxed waiver rule would “no longer [apply] in PCRA appeals.” Id. On December 21, 1998, the state supreme court held in Commonwealth v. Pe-terkin, 554 Pa. 547, 722 A.2d 638 (1998), that the PCRA time bar applies to capital cases and is not superceded by the relaxed waiver rule. Finally, on March 2, 1999, the state supreme court held unequivocally in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999), that the PCRA time limits are jurisdictional and thus not subject to judicial relaxation. Although one might argue that either Albrecht or Peterkin marked the point when it became firmly established that the PCRA time limits would be applied literally in capital cases, our opinion in Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001), implies that the unavailability of judicially created exceptions to the PCRA time limits was less than perfectly clear until the state supreme court decided Banks. For present purposes, however, it is not necessary for us to decide whether Albrecht, Peterkin, or Banks marked the critical point.in time because Bronshtein’s one-year deadline expired before the earliest of the three dates. As of October 20, 1998 — the one-year anniversary of the conclusion of direct review in Bronshtein’s case — Bronshtein did not have fair notice that he would not be given the benefit of the “relaxed waiver” rule and that his failure to file his PCRA petition within the one-year statutory deadline would result in the dismissal of his petition. Moreover, holding Bronshtein strictly to the one-year deadline would have denied him the more lenient treatment that the state courts had allowed other capital defendants up to that point. We thus agree with the District Court that the state procedural rule at issue in this case — the rule strictly requiring a capital defendant to file a PCRA petition within one year after the end of direct review— was not firmly established and regularly followed at the time in question. Our analysis of the question of procedural default would proceed along a different path if the Pennsylvania Supreme Court, when it abandoned the doctrine of “relaxed waiver,” had adopted what might be termed a “transitional rule,” i.e., a rule imposing a special filing deadline for those cases in which a PCRA petitioner’s one-year filing period expired prior to the end of the “relaxed waiver” era. Accordingly, it would have made sense for the state supreme court to have adopted a rule requiring such petitioners to file within some specified time after the termination of the doctrine of “relaxed waiver.” However, no such transitional rule was invoked by the state supreme court in this case, and none has been called to our attention. The only state law ground that we may consider in deciding the issue of procedural default in this case is the general one-year deadline. Because this rule was not firmly established and regularly applied on the date when Bronshtein’s time ran out, the doctrine of procedural default does not apply in this case. We thus turn to the merits of the claims on which the District Court granted relief. III. Bronshtein argues (Claim I) that the trial court’s jury instructions violated his right to due process because they permitted the jury to convict him of first-degree murder on the theory of co-conspirator liability without finding an essential element of the offense, viz., that he had the specific intent to kill. Under Pennsylvania law, a defendant may not be convicted of first-degree murder under a co-conspirator liability theory unless the jury finds that the defendant personally had the specific intent to kill. See Smith v. Horn, 120 F.3d 400, 410 (3d Cir.1997). “The general rule of law [in Pennsylvania] pertaining to the culpability of conspirators is that each individual member of the conspiracy is criminally responsible for the acts of his co-conspirators committed in furtherance of the conspiracy.” Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456, 463 (1998). However, “[t]o be guilty of first degree murder, each co-conspirator must individually be found to possess the mental state necessary to establish first degree murder — the specific intent to kill.” Id. at 464 (emphasis in original). This principle was settled at the time of Bronshtein’s trial. See Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961, 962 (1994). In considering whether the jury instructions in this case adequately conveyed this critical feature of Pennsylvania homicide law, we focus initially on the language that is claimed to be erroneous, but we must view this portion of the instructions “in the context of the charge as a whole.” See Smith, 120 F.3d at 411. “The proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution.” Id. (emphasis in original, citations and internal quotation marks omitted); see Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In