Commonwealth v. Bomar, A., Aplt

136 of those essential features and that one preserved,”

shall be for cause and challenge both ample right includes “an defendant.”). Further, the Supreme secured to peremptorily, Illinois, 148, 556 in Rivera v. U.S. of the United States Court (2009), 1446, expressly recognized 320 173 L.Ed.2d 129 S.Ct. “[sjtates law, decide, state free to as a matter of are challenge is peremptory court’s mistaken denial of a a trial 162, 129 1446. Since error se.” Id. S.Ct. per reversible have decision, of four of our sister states high courts to exercise litigant’s right denial of a wrongful found the the law litigant to the under challenges peremptory —afforded se, matter of state per as a jurisdictions prejudicial of those — a new law, and, thus, necessitating reversible error constitutes 152, 928 457 Mass. Hampton, trial. Commonwealth v. See Hecker, 625, (2010); N.Y.3d 917 v. People N.E.2d Bol, (2010); v. Yai 190 Vt. 942 N.E.2d 248 State N.Y.S.2d Mootz, (2011); v. 808 N.W.2d 207 29 A.3d 1249 State (Iowa 2012).

However, brief to our Court my review of he preju- that he abandoned claim that suffered indicates se, in this argument regard; since he advances no per dice necessary he states that “it is not for Court contrary, [our] 631(E)(1) prejudicial per of Rule are to find that all violations Thus, of this discrete Brief at 19. resolution se.” await a future case. question must

104 A.3d 1179 Pennsylvania, Appellee COMMONWEALTH of v. BOMAR, Appellant.

Arthur Pennsylvania. Supreme Court of April Submitted 2013. 21, 2014.

Decided Nov. Chiccarino, Defender Esq., Community L. Federal Jennifer Office, PA, Veleanu, Esq., Eastern District of Leor Defender for Arthur Bomar. Philadelphia, Association III, District Attor- County R. Toal Delaware Esq., William General, Office, Attorney PA of Esq., Office ney’s Amy Zapp, Pennsylvania. for of Commonwealth EAKIN, BAER, TODD, CASTILLE, C.J., SAYLOR, STEVENS, JJ.

OPINION TODD. Justice case, appeals Arthur Bomar capital

In this County Pleas of Delaware order of the Court of Common for relief under the Post Conviction Relief denying petition (“PCRA”), §§ Act 9541-9546. For the reasons Pa.C.S.A. follow, affirm the of the court. we order Background

I. and death sen underlying Appellant’s The facts conviction have forth at this length by Appel tence been set Court Bomar, direct v. 573 Pa. capital appeal. lant’s Commonwealth (2003) (“Bomar ”). A.2d 831 I A brief recitation of however, context necessary, provide Appel the facts is for and sentence in the challenge lant’s collateral to his conviction instant appeal. I, trial,

The evidence at and summarized in Bomar adduced night 22-year-old established on the of June (“the victim”) Aimee was with several of socializing Willard her at a located on Lancaster Avenue in Wayne, friends bar Pennsylvania. approximately The victim left the bar alone at following morning, 1:25 a.m. the and her blue Honda Civic wаs shortly off-ramp discovered thereafter on the southbound in Delaware exit of Interstate 476 Coun- Springfield-Lima was found inside the ty approximately 2:00 a.m. No one vehicle, open, engine but the driver’s side door was were still on. running, lights headlights and the interior vehicle, A in front of the pool along blood was discovered iron, sneakers, a tire the victim’s and a of womens’ pair with sanitary containing pubic underwear lined with a hairs pad those of the victim. matching face body the victim’s naked was found day,

Later that at 16th and Indiana Avenue down in a vacant lot Street and a bags covering with two her head Philadelphia, plastic forced into her The victim sustained vagina. tree branch brain, face, head, as injuries blunt force to her multiple fractures, contusions, various other and defensive well as intact, body. degenerate sperm her An throughout wounds and tire vaginal cavity, was also recovered from the victim’s from the scene. were obtained impressions nearly year, unsolved for The victim’s murder remained 5, 1997, arrested on an out- Appellant until when June from a second- parole prior warrant for a violation standing Following in Las Nevada. degree Vegas, murder conviction arrest, regarding the investigators questioned Appellant alia, murder, stated, that he had been at victim’s and he inter murder; as the victim on the of her night the same bar (the he drove a 1993 Ford Escort until March 1997 tires to match tire taken impressions which were later determined scene); traveled on routinely from the murder and that he Interstate 476. 10, 1997, Rumer, Mary July Appellant’s then-girlfriend,

On to her that police Appellant to state confessed reported victim, told her that stating Appellant he murdered the car, into her get he watched the victim leave the bar and car, her on Interstate stopped followed her in his until he Rumer recounted that flashing police badge. a fake vehicle, he knocked the told her after he approached unconscious, car, an her in his and drove her to placed victim clothes where he removed the victim’s building, abandoned object, her. killing and hit her in the head with a hard victim, that he raped also admitted to Rumer Interstate 476 later Rumer the location on and he showed abandoned, as well as the where the victim’s car had been body where the victim’s was found. vacant lot vehicle and the Appellant’s Forensic evidence taken from and further linked story crime scene corroborated Rumer’s blood was rеcovered Specifically, to the murder. Escort, Appellant’s front door Ford right panel from the DNA; the oil from the vehicle pan the victim’s which matched side of right of a contusion on pattern matched and, noted, vehicle Appellant’s as the tires on body; victim’s the murder the tire taken from patterns were consistent with DNA also established that testing scene. DNA vagina. from the victim’s matched the recovered sperm profile in- investigating Appellant’s while were Additionally, police murder, O’Donald, ex- in the David volvement law, for prison who was incarcerated federal brother offenses, investiga- with their police offered to assist unrelated County Montgomery to the tion. Police transferred O’Donald held, for two weeks Facility, Appellant where was Correctional 1997, him on cellblock serve placed and July 17, made several listening post. July Appellant as a On alia, inter O’Donald, including, statements incriminating her, we with she did whatever “we did whatever we wanted off, done, and told, we were I almost took her head and when her cunt.” Id. Quincy a tree branch 842. up we crammed Williams, inmate incarcerated with Appellant another Jamal Appellant also Montgomery County, reported police the victim. murdering confessed to mur- charged first-degree was with Appellant subsequently assault, der, and abuse of a aggravated kidnapping, rape, trial the Honor- proceeded jury The case to a before corpse. T. Hazel of the of Common Pleas of able Frank Court 1, 1998, and, County,1 Appellant on October Delaware of of the aforementioned offenses. At the conclusion convicted three circum- hearing, jury aggravating the the found penalty of a killing perpetration was committed the stances —the of convic- felony,2 significant history felony had a Appellant of to the involving person,3 tions the use or threat violence of another murder committed had been convicted Although County, upon Appellant's place the trial took in Delaware 1. venire, change jury from Westmoreland motion for was selected County. 9711(d)(6). § 2. 42 Pa.C.S.A. 9711(d)(9). § 42 Pa.C.S.A.

3. The also jury of the offense at issue.4 before or at the time mitigator circumstance —the “catchall” mitigating found one After conclud- character and record.5 concerning Appellant’s outweighed mitigating circumstances ing aggravating circumstance, death. The trial returned a sentence of jury 1998, and, 4, on December court the death sentence imposed pur- offender high-risk dangerous after a deeming Appellant 9714(a)(1),6 § sentenced suant to Pa.C.S.A. incarceration on both years terms of 10 to 20

consecutive convictions, term as well as a consecutive kidnapping rape conviction. corpse two on the abuse of a years of one to complicated procedural a somewhat Following sentencing, counsel withdrew from the ensued. trial history Specifically, Leach, case, appearance. entered his Esquire, and Steven C. 1999, Thereafter, 13, post-sentence filed January on alia, assistance four claims of ineffective raising, motions inter hearings post- held on the of trial counsel.7 The trial court 20, 1999, April on March 1999 and sentence motions relief, in written concluding ultimately post-sentence denied Appellant subsequently that the claims lacked merit. opinion May this of sentence. On appealed judgment death, judgment of sentence Court affirmed l(d)(ll). § 4. 42 Pa.C.S.A. 9711(e)(8). § 42 Pa.C.S.A.

5. 9714(a)(1) pro- sentencing, § Appellant’s time 42 Pa.C.S.A. 6. At the vided that: of a Any person court of this Commonwealth who is convicted shall, of the current if at the time of the commission crime of violence previously of a crime of person the had been convicted offense violence, high danger- presumption of risk not rebutted the has least ten to a minimum sentence of at ous offender ... be sentenced confinement, notwithstanding any provision of years other of total contrary. this title or other statute to the amended, 9714(a)(1). 9714(a)(1) later § Section was 42 Pa.C.S.A. and, instead, removing "high dangerous presumption the risk offender” ten-year incarceration. imposing minimum term of an automatic (1) was ineffective for: Specifically, Appellant asserted trial counsel 7. testify Betty to on his failing Appellant’s mother and Howell to call trial; (2) failing present during guilt phase a diminished behalf the defense; (3) change failing for a second of venue or capacity to move venire; (4) neuropsy- failing request a for additional continuance chological testing penalty phase. the remaining of sentence for his judgment Appellant’s vacated offenses, of our deci- resentencing light remanded for Butler, 324, v. 563 Pa. 760 A.2d 384 sion in Commonwealth 9714(a)(1) (2000) § violated procedural 42 Pa.C.S.A. (holding the burden on the defendant to rights by placing due process dangerous he a risk high is presumption rebut offender). I, 826 A.2d at 862. Bomar on timely pro petition then filed a se PCRA

Appеllant 2004, which he as “Defendant’s Motion January styled Newly Through Preserved Discovered Evidence Support For 1, 2004, was resen- April A Petition.” On PCRA to an remaining non-capital aggre- tenced on his convictions term of 252 to 504 months incarceration. gate judgment Superior of sentence to Court. appealed 22, 2004, from resen- Appellant’s appeal December while On Community counsel from the Federal tencing pending, (“FCDO”) Penn- Defender for the Eastern District of Office a Appellant’s Habeas Unit filed on behalf sylvania Capital I, Habeas Relief Pursuant to Article Corpus “Petition for Statutory 14 of the Constitution Post- Pennsylvania Section Act, Relief Relief Conviction Under Post-Conviction § 9541 et which was deemed to be an amended seq.,” Pa.C.S. proceedings stayed pending PCRA The were petition. PCRA 25, 2005, appeal. May the conclusion of direct On affirmed of sentence Superior Appellant’s judgment Court offenses, on the and this Court denied allocatur. remaining Wiseman, entered on Febru- Esquire,8 appearance Michael 3, 2006, was lifted on ary stay proceedings and the of PCRA February Judge presided 2006. Hazel over the PCRA proceedings as well. later, 21, 2006, November coun-

Nine months on declaring Appellant sel filed a motion an order incom- seeking on the matter and petent proceed. Following hearing both court found briefing by parties, and denied the motion on November 2007. competent Thereafter, a response Appellant’s the Commonwealth filed 2008, 31, evidentiary hearings PCRA on March and on petition Attorney attorney 8. Wiseman was also an for the FCDO. 28, 2008, 17, 2007, July May took on

Appellant’s petition place 15-16, 2009, 28-29, 2009, 5-7, 2008, January April November 2009, 1-3, 2010, 24, 2009, 20-21, February September October 28, 29, 2011, 20, 2011, 2010, January November and July 29, ultimately The court denied Ap- November 2011. PCRA on March 2012. filed a notice pellant’s petition 23, 2012, and, 4, 2012, on appeal April September of on opinion addressing, court filed an extensive 213 page PCRA meritless, each the 22 claims in Appellant’s as rejecting claims, us, those he raises nine before petition.9 PCRA Of which we now address seriatim. Analysis

II. relief, In the denial of we examine reviewing PCRA “supported by whether the court’s determination is v. legal Rainey, record and free of error.” Commonwealth (2007). 593 Pa. 928 A.2d To for relief qualify PCRA, establish, appellant by preponder under the an must evidence, sentence ance of his conviction or resulted in 42 from one or more of the enumerated errors Pa.C.S.A. 9543(a)(2); previously litigated § that his claims have not been waived; or that the failure to the issue to or litigate prior during appeal trial or on direct could not have been the result rational, or tactical decision counsel. Id. strategic, by (a)(4). 9543(a)(3), litigated § An issue is if “the previously court in which could have had highest appellate appellant] [the review as a matter of has ruled on the merits of right 9544(a)(2). § Id. An issue is waived if the appellant issue.” trial, trial, have it but to do so before “could raised failed review, unitary prior postconvic on or in a state during appeal 9544(b). § proceeding.” tion Id.

