Lesko v. Owens

881 F.2d 44, 1989 WL 82352

• Court: Court of Appeals for the Third Circuit
• Decided: July 27, 1989
• Docket: No. 88-3333
• Status: Published

Opinions

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Commonwealth of Pennsylvania appeals the district court’s grant of a writ of habeas corpus. The question presented is whether the introduction of “other crimes” testimony deprived petitioner John Lesko of his Fourteenth Amendment right to a fair trial. We will reverse the judgment of the district court and remand for determination of other claims raised by petitioner.

I.

In the early hours of January 3, 1980, John Lesko, Michael Travaglia and Richard Rutherford were cruising the outskirts of the city of Pittsburgh in a stolen sports car. The trio drove past police officer Leonard Miller, sitting in his patrol car parked at the side of the road outside the Stop-and-Go convenience store. Travaglia, the driver of the car, stated that he “wanted to have some fun with this cop.” Tra-vaglia raced past the officer’s car beeping his horn, but no pursuit followed. Travag-lia turned the car around, again sped past the patrol car, and again failed to elicit a response. The third time Travaglia sped past, Officer Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to “lay down in the back, because it might turn into a shooting gallery.”

A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal.

The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia’s instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm.

After Travaglia took the driver’s seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Les-ko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls’s belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Les-ko dragged Nicholls down to the lake and rolled him into the water, where he disappeared.

The three men drove to Travaglia’s father’s house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Les-ko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father’s house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the trunk of the car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford “had six shots to get out.” Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller.

After the Miller shooting, Lesko and Tra-vaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, “I shot a cop.” Lesko added, “I wanted to.” Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found Montgomery with that same gun later that evening, Montgomery told the police how he had gotten the gun, and that it had been used to shoot a policeman. Lesko and Tra-vaglia were arrested that night. Before surrendering, Lesko pointed a gun at the police.

After receiving Miranda warnings, Les-ko and Travaglia each gave statements admitting involvement in the killing of Officer Miller. Lesko told the police that he and Travaglia had instigated the car chase with Officer Miller, “So he’d be chasing us ... and the car was fast and that — we’d lose him and could go and knock off the Stop-N-Go.” In contrast, Travaglia told the police that he was “playing around with [Officer Miller], trying to aggravate him, and I figured he couldn’t chase me across county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn’t stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and the shot discharged.” Lesko and Travaglia also admitted killing William Nicholls. Additionally, they both implicated themselves in two other shooting murders — that of Peter Levato and Marlene Sue Newcomer — committed within the last three days.

In January, 1981, Travaglia and Lesko were tried jointly for the Miller homicide. There had been two changes in venue and a change in venire. Although the trial was held in Westmoreland County, Western Pennsylvania, the jury was selected in Berks County, located in the eastern part of the state. By that time, Travaglia and Lesko had already pled guilty to second degree murder in Indiana County for the Nicholls homicide. For the Miller shooting, both men were charged with first degree murder, Lesko as an accomplice to the principal Travaglia, and for criminal conspiracy to commit murder. They were both convicted of first degree murder and sentenced to death.

At trial, Lesko and Travaglia’s sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill. Lesko’s counsel argued principally that his client was at most guilty of felony-murder.¹ He argued that in instigating the police chase, defendants planned first to divert the officer from the Stop- and-Go store, and later return to rob the establishment. Therefore, Lesko’s lawyer urged, the killing was not pre-meditated, but was the unintended result of a botched robbery attempt. Travaglia’s lawyer, meanwhile, emphasized that pulling the trigger had been accidental, a result of the hammer of the gun having slipped as Tra-vaglia aimed at the officer.² Neither defendant testified at the guilt phase of the trial. However, statements they made in their taped confessions to the police, which the Commonwealth introduced into evidence, were relied on by defense counsel in support of their respective defense theories.

Rutherford was the Commonwealth’s principal witness at trial. Rutherford testified about the Miller homicide³ and the abduction and killing of Nicholls. Both Lesko and Travaglia objected to Rutherford’s testimony of the Nicholls murder. Initially, both defendants moved to exclude all reference to the Nicholls murder, contending that its sole purpose was to demonstrate defendants’ bad character and propensity to commit similar crimes.

The trial judge permitted Rutherford’s testimony to prove motive and state of mind. He stated that he was admitting the evidence because it was probative of the Commonwealth’s theory that the officer was not killed as a result of an accident, but was killed because he had approached perpetrators of theft and murder in possession of incriminating evidence, namely, Nic-holls’ stolen car and wallet, and the gun used to shoot Nicholls in the arm when he was first abducted. Both defendants thereafter moved to limit Rutherford’s testimony on the Nicholls’ murder to establishing only that the car was stolen, Nic-holls was murdered, and they possessed items linking them to these prior crimes when Officer Miller approached the car. The trial judge denied the motion, ruling that the details of the Nicholls murder were relevant to petitioner’s state of mind. The court explained that the severity of the Nicholls murder, and its temporal proximity, made it more likely than not that the defendants would attempt to avoid apprehension at any cost, going so far as to murder a police officer.

After determining that the evidence was admissible to prove motive or intent, the trial judge balanced the testimony’s probative value against its potential for prejudice, as Pennsylvania law requires. He concluded that the former outweighed the latter, as the testimony reduced the possibility that the killing of Miller was done without intent, or by accident, and could prove essential in establishing the degree of murder. He therefore allowed the jury to hear Rutherford’s full account of the Nicholls homicide.