the present case, Bronshtein was charged, inter alia, with first degree murder and conspiracy to commit murder. As we hereafter explain, while the trial court’s instructions regarding the first degree murder charge were such that the jury could have convicted him of this charge without finding that he had a specific intent to kill Gutman, the court’s instructions regarding conspiracy to commit murder and the jury’s verdict of guilty on that charge demonstrate beyond a reasonable doubt that the jury made the required finding of specific intent. Accordingly, we conclude that any error in the first degree murder instructions was harmless. The trial judge instructed the jury that Bronshtein could be found guilty of first degree murder based on any of three separate theories. First, the trial judge charged the jury, Bronshtein could be found guilty as a principal if the jury found that “each and every element of [the crime] was established as to him specifically .... ” App. V, Pt. 2 at 1692. The trial court then correctly instructed the jury that the three elements needed to convict Bronshtein for the first-degree murder of Alexander Gutman were (1) that Gutman was killed, (2) that the defendant killed him, and (3) that the defendant did so with the specific intent to kill. Id. The trial judge also instructed the jury that Bronshtein could be found guilty as an accomplice of the person who actually killed Gutman but that, in order to do so, the jury would have to find that Bronsh-tein had the specific intent to kill. The judge stated: A defendant is guilty of a crime if he is an accomplice of another person who commits the crime .... He is an accomplice if and only if with the intent of promotion or facilitating commission of the crime he encourages the other person to commit it or aids, agrees to aid or attempts to aid the other person in planning or committing it .... [I]n order to find the defendant guilty of first-degree murder as an accomplice, you must find the Commonwealth has proven beyond a reasonable doubt that the defendant shared a specific intent to kill Alexander Gutman with the active perpetrator and encouraged or assisted the active perpetrator by comparable overt behavior. Remember when we talked about first-degree murder? That’s the one that requires that specific intent to kill? Yes, it is possible to convict the defendant as an accomplice to that even if he’s not the one who killed Mr. Gutman, but you’d have to find that he shared that specific intent to kill Alexander Gutman before you can find him guilty as an accomplice, and that he assisted the active perpetrator by some comparable overt behavior. App. Y, Pt. 2 at 1689-91 (emphasis added). Finally, the trial court instructed the jury that it could find Bronshtein guilty of the various crimes with which he was charged under the theory of co-conspirator liability. The court stated: You may find the defendant [guilty] of either the crime of murder, robbery or theft as a conspirator if you’re satisfied beyond a reasonable doubt: First, that the defendant agreed with this John Doe or Mr. X that the defendant would aid John Doe or Mr. X in committing either the crime of murder, robbery and/or theft; second, that the defendant so agreed with the intent of promoting or facilitating the commission of the crime; third, that while the agreement remained in effect, the crime of murder, robbery and/or theft was committed by this John Doe or Mr. X; and, fourth, that the crime of murder, robbery and/or theft, while it may differ from the agreed crime, was committed by John Doe or Mr. X in furtherance of his and the defendant’s common scheme. What am I saying to you? If those four elements have been established, then, if you find that the defendant is guilty of the conspiracy, he is also guilty of anything that John Doe or Mr. X did in furtherance of it .... [I]f you find those things, then, he can be found guilty of whatever acts the co-conspirator did in the furtherance of that agreement reached between them. Id. at 1687-89. Unfortunately, this instruction misleadingly suggested that Bronshtein could be found guilty of first-degree murder even if he did not have the specific intent to kill. According to a literal reading of the instruction, the jury could find Bronshtein guilty of first-degree murder if it found that he had conspired to commit the robbery and that another conspirator had killed Gutman in furtherance of the robbery. Compounding the error, the instruction went on to say that if the jury found that the four elements set out above were established, Bronshtein was “guilty of anything that John Doe or Mr. X did in furtherance of [the conspiracy].” While the instructions on liability as a principal or accomplice stressed the need to find a specific intent to kill, these instructions did not cure the defect in the instructions