TONY L. BENNETT, Appellant
SUPERINTENDENT GRATERFORD SCI; ATTORNEY GENERAL PENNSYLVANIA
Argued: May 9, 2017
from the United States District Court for the Eastern
District of Pennsylvania (D.C. No. 2-13-cv-01203) District
Judge: Honorable James Knoll Gardner
Richard H. Frankel, Esq. Ke Gang, Student Counsel [ARGUED]
Mischa Wheat, Student Counsel [ARGUED] Appellate Litigation
Clinic Drexel University Kline School of Law Counsel for
Christopher P. Lynett, Esq. [ARGUED] Simran Dhillon, Esq.
Susan E. Affronti, Esq. Philadelphia County Office of
District Attorney Counsel for Appellees.
Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges.
RESTREPO, Circuit Judge.
1990, nineteen year old Tony Bennett was sitting in the
passenger seat of a getaway car when his conspirator entered
a jewelry store to commit a robbery, shooting the clerk and
killing her. Bennett was convicted of first degree murder.
After a capital sentencing hearing, the jury returned a
sentence of life imprisonment without the possibility of
parole. Two state courts later vacated Bennett's first
degree murder conviction, finding that the trial court
erroneously instructed the jury that it could convict Bennett
of first degree murder based on the shooter's intent to
kill. Bennett never got relief; instead, the Pennsylvania
Supreme Court reversed. Before us is Bennett's habeas
corpus petition, asserting that the trial court's
erroneous jury instructions deprived him of due process of
law under the United States Constitution. Applying de
novo review, we agree and will grant the writ.
Factual and Procedural Background
Trial and Sentencing
Pennsylvania Supreme Court summarized the factual history of
this case as follows:
[Bennett] conspired with four individuals, Michael Mayo,
Kecia Ray, Kevin Wyatt, and Paul Johnson, to rob a jewelry
store in Philadelphia at gunpoint. The store was selected
because a salesperson, Ms. Ju Yang Lee, had made what the
conspirators believed to be an insultingly low offer for a
gold chain that Mayo and Johnson earlier had sought to pawn.
Appellee Bennett supplied the loaded gun, but did not enter
the store, remaining in the getaway car with Wyatt. Mayo and
Johnson were caught on videotape entering and robbing the
store. During the robbery, Mayo shot Ms. Lee with
[Bennett]'s gun, killing her.
Commonwealth v. Bennett (Bennett VI), 57 A.3d 1185,
1187 (Pa. 2012).
proceeded to a jury trial on charges of murder, criminal
conspiracy, possession of an instrument of crime, and
robbery. The Commonwealth charged murder generally, and the
trial court instructed the jury on first, second, and third
degree murder, as well as voluntary manslaughter. The
Commonwealth also charged conspiracy generally. The trial
court instructed the jury that the objective of the
conspiracy was murder, robbery, possession of an instrument
of crime, and a firearms offense.
was tried jointly with two other non-shooters, Johnson and
Wyatt. Johnson entered the jewelry store with the shooter.
Wyatt, like Bennett, remained in the getaway car.
Id. The fourth non-shooter, Ray, testified for the
Commonwealth and later received a lenient
sentence. Mayo, the shooter, was initially on trial
with Johnson and Wyatt, but during jury selection suffered
"an acute psychotic episode" requiring
hospitalization. App. 284. Mayo was declared incompetent
after voir dire and his case severed.
was charged capitally. Under Pennsylvania law, the Commonwealth
could only obtain a death sentence if the jury convicted
Bennett of first degree murder. See 18 Pa. Cons.
Stat. § 1102(a)(1). Therefore, from the start of trial,
a central issue was whether Bennett was guilty of this
offense. See Bennett VI, 57 A.3d at 1204 n.12. First
degree murder in Pennsylvania requires that each defendant
have the specific intent to kill. 18 Pa. Cons. Stat. §
2502(a). An accomplice or conspirator cannot be convicted of
first degree murder based on the specific intent to kill of
the principal. See Commonwealth v. Huffman, 638 A.2d
961, 962 (Pa. 1994) (citing Commonwealth v. Bachert,
453 A.2d 931, 935 (Pa. 1982)).
Bennett's trial, the Commonwealth never argued that
Bennett had the specific intent to kill. Rather, its theory
was that he was guilty of first degree murder solely because
he was an accomplice and conspirator of the shooter. In the
Commonwealth's opening statement, the prosecutor told the
jury that "lest you think I am crazy for saying
[Bennett, Johnson and Wyatt] are guilty of first degree
murder, when I told you that Michael Mayo fired the fatal
shots . . . I will urge upon you that the law of conspiracy
makes all of these defendants first degree murderers."