Defense counsel did not request an immediate limiting instruction to the jury. During the jury charge, the judge instructed the jury that they were to use Rutherford’s testimony only for the limited purpose of “tending to show [a] motive for the killing [of Officer Miller] ... and [thereby] ... rebutting ... the allegation that the shooting was accidental.” In addition, the trial judge issued the following warning:

You must not regard this evidence [of the Nicholls murder] as showing that the defendants are persons of bad character or criminal tendencies which [sic] you might be inclined to infer guilt. If you find the defendants or either of them guilty, it must be because you are convinced by the evidence that he or they committed the crimes charged and not because you believe he or they are wicked or have committed other offenses.

As we have stated, the jury found Lesko and Travaglia guilty of murder in the first degree and of criminal conspiracy to commit murder. At the sentencing phase it returned a verdict of death for both defendants.⁴ Lesko appealed his conviction and death sentence directly to the Pennsylvania Supreme Court.⁵ That court rejected all sixteen issues raised by petitioner and his co-defendant on appeal, including the argument that the death sentences were disproportionate and excessive. The court affirmed the convictions and death sentences. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (Pa.1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (Pa.1983). Thereafter, the United States Supreme Court denied Lesko’s writ of certiorari. Lesko v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984), reh’g denied, 468 U.S. 1226, 105 S.Ct. 27, 82 L.Ed.2d 920 (1984). Lesko’s petition under Pennsylvania’s Post Conviction Hearing Act, 42 Pa. Cons Stat. Ann. §§ 9541-9551 (Purdon 1982), was denied by the Common Pleas Court and also on appeal. Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (Pa.1985). In the post-conviction appeal, the Pennsylvania Supreme Court again rejected Lesko’s argument that the death sentence was disproportionate. Id. at 78-79, 501 A.2d at 206. Lesko’s request for rehearing before the Pennsylvania Supreme Court was denied. Commonwealth v. Lesko, 509 Pa. 625, 506 A.2d 897 (Pa.1986). Thereafter, the United States Supreme Court denied Lesko’s second petition for writ of certiorari. Pennsylvania v. Lesko, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987).

While Lesko’s petition for certiorari was pending, he filed a petition for writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. § 2254 (1982), contending that errors undermined his trial, conviction, and sentence.⁶ Finding that Lesko had exhausted his state court remedies, the district court determined that his due process rights were violated and granted relief. Lesko v. Jeffes, 689 F.Supp. 508, 509 (W.D.Pa.1988).

The district court found that the admission of Rutherford’s testimony recounting the Nicholls killing was error of constitutional magnitude. The court ruled that while it would have been permissible to admit evidence that Nicholls had been killed, that his car had been stolen, and that the car and other property belonging to Nicholls was in the possession of the defendants, the probative value of any further details was “non-existent” and the potential for prejudice severe. Id. at 515. Noting that no cautionary instruction prefaced the Rutherford testimony, the district court found that the limiting instruction in the judge’s jury charge “could not have remedied the prejudice created by the admission of the evidence.” Id. The district court then subjected the constitutional violation it had found to harmless-error analysis.⁷ The district court stated that it could not find beyond a reasonable doubt that the details of the Nicholls’ murder played no role in the jury’s deliberations, specifically, concerning the degree of guilt. Id. at 516. As a final matter, the district court concluded that even assuming arguendo the inevitability of a conviction of first degree murder, it could not find beyond a reasonable doubt that the details of the Nicholls murder did not influence the jury during the penalty phase to return a verdict of death. Id.

II.

A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. §§ 2254(b) & (c) (1982); Ross v. Petsock, 868 F.2d 639 (3d Cir.1989). Though not a jurisdictional requirement, the exhaustion rule is more than a mere formality; it serves the interest of comity between the federal and state systems. Castille v. Peoples, — U.S. -, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989); Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir.1986). To demonstrate compliance with the exhaustion requirement, a habeas applicant must show that the claim included in the federal petition was fairly presented to the state courts. Castille v. Peoples, 109 S.Ct. at 1060; Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Id. at 278, 92 S.Ct. at 513. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts. Ross v. Petsock, 868 F.2d at 641; Gibson v. Scheidemantel, 805 F.2d at 139.

We conclude that petitioner has exhausted his state court remedies. On direct appeal to the Supreme Court of Pennsylvania, petitioner argued that the trial court had erred in admitting Rutherford’s testimony because its probative value was outweighed by its prejudicial effect. The Pennsylvania Supreme Court, after finding that the details of the Nicholls homicide, as developed by Rutherford’s testimony, were relevant to prove defendants’ motive and state of mind, held that “while the possibility of prejudice existed, it was heavily outweighed by the probative value of Rutherford’s testimony." Travaglia, 502 Pa. at 492, 467 A.2d at 297. Lesko’s federal petition for writ of habeas corpus alleges that the probative value of Rutherford’s testimony was outweighed by its prejudicial effect, and therefore its admission was erroneous. The legal theory (the probative value of evidence was outweighed by its prejudicial effect) and the facts (the substance of Rutherford’s testimony) on which Lesko’s federal claim rests, had been submitted to the state courts. Thus, the issue decided by the Pennsylvania Supreme Court was the substantial equivalent of Lesko’s fourteenth amendment claim. See McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir.1987) (petitioner’s claim that trial judge improperly required him to act as his own counsel was substantial equivalent of his sixth amendment claim).

III.

Our review of the district court decision to grant the writ is plenary. We derive this standard from the function of a reviewing court in a habeas corpus proceeding. Federal courts “do not sit to retry state cases de novo but, rather, to review for violations of federal constitutional standards.” Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1 (1972); see also United States ex rel. Abdus-Sabur v. Cuyler, 653 F.2d 828, 833-34 (3d Cir.) (in banc), cert. denied, 454 U.S. 1088, 102 S.Ct. 650, 70 L.Ed.2d 625 (1981); Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980). Accordingly, petitioner claims that the admission of inflammatory evidence violated his fourteenth amendment right to a fair trial. The district court found such a violation. Thus, in examining the district court opinion, we evaluate whether the district court correctly found that admission of evidence amounted to error of constitutional proportion. Whether an error reaches the magnitude of a constitutional violation is an issue of law, subject to plenary review. See Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir.1983).