on co-conspirator liability. As the District Court put it: “A reasonable jury could have understood the eo-eonspir-ator language to be an alternate means to establish first degree murder, sans a finding of specific intent to kill.” ’ Dist. Ct. Op. at 27. For similar reasons, the flaw in the co-conspirator liability instructions was not adequately cured by the supplemental instructions on first-degree murder that were given, at the jury’s request, during its deliberations. At that time, the trial judge gave the jury the following “summary on first-degree murder”: “what sets [first-degree murder] apart from second- and third-degree murder is that element of the specific intent to kill either personally, if you find that he did the act, or as a co-conspirator of one who had' the specific intent to kill[.]” App. V, Pt. 2 at 1725. Although these supplemental instructions were accurate, they did not specifically address the theory of co-conspirator liability. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). See also Whitney v. Horn, 280 F.3d 240, 256 (3d Cir.2002). Viewing all of the first degree murder instructions together, we conclude that there is a reasonable probability that the jury, consistent with their terms, could have proceeded on the incorrect belief that a specific intent to kill was not needed in order to convict Bronshtein of first-degree murder on the theory of co-conspirator liability. We thus hold that the jury was improperly instructed on the theory of co-conspirator liability. We further hold, however, that this error was harmless. As we explained in Smith, 120 F.3d at 416-17, an error of the type present here is subject to harmless error analysis. “In a collateral proceeding, the standard for harmlessness is ‘whether the error had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. at 417 (quoting California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (quoting Brecht v. Abrahamson, 507 U.S. 619 at 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). In Smith, we elaborated: The Supreme Court has held that if a habeas court “is in grave doubt as to the harmlessness of an error,” habeas relief must be granted. O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Thus, if the court concludes from the record that the error had a “substantial and injurious effect or influence” on the verdict, or if it is in “grave doubt” whether that is so, the error cannot be deemed harmless. See Roy, 519 U.S. at 5, 117 S.Ct. 337. 120 F.3d at 418 (parallel citations omitted). Here, the jury’s verdict finding Bronsh-tein guilty of conspiracy to commit murder convinces us that the error in the instructions on co-conspirator liability was harmless. After stating that Bronshtein was charged with conspiracy to commit murder, robbery and theft, the trial judge stated: [I]n order to find the defendant guilty of conspiracy to commit any one of those or all of them, you must be satisfied initially that the two elements of a conspiracy have been proven beyond a reasonable doubt. What are they? First, that the defendant agreed to aid another person. The Commonwealth merely defines that person or identifies that person as John Doe or Mr. X, meaning they don’t know who it is. That the defendant agreed to aid another person, whoever it was, in the planning or commission of the crimes of murder, robbery or theft; and, second, that the defendant did so with the intent of promoting or facilitating commission of the crimes of murder, robbery and/or theft. Those are the two elements. Id. at 1684-85. The most reasonable interpretation of these instructions is that, in order to find Bronshtein guilty of murder, the jury had to find that he had “the intent of promoting or facilitating commission of the crime[ ] of murder.” This point was driven home with the supplemental instructions on conspiracy to commit murder that the court gave during the jury deliberations. As the Supreme Court has noted, this is the point in a trial when “[o]ne would expect most of [a jury’s] reflection about the meaning of the instructions to occur[.]” Francis v. Franklin, 471 U.S. at 321 n. 7, 105 S.Ct. 1965. The trial judge in this case told the jury: [I]n order to find the defendant guilty of conspiracy to commit murder, you must be satisfied that two elements of the conspiracy have been proven beyond a reasonable doubt: First, that the defendant agreed to aid another person, namely, this John Doe or Mr. X, in either the planning or the commission of the crime of murder. That’s the first element. He agreed to aid another person in either the planning or the commission of the crime of murder — first element. Second, that the defendant did so with the intent of promoting or facilitating the commission of the crime of murder. Id. at 1733-34. After receiving these instructions, the jury found Bronshtein guilty of conspiracy