NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2969 _____________
IAN TAPPER, Appellant
v.
SUPERINTENDENT MAHANOY SCI; ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 2-15-03712) District Judge: Eduardo C. Robreno ______________
Argued December 15, 2020 ______________
Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.
(Opinion Filed: May 7, 2021)
Arianna J. Freeman Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106
Jessica Tsang [Argued] Federal Community Defender Office for the Eastern District of Pennsylvania Capital Habeas Unit 601 Walnut Street The Curtis Center, Suite 545 West Philadelphia, PA 19106 Attorneys for Appellant
Max C. Kaufman Laura Zipin [Argued] Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107 Attorneys for Appellee
______________
OPINION* ______________
GREENAWAY, JR., Circuit Judge.
The Commonwealth of Pennsylvania tried Ian Tapper for robbery twice. The first
jury acquitted Tapper of aggravated assault and possession of an instrument of crime.
The same jury hung on the robbery charge. The second jury convicted Tapper of
robbery. Tapper sought habeas relief, contending that the second trial was a violation of
the Fifth Amendment protection against double jeopardy, as articulated in Ashe v.
Swenson, 397 U.S. 436 (1970). The District Court disagreed and denied Tapper’s habeas
petition. For the reasons set forth below, we will affirm.
I. Background
A. Factual Background
On August 26, 2006, after two drinks at a bar in North Philadelphia, Edward
Roberts and his friend, Jeffrey Branson, drove to a restaurant in West Philadelphia.
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 Branson parked his vehicle and remained in it while Roberts went inside for food.
Roberts waited about ten minutes for his food and then exited the restaurant.
As Roberts walked back to Branson’s vehicle, Tapper approached Roberts from
behind and asked, “where’s the money?” JA113. Roberts thought Tapper was joking,
and he kept walking. Roberts outweighed Tapper by almost one hundred pounds and was
several inches taller than Tapper.
Tapper approached Roberts from behind again and grabbed him by the shirt. At
this point, Roberts realized that Tapper was not joking, and Roberts began to punch
Tapper. Roberts saw that it was Tapper who was accosting him. Roberts and Tapper fell
to the ground as they tussled. Roberts never saw Tapper holding a gun, but he did hear
shots. Roberts was shot in his chest, wrist, and thigh.
Roberts picked himself up off the ground and returned to Branson’s vehicle.
Branson sped down the street and nearly collided with a police car two blocks away from
the restaurant. Officer Michael Carey, the driver of the police car, had been about a
block away from the corner store and heard the gunshots. Officer Carey stopped the car
and had Branson exit. Officer Carey questioned Branson, who explained that Roberts
had been shot in front of the restaurant. Officer Carey also questioned Roberts, who
provided a description of the shooter, but did not identify Tapper as the shooter. Officer
Carey saw that Roberts was shot in the chest and allowed Branson to rush Roberts to the
hospital.
Branson took Roberts to the Hospital of University of Pennsylvania, where
Roberts underwent surgery for his wounds. Branson was then transported to the 3 Southwest Detectives Division, where he was interviewed. Branson was killed in a
homicide before Tapper’s first trial.
Two days after Roberts was shot, Karl Rone gave a statement to Detective
Timothy McCool. Rone claimed that he was Roberts’s neighbor and that he had spoken
to Roberts six hours after the shooting. Rone also stated that Roberts told him Tapper
was the shooter. Rone told Detective McCool that Tapper was “hot-tempered and
carrie[d] a gun.” JA151. Detective McCool inquired about the gun, and Rone stated that
he thought Tapper carried a 9-millimeter gun and that the night before he had seen
Tapper with the black butt of a gun in his waistband. Rone was killed in a homicide prior
to Tapper’s first trial.
Three days after the shooting, Roberts identified Tapper as the shooter in a photo
array, circled Tapper’s photograph, and signed it. Tapper was subsequently arrested.
B. Procedural Background
Tapper’s first trial began on December 13, 2007. Tapper was charged with
attempted murder, aggravated assault, robbery, and possession of an instrument of crime
(“PIC”). Prior to closing arguments, Tapper’s counsel moved for dismissal of the
attempted murder charge, arguing that there was no specific intent to kill based on the
evidence presented. The trial court dismissed the attempted murder charge without
explanation.