In arguing that the district court’s decision should receive the “clearly erroneous” standard of review, petitioner misunderstands our holdings in Sullivan, 723 F.2d 1077, and Krasnov v. Dinan, 465 F.2d 1298 (3d Cir.1972). Although in Sullivan we subjected a portion of a district court decision in a habeas corpus proceeding to the “clearly erroneous” standard of review, we did so because the district court had ordered an evidentiary hearing, and made subsequent factual findings as to whether there was an actual conflict of interest in representation of a criminal defendant. Sullivan, 723 F.2d at 1082, 1083. The standard of review enunciated in Krasnov, meanwhile, is completely inapposite; Kras-nov concerns a district court’s finding of facts as to the existence of diversity jurisdiction.⁸

IV.

The Commonwealth initially argues that in finding that the probative value of Rutherford’s testimony was “non-existent,” the district court “exceeded its authority in a habeas proceeding.” From the well-established principle that states have broad discretion to develop rules of evidence they will apply in their criminal proceedings, the Commonwealth contends that because the Pennsylvania Supreme Court has already held Rutherford’s testimony relevant to prove motive and intent, the district court was “bound to accept the determination of relevance made under state laws and apply the due process balance to determine if that relevance was outweighed by the prejudicial impact of the statement.”

We do not believe that the district court exceeded the scope of its authority in a habeas corpus proceeding. Clearly, at the heart of petitioner’s complaint is a challenge to a state court evidentiary ruling. Yet this court, along with other federal courts of appeals, has recognized that the erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation. See, e.g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 539-40 (3d Cir.1970); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir.1988), cert. denied — U.S. -, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989); Walker v. Engle, 703 F.2d 959, 968 (6th Cir.), cert. denied sub nom. Marshall v. Walker, 464 U.S. 951, 104 S.Ct. 367, 78 L.Ed.2d 327 (1983); Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam); Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir.1981). Accordingly, a reviewing court must examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant’s right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony’s probative worth to assess the constitutional implications of the state court’s ruling. See 689 F.Supp. at 513.

We point out, however, that just as “[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice,’ ” United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)), cert. denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), not every error in bal ancing probative value against prejudicial effect “amount[s] to error which rises to constitutional dimensions.” See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980), we identified at what point such an error in balancing might be cognizable in a habeas proceeding:

When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then use of such evidence by a state may rise to the posture of fundamental fairness and due process of law.

623 F.2d at 313 (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir.1974)). Accord Osbourne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (per curiam) (error in balancing must be of “such magnitude” as to deny fundamental fairness); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir.) (when probative value of evidence is “greatly outweighed” by the prejudice to the accused, then use of such evidence may “rise to the posture of the denial of fundamental due process”); Thompson v. Oklahoma, — U.S. -, 108 S.Ct. 2687, 2722, 101 L.Ed.2d 702 (1988) (Scalia, J., dissenting) (addressing issue not reached by majority opinion). Therefore, only if the inflammatory nature of Rutherford’s testimony so plainly exceeds its evidentiary worth, will we find that a constitutional error has been made.

Additionally, we note that in evaluating the decisions of our own federal trial courts (over which we have supervisory power and therefore are obligated to correct erroneous interpretations of the Federal Rules of Evidence), we have cautioned that “if judicial self-restraint is ever desirable, it is when a Rule 403 analysis [balancing probative and prejudicial effect] of a trial court is reviewed by an appellate tribunal.” United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.), cert. denied, — U.S. -, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988). The reason for this deference is apparent:

Like any balancing test, the ... standard is inexact, requiring sensitivity on the part of the trial court to the subtleties of the particular situation, and considerable deference to the hands-on judgment of the trial judge.

United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986).

In sum, our scope of review in this case is limited. We inquire whether the evidence’s probative value is so conspicuously outweighed by its inflammatory content, so as to violate a defendant’s constitutional right to a fair trial. Moreover, we will accord the state trial judge the deference we accord our federal trial judges, who are in a unique position to assess the relative probative value and inflammatory effect of proffered testimony.

V.

We now turn to petitioner’s claims of unfair prejudice. For clarity, we note what is not at issue here. In his habeas corpus petition, Lesko claims that any mention of the Nicholls murder was inadmissible, as irrelevant and unduly prejudicial. The district court, however, rejected this argument, ruling that,

The killing of Officer Miller ... could be seen to be consistent with an attempt to avoid apprehension. Had the trial court limited the testimony of Rutherford, as requested by petitioner’s counsel, excluding the details of the torture-murder of Nichols [sic], the Court would be unwilling to conclude that a fair trial had been denied.

689 F.Supp. at 515. Thus, the issue in this appeal is whether Rutherford’s account of the Nicholls incident was relevant to either motive or intent, and whether its prejudicial effect so conspicuously exceeds its evidentiary worth as to violate the federal constitution.

Under Pennsylvania law, while evidence of other unrelated criminal conduct of the accused is generally inadmissible to prove the commission of the crime, such evidence is admissible where relevant to prove: (1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the perpetrator, or (5) the absence of mistake or accident. Commonwealth v. Styles, 494 Pa. 524, 525-26, 431 A.2d 978, 980 (Pa.1981). In addition, “other crimes” evidence, though relevant, must be excluded if the probative value is outweighed by the danger that the facts offered may unduly arouse the jury’s prejudice or hostility. Commonwealth v. Travaglia, 502 Pa. at 492, 467 A.2d at 297. Applying this law to Rutherford’s testimony, the Pennsylvania Supreme Court held that “the details of the incidents which occurred just a short time prior to Officer Miller’s shooting were developed to show that the Appellants ... were in a stolen car, with the victim Nic-holls’ personal belongings and two firearms which could connect them to the prior wrongdoing,” and therefore introduced to show motive and intent. Id. at 493, 467 A.2d at 297. In addition, the court held that their probative value outweighed their prejudicial effect. Id. at 492, 467 A.2d at 297.