to commit murder. In returning that ver-diet, the jury presumably followed the court’s instructions relating to that offense, see Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), and therefore the jury must have found that Bronshtein participated in “the planning or the commission of the crime of murder” and that he “did so with the intent of promoting or facilitating the commission of the crime of murder.” In other words, the jury must have found that Bronshtein had the specific intent to kill. It follows that the error in the instructions on the theory of co-conspirator liability cannot have affected the jury’s verdict on the charge of first-degree murder. Even if the jury based that verdict on the theory of co-conspirator liability, and even if the jury proceeded on the erroneous belief that this theory did not require proof of a specific intent to kill, the jury’s guilty verdict on the charge of conspiracy to commit murder shows that the jury found that Bronshtein had that intent. The Pennsylvania Supreme Court’s decision in Wayne, 553 Pa. 614, 720 A.2d 456 (1998), is instructive. In Wayne, the Court concluded that the defendant was not prejudiced by his counsel’s failure to object to jury instructions that, like the ones here, permitted the jury to convict him of first-degree murder as a co-conspirator without finding that he had the specific intent to kill. See Wayne, 720 A.2d at 465. The Court reached this conclusion because the defendant was also convicted of conspiracy to commit murder. See id. The Court explained: A conspiracy to kill presupposes the deliberate premeditated shared specific intent to commit murder.... In this case, the conspiracy was a conspiracy to kill. The conspiracy had only one object, the deliberate decision to take a life. Once this jury determined that appellant was guilty of conspiracy, given the sole object of that conspiracy, the only logical conclusion to reach is that this jury also determined, beyond a reasonable doubt, that appellant possessed the specific intent to kill. Id. (emphasis in original). See also Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869, 877 n. 16 (1975) (“A conspiracy to commit murder would necessarily indicate that the killing was ‘willful, deliberate, and premeditated.’ ”); Commonwealth v. Stein, 401 Pa.Super. 518, 585 A.2d 1048, 1050 n. 6 (1991) (“[T]he ‘intent’ element required to be proven by the Commonwealth is the same for accomplice liability as for conspiracy.”). We agree with this analysis and hold that the error in the instructions on co-conspirator liability was harmless under the standard applicable in a federal habeas proceeding. Bronshtein contends that our decision in Smith shows that Wayne “does not control here,” Bronshtein’s Br. at 57, but Smith is readily distinguishable. There, the conspiracy instructions were so ambiguous that they created the reasonable likelihood that the jury convicted the defendant of conspiracy to commit murder without finding that he had the intent to enter into the conspiracy to commit murder. See Smith, 120 F.3d at 412-13. Furthermore, the trial court’s attempt to explain the ambiguous instructions actually made matters worse: it “conveyed the impression that Smith was criminally liable for conspiracy to commit murder if he intended to enter into a conspiracy to commit robbery [.]” Id. at 413 (emphasis in original). In short, in Smith, unlike Wayne or the present case, it was reasonably likely that the jury did not find that the defendant had the intent to enter into a conspiracy to commit murder, i.e., a specific intent to kill. Here, as we have explained, the supplemental instructions were very clear in telling the jury that it could not find Bronshtein guilty of conspiracy to commit murder unless it found that he had that intent. For these reasons, we must reverse the decision of the District Court insofar as it relates to Bronshtein’s first-degree murder conviction. IV. We now address Bronshtein’s argument (Claim IX) that the trial court violated his right to due process by failing to instruct the jury that under Pennsylvania law a defendant who is convicted of first-degree murder must receive either a sentence of death or a sentence of life imprisonment without the possibility of parole. The District Court held that this claim has merit. On appeal, the Commonwealth contests the District Court’s holding on two grounds. A. The Commonwealth’s first argument, as we understand it, is that Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the seminal Supreme Court case on which Bronshtein’s claim is predicated — -is inapplicable because Simmons does not apply retroactively to cases in which direct review ended prior to that decision. See O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). However, the District Court properly rejected this argument because Simmons