Shortly after beginning its deliberations, the jury requested a “clarification o[f] the
law.” JA079. The trial court provided a clarification and the jury continued its
deliberations. Shortly thereafter, the jury delivered its verdict, finding Tapper not guilty
4 on the aggravated assault and PIC charges. The jury hung on the robbery charge. After
the jury was dismissed, the Commonwealth announced that they would retry Tapper.
On August 20, 2009, Tapper was retried for robbery. The jury returned a verdict
of guilty on the same day it began its deliberations. Tapper was sentenced to nine to
twenty years’ imprisonment.
Tapper pursued a direct appeal of his conviction. That appeal was unsuccessful,
with the trial court affirming the denial of Tapper’s motion to dismiss1 and the
conviction.
Tapper then appealed his conviction to the Superior Court of Pennsylvania. The
Superior Court rejected Tapper’s double jeopardy argument, finding that his
interpretation of the result of his first trial was “over simplistic.” The Superior Court did
not analyze the evidence and arguments presented during the trials. Instead, the Superior
Court focused on the differences between the elements of robbery and aggravated assault.
The Superior Court concluded, “a sole finding that [Tapper] did not have or use a gun is
not dispositive of whether robbery was established at the second trial.” JA418.
On June 30, 2015, Tapper filed a pro se petition for habeas corpus in the U.S.
District Court for the Eastern District of Pennsylvania. The District Court referred
Tapper’s petition to Magistrate Judge Marilyn Heffley for a Report and Recommendation
(“R&R”). Judge Heffley issued two R&Rs recommending that the District Court deny
Tapper’s petition.
1 Prior to his second trial, Tapper moved to dismiss the robbery charge on double jeopardy grounds. On November 18, 2008, the trial court denied Tapper’s motion. 5 On August 3, 2018, over Tapper’s objections, the District Court approved and
adopted Judge Heffley’s second R&R. The District Court did not issue a certificate of
appealability.
Tapper filed a timely notice of appeal and sought a certificate of appealability. On
June 20, 2019, this Court granted Tapper a certificate of appealability.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
Because the District Court did not conduct an evidentiary hearing, our review of
the District Court’s legal conclusions is plenary, and “we evaluate ‘the state court[’s]
determinations under the same standard that the District Court was required to apply [as
outlined below].’” Williams v. Beard, 637 F.3d 195, 204 (3d Cir. 2011) (quoting Lewis v.
Horn, 581 F.3d 92, 100 (3d Cir. 2009)).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), when a habeas petitioner’s claim has been adjudicated on the merits in state
court, a federal court cannot grant a writ of habeas corpus unless the state court
proceeding “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law,” or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). “AEDPA erects ‘“a substantially higher
threshold” for obtaining relief than de novo review.’” Beard, 637 F.3d at 204 (citation
omitted).
6 The District Court determined that the Pennsylvania Superior Court incorrectly
applied federal law, but that its decision was not an unreasonable application of federal
law because the same outcome was justified under a proper Ashe analysis. Our plenary
review focuses on that legal conclusion.
“[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in
original). “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411. Relief may only be granted if “the state court decision,
evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent.” Werts v. Vaughn, 228 F.3d 178, 197
(3d Cir. 2000) (emphasis added) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d
877, 890 (3d Cir. 1999)).
III. Discussion
Tapper argues that his second trial violated the rule of collateral estoppel as
embodied in the Fifth Amendment’s protection against double jeopardy. Tapper’s
argument proceeds in two parts.
First, Tapper contends that the first jury’s not guilty verdicts reflected the jury’s
determination that Tapper “either did not possess a gun at all, or at least did not intend to
use it to commit a crime, and that he, in fact did not use it against . . . Roberts or to
7 commit a crime.” Appellant’s Br. 29. In other words, Tapper argues that the first jury
decided that he did not shoot Roberts. Id.
Second, Tapper argues that the Commonwealth impermissibly “relitigated the
issue of whether . . . Tapper shot . . . Roberts.” Id. at 31. Specifically, Tapper contends
that the Commonwealth’s “sole theory [during the second trial] was that . . . Tapper
shot . . . Roberts while trying to steal from him,” and that the only evidence the
Commonwealth presented was that Tapper harmed Roberts by shooting him. Id. at 30.