Further, as several of claims concern the counsel, briefly legal ineffectiveness of we will summarize the framework such claims under the PCRA. To obtain governing counsel, peti relief on a claim of ineffectiveness of a PCRA test set satisfy performance prejudice tioner must 668, 104 forth in v. 466 U.S. S.Ct. Washington, Strickland 1925(b) file a 9. The PCRA court did not order Pa.R.A.P. complained appeal. of matters of on statement 152 (1984). we have

2052, Pennsylvania, ap In 80 L.Ed.2d 674 estab that a by requiring petitioner test plied Strickland (2) (1) merit; no underlying arguable claim has lish that: act; failure to for counsel’s action or reasonable basis existed (3) as a result of coun prejudice suffered petitioner there is a error, by measured whether prejudice sel’s with proceeding that the result of the would reasonable probability Pierce, 186, v. 567 Pa. different. Commonwealth have been (2001). have 203, presumed is A.2d 213 Counsel 786 assistance, and, if a claim fails under rendered effective test, the dismiss may of the court required element Strickland Ali, 71, Pa. 10 basis. v. 608 the claim on that Commonwealth (2010). 282, A.3d mo- post-sentence at the time filed his

Notably, subject he to our rule articulated appeal, tions and direct Hubbard, v. 472 Pa. 372 A.2d 687 in Commonwealth waiver, (1977), counsel, upon pain which new required the earliest opportunity. raise claims of ineffectiveness however, decided, until after direct was not Appellant’s appeal Grant, v. 572 Pa. we issued our decision Commonwealth (2002), the Hubbard rule abrogated 813 A.2d 726 wherein we all ineffectiveness claims be deferred until required appellant in order to an post-conviction proceedings provide record and more time to discover and complete with a more Grant, or her claims. 813 A.2d at 737-38. fully develop his Nevertheless, we found that such Appellant’s appeal, direct Appellant’s were not because counsel implicated concerns claims in raised and his ineffectiveness properly preserved court, ineffec- hearings Appellant’s trial the trial court held on claims, trial court an address- opinion tiveness and the issued I, Accordingly, 826 A.2d at 853-54. ing those claims. Bomar circumstances of case and unique because of already the fact an extensive record had been created to review, exception assist with our we created a limited rule of deferral in deemed the general subsequently Grant — ineffective- “Bomar entertained exception”10—and recently exception reaffirmed Grant and limited the Bomar to its 10. We Holmes, pre-Grant v. 621 Pa. 79 A.3d 562 facts Commonwealth (2013). them until deferring rather than appeal, claims on direct ness Id. at 855. collateral review. to raise his opportunity had the

Because has waived appeal, Appellant on direct ineffectiveness claims at that that he did not raise ineffectiveness claims any new 9544(b) (“an if the § issue is waived time. See Pa.C.S.A. trial, to do so before have raised it but failed could petitioner review, in a state trial, prior on or during unitary appeal at Thus, re may secure Appellant postconviction proceeding”). if can only ineffectiveness he claims of trial counsel lief on ineffective, but that trial counsel was only demonstrate not for to raise failing counsel was ineffective appellate also that doing, In so appeal. counsel’s ineffectiveness on direct trial on, and argument prove must Appellant plead, present as to each rele elements of ineffectiveness Strickland/Pierce Ali, 292; 10 A.3d Common layer representation. vant (2003). McGill, 1014, 574, 832 A.2d 1022 wealth v. 574 Pa. Impeachment Evidence A. Favorable Treatment prosecutorial raises appeal, Appellant In his first issue on claims, the Commonwealth Brady asserting misconduct and for exchange “secret deals” in offered and Williams O’Donald incriminating they statements testimony regarding their block; while on his cell that O’Don- Appellant overheard make existed; at trial that no deals falsely ald and testified Williams Brady11 Napue12,by violated and that the Commonwealth these deals to trial regarding disclose evidence failing to false allegedly correct the witnesses’ failing counsel and additionally contends testimony during trial. claims, misapplied court evaluating Napue. under Brady standard for relief materiality violation, must demon рrove Brady To (2) evidence; (1) which concealed prosecution strate that: 1194, 83, 10 215 Brady Maryland, U.S. 83 S.Ct. L.Ed.2d 11. v. 373 (1963). 264, 1173, Illinois, 3 L.Ed.2d 1217 Napue 79 S.Ct. 12. v. 360 U.S. (1959). 154 evidence impeachment or exculpatory

evidence was either (3) and; by he was the conceal prejudiced favorable to him 47, 294, Pa. 800 A.2d 305 Paddy, ment. v. 569 Commonwealth Greene, 281-82, 263, 119 (2002); v. 527 U.S. S.Ct. Strickler (1999). 1936, prejudice, In order to prove 144 L.Ed.2d 286 that, had the probability must show a “reasonable defense, the result of the been disclosed to the evidence v. have been different.” Commonwealth would proceeding (2001). 1136, Burke, 402, 1141 Pa. 781 A.2d Stated 566 “material to guilt the undisclosed evidence must be differently, Further, 800 A.2d at 305. punishment.” Paddy, “[im or credibility primary to the of a peachment goes evidence which the accused is critical evidence and it is against witness merely evidence is a promise material to the case whether that and the wit understanding prosecution or an between the 1167, ‍​‌‌​‌​​‌‌​​‌‌​‌​​‌‌​‌‌​​‌​‌‌​‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‍Pa. 761 A.2d Strong, ness.” v. 563 Commonwealth (2000). to an between the conjecture agreement Mere as a Brady and witness is insufficient to establish prosecution Chmiel, violation, 612 Pa. however. Commonwealth v. (2011). no Finally, A.3d we note that is “[t]here knew, or reasonable Brady appellant violation when the with the evidence in diligence, question.” could have uncovered (2011). 272, 15 v. 609 Pa. A.3d 451 Paddy, Commonwealth 1. David ODonald agreement maintains that O’Donald had an that he in County prosecutors testify

with Delaware would sentence, in Appellant’s exchange prison case for a reduced correct false prosecution and that failed to O’Donald’s at trial that there was no such In testimony agreement. claims, of his notes that testified support O’Donald at the in case told hearing prosecutors Appellant’s PCRA him that federal would file a Fed.R.Crim.P. 35 prosecutors a in sentence after he testified motion for reduction his federal case; Appellant’s in in Appellant’s cooperated O’Donald reduction; in and that case order to receive a sentence was, fact, sentence in reduced from prison O’Donald’s federal years shortly Appellant’s 17 to 14 after trial had concluded. Attor- from the District also to a document points Informant,”13 Prison “Points to Cover Re: office entitled ney’s meeting between during July discussed which was in cooperation his concerning and local prosecutors O’Donald stated, case, part: in pertinent and which Appellant’s I First Assistant Dis- understand that am the you 6. Do therefore not a County оf Delaware Attorney trict Attorney’s member of the Office? United States that since I am not a member of you 7. Do understand or authority that I have no Attorney’s States Office [U]nited make a recommendation to court to capacity appear sentence you? the court which shall ability provide that I will have the you 8. Do understand and to Attorney’s information to the States Office [U]nited sincerity of the party my opinion other relevant as to any and candor of your cooperation? any you may understand that benefit you

9. Do infor- for is not on your cooperation dependent receive flow solely or not but will you may may provide, mation your in terms of your cooperation from sincere and candid for Bowmar willingness “listening post” [sic]. to serve as a 79) (emphasis Exhibit (quoting Brief at Appellant’s es- unequivocally claims this document original). Appellant Delaware bargain reached a with tablished that O’Donald Appellant’s County regarding cooperation prosecutors 15, 1998, case, on alleges he came to fruition October which for Reduction of when federal filed a Motion prosecutors Pursuant to Fed. Changed for Circumstances Sentence and, 35(b), was based “sole- according Appellant, R.Crim.P. Brief at case. ly” on his cooperation 16. evi- alleged Brady

Preliminarily, Appellant’s we note at the time of dence would to have been available appear motions, trial, or his direct appeal, Appellant’s post-sentence in possession plea as counsel had his O’Donald’s Appellant’s stipulated document was contained 13. The Commonwealth that this 1/15/09, N.T., Attorney’s file. at 10. the District See trial; at the time of prosecutors with federal agreement case was filed Reduction of O’Donald’s Motion for Sentence Appel- guilt phase the conclusion of the two weeks after days trial; received a reduced sentence lant’s and O’Donald Brady his claim at maintains he raised later. While so, he he fails to indicate when his first to do opportunity Brady and fails to violation alleged became aware of have he could not diligence, with reasonable explain why, time. violation at an earlier alleged uncovered evidence of raise this issue in an because failed to Accordingly, to have been waived. appears earlier the claim proceeding, Roney, Commonwealth v. 622 Pa. 79 A.3d See (2013) (finding Brady appellant claim to be waived when the and failed appeal the issue at trial or on direct failed to raise uncovered the counsel could not have argue why prior However, alleged Brady diligence). violations with reasonable thus, waiver; not assert we will the Commonwealth does consider the claim on the merits. no existed be- agreement

The PCRA court concluded that O’Donald, and, thus, that the the Commonwealth and tween it, Brady failing did not violate for to disclose Commonwealth although during O’Donald testified PCRA noting the existence of an his testimo- hearing regarding agreement, 9/4/12, 49-51, ny credibility. Opinion, lacked PCRA Court out that Specifically, pointed 55. the PCRA court O’Donald federal in Febru- plea agreement prosecutors entered a with case—in ary prior cooperation to his 1997— he with information agreed provide investigators which In for his concerning exchange 12 unsolved bank robberies. court sentencing to inform the guilty plea, prosecutors agreed encourage of his in the other cases and cooperation discretion, court, below the impose applica- at its sentence The court mandatory opined ble minimum. authorities in O’Donald initiated discussions with authorities hoped cooperating case because he with local in that would result in an additional sentence investigation However, agreement. to his earlier pursuant plea reduction that, during July meeting the court noted O’Donald’s his in this mat- concerning cooperation local prosecutors with ter, that were not affiliat- they informed O’Donald prosecutors Attorneys’ expressly Office ed with the United States to make formal recommendations they authority stated lacked Exhibit 79. While his federal sentence. See PCRA regarding they that during meeting informed prosecutors O’Donald Attorneys’ Office of advise the United States potentially could matter, the federal district although in the cooperation cooperation ultimately court considered O’Donald’s judge in the conjunction cooperation case in with his reduce it the motion to robbery granted bank cases when “no sentence, prosecu- the PCRA court found that O’Donald’s federal, seeking that a motion tor, local or O’Donald promised behalf if he testified a further reduction would be filed on his 9/4/12, trial,” at and that O’Don- Opinion, at Court PCRA the conclusion that “subjective support belief does not ald’s made.” Id. at 51. promises of this nature were assuming even The court further determined PCRA existed, its conceal- agreement alleged that such an arguendo verdict, credibility as impact ment did not O’Donald’s cross-examination; the trial extensively during challenged its jury regarding instruction to the cautionary court issued substantial other testimony; of O’Donald’s consideration inde- Appellant’s guilt and circumstantial evidence of physical was offered at trial. pendent testimony O’Donald’s in its the “Points highlighted opinion, As the PCRA court prosecu- document reflects that Cover Re: Prison Informant” authority lacked they told specifically tors O’Donald sentencing, behalf at make a recommendation on O’Donald’s sentencing receive from any might and that benefit O’Donald them. he dependent provided was not on information noted Additionally, prosecutor Exhibit 79. the federal PCRA were no hearing that “there during resentencing O’Donald’s in Dela- ... the D.A.’s office deals between [O’Donald and] N.T., 1/7/1999, 21-22, and the Assistant County,” ware similarly during Appellant’s Attorney expressed District offering [O’Donald] “weren’t hearing prosecutors PCRA N.T., 1/15/2009, at 131. any consideration.” found, While, construe the court one could as between agreement there was no evidencing above as sentence, evi- for a reduced other prosecutors O’Donald and agreement. of such an strongly suggests dence the existence Indeed, stated that the “Points to Cover” document although recom- authority sentencing the to make a prosecutors lacked behalf, the document also discussed mendation on O’Donald’s information to the United prosecutor’s ability provide the cooperation, O’Donald’s Attorney’s regarding States Office benefit to would flow from any potential noted that O’Donald as a and characterized willingness listening post, his serve as an “understand- prosecutors O’Donald’s with relationship Further, resentencing Exhibit at ing.” PCRA 79. O’Donald’s confirmed that had a hearing, prosecutor the federal O’Donald ... in and government cooperate any “deal with the federal [O’Donald],” N.T., ... investigations requested all as 1/7/1999, 22, testified at Attorney at and the Assistant District hearing following coopera- O’Donald’s Appellant’s case, in he to ... Appellant’s “fully expected [O’Donald] tion his Judge return to Federal Court and ask the reduce N.T., 1/15/2009, Indeed, at 139. years.” sentence from the 17 above, concluded, after trial had shortly Appellant’s as noted 35(b) for federal filed a Fed.R.Crim.P. Motion prosecutors Sеntence, was prison Reduction of and O’Donald’s sentence years. reduced from 17 to 14