was decided long before the judgment in Bronshtein’s case became final for retroactivity purposes on October 27, 1997, the date when the Supreme Court denied certiorari. See Beard v. Banks, — U.S. -, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (“State convictions are final ‘for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” ’) (citation omitted). Accordingly, the Commonwealth’s argument is merit-less. B. The Commonwealth’s remaining contention is that the prosecution’s arguments and the testimony that it elicited at the penalty phase did not put the issue of Bronshtein’s future dangerousness at issue in the way needed to trigger Simmons and the subsequent related cases of Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). Because the Pennsylvania Supreme Court did not adjudicate this claim on the merits, the standards of review set out in 28 U.S.C. § 2254(d) are inapplicable. Furthermore, because the Commonwealth does not argue that either Shafer or Kelly announced “new rules” within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we need not and do not decide whether such an argument would have merit, see Horn v. Banks, 536 U.S. 266, 271, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002), and we consider Shafer and Kelly to be applicable in this appeal. In Simmons, the prosecutor explicitly argued that the jury should impose a death sentence in order to protect society from the defendant. The prosecutor stated that a death sentence would be “a response of society to someone who is a threat” and would be “an act of self-defense.” 512 U.S. at 157, 114 S.Ct. 2187. The Supreme Court held that under these circumstances the trial judge was required to instruct the jury that the defendant, if not sentenced to death, would have received a sentence of life imprisonment without the possibility of parole. The plurality opinion stated that “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. 2187 (emphasis added). However, as we noted in Rompilla v. Horn, 355 F.3d 233, 265 (3d Cir.), cert. granted, — U.S. -, 125 S.Ct. 27, 159 L.Ed.2d 857 (2004), Justice O’Connor’s controlling concurrence may be read as adopting a narrower holding, namely, that the dispositive question is not whether a defendant’s future dangerous is “at issue” but whether “the prosecution argues that the defendant will pose a threat to society in the future.” 512 U.S. at 177, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment). See also Shafer, 532 U.S. at 49, 121 S.Ct. 1263. As we also observed in Rompilla, 355 F.3d at 266, the holding in Simmons was arguably broadened in Kelly. There the prosecutor stated in his penalty phase opening: “I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer.” 534 U.S. at 248, 122 S.Ct. 726. The prosecution then presented evidence that while in prison, Kelly had made a knife, had attempted to escape from prison, and had planned to hold a female guard as a hostage. See id. The state also brought out evidence of “Kelly’s sadism at an early age, and his inclination to kill anyone who rubbed him the wrong way.” Id. at 248-49, 122 S.Ct. 726 (citation omitted). During its closing argument, the state referred to Kelly as “the butcher of Batesburg,” “Bloody Billy,” and “Billy the Kid.” Id. at 249-50, 122 S.Ct. 726. In addition, the prosecutor told the jury that “Kelly doesn’t have any mental illness. He’s intelligent .... He’s quick-witted. Doesn’t that make somebody a little more dangerous .... [Djoesn’t that make him more unpredictable for [the victim] .... murderers will be murderers. And he is the cold-blooded one right over there.” Id. at 250, 122 S.Ct. 726. The Kelly Court concluded that the trial judge had an obligation to give a parole ineligibility instruction. The Court stated that “[t]he prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons.” Id. at 255, 122 S.Ct. 726. The Court observed that “[e]videnee of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.” Id. at 254, 122 S.Ct. 726. The Court also acknowledged that “it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future.” Id. at 254 n. 4, 122 S.Ct. 726. But the Court declined to decide whether a defendant is entitled to a parole ineligibility instruction “when the State’s evidence shows future dangerousness but the prosecutor does not argue it.” Id. In the present case, the prosecution not only put Bronshtein’s future dangerousness “at issue” but “argue[d] that the defendant [would] pose a threat to society in the future.” Simmons, 512 U.S. at 177, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment). During its closing argument at the penalty stage, the prosecutor made the following statements: Ladies and gentlemen, the medical testimony in this case was significant because it tells you something about the psyche or persona of this man. He can’t conform to what is required in society. The