David Robertson v. Superintendent Edward Klem

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2581
DAVID ROBERTSON,
Appellant
v.
SUPERINTENDENT EDWARD KLEM;
THE DISTRICT ATTORNEY OF THE COUNTY
OF FAYETTE; THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 06-cv-00467)
District Judge: Hon. Terrence F. McVerry
Argued April 22, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER,
Circuit Judges
(Filed: August 28, 2009)
Thomas L. Kirsch, II
Linda T. Coberly
John F. Kness (Argued)
Counsel of Record
Winston & Strawn LLP
Chicago, IL 60601
Attorneys for Appellant

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2
Jack R. Heneks, Jr. (Argued)
Nancy D. Vernon
Office of District Attorney of Fayette County
Uniontown, PA 15401
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner David Robertson was convicted by a jury in
Pennsylvania state court of two counts of conspiracy to commit
murder arising out of the deaths of Edward and Karen Povlik,
although he was acquitted of the murders by the same jury. He
was sentenced to a five-to-ten-year term of imprisonment on
each of the two counts, which were to run consecutively. After
exhausting his direct and collateral appeals in the Pennsylvania
courts, Robertson filed a petition for federal habeas relief,
alleging as relevant here that the evidence was insufficient to
support his conviction for two conspiracies. That is, Robertson
contends that the evidence produced at trial proved at most one
conspiracy that encompassed the killings of both Povliks.
The District Court adopted the findings and
recommendations of the Magistrate Judge and denied the
petition. However, we conclude that the evidence was
insufficient to allow a rational trier of fact to find that Robertson
participated in two conspiracies and that the Pennsylvania
courts’ contrary conclusion was an unreasonable application of
clearly established Supreme Court precedent. Therefore, we will
reverse.
I. Background
A. The Murders
This case arises out of the murders of Edward and Karen

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Powell was charged with two counts of murder and two1
counts of conspiracy to commit murder. After a separate trial,
Powell was acquitted on all counts. Under Pennsylvania law, the
fact that all alleged co-conspirators are acquitted does not
undermine a defendant’s otherwise valid conviction for conspiracy.
Commonwealth v. Byrd, 417 A.2d 173, 176-77 (Pa. 1980).
3
Povlik, both drug dealers, who were killed sometime during the
late night of December 31, 1994, or early morning of January 1,
1995, at their home outside of Connellsville, Pennsylvania.
After several years of investigation, Robertson was charged with
two counts of first and third degree murder and two counts of
conspiracy to commit criminal homicide. The Commonwealth’s
theory of the case was that Robertson obtained the murder
weapon and provided it to Gerald Powell, who was the
triggerman.1
The evidence at trial established that the Povliks illegally
sold prescription drugs, such as morphine, out of their residence
and that Robertson was one of their customers. On December
31, 1994, Robertson went to the Povliks’ home with his friend
John Mongell to purchase morphine. According to Mongell,
when they arrived at the Povliks’ home, Robertson “folded his
knees down . . . and sat like on the floor of my car,” apparently
hiding from the Povliks. App. at 316. Mongell purchased
morphine and then left with Robertson.
Later that day, Robertson, his girlfriend (Donna Jo
Mathews), and her two children were at a New Year’s Eve Party
at the home of another friend, Greg Rosensteel. Robertson
asked to borrow a .22 caliber, nine-shot revolver from
Rosensteel, ostensibly in order to do some target practice.
Rosensteel lent him the gun.
Subsequently, at about eight or nine o’clock that evening,
Robertson called Mongell and stated that “he was going to go
down to the Povliks” and that “he was going to do something
that he didn’t want to do” and “cause some trouble.” App. at
319. Robertson left Rosensteel’s house between ten and eleven

