Com. v. Spell, G., 1011 WDA 2015

Background

In March 2007 a woman was found murdered; autopsy showed blunt‑force head trauma and DNA/forensic evidence tied Gaylord (NMN) Spell to the victim and items dumped along a roadway. Spell was charged with homicide and abuse of a corpse; a jury convicted him of first‑degree murder. The death sentence was later vacated on appeal and Spell was resentenced to life imprisonment.
Spell, represented at trial by the Public Defender’s Office (lead: Harry O. Falls), complained trial counsel inadequately prepared, met infrequently, and suffered health/caseload issues in the pretrial period. Spell also refused to cooperate at times and at trial initially intended to testify blaming another person.
Trial evidence included DNA on the victim and on items linked to Spell and a couch arm cover found on the roadway; Spell did not testify and presented no defense evidence.
Spell filed a timely pro se PCRA petition raising multiple ineffective‑assistance claims (abandonment/poor consultation, failure to move to suppress searches, failure to obtain/examine DNA/forensic experts, failure to investigate/call a potential witness, failure to object to prosecutor‑juror contact, failure to preserve a Batson claim, and conflict due to prior representation of the victim by the Public Defender’s Office). The PCRA court held evidentiary hearings and denied relief; Spell appealed.
The Superior Court reviewed the PCRA court’s factual findings and applied the Strickland/Pa. three‑part ineffective assistance test (arguable merit, no reasonable basis, prejudice). It affirmed denial of relief for each claim, finding either lack of arguable merit, reasonable strategic bases for counsel’s choices, or no prejudice.

Issues

Issue	Spell's Argument	Public Defender / Commonwealth Argument	Held
1) Counsel abandonment / inadequate consultation and preparation	Falls failed to review discovery timely, met infrequently, and abandoned pretrial preparation, depriving Spell of effective counsel	Counsel met face‑to‑face several times (prelim, meetings in 2009), Spell refused cooperation; counsel had strategic reasons for limited action	No relief: court found meetings occurred, Spell’s noncooperation undercut a Brooks abandonment claim; no deficient performance shown
2) Failure to move to suppress searches of home/van (timeliness/validity)	Warrants were not executed timely; counsel should have filed omnibus suppression motion	Suppression issues (van search) were litigated at trial; multiple warrants were obtained and evidence from second home search not challenged	No relief: record showed warrant proceedings and no prejudice from failure to file a pretrial motion
3) Failure to retain/examine DNA / forensic expert	Counsel failed to conduct comparative testing or retain experts to challenge DNA and hair evidence	Counsel had sufficient experience, cross‑examined experts about anomalous hair and testing limits; no proof an expert would have helped	No relief: petitioner failed to show an expert was available who would have produced favorable, prejudicial testimony
4) Failure to investigate / call witness Russell Wardman	Wardman reported seeing the victim in an altercation with an unidentified white male; counsel should have investigated and called him	Counsel knew of the report but, given DNA and searches linking Spell and Spell’s refusal to cooperate, reasonably deprioritized investigation; no proffer or certification of Wardman’s willing testimony	No relief: petitioner failed to prove witness availability/willingness or how testimony would have been materially beneficial
5) Failure to object to prosecutor’s pretrial call with a juror	Counsel’s failure to object to juror Roberta Fisher (who had brief campaign call from DA) waived appellate review and was ineffective	The contact was brief, non‑substantive; juror stated she could be impartial; trial court interviewed juror and allowed her to remain; counsel consulted Spell who agreed	No relief: underlying claim lacked arguable merit and no prejudice shown; trial court did not abuse discretion
6) Failure to develop/preserve Batson claim	Counsel failed to create a record to show race‑based strike by Commonwealth	Claim was undeveloped; Spell presented no evidence about venire composition, strikes, or prima facie case	No relief: petitioner bore burden to establish prima facie Batson violation and failed to do so
7) Failure to withdraw for conflict (Public Defender’s prior representation of victim)	Prior PD office representation of the victim created a conflict requiring withdrawal or showing of prejudice	There was no dual representation in this case and Spell showed only speculation about adverse effects	No relief: absent proof of an actual conflict causing prejudice, claim fails

Key Cases Cited

Commonwealth v. Spell, 28 A.3d 1274 (Pa. 2011) (summarizing underlying facts and direct‑appeal disposition)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong standard for ineffective assistance of counsel)
Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003) (counsel abandonment/failure to prepare in capital cases requires at least one face‑to‑face client meeting)
Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) (Rule 1925(b) waiver principles and discussion of remand procedure)
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003) (defendant who refuses to cooperate cannot later claim counsel ineffective for following that refusal)
Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012) (Brooks applicability and standards for failure‑to‑call and Batson‑related ineffective claims)
Commonwealth v. Charleston, 94 A.3d 1012 (Pa. Super. 2014) (articulation of Pa. three‑part ineffective assistance inquiry)
Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (failure to obtain expert is not per se ineffectiveness; petitioner must show expert would have aided defense)
Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006) (conflict‑of‑interest claims require a showing of actual prejudice)
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (counsel abandonment in serial PCRA context can implicate exceptions to PCRA time bars)