Each court that has examined the facts of this case, including the district court, has held that evidence of the occurrence of the Nicholls killing was relevant to proving intent. As in all homicide cases, the jury’s perception of state of mind of Lesko and Travaglia at the time of killing determined the degree of murder. To establish Les-ko’s accomplice culpability for first degree murder, the Commonwealth was required to prove that petitioner, with the intent of promoting or facilitating the commission of first degree murder, aided, agreed, or attempted to aid Travaglia in planning or committing the murder of Officer Miller.⁹ In addition, the defenses raised by Lesko (felony murder rather than premeditated homicide) and Travaglia (accidental rather than intentional shooting), compelled the Commonwealth to introduce evidence demonstrating that Lesko and Travaglia intended to kill Officer Miller, and that they had motives to do so. It is generally recognized that evidence of motive may be probative of specific intent, particularly for crimes that are allegedly motivated by the desire to interfere with law enforcement. See E. Cleary, McCormick on Evidence § 190 at 562-63 & n. 35 (3d ed.1984). Thus, one means of proving Lesko’s intent to promote or facilitate Travaglia’s act of murder, is to establish that Lesko, like Travaglia, had a motive to kill. In sum, proof of Lesko’s state of mind, and, consequently, any motive he might have had to kill Officer Miller, were genuinely at issue in the case.

We find that just as the occurrence of the Nicholls murder was relevant, the Nicholls incident as a whole was relevant to a central issue in the case — the motive and state of mind of Lesko and Travaglia. As we have discussed, the Commonwealth sought to demonstrate that both the trigger-man Travaglia and passenger Lesko, if approached by a law enforcement officer, intended to go to any length to hide the facts of their prior crime and, moreover, had motive to take such a drastic approach. Where the motive of a killing is interference with law enforcement — in this case the most extreme example, killing a policeman — the severity and circumstances of the crime being hidden is highly probative. If, for example, the Nicholls killing had been accidental, or in self-defense, Lesko arguably would have been less likely to take such extreme measures to avoid apprehension. On the other hand, apprehension and prosecution for a murder as deliberate as the Nicholls homicide, could have dire consequences in the event of a conviction. Furthermore, Rutherford’s account of the events leading to the Miller homicide conveys the temporal proximity of the Nicholls homicide, which reinforces the Commonwealth’s theory that the Nicholls murder figured prominently in defendants’ minds as Officer Miller approached the stolen sports car.¹⁰

As we have already suggested, Rutherford’s testimony is also probative to rebut Lesko’s defense regarding his state of mind during the Miller incident. First, by stressing that the incident was best characterized as “felony murder,” Lesko was essentially urging the jury to believe that while he admittedly agreed to instigate the car chase, he had no knowledge from the surrounding circumstances that the chase would culminate in murder, and played no role in promoting such an outcome. During his summation, Lesko’s counsel argued that Lesko’s remark that “this place might turn into a shooting gallery” was “the statement of any would-be robber in a car driven by a man with a gun....” In other words, Lesko was asserting that he had participated in a crime — but that crime was attempted burglary or robbery, not first degree murder. To view the Miller incident in isolation would render Lesko’s claim plausible. On the other hand, Les-ko’s assertion that in the moments before the Miller killing, he had promoted only the commission of robbery and burglary (but not murder) appears less credible if one learns that just a few hours before, both he and Travaglia had deliberately and fully participated in the Nicholls homicide. In this context, this evidence was probative to show that in participating in the instigation of the police chase and through his talk about a “shooting gallery,” Lesko shared Travaglia’s intent to open fire and encouraged Travaglia to do so.¹¹

In a second and related aspect of his defense, Lesko portrayed himself as a passive observer of Travaglia’s allegedly unilateral decision to open fire on Officer Miller. Lesko’s lawyer argued in summation that “John Lesko was sitting in the car as Ricky Rutherford was_ He was a passenger. He didn’t shoot Officer Miller. Ricky Rutherford didn’t shoot Officer Miller. Mike Travaglia shot Officer Miller.” Similarly, during summation, Lesko’s lawyer read from Lesko’s statement to the police, in which Lesko explained that, “[the officer] put on his lights and started chasing us. The police officer went down, and that there. I heard six shots come through the window beside me, and when I looked up, it was all busted out....” Thus, the in limine motion offered by defendants was sparse and, from an evidentiary point of view, sterile. The motion proposed to stipulate only that Nicholls had been killed and that Lesko possessed items tying him to the crime, including a gun, a wallet, and a stolen car. The jury would not have learned that Lesko had willingly and fully participated in all of the evening’s activities, which included a prior homicide.

In summary, the central issue in the Commonwealth’s case against Lesko was whether he deliberately supported Travag-lia in a premeditated killing of Miller or whether he was guilty only of participating in an abortive attempt at robbery. Members of the jury could not have determined what was in Lesko’s mind based solely on the events immediately preceding Miller’s death. The jury could only have fairly evaluated the Commonwealth’s theory regarding Lesko’s state of mind by hearing evidence tending to show that Travaglia and Lesko had jointly embarked that evening on a crime spree, that they had already committed a homicide likely to command the death penalty, and that they had in their possession powerful evidence of their guilt of that homicide. Moreover, to be in a position to evaluate Lesko’s state of mind during the critical moments during the Miller encounter, the jury needed to hear sufficient details about these matters to be able to appreciate the nature of the evening’s joint undertaking, the relationship and mood of the participants, and the extent of the criminal exposure of those participants in the event of their apprehension by Miller. If one views Rutherford’s testimony as furnishing the overall context in which Travaglia and Lesko acted in the few minutes preceding Miller’s death, then this testimony plays a critical role in enabling the jury to evaluate the Commonwealth’s proposed scenario as compared with the defendants’ alternative explanation of events.

