NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1142 _____________

OSCAR ALVARADO, Appellant

v.

SUPERINTENDENT SOMERSET SCI; DISTRICT ATTORNEY PHILADELPHIA; ATTORNEY GENERAL PENNSYLVANIA ______________

On Appeal from United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-17-cv-03283) District Judge: Honorable Nitza I. Quinones Alejandro ______________

Argued July 16, 2021 ______________

Before: McKEE, GREENAWAY JR., and RESTREPO, Circuit Judges

(Opinion filed: September 15, 2021)

Eleanor R. Barrett Jean W. Galbraith Benjamin Brown-Harkins Jenifer Norwalk Rebecca Wallace [Argued] University of Pennsylvania Carey Law School Appellate Advocacy Clinic 3501 Sansom Street Philadelphia, PA 19104 Ilana H. Eisenstein DLA Piper 1650 Market Street One Liberty Place, Suite 5000 Philadelphia, PA 19103

Counsel for Appellant

David Napiorski [Argued] Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107

Counsel for Superintendent Somerset SCI, District Attorney Philadelphia, Attorney General Pennsylvania

_______________________

OPINION* _______________________

McKEE, Circuit Judge.

Oscar Alvarado was convicted of second degree murder after his non-testifying

co-defendant’s statement was admitted in their joint trial and used against him in

violation of his Sixth Amendment Confrontation Clause rights under Bruton v. United

States.1 The Government concedes that admitting the improperly redacted statement did

violate Alvarado’s rights under Bruton, that Alvarado’s trial counsel was constitutionally

ineffective for failing to object or otherwise cure the violation, and that any procedural

default at the federal habeas stage is excused under Martinez v. Ryan.2 Accordingly, the

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. 1

(1968). 2

(2012).

2 only issue before us is whether, under the second prong of Strickland v. Washington, the

unconstitutionally admitted statement prejudiced Alvarado.3 We conclude that it did not.

Thus, we will affirm the District Court.4

I.

Oscar Alvarado was accused of robbing a drug dealer and shooting another person

afterward. At trial, defense counsel argued that Alvarado was guilty of third-degree

murder rather than second degree because the prosecution had not proven the predicate

felony of robbery. The jury convicted him of second-degree murder. Alvarado argues

that the incriminating, improperly redacted statement of his co-defendant, Cynthia

Alvarado, provided the “linchpin” for the government’s robbery case.5 We disagree.

The Government was able to establish the predicate offense of robbery with the

testimony of Edwin Schermety, who witnessed Oscar Alvarado enter the park and take

something from a drug dealer while holding a gun to his stomach, and Margie Beltran,

who testified that Oscar Alvarado returned from the park with thirty Xanax he did not

previously have. Beltran also testified that before Oscar Alvarado went into the park,

she told him to try to get extra free pills because they had purchased a large number of

3

(1984). Habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.” Brecht v. Abrahamson,

(1993). 4 The District Court had jurisdiction to consider Alvarado’s petition under

and 2254. We have jurisdiction pursuant to

and 2253. We review the underlying merits de novo because Alvarado did not present the issue to the state courts. Bey v. Superintendent Greene SCI,

(3d Cir. 2017). 5 Appellant’s Br. at 4.

3 pills earlier that day. Beltran testified that Cynthia Alvarado then told Oscar Alvarado to

pull out his gun if he was not offered a deal.

Accordingly, although Cynthia’s improperly admitted statement confirmed

Schermety’s and Beltran’s testimony, the Government was able to establish the elements

of robbery independent of her statement. In fact, her statement was unnecessary to prove

Oscar Alvarado committed second degree (or felony) murder beyond a reasonable doubt.6

Alvarado relies upon Johnson v. Superintendent Fayette SCI in arguing that

Cynthia’s statement improperly corroborated the unreliable testimony of Schermety and

Beltran.7 However, there, the credibility of a witness who testified about Johnson’s

motive and an eyewitness were each severely impeached by testimony from other

witnesses.8 In contrast, here, the main elements of Beltran’s and Schermety’s testimony

were not contradicted.

The main inconsistencies between Schermety and Beltran’s testimony were not

sufficient to cause a reasonable juror to doubt their credibility. Schermety testified that

Oscar robbed a man, but Beltran testified that a woman’s voice said, “[H]e took my

pills.”9 However, regardless of how typically masculine or feminine the voice was, the

witnesses agreed that someone stole his/her pills.

6 “A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”

(b). Robbery is established when, as relevant here, the person “in the course of committing a theft . . . threatens another with or intentionally puts him in fear of immediate bodily injury.”

(a)(ii). 7

(3d Cir. 2020). 8

. 9 JA 158.

4 Next, Schermety testified that Oscar shot from the driver’s side window. That was

corroborated by another witness as well as the medical examiner’s analysis. However,

Beltran testified that Oscar put his hand over the roof of the car before shooting. But,

Beltran admitted that she “didn’t really see because [she] ducked and [she] threw

[her]self on the baby” who was in the back of the car with her.10

Finally, Schermety testified he saw the back of the shooting victim’s head “open

up” when in reality she was shot in the chest.11 However, both a responding police

officer and another witness also thought she had been shot in the face. Thus, the fact that

Schermety believed she was shot in the head does nothing to undermine Schermety’s

testimony.12

II.

Accordingly, we will affirm the District Court’s denial of Alvarado petition for a

writ of habeas corpus.

10 JA 159. 11 JA 111. 12 Alvarado also argues, relying on Brown v. Superintendent Greene SCI,

(3d Cir. 2016), that Beltran’s credibility is worrisome as she ingested several Xanax pills before the events to which she testified. This Court noted in Brown, however, that the witness had substantial credibility issues because he was impaired from both marijuana and Xanax, changed his narrative, and had a motive to lie.

. Whereas here, Beltran’s testimony was generally consistent with other witnesses, and she had ingested Xanax only at the time of the events. Therefore, the concern as to credibility does not rise to the level of that in Brown.

5