We agree with Tapper on the first point and do not agree on the second point.
A. The Legal Framework
Tapper bears the burden of “‘demonstrat[ing] that the issue whose relitigation he
seeks to foreclose was actually decided’ by a prior jury’s verdict of acquittal.” Bravo-
Fernandez v. United States, 137 S. Ct. 352, 359 (2016) (quoting Schiro v. Farley, 510
U.S. 222, 233 (1994)). Under Ashe, collateral estoppel only bars the second trial “if to
secure a conviction the prosecution must prevail on an issue the jury necessarily resolved
in the defendant’s favor in the first trial.” Currier v. Virginia, 138 S. Ct. 2144, 2150
(2018); Ashe, 397 U.S. at 446 (finding that once the first jury “had determined upon
conflicting testimony that there was at least a reasonable doubt that the petitioner was one
of the robbers, the State could not present the same or different identification evidence in
a second prosecution for the [same] robbery . . . in the hope that a different jury might
find that evidence more convincing.”). “To say that the second trial is tantamount to a
trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause,
[the court] must be able to say that ‘it would have been irrational for the jury’ in the first
8 trial to acquit without finding in the defendant’s favor on a fact essential to a conviction
in the second.” Currier, 138 S. Ct. at 2150 (emphasis in original) (quoting Yeager v.
United States, 557 U.S. 110, 127 (2009) (Kennedy, J., concurring in part and concurring
in the judgment)).
“[S]o long as a reasonable jury ‘could have’ based its decision on facts that would
not create a double jeopardy violation, the subsequent prosecution may move forward.”
Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 233 (3d Cir. 2017) (quoting
Ashe, 397 U.S. at 444). “[W]here no clear answer emerges, the tie goes to the
Government . . . .” Id. The defendant bears a “heavy burden,” but “the government
cannot avoid the preclusive effect of a general jury verdict by speculating that the verdict
could have been based upon a finding that the government failed to prove elements that
were never contested by the defense.” United States v. Rigas, 605 F.3d 194, 217–18 (3d
Cir. 2010).
The rule of collateral estoppel is “not to be applied with the hypertechnical and
archaic approach of a 19th century pleading book, but with realism and rationality.”
Ashe, 397 U.S. at 444. We “examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter, and conclude whether
a rational jury could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.” Id. (citation omitted). “The inquiry
‘must be set in a practical frame and viewed with an eye to all the circumstances of the
proceedings.’” Id. (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).
9 Within this framework, the Court must consider (1) what issue, if any, the first
jury necessarily decided in Tapper’s favor, and (2) whether the Commonwealth was
required to prevail on that issue during Tapper’s second trial to secure a conviction.
Currier, 138 S. Ct. at 2150.
B. Tapper’s First Trial
We agree with Tapper that the first jury necessarily decided that he was not the
shooter based on three factors: the Commonwealth’s framing of the case and the evidence
proffered; Tapper’s counsel’s theories of the case; and the trial court’s answers to
questions from the jury.
The Commonwealth opened the trial by describing it as “a case of robbery turned
to gun violence” and “a case of senseless violence where this defendant, Ian Tapper, shot
another young man multiple times in the chest, in the wrist, in the leg.” JA108. Nearly
all of the testimony the Commonwealth elicited and the physical evidence it introduced
was focused on the issue of whether Tapper was the shooter. For example, the
Commonwealth secured testimony that Roberts saw and identified Tapper seconds before
he was shot and introduced ballistics evidence to establish that Roberts was shot with a
9mm handgun. The Commonwealth also introduced a statement by Karl Rone that
Tapper had access to a 9-millimeter handgun. In closing, the Commonwealth reiterated
that “this case was a robbery turned to gun violence. One man shooting another young
man multiple times in the chest and in the leg, and all of the evidence that you’ve heard,
and believe me, it’s there beyond a reasonable doubt, is that this defendant was the
shooter.” JA167.