Having determined that the evidence was probative as to state of mind, we now consider its potential to create unfair prejudice. Evidence may be “unfairly” prejudicial if it “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.” United States v. Guerrero, 803 F.2d at 785. The acts committed by petitioner are shocking and therefore capable of eliciting an emotional response from the jury. Nevertheless, given the probative value of Rutherford’s testimony as to Lesko’s motive to kill Officer Miller, and to refute his self-portrayal as a passive observer, we do not find that the prejudicial impact outweighs its probative value — no less that it does so in a manner so conspicuously as to rise to the level of a constitutional violation. In reaching this conclusion, we are mindful not only that prejudice must be great enough to reach the magnitude of a constitutional violation, but also that the trial judge, rather than the reviewing court, is in the best position to assess the impact of that prejudice.

In arguing for the exclusion of the testimony adjudged relevant by the trial court, petitioner cites various cases in support of the proposition that “due process can be denied where the manner of introduction of relevant evidence is prejudicial.” We find these cases to be inapposite. In United States ex rel. Bibbs v. Twomey, 506 F.2d 1220 (7th Cir.1974), a case on which Lesko relies, the prosecutor introduced into evidence four prior crimes committed by defendant to impeach the credibility of the defendant on cross-examination. This amounted to ten pages of testimony that had no bearing on any element of the crime with which the accused was charged. Understandably, the reviewing court found that the prosecutor’s recitation of the four prior crimes constituted “undue repetition, excessive concentration, and over-dramatization.” Similarly, in United States v. Dow, 457 F.2d 246 (7th Cir.1972), also relied o,n by petitioner, cross examination of defendant focused excessively on his prior criminal record; the prosecutor slowly elicited the details of each of the defendants prior convictions, which included prison escape, auto theft, robbery and assault, and which bore only on the issue of defendant’s credibility. In Lesko’s case, we find no such excessive concentration or embellishment. Rutherford merely narrated the series of events; the record reveals no repetition, embellishment, or dramatics. Likewise, the prosecutor in summation referred only briefly to the Nicholls murder, without mentioning a single detail. Further, there was no mention of the details of the prior murder during the penalty phase of trial. Therefore, because we do not find prejudicial the “manner” of introduction of the Nicholls murder, nor do we see prosecutorial misconduct, we regard the cases Lesko cites as inapposite.

Finally, any potential for unfair prejudice by the admission of this evidence was limited by the clear instructions the jury received in the final charge. When testimony is offered for a specific, proper purpose, limiting instructions have the ability to forestall its possible prejudicial effects. As the Supreme Court has stated, “limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects.” Spencer v. Texas, 385 U.S. 554, 562-63, 87 S.Ct. 648, 653, 17 L.Ed.2d 606 (1967) (citation omitted). The instruction given here was clear and directly on point. The jury was told that they were to convict defendants only “because you are convinced by the evidence that he or they committed the crimes charged and not because you believe he or they are wicked or committed other offenses.”

It is not argued, moreover, that the jury instructions given here were deficient. Rather, the district court held that they were ineffective because they were given at the conclusion of the trial, about a week after Rutherford’s testimony. This omission, however, is attributable to the defense counsel’s failure to request an immediate cautionary instruction. Consequently, were Lesko himself to complain of the lack of a cautionary instruction, his burden of proof would be heavy. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (heavy burden in collateral attack to demonstrate that jury instruction, which was never requested, “so fatally infected the entire trial that the resulting conviction violates dues process”) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Although it would have been desirable for the trial judge to have immediately given a cautionary instruction regarding the purpose for which this evidence was admitted, we do not believe that the failure to do so — by itself — so fatally infected the trial as to deny Lesko due process of law.

VI.

We now turn to the impact of Rutherford’s testimony on the jury’s verdict on the imposition of sentence. At the sentencing phase, the Commonwealth sought to establish two “aggravating circumstances” under the Pennsylvania sentencing code: first, the victim was a police officer, 42 Pa.Cons.Stat.Ann. § 9711(d)(1), and second, Lesko had been convicted of a crime for which death or life imprisonment was imposable, 42 Pa.Con.Stat.Ann. § 9711(d)(10).¹² As proof of the latter aggravating circumstance, the jury was informed at the sentencing phase that Lesko had pled guilty to second degree murder, that pleading guilty constituted a “conviction” under the Pennsylvania statute,¹³ and that he automatically received a life sentence for this conviction. The Commonwealth did not mention the details of the Nicholls murder and the trial judge did not instruct the jury to consider them. Nevertheless, Lesko claims that the sentencing phase of his trial was constitutionally defective because it was conducted with the jury knowing not merely that a prior murder had occurred, but knowing additionally the circumstances surrounding the Nicholls homicide. Stated otherwise, Lesko argues that the sentencing verdict, although ostensibly resting on the “aggravating circumstances” enumerated in the statute, was tainted with evidence not properly before the jury. This argument does not withstand scrutiny. As both a statutory and constitutional matter, the other offenses perpetrated in conjunction with the Nic-holls murder were properly before the jury during the penalty phase.