doctors have told you that he’s antisocial. He’s prone to lying. He’s prone to stealing. He’s prone to living a life of crime. Whatever the seeds were that got him there, they’re planted, and that tree has grown. He’s grown into a twenty-two-year-old person now regardless of how the seeds were planted. You have to take a look at what effect that has had and what effect it had at the time he committed these crimes. The doctors have told you he’s a man that can’t conform to the needs of society. App. VI at 1909-10 (emphasis added). Even without considering “the medical testimony” to which the prosecutor referred, it is evident that these comments, although more clinical than those in Simmons, conveyed the message that Bronsh-tein presented a threat of future lawlessness. We agree with the District Court’s evaluation of these comments: [T]he references to Bronshtein’s inability to ‘conform to what is required in society’ and the fact that he was ‘antisocial,’ in the context of the present and the future by reference to what Bronsh-tein is “going to” and “prone to” do, make clear that the Commonwealth was suggesting to the jury that it should impose the death penalty because of Bronshtein’s inability to function in society in the future. The prosecutor’s assertion that [Bronshtein] was “prone to living a life of crime,” when placed in the context of the stark choice of life in prison or death, would suggest to any juror that petitioner would pose a danger to society if he was released from prison. The none-too-subtle implication of these arguments is that Bronshtien should be put to death because if he were ever released, he could not “conform to the needs of society,” and was “going to” continue “living a life of crime” and engaging in dangerous, violent conduct. Dist. Ct. Op. at 36-37. Thus, the import of the penalty phase closing in itself is clear enough. When the “the medical testimony” to which the prosecutor referred in the closing is also taken into account, the significance of the prosecutor’s statements becomes even clearer. At the penalty phase, Bronshtein called a psychologist, Gerald Cooke, to testify to “psychological mitigating factors.” App. VI at 1835. Dr. Cooke testified that Bronshtein suffered from paranoid personality disorder, anti-social personality disorder, and depression. See id. at 1838, 1840. On cross-examination, the Commonwealth elicited from Dr. Cooke a litany of dangerous tendencies that persons with these disorders often exhibit. The questioning went as follows: Q: One of the features of [a person with an anti-social personality disorder] is he tends to be irresponsible; correct? A: Well, one of the features of antisocial personality can be irresponsibility. I don’t know if that’s necessarily a criteria that fits him. He fits a number of the other criteria. Q: It can be anti-social behavior; correct? A: Absolutely. Q: Including criminal activity; correct? A: Correct. Q: Lying? A: Yes. Q: Stealing? A: Yes. Q: Fighting? A: Yes. Q: Being very aggressive; correct? A: Yes. Q: They can be prone to being irritable; correct? A: Yes. Q: Prone to getting repeatedly into physical fights; correct? A: Can be.... Q: Failed to conform to social norms; correct? A: That is true. Q: Repeatedly can perform anti-social acts; correct? A: Yes.... Q: They also tend to express no remorse, don’t they? A: That’s true. Q: No remorse about the effects of their behavior on other people? A: They often don’t have insight to the effects of their behavior on themselves or on other people. Q: In other words, a lot of people who have anti-social personality disorders can’t play by the rules in a civilized society; correct? A: True. Id. at 1855-1858. The prosecutor then questioned Dr. Cooke regarding Bronshtein’s paranoid personality disorder: Q: Dr. Cooke, with regard to the paranoid personality disorder, they’re also people that can react quickly with anger; correct? A: Yes. Q: And are likely to counterattack if they feel threatened; correct? A: They are likely to see themselves as being threatened, and many of them sort of follow the kind of attitude that the best defense is offense. Q: In other words, they’re more likely to feel threatened than the normal person; correct? A: True, and that’s what being paranoid means. Q: Because they’re more likely to feel threatened, they’re more likely to counterattack because of the threat they feel; correct? A: That is true. Q: They can bear grudges for a long time; correct? A: True. Q: And they can even get to the point where they never forgive different insults people have done to them; correct? A: True. Q: They’re viewed as secretive? A: Yes. Q: Devious? A. Sometimes. Q: Scheming? A: Sometimes. Q: Have great difficulties accepting self-criticism? A: That’s true. Q: Dr. Cooke, Mr. Bronshtein has a combination of the two — paranoid personality disorder