10 Throughout the first trial, Tapper’s counsel attempted to develop two theories that
focused on the issue of whether Tapper was the shooter. First, defense counsel attempted
to undermine Roberts’s testimony that there was no one else present outside of the
restaurant at the time he was shot. Second, Tapper’s counsel attempted to develop the
theory that the police failed to collect Roberts’s clothing and never tested it to see if
Roberts was shot from close range. These two themes came together during defense
counsel’s closing argument, when he argued that someone else other than Tapper could
have shot Roberts as a way of coming to Tapper’s defense when the larger Roberts began
striking Tapper.
The trial court’s response to the jury’s questions2 further confirms that the jury
decided that Tapper was not the shooter. The trial court stated:
[T]here’s no question of fact that [Roberts] did, in fact, suffer serious bodily injury as that is defined in the law. . . . [T]he remaining questions as to each the robbery and the aggravated assault is did the defendant, beyond a reasonable doubt, cause that injury in the course of committing an aggravated assault and in the course of committing a robbery.
To find the accused guilty of aggravated assault the following elements have to be proven: First, that the defendant caused serious bodily injury. Half of that – I’ve instructed you already – serious bodily injury was, in fact, caused. The question remains, as to that element, did the defendant cause the serious bodily injury.
Second, if he did cause the serious bodily injury, was he acting intentionally, knowingly, or recklessly under circumstances manifesting an extreme indifference to the value of human life?
2 The jury asked: “To find [the] defendant guilty of [aggravated] assault, do we have to believe he was the shooter? In other words, [aggravated] assault charge encompasses the shooting, [and] the robbery does not, correct?” JA079. 11 JA184–85. Because the trial court instructed the jury that there was no question of fact
regarding whether Tapper suffered serious bodily injury, the jury only had to consider
whether the evidence was sufficient to find beyond a reasonable doubt (1) that Tapper
caused Roberts’s serious bodily injury and (2) that Tapper caused that injury with the
requisite mens rea.
The Commonwealth argues that the “jury could have rationally concluded that
Tapper shot the victim but lacked the requisite mental state.” Appellee’s Br. 22. In
support of this argument, the Commonwealth points to a potential self-defense argument
and the trial court’s confusing instructions regarding the mens rea requirements. These
arguments are unconvincing because it was the Commonwealth that introduced the size
disparity between Tapper and Roberts and it did not do so to support a potential self-
defense defense for Tapper.
Moreover, there is a difference between the introduction of facts that “raised the
possibility of self-defense,” Appellee’s Br. 22, and the defense actually disputing the
issue. Under Ashe, the Court considers the latter, not the former. See Ashe, 397 U.S. at
444 n.9. The trial court’s muddled instructions regarding the required mental state might
have been relevant to our analysis if Tapper’s counsel had actually put Tapper’s mental
state in dispute. Tapper’s counsel, however, did not dispute Tapper’s mental state.
Disputing Tapper’s mental state would have been wholly inconsistent with the defense
theory that Tapper was not the shooter.
12 As a result of the trial court’s instruction, the only disputed issue the jury had to
resolve on the aggravated assault charge was whether the evidence was sufficient to
establish beyond a reasonable doubt that Tapper caused Roberts’s gunshot wounds; i.e.,
was Tapper the shooter. The jury’s not guilty verdict on that issue reflects that the jury
decided that Tapper was not the shooter.3
C. Tapper’s Second Trial
To succeed on his double jeopardy claim, Tapper must establish that to secure a
conviction on the robbery charge at the second trial, the Commonwealth had to prevail on
the issue of the whether or not he was the shooter. See Ashe, 397 U.S. at 446. Tapper
cannot meet this burden.
The trial court’s jury instructions on the robbery charge were clear and devoid of
the potential confusion attending the overlapping elements at issue during Tapper’s first
trial. The trial court instructed the second jury that for it to find Tapper guilty, the
Commonwealth had to prove beyond a reasonable doubt that Tapper “intentionally put
the victim in fear of immediate serious bodily injury; and . . . did this during the course of
committing a theft.” JA289. Thus, unlike the first jury, the second jury was not asked to
consider whether Tapper shot Roberts.