Nevertheless, we need not reach a definitive conclusion as to whether or not an existed between O’Donald and agreement because, exist, if prosecutors agreement even such an did violation in this did not in Brady regard prejudice Appellant the DNA and circumstantial evidence light of extensive alia, him, the against sperm inter recovered from including, victim’s matched DNA DNA vagina Appellant’s profile; which right panel Appellant’s from the victim found on the door vehicle; tire at the murder scene which matched tire patterns vehicle; testimony Appel- from and from patterns lant’s confessed to ex-girlfriend revealing rap- victim, described details ing murdering specific Moreover, dur- surrounding the incident. O’Donald admitted agreement that he had a with ing plea direct examination in case cooperation Appellant’s federal that his prosecutors, judge’s during was to the federal attention his Octo- brought that he dissatisfied with his sentencing hearing, ber 1997 sentence, that a for further reduction of current motion N.T., 9/28/98, 273, 285-87, his sentence was at pending, jury the trial court to instruct to consider prompting “believed testimony O’Donald’s with caution because O’Donald authorities in cooperation level of with law enforcement positive this case would have a on the sentence he impact 9/4/12, Opinion, would receive federal court.” PCRA at 160). N.T., 9/30/98, Thus, of the substan- (quoting light tial evidence and the fact that the trial court against Appellant highlighted possible testimony bias O’Donald’s and directed caution, we that it jury testimony to view with find is not that the result of trial would have probable been different if the material had been dis- alleged Brady closed to him. Quincy

2. Jamal Williams similarly agreement that an existed argues Williams, claiming between Williams was prosecutors facing first-degree charges, permitted murder but in for his plead guilty voluntary manslaughter exchange testimony Appellant’s proof alleged agree in case. As of this ment, testimony references from the Williams’ Appellant’s that he testified in case hearing stating PCRA him that he would be re prosecutor promised because the testimony leased on and that his was false and based parole, him and detectives. by prosecutor on information fed to the a letter District Attor Appellant also refers to First Assistant (“ADA”) ney Pennsylvania Daniel J. McDevitt wrote to the years Appellаnt’s Board of Probation and Parole two after acknowledging cooperation trial Williams’ in the case and a letter to ADA in 2003 into inquiring Williams wrote McDevitt their “deal” his regarding parole. claim, addressing Brady

In the PCRA court Appellant’s that no credible evidence established that prosecu- concluded in testimony for his exchange in parole Williams promised tors 9/4/12, Specifi- at 58. Opinion, Court case. PCRA Appellant’s that, testified observed while Williams the court cally, PCRA he agreement an hearing regarding alleged during the PCRA testimony, for his credible exchange in prosecutors had with otherwise, during as ADA McDevitt testified proved evidence cooperation hearing the PCRA Williams’ to allow Williams no influence on his office’s decision case had manslaughter, prosecu- and that involuntary plead guilty and did not recommendations specific sentencing tors made no court further on behalf. The PCRA leniency ask for Williams’ in a 2003 letter to ADA McDevitt stated explicitly noted that them, that, al- between that no deal existed Williams did, fact, a letter to the ADA McDevitt write though advising and Parole Pennsylvania Board of Probation case, he so at did cooperation Appellant’s Board of Williams’ mother, repre- and the letter did not of Williams’ request and law an existed between Williams agreement sent court con- foregoing, enforcement. Based on the subjec- may have harbored cluded Williams “[w]hile testimony garner that at some would hope point tive benefit, the conclusion supporting there is no credible evidence [sic], McDevitt, in law reinforcement anyone that Mr. or the service of his minimum sen- parole upon him promised (footnote omitted). tence.” Id. at 59 claim on While bases his Williams’ agree. We testimony specifically the PCRA court found testimony, plea agree- reliance on his earlier was incredible. ADA letter to the Parole Board is ment and McDevitt’s Indeed, guilty entered his similarly unavailing. open Williams in months before July Appel- and was sentenced plea ADA McDevitt’s letter makes no began, parole lant’s trial and, fact, in states agreement reference to an with Williams entirely enforcement was that Williams’ with law cooperation Further, above, noted refer- voluntary. although, as Williams McDevitt, ADA McDevitt’s enced a deal in his letter to ADA rejected agree- letter in the existence of an response explicitly Accordingly, ment between Williams and the Commonwealth. credible evi- has failed to establish with Appellant because and the an existed between Williams agreement dence that Commonwealth, his claim fails. Error

3. PCRA Court claims, that, in his additionally argues rejecting Appellant standard for relief materiality court the misapplied the PCRA material- improperly assessing pursuant Brady Napue, to items of evidence discounting in “after ity terms whether non-disclosure, is sufficient remaining the evidence by tainted whether evaluating rather than guilt,” a verdict of support would likelihood exists that the non-disclosure a reasonable is jury, of the as he contends judgment have affected the According Brief at 23. required by Napue. materi- properly applied if the PCRA court had Appellant, standard, of the have found the non-disclosure ality it would and the Commonwealth agreements prosecution between testimony for the witnesses’ af- witnesses and the motivation as, jury, according Appellant, of the judgment fected the would not jury in nature and testimony damaging testifying were have believed it if it knew the witnesses agreements for reduced sentences. pursuant The point. is beside Appellant’s argument largely upon claims based its rejected Appellant’s Brady PCRA court existed between the Common- finding agreements that no witnesses, and, thus, and its that the Commonwealth wealth Moreover, as we discussed did not conceal evidence. above, prosecu- if existed between agreement detail even an O’Donald, judg- not affect the tors and its nondisclosure did other the wealth of jury light significant ment of the is, the murder. implicating Appellant evidence thus, to relief on this claim. not entitled Competency

B. process rights next that his due argues of his at the time incompetent were violated because he was therefore, counsel. Ini and, rationally unable to assist trial challenge competency did not tially, we note that failure to an appeal. to stand trial on direct While 162 of on direct results waiver appeal generally

raise a claim PCRA, failure to raise on direct “[a] that claim under was at the time appellant incompetent a claim that appeal purposes trial not constitute a waiver of that claim for of does Brown, 461, v. 582 Pa. 872 of the PCRA.” Commonwealth 1139, (2005) (plurality);14 A.2d see also Commonwealth (2011) 244, n. 10 Spotz, (reaffirming v. 610 Pa. 18 A.3d exception Brown that is an to the waiver holding competency PCRA). we will Accordingly, proceed rule under claim. Appellant’s entertain hearing,

In Januаry prior Appellant’s preliminary trial counsel the court a Appellant’s petitioned appoint his that psychiatrist competency, noting Appel- determine during pre-trial lant had twice suicide his incarcera- attempted tion, “broken Appellant that counsel’s communication with had down,” and that accused him of a recently being had his wife. The trial court attorney raping appoint- district evaluation, ed Dr. Robert Sadoff to conduct a competency January which occurred on 1998. At the time of the evaluation, Dr. was not with provided Appellant’s pris- Sadoff records; however, on counsel him of sui- advised him, attempts, Appellant’s against cide accusations and his behavior in Dr. found disruptive prison. Ultimately, Sadoff a symptoms paranoid personality exhibited disorder, but concluded that was nevertheless com- trial, to stand as his not petent personality impact disorder did ability his to understand the nature of the proceedings against him participate or to in his defense. The trial court conducted 16, 1998,15 a on which competency hearing January during plurality opinion, Nigro 14. While Brown was a Justice stated in his concurring dissenting opinion specific agree- that he ”note[d] [his] majority’s [a]ppellant's with the ment treatment of claim that he [the] trial, competent including holding post- was not to stand its that a petitioner’s appeal conviction failure to raise a claim on direct that he incompetent at the time trial does not constitute a waiver of Brown, J., purposes (Nigro, claim for of the PCRA.” 872 A.2d at 1170 result, concurring dissenting). majority a of this Court held As competency exception to stand trial is an to the waiver rule under the PCRA. brief, Appellant competency In 15. claims there was "no actual hearing.” Appellant's explicitly rejected Brief at 27. The PCRA court object not to Dr. stated that he did trial counsel his own he did not wish to obtain and that s conclusions Sadoff court, findings, Dr. s conclud- upon The based Sadoff expert. trial. to stand competent ed was Appellant Dud- later retained Dr. Richard PCRA counsel Appellant’s in 2004 Appellant’s competency and evaluate to examine ley hearing PCRA Dudley Appellant’s Dr. testified at and 2006. disor- personality from an anti-social that suffered Appellant disorder, that the opined personality der and borderline The to stand trial.16 incompetent rendered him disorders had testimony at the Dudley’s countered Dr. Commonwealth Sadoff, from Dr. as well as testimony with hearing PCRA in Cooke, Appellant Dr. who examined testimony from Gerald both of whom opined September 1998 and April upon time of trial.17 Based at the competent was Appellant testimo- rejected Dudley’s court Dr. foregoing, the PCRA and concluded experts, in favor of the Commonwealth’s ny to stand trial. PCRA Court competent was indeed Appellant 9/4/12, at 31-32. Opinion, that, Dr. s com- because Sadoff

Presently, Appellant argues eight over January took place evaluation petency accurately not the evaluation did began, months before trial trial, as, the time of his competency at Appellant’s reflect mental condition deteriorated his according Appellant, Specifically, completed. after the evaluation had been shortly January records from prison references Appellant he was he claims reflect that which through August and, record, agree upon we with opinion, based this assertion its was, indeed, hearing conducted. competency a the PCRA court 9/4/12, Opinion, at 25. See PCRA Court incompetent opined Appellant at the Dudley was 16. Dr. further however, Appellant's compe- hearings; of issue time of the PCRA hearings presently before this Court. is not tence at the PCRA testimony psychologist Ed- presented from The Commonwealth also 17. anticipa- August Dougherty, Appellant in ward who examined trial, unable to com- penalty phase but was tion of the unwilling complete Appellant had been plete his evaluation because his unwilling provide information about testing and psychological result, opine Appel- Dougherty would not as background. Dr. As competency trial. lant’s to stand delusional, from incoherently, “suffering and was rambled Brief 25. rages.” Appellant’s and uncontrollable psychosis receive these prison that Dr. did not after his trial. performed years ric examination that was six Brown, supra, our decision in wherein we concluded Citing after trial eight years a assessment from competency that trial, at the time of the incompetency does not establish rejects such “after- maintains that this Court Commonwealth The further ob- competency the-fact” claims. Commonwealth findings credibility court’s factual serves the PCRA and, thus, record, by argues are supported determinations they appeal. should not be disturbed on to stand presumed competent

A defendant is to be otherwise. Common proving trial and bears the burden of (2011). Smith, 873, v. 605, To wealth 609 Pa. 17 A.3d by he must incompetent, Appellant prove, establish that was evidence, “that he was either unable to preponderance of him or to against understand the nature of the proceedings Rainey, own defense.” 928 A.2d at 236. participate Here, In he arguing has failed to meet this burden. Appellant trial, primarily upon to stand relies incompetent six Dudley’s competency place Dr. evaluations which took observes, trial. years Appellant’s after As Commonwealth however, be a defendant’s to stand trial must competency Bracey, evaluated at the time of trial. Commonwealth v. (2001) (rejecting competency Pa. 795 A.2d 945-46 trial). Dr. providing from five after In years evaluation competency hindsight Appellant’s assessment Dudley’s trial, requirement. overlooks this See Appellant plainly stand id.; Brown, assess- (rejecting competency 872 A.2d at 1156 trial). eight years ment from after Dr. Sadoffs Appellant argues

