On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 87-4368)
Sloviter and Becker, Circuit Judges, and Lifland, District Judge*fn*
Robert Polsky appeals from the order of the district court dated September 6, 1988 denying his petition for a writ of habeas corpus. Polsky claims that the charge to the jury given at his trial for murder was defective because it did not include the element of "malice" and otherwise improperly defined the crime of murder, and that therefore his subsequent conviction and imprisonment is in contravention of due process of law.
Polsky was convicted on April 21, 1976 after a jury trial in the Court of Common Pleas of Philadelphia County of the crimes of murder in the third degree and possession of an instrument of crime as a result of the death of Jerald Donsky on August 6, 1975. The evidence presented at trial established that Polsky, with his father, his girlfriend, and his friend Brian Imme, drove to Donsky's residence. While the others remained in the car, Polsky and Imme entered Donsky's apartment and Polsky demanded $40.00 which Donsky owed Polsky's father for rent. When Donsky showed Polsky that he had only $14 in his wallet, Polsky ordered Donsky, a music student, to play the piano. While Donsky played Beethoven, Polsky shot him in the chest and in the stomach. Imme's testimony, which was corroborated by Donsky's landlord who lived in the apartment upstairs, was that Donsky then cried out, "Bob, what are you, crazy? Are you trying to kill me?" After Polsky gave an obscene answer to this question, Polsky then shot Donsky a third time, striking him in the chin and killing him.
Polsky, at the time a member of the United States Marine Corps, was arrested in Camp LeJeune, North Carolina after he returned to his base. He was tried before a jury on charges of first-degree murder, third-degree murder, voluntary manslaughter and a weapons charge. After he was found guilty of third-degree murder and the weapons charge, he was sentenced to 10 to 20 years imprisonment on the murder conviction and to a consecutive term of 2 1/2 to 5 years imprisonment on the weapons charge.
On appeal to the Pennsylvania Supreme Court Polsky argued, inter alia, that trial counsel was ineffective in failing to object to the jury instructions. The Court found these claims "to be devoid of merit." Commonwealth v. Polsky, 493 Pa. 402, 406 n. 1, 426 A.2d 610, 612 n. 1 (1981). Polsky then filed two petitions under Pennsylvania's Post-Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. § 9541. The first petition, which did not challenge the jury instruction, was denied on February 22, 1983, and that order was affirmed. Commonwealth v. Polsky, 349 Pa. Super. 619, 503 A.2d 50 (1985). In the second, Polsky challenged the jury instruction on due process grounds. This petition was denied on August 13, 1986, by the Court of Common Pleas of Philadelphia County on the ground that Polsky's due process claims were previously raised in his direct appeal to the Supreme Court of Pennsylvania and rejected by that Court, and that they were therefore "finally litigated".
Thereafter, Polsky filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 2254. The magistrate to whom the matter was referred concluded that Polsky's claim was exhausted, and recommended that the petition be denied on the merits.*fn1 The district court adopted the Magistrate's Report and Recommendation, denied the petition and certified that there was no cause to appeal. Polsky filed a timely notice of appeal. This court granted a certificate of probable cause to appeal.
Polsky argues that he was denied due process of law because the trial judge, in his instructions to the jury, failed to use the word "malice" when defining the crimes of first and third degree murder, and because the charge given was so contrary to Pennsylvania law that he was convicted of a crime for which he was not charged.*fn2 The magistrate held that the error in the trial court's failure to use the word "malice" was harmless and that the other alleged instructional errors did not prejudice Polsky. Polsky argues that the district court, which adopted the magistrate's reasoning in dismissing Polsky's petition, erred as a matter of law by using a harmless error analysis. He contends that because malice is an essential element of the offense of murder in Pennsylvania and because the state has the burden of proving every element of a crime, the omission of an instruction on malice impermissibly relieved the state of its burden on this element and thus was an error of constitutional proportion which can never be considered harmless error. Surprisingly, the Commonwealth's brief fails to address this issue. Nonetheless, we find ample basis in relevant Supreme Court cases to reject Polsky's claim.
The central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence. Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986). Constitutional errors which do not impinge on the basic tenets of our criminal justice system may be considered harmless even if they have some effect on the factfinding process at trial. Rose v. Clark, 478 U.S. 570, 578, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986); see also Van Arsdall, 475 U.S. at 673. Thus, a constitutional error is harmless if it does not affect "substantial rights" of the defendant and does not have an unfair prejudicial impact on the jury's deliberations. Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967); see also Rose, 478 U.S. at 576-79.
True, some constitutional errors can never be harmless. See Chapman, 386 U.S. at 23 (citing Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 (1958) (introduction of coerced confession); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) (denial of right to counsel); Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927) (biased adjudicator)). Such errors are those which either "aborted" or "denied" the basic trial process. Rose v. Clark, 478 ...