3 Tapper also contends that when acquitting Tapper on the PIC charge, “the jury necessarily decided that . . . Tapper did not possess a gun with the intent to use it to commit aggravated assault or robbery.” Appellant’s Br. 29. The record as to what the jury decided in relation to the PIC charge is less clear than on the aggravated assault charge. The trial court did not narrow the issues for the jury as it did with the aggravated assault charge. Tapper’s defense did not dispute whether Tapper possessed a weapon or had the requisite intent to use it to commit aggravated assault or robbery. Instead, the defense disputed whether Tapper was the shooter. 13 Tapper contends that the Commonwealth relied on the same Tapper-was-the-
shooter theory during the second trial and never “once argued that . . . Tapper put . . .
Roberts in fear of serious bodily injury in any way.” Appellant’s Br. 30–31. Per Tapper,
the issue of whether he was the shooter was the “ultimate issue of fact at both trials,” and
a retrial on the same theory violated the Double Jeopardy Clause. Appellant’s Br. 32.
Tapper’s argument does not accord with the evidence presented during the second
trial. The Commonwealth presented a substantial amount of evidence to support a
finding that Tapper placed Roberts in fear of immediate serious bodily injury separate
and apart from the shooting. This evidence included the time of night; Tapper’s demand
for money; Tapper’s approaching Roberts from behind, twice; Tapper’s grabbing of the
back of Roberts’s shirt; and Roberts’s reaction to Tapper—a nearly immediate resort to
violence—from which the jury could infer that Roberts was in fear of immediate serious
bodily injury.
Notwithstanding the Commonwealth opening the second trial with the same
description it used to open the first trial—a “robbery turned to gun violence”—the issue
of whether Tapper threatened Roberts with immediate serious bodily injury was not
“inextricable” from the issue of whether Tapper was the shooter. JA209; Appellant’s Br.
32. In the context of the second trial, where the jury only had to determine whether there
was sufficient evidence for a robbery conviction, this framing suggests that one of the
14 Commonwealth’s theories may have been that the robbery was completed in the seconds
prior to the shooting.4
The evidence presented during the second trial was sufficient to sustain a
conviction for robbery absent evidence of the shooting. See, e.g., Commonwealth v.
Leatherbury, 473 A.2d 1040, 1042–43 (Pa. Super. Ct. 1984) (affirming convictions for
robbery and assault (which required a threat of “imminent serious bodily injury”) when
the defendant and another assailant approached an elderly man walking alone at 1:15
a.m., grabbed him by both arms, and demanded money and his wallet (emphasis added));
Commonwealth v. Mays, 375 A.2d 116, 117–18. (Pa. Super. Ct. 1977) (affirming a
robbery conviction where the complainant’s long-time acquaintance followed her into a
stairwell, stuck an unidentified object into her side, and declared that it was a “stickup”).
In sum, the ultimate issue decided by the first jury—that Tapper was not the
shooter—was not essential to Tapper’s conviction for robbery during the second trial. As
a result, Tapper’s second trial was not a violation of the Double Jeopardy Clause.5 See
Ashe, 397 U.S. at 446; see also Currier, 138 S. Ct. at 2150.
4 Tapper highlights the fact that during closing arguments, the Commonwealth argued that “[r]obbery is simply in the course of committing a theft inflicting serious bodily injury on another person. It encompasses a shooting.” JA279. This language is insufficient to convince us that the second jury necessarily considered whether Tapper was the shooter in light of the Commonwealth also arguing that the robbery and shooting were separate. Also, the jury instructions made clear that one of the relevant questions was whether Tapper put Roberts in fear of serious bodily injury, not whether Tapper caused serious bodily injury. 5 On reply, Tapper argues that the Commonwealth was barred from introducing evidence and advancing arguments regarding Tapper being the shooter. Despite raising this argument before the District Court, Tapper did not raise this argument in his opening 15 * * *
The Superior Court did not consider the entire record and focused on the
differences between the elements of aggravated assault and robbery. This approach
ignored the requirements of Ashe and was an incorrect application of federal law. See
Ashe, 397 U.S. at 444 (requiring courts to “examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other relevant matter”).
Nevertheless, the Superior Court’s application of federal law was not unreasonable
because the same outcome, a denial of the relief Tapper seeks, is justified under Ashe.
See Werts, 228 F.3d at 197.
IV. Conclusion
For the reasons set forth above, we will affirm the District Court’s order.
brief before this Court. This argument, accordingly, is forfeited. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (holding that arguments not developed in an appellant’s opening brief are forfeited). 16