and anti-social personality disorder- — doesn’t he? A: And depression. Q: Doctor, it’s certainly a potentially lethal combination of personality disorders, isn’t it? A: Could be. Id. at 1858-1860. The Commonwealth also presented rebuttal evidence through its own mental health expert, Dr. Timothy J. Michaels. The Commonwealth elicited the following testimony from Dr. Michaels: Q: [WJhat is your agreement or disagreement with the diagnoses which [Dr. Cooke] has made? A: ... I certainly agree with the antisocial personality disorder. What that means is, this young man has gotten in trouble throughout his life. He doesn’t learn by experience. He’s impulsive. He continues to get in trouble within the prison system. He acts out, justifies his behavior. So even after he has been incarcerated, there’s ongoing difficulties. ... When you’re anti-social, you don’t follow the rules. You don’t learn by experience. You think you’re right and other people are wrong.... I also agree with the paranoid personality disorder.... He’s paranoid. Basically, he’s looking over his shoulder. He doesn’t trust people, doesn’t trust most people.... This combination of not trusting people and then acting out, not following the rules is an explosive combination in my opinion.... So I see that as a serious, very serious behavioral problem that this young man has. Q: Dr. Michaels, what findings did you make with regard to this personality disorder or these personality disorders with having remorse? A: ... Individuals who are anti-social don’t have remorse. They don’t learn. They’re not sorry for their behavior. They don’t learn from experience. So they do this over again. And instead of being remorseful, unfortunately there is acceleration of behavior. I think I can get away with it — even though you get caught. I can outsmart the people[.] App. VI at 1869-71,1874. Taken together, the testimony of Drs. Cooke and Michaels suggested the following: that Bronshtein’s “combination of personality disorders” could be “lethal” or “explosive”; that he was prone to lie, scheme, steal, fight, and act very aggressively; that he was much more likely than a normal person to distrust others, bear grudges, feel threatened, and respond with a counterattack; that he was unable to “play by the rules in a civilized society”; that he was probably remorseless, and unlikely to learn from experience, and thus prone to commit the same crimes “over again”; and that there would probably be an “acceleration” of his anti-social behavior. The prosecution’s penalty phase closing must be viewed as incorporating these points. As noted, the prosecutor asked the jury to recall “the medical testimony,” referred twice to what “the doctors” had told the jury, and summarized that testimony as saying that Bronshtein is “antisocial,” “prone to living a life of crime,” and “can’t conform to the needs of society.” In any realistic sense of the concept, the prosecutor “argue[d] that the defendant [would] pose a threat to society in the future.” Simmons, 512 U.S. at 177, 114 S.Ct. 2187 (O’Connor, J., concurring in the judgment). And it goes without saying that the Bronshtein’s future dangerousness was put at issue within the meaning of Kelly. In the words of that decision, “[t]he prosecutor accentuated the clear implication of future dangerousness raised by the evidence.” 534 U.S. at 255, 122 S.Ct. 726. We thus reject the Commonwealth’s argument that the prosecution’s presentation at the penalty phase was insufficient to trigger the obligation imposed by Simmons, Shafer, and Kelly. Having considered and rejected the Commonwealth’s arguments regarding Simmons and its progeny, we have before us no ground for reversing the order of the District Court insofar as it held that Bronshtein’s death sentence is unconstitutional under those precedents. In light of our decision on this issue, we have no occasion to decide whether, as the District Court held, that sentence is unconstitutional for the additional reason that the jury was improperly instructed regarding the aggravating factor set out in 42 Pa. Cons. Stat. Ann. § 9711(d)(6) (commission of homicide while perpetrating felony) and that there was insufficient evidence to prove that factor. V. We now consider the claims raised in Bronshtein’s cross-appeal. As noted, Bronshtein asks us to issue a certificate of appealability on these claims, and we must do so if he has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). On the merits, our review of the decision of the District Court is plenary, as the District Court relied exclusively on the state court record and did not hold an evidentiary hearing. Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir.1999). A. Bronshtein argues that the prosecution violated Batson v. Kentucky, supra, by exercising a peremptory challenge based on religion and ethnic background. During collective voir dire, the trial court asked the prospective jurors whether they had “any moral, religious or other ethical beliefs which would prevent [them] from considering the imposition of the death penalty[.]” Bronshtein’s App. II at 293. Ten of the 30 prospective jurors — including Jan Eidelson — responded in the affirmative. Later, during individual voir dire, defense counsel asked another prospective juror, Nanette Phyllis Honigman, whether she was “of Jewish heritage,” and she responded that she was not. App. II at 420-21. After Ms. Honigman was dismissed for cause on unrelated grounds, the trial judge raised the issue whether it was appropriate to ask potential jurors about their religions. Id. at 421. The judge suggested that such an inquiry would not be reasonable unless a juror expressed an unwillingness to consider a death verdict for religious reasons. Id. Defense counsel explained that his only reason for doing so “would be for the possible Batson issues, it’s whether the juror was of the same Jewish heritage as Mr. Bronshtein.” Id. The prosecutor seems to have taken the position that Batson does not apply to peremptory challenges based on religion, while defense counsel and Bronshtein himself contended that striking a prospective juror because the person is Jewish would be a challenge based on “nationality” or “race” and would thus fall within Batson. Id. at 423-24. The trial judge then stated that Judaism is “a religion, it’s not a nationality” and ruled that a peremptory challenge based on Judaism did not present “a Batson issue.” Id. at 424-25. However, because the judge thought that an inquiry into a juror’s religion might be justified for the limited reason of exploring whether the juror would be willing to consider a death sentence, the judge asked counsel to provide advance warning before asking any questions along those lines. Id. at 425. Immediately after this exchange, the prosecutor stated that he wanted to ask Ms. Eidelson about her religion “only because of the educational background” noted in her information sheet, namely, that she had written that she had attended a school called “Friends Central.” App. II at 426. The trial judge responded that this inquiry was legitimate because “it cannot be disputed that if someone is a Quaker they hold a religious belief that would prevent them, probably, from serving on this jury.” Id. When Ms. Eidelson came up for individual voir dire a short time later, the trial judge questioned her first. In response to the court’s questions, she stated that she could vote to impose a death penalty but that “it would not be a comfortable thing” and “would [not] be easy.” App. II at 429, 435. She expressed reservations about being sequestered for the two weeks that the trial was expected to last, stating that she “wouldn’t want to be in a situation where [she] could not have contact with [her] support system[.]” Id. at 429. She also stated that, although she was a graduate of Friends Central High School, she was not a Quaker. Id. at 437. Finally, when the judge asked her whether she “would have any tendency to be biased or prejudiced against [Bronshtein] because he is a Russian-Jew,” Ms. Eidelson answered that she did not think that she would and added: “Well, I need to let you know, my dad’s parents came from Russia.” Id. at 439. Defense counsel questioned Eidelson next. In response to his questioning, she stated that her “dad’s parents were Russian-Jews” and that her mother was Jewish. App. II at 440. The prosecutor then questioned Ms. Eidelson briefly and inquired only whether, if the jury voted for the death penalty and the jurors were polled, she would be able to stand up in open court and state that she had voted to impose that sentence. App. II at 443-45. She answered in the affirmative. Id. at 445. After Ms. Eidelson left the courtroom, defense counsel stated that she was acceptable, but the prosecutor exercised a peremptory strike against her. App. II at 445. Defense counsel objected, claiming that the prosecution had exercised the strike in violation of Batson, but the trial judge rejected the objection without explanation. Id. at 446. On direct appeal, the Pennsylvania Supreme Court found it unnecessary to resolve the question whether “‘Russian-Jewish’ is an ethnic classification for the purposes of a Batson claim[.]” Bronshtein, 691 A.2d at 915. First, the Court held that Bronshtein “failed to develop a record setting forth the race or ethnicity of the rest of the venire or the jurors eventually empaneled as required by [Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995) ].” Second, the Court stated: [T]he record reveals that the prospective juror equivocated on the death penalty on moral, religious and philosophical grounds and expressed serious reservations about serving on the jury because it would entail being