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Edward Povlik’s body was found immediately inside the2
front door of the trailer home. Karen Povlik’s body was found in
another room of the home; she was found holding a telephone.
4
P.M. to take Mathews’ son to the home of Mathews’ mother.
Robertson returned to Rosensteel’s house sometime before
midnight and then left with Mathews and her daughter at around
one in the morning of January 1, 1995. When Mathews woke up
later on January 1, Robertson was gone and did not return until
about eleven or eleven-thirty A.M. Later that day or the next,
Robertson returned the revolver to Rosensteel. They did not
discuss whether Robertson had used the gun, but Robertson
stated that he had cleaned it.
At trial, the Commonwealth introduced testimony from
several witnesses that Robertson made inculpating statements in
the months following the Povliks’ murder. In either February or
March 1995, Robertson was traveling with Rosensteel and
Robertson’s cousin Tina Stockman. They happened to drive by
a man working on a car alongside the road; Robertson stopped
the car and got out and spoke to the man. According to
Rosensteel, when Robertson re-entered the car, “he made a
statement about that that was the guy that pulled the trigger, and
I asked him what he was talking about, and he made reference to
the people that got killed in the trailer [the Povliks].” App. at
261. Robertson also stated at that time that “he [Robertson] got
the gun, but that [Powell] was the guy who pulled the trigger.”
App. at 261.
Further, Stockman testified that she heard Robertson refer
to the murders on another occasion. Specifically, Robertson
stated that “I might have got the gun, but I didn’t pull the
trigger” and that Powell was the shooter. App. at 51. Stockman
also testified that Robertson was able to describe the position of
the Povliks’ bodies at the murder scene. Finally, another friend,2
Mary Ann Kraynak, testified that she heard Robertson state that
“he was with Gerald Powell, picked him up at a party in
Breakneck, went to the Povliks’ and bad things happened.”
App. at 528.

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5
The Commonwealth also introduced forensic evidence
demonstrating that the revolver that Robertson borrowed from
Rosensteel was operable and that bullets recovered at the
Povliks’ home possessed “class characteristics” consistent with
that revolver. App. at 499. However, the Commonwealth’s
expert could not specifically conclude that the bullets recovered
at the crime scene were fired from Rosensteel’s revolver due to
extreme fragmentation and mutilation of the bullets. There was
no other physical evidence to link Robertson to the murders.
B. State Court Proceedings
1. Conviction and Sentence
Robertson was not arrested until 2000, at which time he
was residing in Florida; he was extradited to Pennsylvania for
trial. He was charged with two counts of murder and two counts
of conspiracy. Based on the evidence described above, the jury
convicted Robertson of two counts of conspiracy to commit
murder and acquitted him on the substantive murder counts. The
Court of Common Pleas for Fayette County sentenced Robertson
to two consecutive terms of five-to-ten-years imprisonment on
each conspiracy count.
We note that the jury instructions accurately stated the
basic elements of a conspiracy under 18 Pa. Cons. Stat. Ann. §
903, including the requirements of an agreement, a shared intent
to bring about the underlying crime, and an overt act in
furtherance of the conspiracy. However, as argued by
Robertson, the jury instructions failed to address 18 Pa. Cons.
Stat. Ann. § 903(c), which provides that if “a person conspires to
commit a number of crimes, he is guilty of only one conspiracy
so long as such multiple crimes are the object of the same
agreement or continuous conspiratorial relationship.”
2. Direct Appeal
Following his conviction, Robertson filed a motion for a
new trial, arrest of judgment and judgment of acquittal with the
Court of Common Pleas. As relevant here, Robertson argued