To the extent trial similar eight evaluation from months before competency the time of competency establish at ly failed to trial, that he asserts the evaluation was and to the extent made available because his records were not inadequate prison object to Dr. Sadoff, we note that failed to to Dr. competency at the testimony pre-trial evaluation and Sadoffs and, thus, arguments.18 he has waived these See hearing 302(a). Moreover, above, the burden is on Pa.R.A.P. as noted than on the to establish his rather incompetency, See Appellant’s competency. to establish Commonwealth event, Smith, In as the court 17 A.3d at 899. PCRA below, con evaluations were competency observed additional in proximity 1998 and closer April September ducted trial, Appellant’s competence, which confirmed that he was during hearing and Dr. testified Sadoff prior contained in the records prison informed of events did not they his examination of conducting Appellant, to find that the Accordingly, his conclusion. we decline impact incompetency in rejecting Appellant’s PCRA court erred claim. Penalty Phase

C. Denial of Effective Counsel counsel Appellant penalty phase next contends that explain failing “properly present was ineffective for childhood, dysfunction, of traumatic significance Appellant’s that, jury, arguing although illness” to the and serious mental evidence to presented mitigating сounsel some penalty phase that evidence significance failed to of jury, explain she and failed to additional Appellant, present and how it affected his troubled regarding evidence that was available mitigating Ap Brief at 41. Appellant’s and mental health. upbringing 18. object, but nonetheless raises Appellant concedes counsel’s failure to no claim of ineffectiveness herein. counsel ineffective for appellate further avers that was

pellant appeal. to raise trial counsel’s ineffectiveness on direct failing to raise claim of Initially, Appellant we note that failed this post-sentence trial counsel ineffectiveness in motions or on I, thus, it is waived. Bomar 826 A.2d at appeal; direct See 853-54; Hubbard, Nevertheless, 372 A.2d at 697 n. 9. as counsel, ineffectiveness of we alleges appellate also claim. proceed layered will to evaluate his ineffectiveness trial, During penalty phase Appellant’s Appellant’s presented mitigating testimony counsel from several his his acquaintances, generally regarding good who testified character, from testimony Appellant’s younger as well as brother, mother, “Sonny” Ganges, Ganges, William Carrie half-sister, Joyce Sonny and his Batchelor. While and Carrie brief statements their Ganges gave only expressing disagree- verdict, extensively ment with the Batchelor testified guilty troubled regarding Appellant’s upbringing. Specifically, “hell,” their Batchelor described that childhood was marked time” by “constant violence all the between their mother and Sr., father, Arthur claiming they fought every day. N.T., 10/5/98, that, Batchelor during 108. recounted several fights between their mother Appellant’s parents, chopped up ax, and, occasion, all the furniture in the house with an on one it poured gasoline inside house and set on fire. Id. at 109- 10. very Batchelor testified that Arthur Sr. was “a cruel who person,” every day drank and failed to exhibit kind of children; parenting toward the that their mother was “a crazy and that she not remember her person”; did mother ever holding as a child. Id. at 117. Batchelor testified that lived with his mother until he was nine eight years-old, or and lived with his father until he was a teenager. counsel also elicited from Dr.

Penalty phase testimony Cooke, mental health Dr. expert. Gerald Cooke child, Appellant described as a had been classified as (“EMR”), Educably Mentally placed special Retarded was and, latеr, education eight years, significantly for seven or behind in achievement levels in school. Id. at 47. Ac- high Cooke, is in the I.Q. was which Appellant’s to Dr. cording at 50. Dr. Cooke range. the low Id. average bottom of that suggested Appellant that his of opined testing Appellant however, brain he noted organic damage; suffered from Appellant a firm conclusion because he was unable to reach and motivation exhibited with attention frequently problems tests and four out of seven during testing only completed diagnosis, refusing complete to reach a firm necessary 48-50, 58. Dr. Cooke he frustrated. Id. at grew rest because hearing further opined during penalty disorders, personality from borderline and anti-social suffered love, sex, it comes to and him to have “confusion when causing control,” him “leading] “very poor emotional aggression,” that are reflected in some of the kind of behaviors engage history.” Id. at 53. past his now claims foregoing, Appellant penal- Notwithstanding testimony additional presented counsel should have ty phase concerning upbringing to him his troubled from others close behavior, emotional of “bizarre resulting displays and his experiences.” and dissociative instability, learning problems, maintains that penalty Brief at 32. also who he mitigation specialist, counsel should have hired a phase members, with his rapport family would have built a suggests for history her to a social enabling complete have elicited testi- jury, counsel to to the and should present relationship between mony regarding from Dr. Cooke issues, as psychological troubled childhood had on his personality well the effect his disorders showing as claim, Appellant’s In of this everyday support life. from vari- hearing affidavits at the PCRA

counsel introduced alia, inter including, members and family acquaintances, ous Cotton, McCullen, Anna Batchelor, Bettie Sher- Lorraine Wilson, of the description man which a more detailed provided throughout neglect Appellant experienced abuse and Dr. an affidavit from provided childhood. PCRA counsel also analysis Appellant conducted a Dudley, psychiatric who Browne, a licensed from Marissa testimony as well as and alcohol drug counselor who professional performed of his parole; in 1990 as a condition Appellant evaluation of phase by penalty who had been retained Dougherty, and Dr. examination neuropsychological in 1998 to conduct a counsel Appellant. alia, inter affidavit, Appellant’s in her that

Batchelor stated “[tjhere be a always and that would heavily, drank parents Affidavit of the table.” Declaration and liquor bottle of on Batchelor, fights various at 879. Batchelor also detailed Joyce that describing Appellant’s parents, that occurred between every home took at their fights” place knockdown “physical, shot, stabbed, times where mother day, including Appellant’s Sr., she set fires with burned Arthur and times when and Id. Additionally, broke windows in the house. and gasoline was arrest- an incident wherein Appellant Batchelor described Reno, later and beaten at gang-raped ed in Nevada and was Id. at 882. While Batchelor acknowledged jail facility. regarding not this additional testify her affidavit that she did claimed hearing, she during Appellant’s penalty information counsel when she Appellant’s penalty phase she it to provided trial, that she would have met with her before and stated trial had she been asked about during shared the information it. half-sister, Cotton, stated in her affida- Appellant’s

Lorraine as develop problems vit that to behavioral Appellant began a class- as stabbed early kindergarten, noting in the with a and that the school made eye pencil mate Appellant’s Appel- recommendations mother that repeated Cotton, mother help. According Appellant’s lant receive recommendations, denying the school’s ignored or that he needed education. special had behavioral issues mother traveled be- Appellant’s also described that Cotton Nevada, leaving Ap- relationships Pennsylvania tween at a time and his brother alone Reno for months pellant guid- that the lack of they teenagers, opined while were him to continue ance and structure in life caused Appellant’s was never contact- into trouble. Cotton noted she get but stated that she would by testify, ed counsel to details had she the aforementioned regarding have testified to do so. been asked half-sisters, McCullen, stated another of

Bettie her children their mother never showed in her affidavit that affection, times, from gone she “was [their] at a time. Decla- years childhood sometimes for completely,” McCullen, also of Bettie at 892. McCullen ration and Affidavit ill often mentally mother was and would described that their herself. respect on lоud conversations with With carry child only stated that Appellant, McCullen mother, and that she had a true bond with their thought she crazy. mother were both McCullen thought that he and their around a lot” as a “was shuffled Appellant also described child, in after he period got that her father took him for a and to be and their mother was “nowhere into trouble Nevada affidavit was a found.” Id. at 896. Attached McCullen’s aunt, her that notifying letter to their mother from their Appellant concerns that psychologists expressed doctors and attributable problems possibly suffer from might psychological also attached one of early to birth or childhood. McCullen cards, from which included comments Appellant’s report habits. McCullen regarding Appellant’s poor teacher work testify Appellant’s that she contacted to stated was never trial, do so had she been willing but would have been subpoenaed. aunt, Wilson, recounted in her Appellant’s

Anna Sherman mother to a Appellant’s going affidavit that she remembered where she pregnant Appellant, local tavern while she was with expressed that fight into a with another woman. Wilson got were problems later if [Appellant’s] she “often wondered and while she was fighting drinking because of [his mother’s] of Anna him.” Declaration and Affidavit Sher- with pregnant Wilson, mother Appellant’s at 910. explained man Wilson affection, neglect- and that she never ‍​‌‌​‌​​‌‌​​‌‌​‌​​‌‌​‌‌​​‌​‌‌​‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‍her children love or gave also noted that ed while he was a toddler. She Appellant that, often, on describing and father fought mother Appellant’s furniture, occasion, destroyed mother their one Appellant’s mattress, on fire while apartment it and the gutted and set time, and, threw kerosene the children were another present, around, father, him lit a and chased Appellant’s newspaper, on him trying to set on fire. help and her sisters tried to raise

Wilson detailed that she her Appellant her children and when arrived at sister’s Declaration and problems.” home she “knew he had serious Wilson, Specifically, Affidavit of Anna at 912. Wil- Sherman space, son noted that would often stare into had Appellant frequently acted out remembering things, trouble diagnosed stated that was later with school. Wilson disabilities, learning special pro- transferred into a education school, was later to a third gram at another transferred school with a more structured education special program of his behaviorаl problems. According because continued Wilson, school, while was at the third he was sent home because he threatened a classmate with a knife. Wilson that, when he was eighth grade, Appellant also related father, pet sent to live with his who later killed Appellant’s pigeon prostitutes because refused to have sex with father him. his hired for behavioral and respect psychological

With described that mother never problems, Wilson label, Appellant, special education disciplined disputed resisted efforts for him to receive professional help. noted that told her that Appellant’s Wilson brother Charles crazy was and needed but that and Appellant help, Appellant his mother both threatened to kill in to the response Charles allegations. Wilson claimed that no one contacted her to trial, testify Appellant’s but stated that she would have been to had she been asked to do so. willing testify Kaib, mitigation specialist by

Kathleen a employed Defender, Community during Federal testified the PCRA history a social she on hearing regarding performed Appellant that, to the Kaib testified prior hearing. Specifically, PCRA researching Appellant’s history, while social she discovered that witnessed severe domestic violence between his Appellant and suffered abandonment —both emotional and parents, mother, father, stepfathers, siblings. his and physical —from with his mother and father Appellant that lived Kaib described his Milwaukee, parents for several until years in Wisconsin and, thereafter, with an aunt in lived up, periodically broke Reno, Nevada; Philadelphia; in with grandmother with his in with his father Wiscon- Philadelphia; mother in Reno and Kaib observed sin; age in Reno at the of 13. by himself years in school for two was never the same that and, result, in his school problems reported as a consecutively problems and behavioral were psychological records such as that mother Appellant’s Kaib also testified never addressed. with that pregnant Appellant, while she was excessively drank alcoholics, Appel- were and that Appellant’s parents both of him have sex with when prostitutes lant’s father to required Kaib Additionally, 11 or 12 old. approximately years he was him as sisters abused Appellant’s physically noted that one of child, coins in his ear when he father shook a juvenile been in a raped and that had baby, 13 or 14 old. facility years when he was from Dr. testimony Dougher- counsel also introduced Dougherty mental health. Dr. de- ty concerning Appellant’s diagnosis a preliminary that he counsel initially gave scribed trial, explosive prior of intermittent disorder see for a counsel that he would need to but told get every he “would have to of time and that longer period on to understand his back- could hands get [he] [his] record to see if could confirm development [he] ground 4/28/09, Dr. N;T., According at 151. or not.” diagnosis further undergo psychologi- refused Dougherty, Appellant and, thus, to complete Dr. was unable Dougherty cal testing his evaluation. received Appellant’s testified that he had not Dougherty