Pennsylvania’s sentencing scheme limits the jury’s consideration of “aggravating circumstances” to those specified by statute. 42 Pa.Cons.Stat.Ann. § 9711(a)(2). Nevertheless, we believe that under § 9711(d)(10), the jury properly considered the other offenses perpetrated in conjunction with the Nicholls homicide. In Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984), the Pennsylvania Supreme Court upheld the imposition of the death penalty where the jury had learned as a statutory “aggravating circumstance” under § 9711(d)(ll) not only that the defendant had been convicted of a prior crime for which a death sentence was imposable, but also that the victim in the previous homicide was a police officer. In so holding, the court interpreted the term “convictions” in § 9711(d)(ll) to permit consideration of “the essential and necessary facts pertaining to the conviction, including the circumstances of the crimes and the sentences imposed.” 505 Pa. at 289, 479 A.2d (emphasis added).¹⁴ The Beasley court explained its decision as follows:

In this Commonwealth, sentencing has long been regarded as having at its core a function of character analysis, see Commonwealth v. Bell, [417 Pa. 291, 208 A.2d 465 (1965) ], and the central idea of the present sentencing statute is to allow a jury to take into account such relevant information, bearing upon a defendant’s character and record, as is applicable to the task of considering the enumerated aggravating circumstances. Consideration of prior “convictions” was not intended to be a meaningless and abstract ritual, but rather a process through which a jury would gain considerable insight into a defendant’s character. The nature of an offense, as ascertained through examination of the circumstances concomitant to its commission, has much bearing upon the character of a defendant, and, indeed, without reference to those facts and circumstances, consideration of “convictions” would be a hollow process, yielding far less information about a defendant’s character than is relevant.

Id.15 Thus, the bad acts committed during the Nicholls murder, as circumstances of that murder, were properly considered under § 9711(d)(10).

This conclusion is constitutionally sound. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court discussed the aggravating factors properly considered by a jury in the sentencing phase of a capital case:

Our cases indicate ... that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Id. at 878-79, 103 S.Ct. at 2743-44 (1983) (emphasis in original). This passage answers Lesko’s claim that the jury’s consideration of the circumstances of the Nicholls murder invalidates his sentencing proceeding.

As a general matter, the Zant Court clarified that to protect adequately against the arbitrary imposition of the death penalty, see id. at 874-76, 103 S.Ct. at 2741-42, the decision maker must engage in an individualized character analysis of each defendant.¹⁶ In other words, unlike in the guilt phase of trial where fairness requires that “character evidence,” though relevant to the proceeding, be excluded to ensure that the jury does not punish the accused regardless of the sufficiency of the evidence in the case, see E. Cleary, McCormick on Evidence at § 190 at 557 (3d ed. 1984); United States v. Guerrero, 803 F.2d at 785, in the penalty phase of trial, the jury necessarily focuses its attention on the character of the defendant. Applying this reasoning, we find nothing irrational or unconstitutional in the judgment of the Beasley court that knowledge of the circumstances of the prior crime, rather than merely of the conviction alone, most directly advances the goal of character assessment. As part and parcel of Lesko’s background and prior record, the events leading up to the Nicholls killing properly informed the jury’s individualized assessment of Les-ko’s character and concomitant decision on the appropriateness of the imposition of penalty.

Furthermore, the Zant decision affirmed the settled rule that the circumstances of the crime for which defendant was being sentenced were properly before the jury during the sentencing stage. In Lesko’s direct appeal, the Supreme Court of Pennsylvania held that the details of the Nic-holls murder were properly before the jury at the sentencing phase:

There may be circumstances where evidence, deemed admissible at trial because its relevance to the determination of guilt outweighs its possible prejudice, should nevertheless be excluded because it is so inflammatory that its relevance to determination of sentence would be outweighed by its potential for prejudice .... In most cases, however, the decision that the evidence is admissible for purposes of the guilt phase renders it ... admissible for the penalty phase as part of the “circumstances” to be considered by the jury.

Travaglia, 502 Pa. at 493-94, 467 A.2d at 298. We agree. As we have explained earlier, the Nicholls incident was not a “pri- or crime” unrelated to the crime for which he was being sentenced. Rather, the entire Nicholls incident furnished the context and motive for the Miller homicide. Accordingly, as the jury determined the penalty for the Miller homicide, it was relevant that the murder occurred in the course of a crime spree including, among other crimes, another cruel killing.

The relevance of the Nicholls incident to Lesko’s sentencing proceeding comes into sharper focus when compared with factors the Zant Court characterized as “constitutionally impermissible or totally irrelevant to the sentencing process,” id. at 885, 103 S.Ct. at 2747. As examples of such impermissible factors, the Court listed “the race, religion, or political affiliation of the defendant.” Id. Subsequently, in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Court found an example of considerations totally irrelevant to the sentencing proceeding, introduced in the form of a “Victim Impact Statement” (VIS), which focused on the personal characteristics of the victim and the severe emotional impact of the crime on the victim’s family. Invoking the lesson of Zant v. Stephens that the jury’s sentencing decision is properly based on the “character of the individual and the circumstances of the crime,” 482 U.S. at 502, 107 S.Ct. at 2532, the Booth Court characterized VIS evidence as irrelevant, highly inflammatory, and capable of diverting the jury’s attention away from “the defendant’s background and record, and circumstances of the crime,” id. at 505-08, 107 S.Ct. at 2534. See also South Carolina v. Gathers, — U.S. -, -, 109 S.Ct. 2207, 2210-11, 104 L.Ed.2d 876 (1989) (Eighth amendment violated where prosecutor’s closing argument at sentencing phase included lengthy reading from religious tract victim was carrying and mention of victim’s voter registration card, as such extensive focus on character of victim does not “relate directly” to circumstances of the crime). In this case, there is no claim that the consideration of the Nicholls incident introduced into the sentencing proceeding constitutionally improper criteria such as race or religion. Furthermore, unlike the VIS which distracted the jury’s concentration from the relevant evidence concerning the defendant himself, the evidence at issue here focuses directly on the defendant’s background and character, and was therefore highly relevant to the sentencing process.