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6
that the evidence was insufficient to support his conviction on
the conspiracy counts and that it was against the weight of the
evidence. The Court of Common Pleas rejected those
contentions. It relied on the testimony recounted above that
established that Robertson had purchased drugs from the
Povliks, that Robertson had borrowed a revolver that was
consistent with the murder weapon, and that Robertson had
made several inculpatory statements.
On his direct appeal to the Superior Court, Robertson
renewed his contentions that his conviction was not supported by
sufficient evidence and was against the weight of the evidence.
The Superior Court rejected those claims, concluding that
Robertson’s “statements and admissions allow for the reasonable
inference that he and Gerald Powell had entered into an
agreement to murder the Povlic [sic] couple by means of the .22
caliber revolver which [Robertson] borrowed from Rosensteel.”
App. at 154 (emphasis added). Robertson also argued that the
two counts of conspiracy should have merged for sentencing
because the evidence did not establish two conspiracies. The
Superior Court concluded that this claim was in essence a
challenge to the sufficiency of the evidence with regard to the
existence of two conspiracies and that Robertson had failed to
preserve that specific issue for appeal because he (wrongly)
framed the issue as a challenge to the legality of his sentences.
3. PCRA Proceedings
After the Pennsylvania Supreme Court declined to hear
Robertson’s direct appeal, Robertson filed, with counsel, an
application for post-conviction relief pursuant to the
Pennsylvania Post-Conviction Relief Act (“PCRA”). The Court
of Common Pleas rejected Robertson’s claims for PCRA relief.
Robertson appealed, pro se, to the Superior Court, which
affirmed. The Superior Court rejected Robertson’s claims that
he received ineffective assistance of counsel at trial, on his direct
appeal, and on his PCRA claims before the Court of Common
Pleas. It also rejected Robertson’s argument that he was entitled
to a new trial based on newly discovered evidence.

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Robertson did not appeal the Superior Court’s denial of3
his PCRA claims to the Pennsylvania Supreme Court. However,
his failure to do so does not imply that he failed to exhaust his state
remedies on his insufficiency of the evidence claim. See In re
Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa.
May 9, 2000) (providing that defendant need not petition for
allowance of appeal to Pennsylvania Supreme Court of denial of
PCRA relief to be deemed to have exhausted state remedies).
7
Finally, as most relevant here, the Superior Court rejected
Robertson’s claim that the evidence was insufficient to prove the
existence of two conspiracies. The Superior Court noted that
Robertson had waived that issue on his direct appeal, but
concluded that it could consider the merits of Robertson’s claim
because he alleged that “his counsel on direct appeal was
ineffective for failing to set forth the correct standard and in
causing the issue to be waived” and therefore Robertson
“properly layered the issue.” App. at 34 n.7.
On the merits, the Superior Court noted that Pennsylvania
courts consider the totality of the circumstances in determining
whether a single conspiracy or multiple conspiracies have been
established. The Superior Court recognized that several factors
supported Robertson’s argument that the evidence was sufficient
to prove only a single conspiracy, including that the Povliks
were killed at approximately the same time; were killed with the
same firearm and at the same location; and that the same person
or persons killed them. However, the Superior Court concluded
that “the central factor here is the number of victims” and that
the “objective of the first conspiracy was the criminal homicide
of Edward James Povlik and the objective of the second
conspiracy was the criminal homicide of Karen Marie Povlik.”
App. at 37. The Court also noted that, under Robertson’s
position, “one agreement to kill twenty people should be
punished the same as one agreement to kill one person, because
there was only a single overarching conspiracy. We reject [that]
argument.” App. at 38.3

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8
C. Federal Habeas Proceedings
Robertson then filed a petition for federal habeas relief
pursuant to 28 U.S.C. § 2254. Robertson presented two claims
for relief: (1) that he received ineffective assistance of trial
counsel and (2) that the evidence was insufficient to demonstrate
the existence of two conspiracies.
The District Court referred the matter to the Magistrate
Judge, who filed a report recommending denial of Robertson’s
petition and denial of a certificate of appealability. The District
Court accepted those recommendations. Robertson then filed a
notice of appeal of that decision; we construed that notice as a
request for a certificate of appealability and granted the request
“as to whether sufficient evidence in the trial record supports
Appellant’s multiple conspiracy convictions.” App. at 21. We
denied a certificate of appealability as to Robertson’s ineffective
assistance of counsel claim. Because only the insufficiency of
the evidence claim is before us, we will review the District
Court’s opinion adopting the Magistrate Judge’s report only as to
that claim.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§
2241 and 2254. We have jurisdiction under 28 U.S.C. §§ 1291
and 2253, and we review a district court’s denial of habeas relief
de novo. Vega v. United States, 493 F.3d 310, 314 (3d Cir.
2007).
Habeas relief is precluded on any claim that the state
court adjudicated on the merits, unless the state court’s decision
was contrary to, or an unreasonable application of, clearly
established federal law as determined by the United States
Supreme Court, or was based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceedings. 28 U.S.C. § 2254(d).