Dr. his initial evalua- Records at the time of County Delaware Jail tion, he found that the them upon reviewing but to Appellant medications strong psychotropic administration of attempts prison out and suicide acting and his prison he would have wished something significant were several significant Dr. also found explore Dougherty further. not of which he was Appellant’s upbringing regarding details mother in- that including Appellant’s apprised, previously possibly her consistently throughout pregnancy, alcohol gested had Appellant psycho- that syndrome; to fetal alcohol leading child and switched as a problems and behavioral logical and mother was abusive Appellant’s that frequently; schools erratic; in continued and engaged that Appellant’s parents violence; was aban- Appellant and that domestic escalating information, Dr. Based this by upon his mother. doned Appellant diagnosed that he would have Dougherty opined person- disorder and borderline personality with an anti-social ality disorder. that, a condi- in accordance with

Marissa Browne testified conviction, met she with parole prior tion of for evaluate him for four occasions 1990 to Appellant on time, this Browne drug During and alcohol abuse. possible family about his forthcoming was not Appellant observed with some issues history Appellant “[had] and noted N.T., 11/7/08, at 38. paranoid.” women” and “seemed rather ultimately diagnosed Appellant Browne that she explained disorder, alcohol and cannabis with “paranoid personality remission,” un- and recommended that abuse and treatment; alcohol testing drug dergo psychological however, never went with such treatment. through Id. at 49-50. Dr. an affidavit from

Additionally, presented PCRA counsel psychiatric who conducted a evaluation Dudley, Therein, based Dudley opined upon Appel- 2004. Dr. life suffers history, Appellant lant’s behavior and traumatic Dr. Dud- disorders. paranoid personality from borderline child- “extremely savage further ley opined adolescence,” repeated loss ... including “repeated hood and ... ex- exposure repeated victimization by caregivers nurturance, violence, parental sup- treme and the absence of development,” critical of his during phases and direction port have evidence that should significant mitigating “constitute of his trial.” by jury penalty phase considered at the been Jr., at 868. Addition- Dudley, of Richard Declaration/Affidavit Dr. Appellant, the extent that others have evaluated ally, unre- were “flawed and that their evaluations Dudley suggests of mental health the existence assessing liable for of purposes privy were not because the evaluators mitigating evidence” neuropsycho- completed life and had not history Appellant’s Id. at 869-70. testing neuroimaging. or logical that, highly the abundance of given contends Appellant coun- phase to penalty evidence that was available compelling sel, foregoing evidence explain her failure to and present that, unreasonable, counsel properly he claims had and evidence, juror one “at least and such presented explained regard conclusion with have reached a different would Brief at 43. Appellant’s sentencing.” Appellant’s argues contrary The Commonwealth made an exhaustive counsel representations, penalty phase regarding Appellant’s evidence mitigation to obtain attempt findings her mental health and and disclosed upbringing, however, severely efforts were counsel’s experts; defense and his Appellant the lack of from hampered by cooperation the Commonwealth family investigation. Specifically, in her mental refused to with defense Appellant cooperate notes that mental completing them from experts, preventing health of Appel- them an record testing giving incomplete health health; to discuss with that refused lant’s mental members, as well as family and location of identity counsel use, and prior drug troubled upbringing, details his regarding had; he and that mental health issues that any possible calls and phone failed to return counsel’s family Appellаnt’s family his- regarding and were evasive messages, family of other numbers tory phone and the addresses members. claim, court, concluded rejecting Appellant’s

The PCRA investigation was counsel’s evidence penalty mitigating lack of cooperation. light reasonable 9/4/12, court holding, In so the PCRA at 133. Opinion, Court elected not [Appellant] is not a case where opined “[t]his acquiesced simply [in] evidence and counsel mitigation to offer Nor investigate. failed to choice and [Appellant’s] expressed that his assertion merely accept [Appellant’s] counsel did investigate childhood was ‘normal’ and no further.” Id. at 99. Rather, the observed that counsel penalty phase PCRA court investigate despite continued to fact that — reveal facts to counsel family concerning failed to violence and childhood and neglect plagued Appellant’s health participate the fact that failed to mental testing collecting Appellant’s prison, employ- evaluations and —

ment, records, speaking and school with members personally occasions, on Appellant’s family multiple hiring investiga- tors, and to convince to submit to mental attempting Appellant times, all to little or no avail. testing numerous Pursuant to the Amendment of the Sixth United Constitution, capital obligated States counsel is “to conduct a reasonably thorough investigation mitigating for evidence or investigation to make reasonable decisions that make further Lesko, v. 609 Pa. 15 A.3d unnecessary.” Commonwealth (2011). 345, 380 In determining whether counsel was constitu deficient in tionally investigating presenting mitigation factors, evidence, including “we consider a number of investigation, mitigation reasonableness of counsel’s evi actually presented, dence that was and the additional or mitigation presented.” different evidence that could have been is, itself, by Id. We note that of these factors disposi “[n]one tive, because even if the conducted counsel investigation by unreasonable, this fact alone will not result in relief if the defendant cannot demonstrate that he was prejudiced by counsel’s conduct.” Id. agree

We with the PCRA court’s conclusion that penalty phase counsel was not ineffective in her investigation presentation mitigation Appellant suggests evidence. While penalty phase presented counsel should have additional testimony regarding his childhood from other witnesses and have testimony regarding should elicited from Dr. Cooke health, effect his had on mental Appellant ig- childhood his family directly nores that he and his contributed to counsel’s Indeed, to discover and such information. inability present during the PCRA counsel testified that hearing, penalty phase background would not her with information provide childhood, “was not inter- describing his about all,” case at and that “he mitigation presenting ested 11/6/08, N.T., at participate assisting [her].” didn’t want to Dr. similarly cooperate fully refused to with 51-58. examina- Cooke, psychological all of the failing complete a full psychological tions for Dr. Cooke to conduct necessary evaluation, N.T., 10/5/98, him refusing provide N.T., 11/6/08, at with information his childhood. concerning 178-80. similarly penalty evasive when relatives were

Appellant’s with them. attempted speak counsel Several phase investiga- members declined to with Appellant’s family speak tors; information con- provide mother refused to that Appellant’s childhood and told counsel cerning Appellant’s [her]”; cousin, talk and Appellant’s relatives “don’t want to Sherman, falsely Appel- Mabel to counsel represented “no Id. adjusted” problems.” lant’s was “well and had family counsel, Mark phase Additionally, Appellant’s guilt at 78-83. Much, that he was aware that Esq., testified cooperate members not to instructing family mother was Appel- when he with spoke and stated investigation, matter, him that he lant about the told directed with further anyone, not to discuss his childhood “people” investigation. intent to hinder counsel’s evidencing Appellant’s N.T., 11/5/08,at 156-57. counsel’s settled that the reasonableness of

It is well mitigating largely evidence is investigation preparation and defendant; by the information the dependent upon supplied thus, failing ineffective for to cannot be found “[c]ounsel knowledge the of the uniquely introduce information within provided which is not to counsel.” family defendant and his 33, Bond, 588, 572 Pa. 819 A.2d 45-46 Commonwealth v. (2002) failing pres counsel was not ineffective for (holding traumatic childhood when defen ent evidence of defendant’s disclose such information to family dant and his failed to 264, counsel); v. 568 Pa. 795 Bracey, see also Commonwealth (2001) 935, for counsel was not ineffective (finding A.2d 944 from members family to discover evidence of abuse failing 176 not reveal such evidence family defendant and his did

when counsel). case the circumstances of the Accordingly, under to сonduct a attempted counsel judice, sub where evidence over mitigating into thorough investigation potential her months, hired to assist investigators the course of several and, task, testimony ultimately, presented mitigating with this Appellant’s acquain- the from several of during penalty phase little no family cooperation members —all with tances entirety investiga- the of counsel’s Appellant throughout from to find that and the course of the trial —we decline tion mitigat- uncover additional counsel’s failure to penalty phase Likewise, as re- evidence was unreasonable. ing Cooke, Dr. we decline to fused to discuss his childhood with failing find that counsel was unreasonable penalty phase the testimony concerning significance elicit from Dr. Cooke on his mental health. childhood However, if to overlook Appellant’s even we were investigation failure to in counsel’s complete cooperate unreason investigation that counsel’s accept position deficient, must still dem constitutionally able and conduct. To prejudiced by onstrate that he was counsel’s that “there is a prejudice, Appellant prove establish must errors, that, reasonable but for trial counsel’s probability result of the would have been different.” Com proceeding (2012). Koehler, 121, Pa. 36 A.3d monwealth v. words, there is a reason question In other “the is whether been adduced probability able had the PCRA evidence at the would have been able to penalty phase, Appellant] circumstance, at least one additional prove mitigating juror mitigating least one would have concluded collectively aggravating circumstances ones.” outweighed Gibson, v. 610 Pa. 19 A.3d Commonwealth (2011). outcome, In of a different evaluating probability against totality “we the evidence in reweigh aggravation evidence, the evidence of available which includes mitigating at the and the evidence that presented penalty hearing a proper would have been had counsel conducted presented investigation.” Id.

177 addition- the introduction of Here, that assuming, arguendo child- abusive concerning Appellant’s mitigating al evidence to find the jury have caused and mental health would hood miti- disturbance” mental or emotional additional “extreme that it mitigator the catchall more give weight and gator a reasonable found, there is say we cannot already havе concluded the jurors of the would any probability “as as” weighty or were outweighed circumstances mitigating in this case. circumstances grave aggravating the patently Appel- at trial that proved the Commonwealth Specifically, victim, over her vehicle pulled 22-year-old lant followed his officer, rape, kidnap, police proceeded while as a posing death, “killing supporting the victim to bludgeon separate grounds. on two felony” aggravator of a perpetration hearing, Common- Additionally, during penalty phase convicted of second- established that wealth 18, 1979, Nevada on June County, murder in Washoe degree rifle; was convicted of a man with a shooting killing after on Nevada County, a Washoe battery deadly weapon with in her 24, 1979, shotgun a woman with a shooting after July 3, 1986, home; and, was convicted on March mother’s while he attacked his female visitor after battery by prisoner crimes. the aforementioned sentences for serving prison 48-51, 55, 61, These convictions N.T., 10/2/98, 65-68. significant history additionally finding in the jury resulted multiple as well as the aggravator, convictions felony of violent to be the considered widely which is aggravator, murders evidence.” Common- imaginable aggravating “most powerful (2013) 253, 60, 278 Pa. 66 A.3d wealth v. 620 Simpson, 383, Belmontes, 175 130 S.Ct. v. 558 U.S. (quoting Wong (2009)). 328 L.Ed.2d case, as of the entire in the context viewing prejudice

When must, Lesko, Spisak, v. (citing 15 A.3d at 384 Smith we see (2010)), we find 175 L.Ed.2d U.S. S.Ct. circumstances, if we even foregoing aggravating of the light evidence, it mitigating additional were to embrace have evidence would this reasonably probable is not life vote and return a jurors to alter their caused of the 178 Lesko, (in See light A.3d at 384-85 of the

sentence. 15 circumstances, the multi- including patently grave aggravating was not appellant prejudiced by murders the ple aggravator, evidence); mitigating additional present counsel’s failure to Gibson, evi- (finding mitigating 19 A.3d at 526-31 additional juror not have caused a to alter his or her vote dence would offered); Simpson, aggravating where evidence was powerful (defendant signifi- not where prejudiced 66 A.3d at 277-78 facts supporting cant evidence was offered and aggravating because grave). Accordingly, the defendant’s conviction were and, thus, prejudiced, has not that he was proven ineffective phase has not that his counsel was proven penalty evidence, of investigation presentation mitigating in her failing we not deem counsel ineffective for appellate will See Common- appeal. raise this meritless claim on direct (2008) Gwynn, wealth v. Pa. 943 A.2d merit- failing pursue counsel is not ineffective for (holding claims). less

D. Forensic Evidence Unreliable next the manner in which the challenges DNA evidence to the at his presented jury Commonwealth layered respect trial and raises a ineffectiveness claim with failure to challenge presenta counsel’s Commonwealth’s DNA tion of evidence. trial, the DNA