Although we believe that the Nicholls incident would have been properly introduced under Pennsylvania’s sentencing statute, we note that under the Zant analysis, the constitutionality of the jury’s consideration of aggravating factors is an issue independent of state law. The Zant Court rejected the notion that a death sentence could be tainted by evidence other than that which forms the statutory justification for imposing the death sentence, noting that “the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death,” id. at 874-75, 103 S.Ct. at 2741. Later in the opinion, the Court again stated that while a defendants’s prior history of noncapital cases could not by itself provide sufficient justification for imposing the death sentence, “[njothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant’s prior criminal record in making its sentencing determination.” Id. at 888, 103 S.Ct. at 2748. Thereafter, in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), the Court held that although the state sentencing statute forbid the jury to consider defendant’s prior criminal record, this violation of state law did not violate the federal constitution. Id. at 956, 103 S.Ct. at 3428. Therefore, in assessing the severity of the aggravating circumstances, the Lesko jury could constitutionally consider the other offenses perpetrated during the Nicholls homicide, regardless of the state statutory scheme.

In addition, the limits on the jury’s consideration of nonstatutory aggravating factors suggested by Supreme Court dicta prove inapplicable to this case. There is no question that the Lesko jury found at least one statutory aggravating circumstance. See Barclay v. Florida, 463 U.S. at 966-67, 103 S.Ct. at 3433 (Stevens, J., concurring) (“a death sentence may not rest solely on nonstatutory aggravating factor”) (citing Zant v. Stephens, 462 U.S. at 876-78, 103 S.Ct. at 2742-43). In returning its sentencing verdict, the jury expressly informed the trial court that it had found two aggravating factors under the Pennsylvania sentencing statute: first, the victim was a police officer, 42 Pa.Cons.Stat.Ann. § 9711(d)(1), and second, Lesko had been convicted of a crime for which death or life imprisonment was imposable, 42 Pa. Con. Stat. Ann. § 9711(d)(10). Thus, the sentencing statute in this case indisputably served its constitutional function of circumscribing the class of persons eligible for the death penalty, see Zant v. Stephens, 462 U.S. at 878-79, 103 S.Ct. at 2743-44. Additionally, some language in the Zant opinion arguably suggests that undue emphasis on nonstatutory aggravating circumstances might form the basis of a valid constitutional attack. See id. at 888-89, 103 S.Ct. at 2748-49. As we have already noted, during the guilt phase of trial there was no embellishment or histrionics on the Nicholls incident. Similarly, neither the Commonwealth nor the trial judge mentioned the details of the Nicholls murder at the penalty phase. Consequently, Lesko cannot claim that there was particular emphasis placed on these prior offenses and surrounding circumstances.

As a final matter, we address the dissent’s suggestion that Supreme Court dicta in the plurality opinion in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), undermines our analysis. Infra, at 65. Beginning with the proposition that a jury is more likely to impose a sentence of death than a trial judge, the dissent argues that the Gregg dicta supports the conclusion that the jury could not during the sentencing phase have ignored the evidence relevant to the guilt phase, and therefore this evidence was improperly admitted. We disagree. The Gregg plurality, after recognizing that “much of the information that is relevant to the sentencing phase may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question [of guilt],” declared that a bifurcated trial is the “best answer” to this scarcely insurmountable problem. 428 U.S. at 190, 96 S.Ct. at 2933 (emphasis added). We first note that because the sentencing procedure follows the determination of guilt, a bifurcated trial could not solve this problem of spillover. Thus, total exclusion from trial presents the only answer. In Lesko’s direct appeal, the Supreme Court of Pennsylvania, while recognizing the need for balancing, stated that in most circumstances,

[w]here facts are relevant for a proper purpose at trial, defendants may not be heard to complain about the horrid character of such facts. To find otherwise would give rise to the perverse result that a capital defendant would benefit more, the more horrid the background circumstances were.

Travaglia, 502 Pa. at 493-94, 467 A.2d at 298. More importantly, the Gregg dicta rests on the principle that the evidence to be admitted at the sentencing phase was completely irrelevant on the issue of guilt. The converse of this problem appeared in South Carolina v. Gathers, — U.S. -, 109 S.Ct. 2207, 104 L.Ed.2d 876, where in the penalty phase, the prosecutor imper-missibly focused on items belonging to the victim, which were properly admitted to the guilt phase, but irrelevant to an individualized determination of defendant’s personal culpability. Id. at —, 109 S.Ct. at 2209-11. In contrast, we have found that the details of the Nicholls murder were relevant to both guilt and sentencing. Thus, we hold that their probative value, evaluated from both phases of the trial, compared with their prejudicial impact, permitted the jury to consider them at the penalty phase.

VII.

The admission into evidence of Rutherford’s account of the Nicholls murder did not violate the due process clause of the Fourteenth Amendment. The testimony was probative as to petitioner’s motive and intent; thus, absent some sort of prosecu-torial misconduct such as excessive reference or embellishment, its potential for unfair prejudice did not so conspicuously outweigh the probative value, that its mere admission denied petitioner a fair trial.

We will reverse the decision of the district court and remand for determination of the other claims petitioner raised in his petition for writ of habeas corpus.

1 . Pennsylvania law classifies felony murder as second degree murder, and thus not punishable by death. 18 Pa.Cons.Stat.Ann. § 2502(b) (Pur-don 1982).

