ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 99-cv-02186) District Judge: The Honorable Lowell A. Reed, Jr.
The opinion of the court was delivered by: Alito, Circuit Judge
Before: ALITO, BARRY, and STAPLETON, Circuit Judges
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.
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, 691 A.2d 907, 911 (Pa. 1997), cert. denied, 522 U.S. 936 (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 palmprint 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 Slobotkin, 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 Slobotkin and Gutman had been killed by a "Mr. X," whom Bronshtein described as a high-level member of the "Russian mafia." 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 Bronshtein 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 Bronshtein 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 Gutman. 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 Karlitsky 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, 691 A.2d 907 (Pa. 1997), and the United States Supreme Court denied certiorari on October 20, 1997. 522 U.S. 936 (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, 729 A.2d 1102 (Pa. 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, 752 A.2d 868, 871 (Pa. 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 Bronshtein'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 (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 (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.
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 "review[ing] 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 (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 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964), or if they are "novel" and unforeseeable. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958); see also Ford, 498 U.S. at 424.
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, 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 Bronshtein missed the PCRA's oneyear 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). *fn1 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, 383 A.2d 174 (Pa. 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, 720 A.2d 693 (Pa. 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. Peterkin, 722 A.2d 638 (Pa. 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, 726 A.2d 374 (Pa. 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. *fn2 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.
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 coconspirator 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, 720 A.2d 456, 463 (Pa. 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). *fn3 This principle was settled at the time of Bronshtein's trial. See Commonwealth v. Huffman, 638 A.2d 961, 962 (Pa. 1994).
In considering whether the jury instructions in this case adequately conveyed this critical feature of Pennsylvania homicide law,*fn4 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 (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 Bronshtein 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. V, 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.
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 coconspirator liability. As the District Court put it: "A reasonable jury could have understood the co-conspirator 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. *fn5 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 (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 coconspirator 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. 3, 5 (1996) (quoting Brecht v. Abrahamson, 507 U.S. 619 at 637 (1993)). In Smith, we elaborated:
The Supreme Court has held that if a habeas court "is in grave doubt as to the harmlesssness of an error," habeas relief must be granted. O'Neal v. McAninch, 513 U.S. 432, 437 (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.
120 F.3d at 418 (parallel citations omitted).
Here, the jury's verdict finding Bronshtein guilty of conspiracy to commit murder convinces us that the error in the instructions on co-conspirator liability was harmless. *fn6 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." *fn7
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[.]" ...