During expert, Commonwealth’s Sarah Got- wald,19 DNA evidence recovered from regarding vagi- testified body. Specifically, nal swabs taken from the victim’s Gotwald swabs, from these she explained jury vaginal a male DNA which she tested developed profile, using (“RFLP”) length restriction method fragment polymorphism regions, compared sample on six different to a DNA 9/28/98, N.T., at obtained from 62. Gotwald Appellant.20 goes by 19. Gotwald now the name Sarah Kucherer. To avoid confu- sion, we will continue to refer to her as Sarah Gotwald. samples that Gotwald received contained low levels of Because 20. DNA, initially using preliminary chain reaction she tested them method, 9/28/98, ("PCR”) N.T., designed which is to "handle samples quantity poor quality.” John M. forensic that are of low no results yielded of the areas tested described that three DNA, three remain- but that the presence because of a low Appel- obtained from profile matched the DNA ing regions randomly probability DNA that the sample, noting lant’s DNA is matching profile unrelated individual this selecting an 2,300,000 1 in in the population; 1 in 3 million in the Caucasian 2,400,000 1 in in the Hispan- African American population, Id. at 62-64. Relevant to the instant appeal, ic population.21 RFLP the used to conduct a explained procedures as Gotwald one of the autorads22 of a analysis, placed the Commonwealth on an overhead sample DNA sample matching Appellant’s of actual DNA along with an autorad projector Id. visually that matched. opined they and Gotwald sample, not the other two place at 65-69. The did Commonwealth Rather, however. on redirect projector, “matches” on the examination, testing asked whether of the the Commonwealth DNA “matching” regions sample produced other two of the results,” and Gotwald responded: “similar Yes, They the membrane. were they nylon were from same looking for a different just put probe different radioactive of Q-3 There were bands from the male fraction fragment. on those [Appellant’s] which matchеd the blood labeled as there were similar results. two autorads as well. So data, at the but the bands were looking You’re same However, Butler, (2d ed.2005). later Typing DNA 30 Gotwald Forensic multiple the DNA from swabs that determined that she could re-extract her, sample using supplied allowing the the had been her to re-test sample requires larger of DNA RFLP The RFLP method a method. requires sample well- the to be intact and than the PCR method discriminatory preserved, than the PCR meth- but its results are more od, meaning the difference be- the results are better able to discern 4-5, (Table 2.1). at tween individuals. Id. finding testing probability the of The PCR in this case reflected that 21. 58,300 one in in the profile this DNA in an unrelated individual is 5,000 popula- population; in the Caucasian African American one N.T., 9/28/98, tion; 9,100 Hispanic population. at and one in in the Appellant African American. 48-49. is "autorad,” autoradiogram autoradiograph, piece or is 22. An short for fragments to a X-ray upon pattern which the of DNA of film —similar supermarket testing is recorded. Norah bar code—collected from (2d Inman, Analysis DNA Keith An Introduction to Forensic Rudin & ed.2002). areas you’re looking [sic]

different locations because DNA.

Id. at 116. of this challenge did not the admission

Appellant’s counsel trial, the manner in object nor did he DNA evidence Nevertheless, presently presented. which it was pre- manner in which the maintains that the Commonwealth misleading, to the was false and jury sented the DNA evidence accept should not have been asked to claiming jury alleged two of the expert’s opinion Commonwealth results similar to “matching” samples produced DNA shown on the overhead without projector autorad was a similar to observe them. being given opportunity witness, Goldstein, Dr. Paul expert further asserts that his that he with hearing disagreed testified at the PCRA Got- pre- wald’s conclusions that the two which were not samples to the results similar to the match that jury produced sented that he presented jury, “disagreed a match ‘matching’ reliably the three autorads could be called Based on the Appellant’s profile.” Appellant’s Brief at 50. and death foregoing, Appellant argues that his conviction evidence, violat- upon sentence were based unreliable forensic his to due under the Fourteenth Amendment ing right process the Appellant additionally of United States Constitution. to ade- failing asserts that trial counsel was ineffective for challenge cross-examine and her quately failing Gotwald testimony produced that the other two DNA similar samples results to the autorad shown on the overhead and projector, counsel was ineffective for to raise trial appellate failing counsel’s ineffectiveness on direct appeal.

The testimo- responds expert Commonwealth Gotwald’s sound, as she ny presented step-by-step explanation the the DNA and “estab- processes analyzing samples used lished followed the proper protocols regarding [“PSP”] were evidence, analysis lab’s of the its of the DNA evi- handling dence, a match declaration.” making and Commonwealth’s Moreover, that, during on the auto- the DNA bands determine whether jury to DNA Appellant’s from developed matched the bands rads samples the DNA Rather, placed the Commonwealth sample. testimony. The Gotwald’s help to illustrate projector on the find the use of an that, may an expert while opined court inappropriate to be “a substandard overhead projector autorads,” not preclude that “does analyzing RFLP means 9/4/12, Opinion, its use as a visual aid.” PCRA Court at 73-74. mer- Accordingly, Appellant’s underlying challenges as lacked it, not ineffective for the PCRA court concluded counsel was failing to raise them at the time of trial. trial, that, objection at agree by failing lodge

We an underlying challenges validity waived his to the Appellant the manner in which the Commonwealth’s DNA evidence and 302(a). See Pa.R.A.P. presented. this evidence was We also note that waived his trial counsel ineffectiveness Appellant However, appeal. claim because he failed to raise it on direct alleges appellate because also ineffectiveness of counsel, will proceed layered we to evaluate his ineffectiveness claim. above,

As discussed court found Dr. PCRA Goldstein’s incredible, testimony to be Dr. Goldstein noting although disagreed testing, with the results of Gotwald’s when he results, analyzed the he failed to view the autorads using box, autorads, light the standard means utilized to illuminate he dispute protocols during did not the PSP utilized rejected testing.23 Accordingly, because PCRA court Dr. testimony, Goldstein’s there is no merit to claim— Appellant’s upon expert opinion based Dr. Goldstein’s counsel was —that failing ineffective for the results of challenge Gotwald’s result, testing analysis. DNA As a counsel appellate was not ineffective for failing raise this meritless claim on direct Gwynn, See appeal. 943 A.2d at 949. Failing

E. Ineffectiveness of Counsel for Tо Raise Due Process Violation next raises a layered ineffectiveness claim that both trial counsel and counsel were ineffective appellate for argues rejecting 23. also the PCRA court erred in Dr. Gold- testimony, claiming credibility stein’s the PCRA court's determination Brief, "vague, supported by and not the record.” assertions, however, Contrary pro- 51. the PCRA court determination, ample support credibility citing, vided record for its alia, inter Dr. Goldstein's failure to examine the DNA autorads under laboratory standard forensic conditions and Dr. Goldstein's failure to conducting testing protocols find fault with the PSP utilized in 9/4/12, Opinion, this case. Court at 71-73. an court grounds on due erroneous failing challenge process to from temporary used to secure his release order that was custody questioning. into the of detectives for prison 14, 1997, in the charged before was Appellant On October case, judge a Delaware Common Pleas Court County instant Hill release from temporary SCI-Camp ordered Appellant’s day “hearing.” the next for a custody into the of detectives Rather, scheduled, Delaware No was however. Coun- hearing (“CID”) Division Detectives John ty Investigation Criminal Tedescung with Joseph O’Berg, along Trooper Easton and Hill the next and informed SCI-Camp day arrived at Bandy, County he to Delaware being transported was the victim’s murder. questioned regarding to be was advised of his Miranda agreed accompany police, to at the and stated headquarters, his arrival CID rights upon willing and that he was rights that he understood his murder, he wished indicating discuss what he knew about I, name.” Bomar Initially, “clear 826 A.2d at 846. his investigators’ ques- and answered the Appellant cooperated tions; however, he had he when asked whether grew upset that he was not sexual intercourse with the victim and stated to invoke his Miranda choosing to answer the going question, at that time. rights trial, and all response

At the court suppressed Appellant’s of his Mi- following his statements made the invocation randa prior but admitted all other statements made rights, Court, Appellant to this appeal the invocation. On direct he made prior the admission of the statements challenged Miranda that the grounds “bring- on the invoking rights his headquar- transfer to the CID down” order used to secure his under the Fourth Amendment to rights ters violated ‍​‌‌​‌​​‌‌​​‌‌​‌​​‌‌​‌‌​​‌​‌‌​‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‍his asserted Specifically, Appellant United States Constitution. trial court that falsely to the represented the Commonwealth his heаring at a in order to secure presence required for re- custody questioning. release into the detectives’ We “the notion of appeal, stating claim on direct jected Appellant’s conduct, involving not outrageous governmental offensive or seizure, Fourth Amend- under due not the process, sounds I, 826 A.2d at 846. ment.” Bomar statement, prior heed of our Apparently taking in his Fourth for the same reasons offered presently argues, appeal, claim on direct that the Commonwealth Amendment rights, claiming investigators the CID process violated due “bring-down” the in the intentionally misrepresented language to Delaware ‘voluntarily’ going to “trick into Appellant order Appellant for Brief at 56. County” questioning. Appellant’s that his trial counsel and direct argues appeal further both a claim the Fourth raising counsel were ineffective for under Amendment, process challenge. rather than a due in rejecting

In the Commonwealth notes response, Fourth Amendment claim on direct we also Appellant’s appeal, not on a due opined prevail process that would claim, the “[Ajppellant regarding that was not misled stating transfer. The informed purpose police specifically true of his him they transporting that would be to the CID [Ajppellant the [Ajppellant express- offices to discuss Willard murder and with them.” Brief at 53 ly agreed go Commonwealth’s 846.) I, In of the (quoting light foregoing, Bomar 826 A.2d at cannot argues prove Commonwealth order intentionally regarding “bring-down” he was misled and, thus, cannot establish a viable due claim. Fur- process ther, merit, process as due claim lacks the Com- appeal monwealth contends trial counsel and direct counsel for failing cannot be deemed ineffective to raise it. Commonwealth, Agreeing with the the PCRA court conclud- merit, noting ed claim lacked “there is no record ‘bring evidence that the error in the supporting allegation or other representations down’ order was the result of ‘false ” of the wrongdoing part intentional on Commonwealth.’ 9/4/12, I, at 183 Bomar 826 Opinion, (quoting PCRA Court 845). such, the court found trial counsel A.2d at As failing and direct counsel were not ineffective for appeal raise the claim.

185 his under- has waived we note Preliminarily, trial by not raised because it was challenge process due lying claim ineffectiveness counsel, his trial counsel he waived on direct not raise the claim counsel did appellate because claim of only Appellant’s we evaluate Accordingly, appeal. counsel ineffectiveness. appellate sense, protects most general in the process,

Due con arbitrary governmental or oppressive from individuals 20, Kratsas, Pa. 764 A.2d v. duct. See Commonwealth McDonnell, (2001) 418 U.S. v. (citing Wolff (“The (1974) of due touchstone 2963, 41 L.Ed.2d 935 S.Ct. action against arbitrary individual of the protection is process an evaluating appellant’s whether When government”)). violated, consider “whether been we have process rights due some principal or conduct ‘offends challenged proceeding conscience of our in the traditions and so rooted justice ” Kratsas, at fundamental,’ 764 A.2d to be ranked as as people 202, York, 197, 97 432 S.Ct. v. New U.S. Patterson (quoting 27 communi (1977)), that “defines the 2319, 281 53 L.Ed.2d Kratsas, A.2d at 27 764 decency.” play sense of fair ty’s 342, 353, 110 States, S.Ct. 493 U.S. v. Dowling United (quoting (1990)). 668, 107 708 L.Ed.2d claims, raised of due process subset specific

One miscon case, government “outrageous concerns the instant such a due Kratsas, To establish A.2d at 27. 764 duct.” such conduct violation, must prove an Appellant process violate the as to outrageous and so shocking grossly was “so Mance, 422 v. justice.” Commonwealth universal sense (1993) 1378, (quoting Common A.2d 1381 619 Pa.Super. (1990) Benchino, A.2d 1067 582 Pa.Super. 399 wealth v. (9th Ramirez, 535, 539 710 F.2d v. United States (quoting (1995). Cir.1983))), Pa. 652 A.2d aff'd, 539 Although meet this burden. failed to has Appellant head to CID going he “tricked” into maintains was Appellant failed to appeal, on direct as we stated quarters, or representations of false was the result “the order prove of the Common- part on wrongdoing intentional other I, wealth.” Bomar further that 826 A.2d at 845. We stated not the true of his “[A]ppellant regarding purpose misled The informed police specifically [A]ppellant transfer. him they transporting would be to the CID offices to discuss [A]ppellant expressly agreed go the Willard murder and Moreover, with them.” Id. his arrival at upon 846. CID was advised of his Miranda headquarters, Appellant rights agreed Accordingly, while we speak investigators. suggest do not that the misuse of a court order could never rights, violate an inmate’s due we find from process nothing judice the case sub circumstances that would indicate or offensively outrageously Commonwealth acted so as to deny Appellant process Appel- due this instance. Because merit, lant’s due claim lacks underlying process claim that counsel was ineffective for to raise аppellate failing the issue on also fails. appeal Impartial Jury