2 . Appellee strenuously maintains in this appeal that whereas Travaglia advanced the theory that the shooting had been accidental, Lesko’s own defense to the first degree murder charge was that he was at most guilty of felony murder. Appellee Brief at 15. Assuming that Lesko has accurately portrayed the substance of his defense, this distinction does not alter our analysis. A defense based on the felony-murder scenario, like one based on an "accidental” murder theory, asserts the lack of requisite intent for first degree murder, and as we later discuss, thereby opens the door to the Commonwealth’s introduction of evidence to rebut such a claim.

3 . Rutherford’s additional testimony, including that concerning the acquisition of the gun that killed Officer Miller and certain incriminating comments petitioner made before and after the Miller shooting, are not the subject of the current appeal.

4 . Under Pennsylvania law, a conviction for first degree murder carries the sanction of either the death penalty or life imprisonment. See 42 Pa.Cons.Stat.Ann. § 9711 (Purdon 1982).

5 .Death sentences in Pennsylvania are subject to automatic appeal to the Pennsylvania Supreme Court. 42 Pa.Cons.Stat.Ann. §§ 722, 9711 (Pur-don 1982).

6 . The district court found that Lesko’s habeas corpus petition raised a substantial question as to whether an instruction that the jurors not consider sympathy for the defendant violated the Eighth Amendment. The district court stayed Lesko's execution pending resolution by the United States Supreme Court of California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), which concerned the constitutionality of an instruction very similar to the one given the Lesko jury. The Court in Brown found that the instruction in question did not violate the Eighth or Fourteenth Amendments. Id. at 541, 107 S.Ct. at 839. The district court did not, however, rule on the constitutionality of the jury instruction in Lesko’s trial.

7 . This court has held that in a collateral proceeding, where the reviewing court finds that the admission of evidence violates due process by denying defendant a fair trial, that court must then subject this constitutional error to harmless error review. See Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307, 312-13 (3d Cir.) (finding denial of due process in admission into evidence of co-conspirators plea, and remanding to district court to determine whether constitutional error was harmless), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980). We note a certain overlap in analysis here, i.e., once there is a finding of a denial of a fair trial, it is difficult to envision how such an error could be considered “harmless.’’ We also note that not every court of appeals applies harmless error analysis to this constitutional error. Compare Bisaccia, 623 F.2d at 312-13 and Dudley v. Duckworth, 854 F.2d 967 (7th Cir.1988), with (Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir.1981)), cert. denied — U.S. -, 109 S.Ct. 1655, 104 L.Ed.2d 169 (1989).

8 . At oral argument it was also suggested that the "abuse of discretion” standard — the standard accorded a district court’s balancing of prejudice and relevance pursuant to Federal Rule of Evidence 403 — might be applicable here. It is not. This deferential standard is generally accorded the trial judge who has a unique vantage point to assess possible prejudice. See United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986) (Rule 403 requires considerable deference on part of reviewing court to the "hands-on” judgment of trial judge); United States v. Long, 574 F.2d 761, 767 (3d Cir.) (trial judge, not appellate judge, in best position to assess the extent of prejudice caused a party by a piece of evidence, because appellate judge works with a "cold record,” whereas trial judge is "there in the courtroom”), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). In a habeas corpus proceeding, however, where the district court functions not as a trial court, but as an appellate court that draws legal conclusions from a cold record, the deference we accord the district court’s “evidentiary rulings” is unwarranted.

9 . Pennsylvania law defining accomplice liability provides in pertinent part:

******

(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he: ******

(ii) aids or agrees or attempts to aid such other person in planning or committing it.... 18 Pa.Cons.Stat.Ann. § 306 (Purdon 1983).

10 . We note that the trial court refused to admit testimony that the .22 caliber gun, seen on the person of Lesko, could also tie defendants to the Newcomer and Levato murders, which were committed a few days earlier. In that instance, the trial court found that the "prejudice outweighs the probative value.”

11 . We note that under Pennsylvania law, the least degree of concert or collusion is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).

12 . Former § 9711, in force when Lesko was tried, provides in pertinent part:

(d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:

(1) The victim was a ... peace officer ... killed in the performance of his duties. ******

(10) The defendant had been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable....

42 Pa.Cons.Stat.Ann. § 9711. Section 9711 was amended in 1986. See Act of July 7, 1986. P.L. No. 400, No. 87, § 1.

13 . On direct appeal of Lesko’s conviction and sentence, the Pennsylvania Supreme Court ruled that the legislature intended the term “conviction” to include a guilty plea. Commonwealth v. Travaglia, 502 Pa. at 496-97, 467 A.2d at 298-99.

14 . We do not find it significant that the Beasley decision interpreted § 971 l(d)(l 1), rather than § 9711(d)(10) which is at issue in our case, as the Beasley rationale applies equally to both sections. Additionally, in determining that the term "conviction” in § 9711(d)(ll) did not require that a defendant actually have been sentenced, the Beasley court expressly relied on its prior interpretation of the term "conviction" in § 971 l(d)(10), thereby implying that the term “conviction” as it appears in these sections should be read consistently.

15 . We note that Pennsylvania’s view that prior convictions play an integral role in character analysis is shared by a majority of states. A multi-state survey reveals that most post-Gregg state sentencing statutes concentrate on the defendant’s character and behavioral propensities, rather than on the circumstances of the crime for which he is being sentenced. See 65 A.L.R. 4th § 2[a] at 851-52 (1988). These statutes are thought to address the likelihood that defendant will in the future inflict further harm on society, see id., a consideration that the Supreme Court has validated as relevant to the sentencing determination, see California v. Ramos, 463 U.S. 992, 1003, 103 S.Ct. 3446, 3454, 77 L.Ed.2d 1171 (1983).

16 .In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion), the plurality opined that an informed jury was a prerequisite to a fair sentencing procedure. The plurality wrote,

If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about the defendant and the crime he committed in order to be able to impose a rational sentence, it is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.

Id. at 190.