Commonwealth v. Wholaver, E., Aplt., 177 A.3d 136

Background

In December 2002 Ernest Wholaver Jr. was charged with multiple sexual offenses against his daughters and, on December 24, 2002, murdered his wife Jean and daughters Victoria and Elizabeth; a nine‑month‑old child, Madison, survived. Wholaver was convicted of three counts of first‑degree murder and related offenses and sentenced to death.
The Commonwealth sought the death penalty; the jury found four aggravators (including felony‑murder, grave risk to the infant, prior murder conviction, and a PFA order) and some mitigating factors, and returned death verdicts.
Wholaver’s direct appeals and a prior PCRA reinstating his direct appeal were denied by this Court; certiorari to the U.S. Supreme Court was denied.
Wholaver filed a later, protracted PCRA petition raising 24+ issues (Brady, ineffective assistance of counsel, evidentiary and jury‑instruction claims, prosecutorial misconduct, juror misconduct, challenges to expert evidence, and penalty‑phase instruction claims); the PCRA court held limited evidentiary hearings, denied relief, and this appeal followed.
The PCRA court’s credibility findings (including crediting trial counsel’s testimony and juror testimony) were dispositive; the Supreme Court of Pennsylvania affirmed, finding no merit or prejudice in Wholaver’s claims and denying remand or further relief.

Issues

Issue	Plaintiff's Argument (Wholaver)	Defendant's Argument (Commonwealth/PCRA court)	Held
1. Did PCRA court deny full, fair review (discovery/hearing limitations)?	PCRA court improperly limited discovery, dismissed 21 claims without hearings, and foreclosed evidence presentation.	Wholaver failed to develop or show specific errors; PCRA procedures followed Rule 909 and claims were adequately handled.	Denied — claims undeveloped; no reversible error in notice/dismissal decisions.
2. Right to expert assistance / Ake claim; counsel ineffective for not litigating further	Trial funding and expert limitations deprived him of experts (ballistics, pathology, psychiatry), violating due process/Ake; counsel ineffective for inadequate advocacy.	Trial judge appointed experts; counsel extensively litigated funding and did raise constitutional claims; prior appeals litigated the issue.	Denied — underlying expert‑funding decisions were not an abuse of discretion; counsel’s performance not shown deficient.
3. Brady and impeachment of jailhouse witnesses (Marley, Meddings, Stephens)	Commonwealth withheld impeachment material and deals; withheld/corrected testimony; failure to disclose was material and prejudicial.	Defense had broad impeachment material, used it at trial; any nondisclosure was de minimis/cumulative and would not undermine confidence in verdict.	Denied — no materiality/prejudice shown; counsel used available impeachment effectively; ineffective‑assistance claim fails.
4. Handwriting expert; Frye challenge and failure to hire defense expert	Jackson’s handwriting methodology is scientifically unreliable; counsel should have demanded Frye hearing and retained a rebuttal expert.	Pennsylvania law (42 Pa.C.S. §6111) recognizes handwriting opinion testimony; not novel science; counsel’s cross‑examination was reasonable and no prejudice shown.	Denied — Frye inapplicable; no arguable merit or prejudice from counsel’s decisions.
5. Challenge to forensic pathology testimony and counsel’s failure to retain rebuttal expert	Dr. Ross’s narrow time‑of‑death and risk‑to‑infant testimony was unreliable; counsel ineffective for not obtaining rebuttal experts.	This claim was previously litigated as to sufficiency; counsel cross‑examined Dr. Ross effectively; no prejudice shown.	Denied — no merit or prejudice; PCRA court credited counsel’s cross‑examination.
6. Suppression of jailhouse statements to Meddings; counsel ineffective for failing to investigate	Meddings was a government agent earlier than testified; counsel should have reviewed federal filings and interviewed witnesses to show inducement/agent status.	Under direct appeal court previously rejected suppression; any additional impeachment would have been cumulative and not outcome‑determinative.	Denied — ineffective‑assistance claim lacks prejudice; additional material would have been cumulative.
7. Penalty‑phase errors: jury instructions (e.g., burden, "future dangerousness", Simmons)	Multiple instructional defects (failure to define legal phrases, Ring/Simmons issues, future dangerousness treated as aggravator) deprived reliable sentencing.	Instructions as a whole conformed to Pennsylvania law; Ring argument rejected by PA precedent; Simmons not warranted because Commonwealth did not put future dangerousness at issue.	Denied — instructions adequate as a whole; no entitlement to Simmons; no reasonable probability of different sentence.
8. Counsel conceded solicitation guilt; ineffective assistance for conceding without consent	Counsel conceded Wholaver solicited Ramos’s murder but did so without Wholaver’s consent, undermining defense strategy.	Trial counsel testified he had Wholaver’s consent and used the solicitation admission strategically to support a theory implicating another murderer; PCRA court credited counsel.	Denied — PCRA court credited counsel’s testimony; no deficient performance or prejudice shown.
9. Juror dismissal for cause (Witherspoon/Witt challenge) and juror‑misconduct claims	Trial court improperly struck a potential juror (Badesso) and failed to detect juror questionnaire misstatements; counsel ineffective for not litigating.	Prospective juror expressed beliefs that would substantially impair service under Witt; PCRA hearing credited juror testimony and found no misconduct.	Denied — excusal was within trial court discretion; PCRA credibility findings supported; no relief.
10. Cumulative error	The aggregate of the foregoing errors warrants reversal/new sentencing.	Individual claims lack merit or prejudice; cumulative prejudice not established.	Denied — no cumulative prejudice shown; failing individual claims cannot combine to require relief.

Key Cases Cited

Ake v. Oklahoma, 470 U.S. 68 (U.S. 1985) (indigent defendant entitled to psychiatric assistance when sanity is a significant factor)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose materially exculpatory or impeachment evidence)
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (admissibility test for novel scientific evidence)
Ring v. Arizona, 536 U.S. 584 (U.S. 2002) (jury must find aggravating factors necessary for death sentence under Sixth Amendment)
Witherspoon v. Illinois, 391 U.S. 510 (U.S. 1968) (exclusion of jurors solely for general objections to death penalty impermissible)
Wainwright v. Witt, 469 U.S. 412 (U.S. 1985) (juror may be excluded if views would prevent or substantially impair performance)
Victor v. Nebraska, 511 U.S. 1 (U.S. 1994) (reasonable doubt instruction standards)
Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006) (direct appeal affirming convictions and death sentences)
Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010) (appeal following reinstated direct appeal; issues denied)
Commonwealth v. Baumhammers, 92 A.3d 708 (Pa. 2014) (Witt standard and deference to trial court on juror credibility)