F. Denial of evidence, In an claim of apparent after-discovered jurors next in his trial were tainted a argues by sheriffs deputy’s concerning statement a threat that had been made thus his jury, denying right constitutional to a .to trial before fair and impartial jury, seemingly invoking 9543(A)(2)(i). claim, § Pa.C.S.A. To support to the points following testimony juror from William Mertz introduced during hearing:

Q. At the time of the trial do recall if the you jury was being guarded by law enforcement personnel? A. Yes. Did a

Q. you ever have conversation with of those law enforcement personnel regarding security the amount of the jury? around

A. Yes. what

Q. you by And were told that law enforcement officer during conversation?

A. During one conversation there was a mention of threats towards the jury. threat was? Do remember what that

Q. you awhile, I remember the specifics A. It has been don’t I remember at this in time. do point that conversation there was threats. [sic] recollection,

N.T., 10/20/09, Appel- refresh Mertz’s at 8-9. To he previously Mertz a declaration that lant’s counsel showed then asked: the threats. Counsel signed regarding of the threat I asked earlier about the nature Q: you When recall. After this declara- you reading said didn’t you refreshed as to the threat? your tion is recollection I there were death threats A: In this declaration state jury. towards the

Id. at 10. not know about the maintains because he did trial,” no opportunity threat until “well after the he had jury jurors exposed, to which the were to confront the information thus, and, the and Fourteenth Amend- rights under Sixth due the Constitution to a fair trial and ments to United States Brief at 61. process Appellant’s were violated. the standard misapplied

further avers that the PCRA court extraneous influence the evaluating prejudiced for whether an subjectively analyzed the court whether jury, claiming PCRA statements, rather than jury by was influenced be affect- objective, typical juror an would evaluating whether influence. by ed such an by that the statement made

The Commonwealth retorts security nothing concerned a matter that had deputy sheriffs trial, that “the information to do with the issues at and claims nor emotional in nature.” Common- inflammatory was neither 57. The further maintains wealth’s Brief at Commonwealth subjec- applied claim that the court one, standard, objective assessing an tive rather than incorrect, as, according of the statements is impact deputy’s Commоnwealth, juror noted both that the the PCRA court by deputy’s negatively impacted was not question likelihood of comments, that “there was no reasonable a result extraneous influence as purported from the prejudice 188 juror regard- sheriff deputy

of the conversation between Brief at 57. Commonwealth’s ing security.” claim, court, noted rejecting Appellant’s The PCRA occasion only influence occurred on one alleged the extraneous “[tjhere trial, a half and opined the two and week during either that Mr. Mertz was led to indicating is no evidence or associated with him was the [AJppellant anyone believe that 9/4/12, at 81. As Opinion, source of a threat.” PCRA Court such, could not the PCRA court concluded that caused deputy’s prejudice. the sheriff statement prove he first we note that does not state when Initially, alleged baldly learned of the extraneous influence aside from that he learned of it “well after trial.” Nor does he asserting why he waited until he filed his explain any specificity with issue, trial, raising to raise the rather than it petition motions, Thus, ap- or on direct it post-sentence appeal. Nevertheless, waived this claim. because the pears Appellant waiver, has not asserted we will proceed Commonwealth the claim on the merits. consider

To on a claim that an extraneous influence prevail jury, Appel the of the compromised impartiality integrity the extraneous influence caused a “reasonable prove lant must Sneed, 1, likelihood of v. 616 Pa. prejudice.” Commonwealth (2012) (internal omitted). In quotations 45 A.3d likelihood of determining whether there was a “reasonable “(1) we consider: whether the extraneous influence prejudice,” merely relates to a central issue in the case or involves a (2) issue; provided collateral whether the extraneous influence them at jury they with information did not have before (3) trial; influence emotional and whether extraneous v. inflammatory (quoting by or nature.” Id. Carter Carter (1992) 1016-17 Corp., U.S. Steel Pa. 604 A.2d test, employing reviewing In this court “is (plurality)). subjective concerning from evidence precluded considering juror.” by of an extraneous influence on Carter impact Carter, Rather, at 1016. court “must reviewing 604 A.2d by affected juror would be objective, typical how an determine Id. influence.” such an the proving his burden of

Here, has not met Appellant of reasonable likelihood caused a statement deputy’s sheriff to a cen- was related claims the threat Appellant prejudice. “character, dangerousness, in the case because tral issue of the all central issues for violence were propensity be case,” certainly “would and the threat Commonwealth’s people or his Appellant objective juror an accepted by Initially, only Brief at 63. jury.” Appellant’s harm the could relate to a central issue the threat in the broadest terms does connection However, a assuming, arguendo, even in the case. case, Appellant’s issue in his threat and a central between the that it any proof has not provided fails because he argument the source of the “his were people” that he or suggested was Rather, generic a of a only report the record discloses threat. cer- statement deputy’s while the sheriff Secondly, threat. he did not have information that Mertz with tainly provided isolated, trial, appears statement was him at the before Mertz, only and constituted only to have been directed Further, any specifics. without vague to a threat reference indication that the sheriffs not provide does Appellant concerning gen- information relayed Mertz or deputy thus, cannot we jury; members of the eral threat to other with provided jury claim that the entire accept Appellant’s while Finally, have before trial. did not they information that threat to a death that a reference with agree we here, vague, threat was intrinsically inflammatory, may be unknown, deputy a sheriffs conveyed by and it was its origins jury to the than communicated juror, rather single to a threat, its minimizing thus source of the directly from the inflammatory nature. analysis, its conducting correct when is on emphasis too much

times, placed have may the PCRA court Mertz, the effect it rather than effect on Mr. the statement’s forego- In of the objective juror. light would have had on an isolated, vague, an however, of including report ing, enforcement officer a neutral law conveyed by threat general find there was no reasonable likelihood single juror, to a we objective, juror by that an would have been influenced typical thus, threat; regardless of the PCRA court’s consideration factors, subjective the court reached the ultimately appro- result. no relief is due on this claim. priate Accordingly, Improper Excusing Prospective

G. Jurors improperly contends the trial court еxcused jurors for cause were potential they philo seven who stated sophically to the death or doubt opposed penalty expressed it, him regarding they impose depriving whether could of the Sixth, right impartial sentencing jury to an under the capital and Fourteenth of the Eighth, Amendments United States layered Constitution. also raises a ineffectiveness claim arguing failing that trial counsel was ineffective for to object alleged to the trial court’s death improper qualification and that counsel was ineffective for process, appellate failing to raise trial counsel’s ineffectiveness on direct appeal.

The process began voir dire at issue with the trial court a voir dire of the entire conducting general pool prospective jurors, followed an by During individual voir dire. the indi- dire, court, alia, vidual voir the trial inter the explained law regarding imposition the of the death and asked each penalty of the prospective jurors questions a series of related to his or her beliefs and to the personal ability impose penalty. death Specifically, juror the trial court asked each whether potential moral, ethical, had they personal, religious, or conscientious beliefs that would them from the prevent voting impose circumstances, death penalty any under of the facts regardless or law. Six of the seven veniremen at issue indicated they held such belief. The trial court then asked whether the jurors beliefs, potential personal were able to set aside these they impose whether would be able to vote to the death penalty they if believed the evidence warranted it and the law permitted jurors it. After each of the six potential indicated so, they could not do challenged Commonwealth juror objection for cause—without from counsel— N.T., and the trial court the motion to strike them. granted 471-73, 536-40, 607-10; N.T., 9/15/98, 9/14/98, 192-94; at at 689-99, N.T., 9/16/98, 761-63. I.H., cir- was excused under juror, potential

The seventh During the others. from slightly cumstances that differed dire, regard- the same question court asked I.H. voir the trial her from prevent held beliefs that would whether she ing circumstances. under penalty the death voting impose prompt- the death penalty,” that she was “for responded I.H. following exchange: in the engage the trial court ing just I because you a minute told Q. ago, I mentioned Murder, that doesn’t Degree Defendant’s convicted of First penalty. the death jury may impose mean that the vote aggravating consider these They can’t. have to They essentially, I’m asking you, circumstances. So mitigating penalty the death only impose the law and you would follow circumstances, if you those believed— under A. Yes. yes? Is that a —that the evidence was there?

Q.

A. Yes. Thereafter, 9/16/98, ques- counsel N.T., at 738. following: regarding tioned I.H. further some Ma’am, you here have formed you today, as sit Q. or innocence of Mr. Bomar? guilt as to the opinion No, not fit him. say might but what I now A.

Q. Okay. case,— case, Simpson’s other O.J. watching A. After Q. Yes ma’am. like to I feel I would not ago, really of couple years

A. —a in a case like this. be involved involved? You would not like to be

Q. like to be.

A. I would not honest just your opinion. We want

Q. Okay. this circus of O.J. is to watch My opinion A. honest afterwards, you and I watched thing, the whole Simpson, like know, people, like different TV all them comments 192 cetera, cetera. had certain on and et et

Larry King people juror in a murder case. I wish not to be a Mr. has been you Do think that because Bomar Q. Okay. with the crime of Murder that he’s charged arrested and something? probably guilty just I not wish to do A. I don’t even look at this. would this, whole, to do that. I wish not to do this. It would the or, be, going Bomar everybody’s I don’t even look at Mr. in I feel I not to do it. disappointed way be the but wish about not Q. Okay. personal feelings wanting Your in process,— participate A. Yes. fair and

Q. your ability —would that affect to sit as a juror in the case? impartial just A. I have this block. I do not want to do it. Id. at 741-42. The Commonwealth be requested that I.H. object, for cause. counsel did'not and the excused granted trial court the Commonwealth’s motion. object counsel did not to the

Although Appellant’s Common- veniremen, motions to excuse of the seven Appel- wealth’s improperly lant nevertheless maintains the trial court struck jurors they based their initial potential upon feeling could not the death failed to impose penalty, thereby conduct the into whether their views would required inquiry substantially or “prevent impair performance [their] ... juror[s] duties as accordance with instructions [their] Morgan v. oath.” Brief at 65 (quoting [their] Illinois, 719, 728, 504 U.S. S.Ct. 119 L.Ed.2d (1992)). result, Appellant jurors As a claims that prospective have been to the but were may opposed penalty, who death excluded, jurors, to sit as were qualified resulting jury “uncommonly selection of a that was to condemn a willing die,” death sen- undermining man to confidence tence, a new necessitating sentencing hearing. Appellant’s Illinois, v. 510, 521, (quoting Witherspoon Brief at 66 U.S. (1968)). 88 S.Ct. 20 L.Ed.2d 776 also con- failing object tends trial counsel was ineffective for jurors the seven strike each of motions to Commonwealth’s and he jurors, the seven rehabilitate each of failing to and for failing ‍​‌‌​‌​​‌‌​​‌‌​‌​​‌‌​‌‌​​‌​‌‌​‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‍for to was ineffective counsel appellate that argues direct appeal. raise this claim on claim, noting rejected Appellant’s wholly

The court assertions, court thor- the trial that, to contrary juror had the each prospective determined whether oughly or her in accordance with his his duties ability perform to noted 9/4/12, at 192. The court Opinion, oath. PCRA Court juror potential it to each doing, explained in so weighing aggravating considering process a impose whether deciding circumstances mitigating potential each questioned and specifically sentence of death substantially would or prevent his or her beliefs juror whether her duties in of his or juror in the performance impair court their oath. The his instructions and accordance with this method using its discretion it did not abuse found that and, therefore, concluded jurors, to exclude potential for counsel were ineffective nor appellate neither trial counsel claim. this failing pursue object failed to to the Common- counsel

Because jurors, potential each of the seven wealth’s motions to strike waived also find this claim is waived. We counsel appellate because ineffectiveness claim trial counsel We, thus, proceed appeal. to raise the issue on direct failed ineffective- counsel appellate claim of only Appellant’s evaluate ness. should juror determining prospective

In whether cause, consider “whether a trial court must for disqualified be influence of able to eliminate the willing he she is or the evidence.” according to and render a verdict scruples Robinson, Pa. 864 A.2d v. Commonwealth out if (2004). cannot be carried “a sentence of death While by it was chosen or recommended jury imposed they voiced cause because simply veniremen for excluding or conscien penalty expressed the death objections general infliction,” its Common- against religious scruples tious or 194 (2008) Gibson, 402, 1110,

wealth v. 597 Pa. 951 A.2d 1129 1770), 391 88 it is well (quoting Witherspoon, U.S. S.Ct. a may disqualify potential juror settled that a trial court for cause if his views on “would or capital punishment prevent substantially juror of his duties as a in impair performance Chrwiel, accordance instructions and his oath.” with his However, disqualify A.3d at 1176. decision whether to “[t]he juror is of the trial within the sound discretion court and will not be reversed in the absence of a abuse palpable of discre- Stevens, tion.” Commonwealth v. 559 Pa. 739 A.2d (1999). Here, Appellant fails to establish the trial court abused its discretion. asserts the trial Appellant baldly court failed to jurors determine whether the potential could set aside their law, anywhere beliefs and follow the but he fails to cite to occurred, the record where this fails to explain why, specifical- the trial ly, inadequate, court’s voir dire was and fails to jurors discuss voir dire of each of the More- individually. over, Appellant ignores that the trial court asked each of the jurors excused whether they prevent held beliefs that would them from the death imposing penalty under circum- stances; specifically asked each of them whether they could personal set aside their beliefs and if impose penalty death it; the facts and law counseled toward jurors excused the only after they they indicated could not. find that We this inquiry sufficiently jurors established that the six excused who expressed they could not vote to impose penalty death ability lacked the their perform duties accordance with oath, and, thus, the judge’s instructions and their that the trial court properly exercised its wide discretion in excusing these jurors for cause.