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III. Discussion
Robertson raises two related but distinct issues on his
appeal. First, he argues that the Superior Court’s rejection of his
claim that the evidence was insufficient to prove two
conspiracies beyond a reasonable doubt denied him due process
and was an unreasonable application of In re Winship, 397 U.S.
358 (1970). Second, he contends that the trial court’s jury
instructions were so deficient as to relieve the Commonwealth of
its obligation to prove beyond a reasonable doubt the existence
of multiple conspiracies. We focus on Robertson’s first issue.
“The requirement that guilt of a criminal charge be
established by proof beyond a reasonable doubt dates at least
from our early years as a Nation.” In re Winship, 397 U.S. at
361. Indeed, “[t]he reasonable-doubt standard plays a vital role
in the American scheme of criminal procedure. It is a prime
instrument for reducing the risk of convictions resting on factual
error.” Id. at 363. The reasonable doubt standard recognizes
that the “accused during a criminal prosecution has at stake
interests of immense importance, both because of the possibility
that he may lose his liberty upon conviction and because of the
certainty that he would be stigmatized by the conviction.” Id.
Further, “[i]t is critical that the moral force of the criminal law
not be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned.” Id. at 364. Thus,
“the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” Id.
Further, in Jackson v. Virginia, the Supreme Court held
that “[u]nder the Winship decision, it is clear that a state prisoner
who alleges that the evidence in support of his state conviction
cannot be fairly characterized as sufficient to have led a rational
trier of fact to find guilt beyond a reasonable doubt has stated a
federal constitutional claim” and that “it follows that such a
claim is cognizable in a federal habeas corpus proceeding.” 443
U.S. 307, 321 (1979); see also Fiore v. White, 531 U.S. 225,
228-29 (2001) (per curiam) (“We have held that the Due Process
Clause of the Fourteenth Amendment forbids a State to convict a

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10
person of a crime without proving the elements of that crime
beyond a reasonable doubt.”). When assessing such claims on a
petition for habeas relief from a state conviction, the sufficiency
of the evidence standard “must be applied with explicit reference
to the substantive elements of the criminal offense as defined by
state law.” Jackson, 443 U.S. at 324 n.16.
A Pennsylvania statute provides that a “person is guilty of
conspiracy . . . to commit a crime if with the intent of promoting
or facilitating its commission he: (1) agrees with such other
person or persons that they or one or more of them will engage
in conduct which constitutes such crime . . . ; or (2) agrees to aid
such other person or persons in the planning or commission of
such crime.” 18 Pa. Cons. Stat. Ann. § 903(a). Significantly for
the issue before us, it also states that “[i]f a person conspires to
commit a number of crimes, he is guilty of only one conspiracy
so long as such multiple crimes are the object of the same
agreement or continuous conspiratorial relationship.” 18 Pa.
Cons. Stat. Ann. § 903(c). Thus, a single conspiracy can include
multiple underlying crimes. Stated another way, the
Commonwealth bore the burden of proving beyond a reasonable
doubt that Robertson and Powell (the alleged killer) entered into
two agreements or two conspiratorial relationships, one to kill
Edward Povlik and another to kill Karen Povlik. It did not do
so.
The Pennsylvania Supreme Court has adopted a totality of
the circumstances test to determine whether a particular case
involves one conspiracy or multiple conspiracies. Under this
test, Pennsylvania courts consider: “The number of overt acts in
common; the overlap of personnel; the time period during which
the alleged acts took place; the similarity in methods of
operation; the locations in which the alleged acts took place; the
extent to which the purported conspiracies share a common
objective; and the degree to which interdependence is needed for
the overall operation to succeed.” Commonwealth v. Andrews,
768 A.2d 309, 316 (Pa. 2001) (quotation omitted).
Robertson contends that the Commonwealth failed to
provide sufficient evidence to allow a rational jury to find two