App. 312-13. In closing, the prosecutor argued that
"accomplices are equally guilty with the principal.
First degree murder, intent to kill. There is no doubt, there
can be no doubt that [the shooter] Michael Mayo intended to
kill [the victim]. . . . Co-conspirators and accomplices are
equally guilty with the principal." App. 591-92.
argument-that an accomplice or conspirator is "equally
guilty" of first degree murder-was incorrect as a matter
of state law. Nevertheless, the trial court echoed it in its
jury instructions. Bennett's petition turns on these jury
instructions, and so we describe them in detail.
the trial court charged the jury on criminal conspiracy, in
relevant part, as follows:
Where two or more join in the commission of an unjustified
assault which results fatally, all are guilty
regardless of which one inflicts the mortal wounds. When two
or more combine to commit a felony or to make an assault, and
in carrying out the common purpose another is killed, the one
who enters into the combination but does not personally
commit the wrongful act is equally responsible for the
homicide as the one who directly causes it.
Such responsibility . . . extend[s] even to a homicide which
is the consequence of the natural and probable execution of
the conspiracy even though such homicide is not
specifically contemplated by the parties.
App. 602-03 (emphases added).
response to a jury question the trial court later repeated
trial court also instructed the jury on accomplice liability,
in relevant part, as follows: "[O]ne may be legally
accountable for conduct of another not only if he is a
co-conspirator, but also if he is an accomplice who aids and
abets the commission of a crime." App. 603. "The
degree of concert or collusion between parties to an illegal
transaction means the act of one is the act of
all." App. 604 (emphasis added).
trial court further instructed the jury on murder, beginning
with this introduction:
Each defendant comes before you charged with murder and
Now on this bill, you may find each defendant guilty of
murder in the first degree, guilty of murder in the second
degree, or guilty of murder in the third degree, or guilty of
voluntary manslaughter, or not guilty.
paragraphs later, the trial court instructed the jury on
first degree murder, which it defined as follows:
A criminal homicide constitutes murder of the first degree
when it is committed by an intentional killing. As used in
this statute, intentional killing means among other things a
willful, deliberate and premeditated killing.
A killing is willful and deliberate if the defendant
consciously decided to kill the victim and it is premeditated
if the defendant possessed a fully-formed intent to kill at
the time when he acted and though there need not have been
any appreciable amount of time between the time when the
defendant first conceived the idea of killing and the time
when he acted.
The design to kill can be formulated in a fraction of a
In determining whether or not the defendants committed said
kind of intentional killing required for first degree murder,
you should consider the testimony of expert witnesses, as
well as all other evidence which may shed light on what was
going on in the defendant's mind at the time of the
If a defendant intentionally uses a deadly weapon on a vital
part of the body, you may infer from this that the killing
Specific intent as well as malice may be inferred from the
use of a deadly weapon on a vital part of the body.
jury convicted Bennett of first degree murder and related
charges. A penalty hearing followed. The
Commonwealth sought the death penalty, despite stipulating
that Bennett was nineteen years old at the time of the crime
and had no significant criminal history. After additional
deliberation, the jury returned a sentence of life
imprisonment. On June 1, 1993, the trial court formally
sentenced Bennett to life imprisonment without the
possibility of parole. Bennett VI, 57 A.3d at
did not file a direct appeal. In 1995, he filed a pro
se petition under the Pennsylvania Post-Conviction
Relief Act (PCRA), in which he asserted, inter alia,
two claims relevant to this appeal. First, Bennett asserted
that the trial court violated his state and federal due
process rights by instructing the jury that he could be
convicted of first degree murder without the specific intent
to kill. Second, Bennett asserted that trial counsel was
ineffective for failing to object to the trial court's
erroneous jury instructions.
1999, the trial court dismissed Bennett's PCRA petition.
Bennett filed an appeal. In 2000, the Superior Court
dismissed the PCRA appeal because post-conviction counsel
failed to file a brief. Bennett subsequently filed a second