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11
agreements or two conspiratorial relationships under
Pennsylvania law. We agree. The Commonwealth introduced
evidence that Robertson and Powell were the only conspirators
for both murders; that Robertson obtained a single revolver that
was consistent with the weapon used to commit both murders;
and that Edward and Karen Povlik were killed at the same time
and in the same place. Nothing in this evidence regarding the
commission of the murders would allow a rational jury to
conclude that the murders were the result of two separate
conspiracies.
Indeed, the Commonwealth simply failed to introduce any
direct or circumstantial evidence to suggest that the murders
were the result of multiple conspiracies. To show motive, the
Commonwealth introduced evidence that Robertson engaged in
illegal transactions involving prescription drugs at the Povliks’
residence. The Commonwealth also introduced the testimony of
Mongell, a friend of Robertson, that Robertson told him on the
night of the murders that Robertson was “going to go down to
the Povliks . . . to cause some trouble.” App. at 319. Again, this
evidence fails even to remotely hint at the existence of separate
conspiracies for each murder. Similarly, nothing in Robertson’s
inculpatory statements following the murders suggests that the
murders were motivated by different criminal objectives or
resulted from separate agreements. In sum, a rational jury could
conclude from the evidence at trial only that Robertson and
Powell entered into one conspiratorial relationship which
encompassed both murders.
This conclusion is strongly supported by the Pennsylvania
case law regarding multiple conspiracies. For example, in
Commonwealth v. Barnes, 871 A.2d 812 (Pa. Super. Ct. 2005),
the defendant and several others conspired to sell drugs. During
one drug transaction, one of the co-conspirators killed a
prospective buyer and thereafter the defendant and the murderer
robbed the buyer. Id. at 816. The defendant was convicted of
conspiracy to commit murder, conspiracy to commit robbery,
accomplice to robbery, and conspiracy to sell controlled
substances. Id. at 814. The Superior Court reversed. It
concluded that the defendant could be convicted of only the

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underlying conspiracy to sell controlled substances because the
drug transactions, murder, and robbery were part of one
continuous conspiratorial relationship. Id. at 821. The Superior
Court focused on the facts that the drug transactions, murder,
and robbery occurred within a twenty-four hour period at the
same location and “involved the same actors, and were in
furtherance of the same objective.” Id.
Similarly, the evidence in this case was that the same
conspirators committed two murders at the same time and place
with the same murder weapon; the Commonwealth offered no
other evidence to suggest that Robertson and Powell reached
separate agreements related to each murder. This is not a case
where the evidence established that the conspirators agreed to
kill one person and only later separately agreed to kill another.
Cf. Commonwealth v. Koehler, 737 A.2d 225, 231, 245 (Pa.
1999) (upholding defendant’s conviction of two conspiracies to
commit murder where defendant and murderer agreed to kill first
victim, completed that murder and disposed of the body, and
then agreed to kill first victim’s son).
The only reason given by the Superior Court to support its
conclusion that the evidence was sufficient to establish two
conspiracies was that there were two victims. See App. at 37
(“[T]he central factor here is the number of victims.”). That is,
the Superior Court inferred, simply from the existence of two
victims, that the evidence was sufficient to allow a rational jury
to find that Robertson and Powell entered into separate
agreements, one of which had the objective of killing Edward
Povlik and the other of which had the objective of killing Karen
Povlik. This conclusion was an unreasonable application of
clearly established Supreme Court precedent, specifically In re
Winship’s holding that “the Due Process Clause protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged.” 397 U.S. at 364.
The fact that both Edward and Karen Povlik were killed
cannot, by itself, support the inference that Robertson and
Powell entered into separate agreements to commit each murder

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13
given the Pennsylvania conspiracy statute’s express statement
that “a person [who] conspires to commit a number of crimes . . .
is guilty of only one conspiracy so long as such multiple crimes
are the object of the same agreement or continuous
conspiratorial relationship.” 18 Pa. Cons. Stat. Ann. § 903(c).
The Commonwealth had to prove that the murders were the
result of separate agreements or conspiratorial relationships, and,
as noted above, it failed to do so.
We can understand, and indeed sympathize with, the
Superior Court’s intuitive rejection of Robertson’s argument that
“one agreement to kill twenty people should be punished the
same as one agreement to kill one person[ ] because there was
only a single overarching conspiracy.” App. at 38. The Superior
Court equated the harm done to the victims with the punishment.
But Robertson was not convicted of two murders. One
agreement to kill twenty (or two) people is a single conspiracy
under the plain terms of 18 Pa. Cons. Stat. Ann. § 903(c) and
therefore a defendant involved in such a case can be convicted of
only a single count of conspiracy.
Indeed, the Superior Court stated that, “[a]s we discussed
on direct appeal, the jury obviously believed that [Robertson]
entered into a conspiratorial agreement to kill both Karen and
Edward Povlik,” App. at 37 (emphasis added), but then
concluded, without explanation, that there were two
conspiracies. The Superior Court relied entirely on the number
of victims to hold that two conspiracies existed, notwithstanding
that the evidence was sufficient only to support a finding of a
single conspiratorial agreement.
In sum, the evidence was insufficient to support
Robertson’s conviction on two counts of conspiracy to commit
murder because the Commonwealth failed to prove that the
murders at issue, which involved the same conspirators, the same
murder weapon, and occurred at the same time and place, were
the result of separate agreements or conspiratorial relationships.
Moreover, the Superior Court’s contrary conclusion was an
unreasonable application of clearly established federal law as

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The Commonwealth does not argue that, if the evidence4
was insufficient to prove two conspiracies, such error was
harmless. Indeed, the denial of the right to a jury verdict of guilt
beyond a reasonable doubt is a structural error not subject to
harmless-error analysis. See 2 Randy Hertz & James S. Liebman,
Federal Habeas Corpus Practice and Procedure § 31.3 (5th ed.
2005).
As should be clear and as Robertson concedes, the5
evidence was sufficient to convict Robertson of a single
conspiracy. Thus, Robertson should be re-sentenced on a single
count of conspiracy to commit murder in the Pennsylvania courts.
Currently, a conspiracy to commit murder may be punished
by up to forty years imprisonment. 18 Pa. Cons. Stat. Ann. §
1102(c). However, at the time of the murders at issue,
Pennsylvania law provided that “[a]n attempt, solicitation or
conspiracy to commit murder” was “a felony of the second degree,”
1995 Pa. Legis. Serv. Sp. Sess. No. 1, Act 1995-3 (S.B. 16) (SS1)
(West), and was subject to a maximum sentence of ten years
imprisonment, 18 Pa. Cons. Stat. Ann. § 1103(2); see generally
Commonwealth v. Sims, 919 A.2d 931, 935 n.3 (Pa. 2007). The
provisions related to conspiracy to commit murder in force at the
time of the conspiracy must guide Robertson’s re-sentencing. See
United States v. Tykarsky, 446 F.3d 458, 480 (3d Cir. 2006) (“[I]f
a defendant completes a crime before an increased penalty takes
effect, it would violate his right not to be subject to ex post facto
legislation to impose the increased penalty up on him.”) (quotation
omitted).
14
established by the Supreme Court. Therefore, Robertson is4
entitled to habeas relief.5
IV. Conclusion
For the above-stated reasons, we will reverse the District
Court’s denial of Robertson’s petition and remand for further
proceedings consistent with this opinion. In particular, the
District Court should order the Commonwealth authorities to
free Robertson unless he is re-sentenced in the Pennsylvania

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We note that the attorneys representing Robertson on this6
appeal have done so on a pro bono basis and we thank them for
their services, which have been in the highest tradition of the bar.
courts for a single count of conspiracy within a period of time
affixed by the District Court.6

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