Similarly, we decline to find the trial court abused above, its in excusing discretion I.H. for cause. As stated “|j']urors disqualified should be for cause when do not they have the ability willingness or to eliminate the influences under which are they operating and therefore cannot render a Robinson, according verdict to the evidence.” 864 A.2d at 489. Even assuming arguendo that I.H. had the ability evidence, according upon a verdict to the based I.H.’s render desire not to regarding passionate comments her repeated case; in a murder her statement that she “ha[d] participate it,” in response this block” and did “not want to do to the trial her question regarding personal feelings court’s whether juror; affect her to sit as a fair and ability impartial would trial, jurors reference to the in the it was Simpson her O.J. I.H. simply reasonable for the trial court to conclude that unwilling to set her aside and render a verdict feelings according to the evidence this сase. in the trial

Accordingly, light foregoing, of the we conclude jurors in the excusing court did not abuse its discretion for Further, merit, claim lacks we also case. because this find failing that counsel was not ineffective for to raise a appellate appeal. claim of trial counsel’s ineffectiveness on direct We obligation further note that trial counsel “has no constitutional views”; thus, jurors’ to to the to the extent attempt change ineffective for Appellant argues failing trial counsel was Chmiel, jurors, to rehabilitate the this claim also lacks merit. at 1176. A.3d Right H. of Amendment to Counsel Violation Sixth maintains of Appellant placement Commonwealth’s on his cellblock to serve as a for listening post O’Donald statements involvement in the victim’s regarding Appellant’s murder violated his Amendment to counsel. right Sixth While judicial Appellant proceedings concedes that formal had not against been initiated him at the time overheard the O’Donald to Massiah statements, and, thus, that, incriminating pursuant States, v. United 1199, 12 377 U.S. 84 S.Ct. L.Ed.2d 246 (1964), had right yet his Sixth Amendment to counsel not attached, suggests planting he the Commonwealth’s actions being formally O’Donald to elicit statements from him prior of the Massiah doctrine, violated the charged “spirit” reject the established urges legal this Court “revisit and prevent by doctrine” order to such conduct Common- Brief at 67. wealth the future. highlights Appellant

In response, Commonwealth relief, judicial proceed- to federal constitutional as right has no him at the time he made against had not been initiated ings and, thus, statements his Sixth Amendment incriminating ob- not The further rights implicated. were Commonwealth that fact on direct when Appellant appeal serves that conceded I, 9 of the he raised this claim to Article Section pursuant Constitution, on rather than a claim Pennsylvania pursuing grounds. federal constitutional and, thus, on direct appeal, did not raise this issue Moreover, if had we find it to be waived. even noted, issue, raised this as the PCRA court this Court related claim under addressing rejecting Appellant’s —and — I, Pennsylvania Article 9 of the Constitution on direct Section no opined right also had federal appeal that the to counsel under Specifically, “right relief. we noted I, ... is Pennsylvania Article Section 9 of the Constitution with the to counsel” for right coterminous Sixth Amendment attaches. purposes determining right when the to counsel I, Bomar 826 A.2d at 844. We then reasoned that because right had no Sixth Amendment to counsel at “[Ajppellant time he made his con- incriminating statements O’Donald murder, he also had no Article cerning necessarily Willard I, 9 to counsel at this Id. right point.” Section Appel-

As we did on direct we appeal, again emphasize he charged lant was not the instant murder at the time O’Donald, and, thus, implicated right himself to his to counsel under the Amendment had not attached at that time. Sixth Massiah, 205, 377 84 To the extent See U.S. S.Ct. 1199. suggests “reject” now that we should the Massiah doctrine, so, this we must decline his invitation to do as Court obviously authority lacks the to overrule decisions of the Supreme premised Appel- United States Court on federal law. is, thus, lant entitled to no relief on this claim. Effect

I. Cumulative of Errors Lastly, even if he is not Appellant argues claims, entitled to relief on of his individual he is entitled

197 allegations effect of the the cumulative based on to relief brief, which he in his raised ineffectiveness error and counsel sentencing. capital reliable trial and him a fair denied claims may failed claims number of that “no settled It is well individually.” so fail to do they relief if collectively warrant 586, 617 698, A.2d Pa. 927 592 Washington, v. Commonwealth for lack rejected are (2007) claims Accordingly, where . claim. an accumulation merit, no basis for there is arguable Sattazahn, 952 A.2d 597 Pa. v. Commonwealth is individual claims However, the failure of (2008). when from prejudice the cumulative of prejudice, in lack grounded be assessed. Common- may properly claims those individual (2012) 121, 161 Koehler, A.3d Pa. v. wealth omitted). (citations claims case, have denied all of we

In the instant both; thus, waived, merit, or are lack they grounds on the Moreover, error. cumulative a claim of no basis for there is claims, rejected only we not waive if did even penalty claim that claim and his Brady his claims—his two of additional failing present for ineffective counsel was phase of lack of ground the alternative evidence—on mitigating of the review, light we are confident Upon prejudice. implicating evidence circumstantial DNA and overwhelming no there is above that outlined in this murder relief. warranting error cumulative

III. Conclusion herein, we affirm stated conclusion, for the reasons In claims. all of dismissing court order of the PCRA join the EAKIN, SAYLOR, BAER and STEVENS Justices opinion. concurring opinion. files a CASTILLE

Chief Justice concurring opinion. files SAYLOR Justice CASTILLE, concurring. Justice Chief con- following the subject to Majority Opinion, join I the Brown, v. of discussion Commonwealth respecting cerns 198 (2005) 461,

582 Pa. 872 A.2d 1139 (plurality) resоlving to his to trial. appellant’s attempt relitigate competency stand See 104 A.3d at 1194-97. Brown 161-65, Majority at op., established a narrow judicially-manufactured “exception” to the waiver command of the Post Conviction Relief Act (“PCRA”), 9541-9546, §§ to Pa.C.S. limited claims of com- petency to stand trial which were defaulted on direct appeal. Brown, (claim 872 A.2d at 1155-56 respecting competence to see also waiver); Common- subject stand trial not to Fletcher, wealth v. 493, 778, (2009) 604 Pa. 986 A.2d n. 24 (Brown spoke single competency issue and did not speak issue of waive competency right post-trial to counsel for well-intended, proceedings). The was I exception as under- stand, but I respectfully remain of the view that the rule was see announced, both unwise and insufficiently grounded when Brown, (Castille, J., joined A.2d concurring, by Eakin, J.), and it remains today. ill-advised The Federal (“FCDO”) use, Community Defender’s Office’s recent misuse, actual of our exception defying statutory command recent multiple provides cases even more reason to correct our error. counsel, course,

Trial is in the best position to know Here, whether his client capable assisting is his defense. explained as by Majority Opinion, appellant’s pre-trial prompted behavior his trial counsel to ask the trial court for a competency determination. The trial court complied with the request, an appointed expert to examine and fol- appellant, lowed with a up competency hearing. The court-appointed and, expert found to be appellant competent consistent with testimony, specifically trial court found that appellant trial. competent Notably, stand trial counsel agreed that appellant was competent, testifying during post-sentenc- ing post-conviction proceedings appellant had the ability to participate, actively participated, in decision- making during pre-trial and trial proceedings. On direct appeal, this that appellant’s Court concluded post-sentencing competency challenge was without merit. Commonwealth v. Bomar, (2003). 573 Pa. 826 A.2d 860-61

199 resolved: it finally trial issue was The to stand competency to trial and on prior in a fashion: timely fully litigated was But, where the FCDO as so often the case direct appeal. in state agenda its obstructionist itself in of appoints pursuit resurrected; and cases, miraculously settled issues are capital the case, unfortunately facilitates the mistake of Brown this relitigate to the issue. attempt FCDO’s and it is competent are to be presumed defendants Criminal importantly, More prove the defense burden to otherwise. by relationship to stand trial is measured competency competent, be deemed counsel and client: to between to consult with ability needs to have the merely defendant to order degree understanding, a reasonable of counsel with defense, be able to understand in his and he must participate him. against See object proceedings the nature or of the Flor, 384, 606, A.2d 617-18 606 Pa. 998 Commonwealth v. 521 Pa. (2010); Hughes, v. see also Commonwealth (criminal (1989) must have the defendant A.2d one accused of murder as ability comprehend position to a rational de- making his counsel in cooperate and to with fense). obviously very This is a low bar. directly of a claim that more

It is difficult to conceive 668, 104 Washington, v. 466 U.S. S.Ct. Strickland implicates (1984) usurping does not warrant 80 L.Ed.2d 674 —and to competency a defaulted provision the PCRA’s waiver —than counsel wheth- knows better than trial stand trial issue. Who in his assisting of “incapable meaningfully er the client was Indeed, if a defendant capital defense” at the relevant time? that he could not impaired so truly incompetent —was counsel—it is difficult even communicate with and assist notice, unless counsel his counsel would not believe that And, Amendment we have Sixth incompetent. himself was there is no reason eventuality: principles govern of the PCRA. salutary provision negate case, specifically conscientious and In this trial counsel was least, in a very At the question competency. raised determi- a pre-trial competency where there was circumstance have to demon- should request, appellant nation at counsel’s ex- court-appointed strate what it was that counsel and find, being permitted failed to see or instead perts issue based on what some relitigate the retrospectively years claims or even FCDO-payroll “expert” conveniently Yet, precisely decades later. this is what Brown invites—at in the of those motivated rather than by agendas least hands by law. the was able to turn to its stable of

Unsurprisingly, FCDO M.D., Dudley, and Dr. Richard a compliant parrots produce forensic to conduct a evaluation six- psychiatrist,1 competency at years opine appellant competent after trial and wаs not time trial. retrospective opinion squarely the of This the by multiple contemporaneous pre- contradicted sources: evaluation, pre-trial competency hearing, trial the competency including trial counsel’s observations the during proceedings, in the testimony appellant “participated decision- defense,” of his and the trial court’s first-hand making process concerning appellant’s participation pre- observations active proceedings jury trial and trial and selection. PCRA See opinion, (citing court at 29 trial counsel’s PCRA testimo- 9/4/12 observations). id. at 29-30 trial ny); (discussing court’s claims, like claims Retrospective competency retrospective disability of intellectual under Atkins v. 536 Virginia, U.S. 304, 2242, (2002), 122 obviously ripe S.Ct. 153 L.Ed.2d 335 are by advocacy for abuse anti-death like the penalty groups FCDO, by like-minded in their effective experts employ par- their defendants them- roting boilerplate opinions, by selves, who have a nothing by abetting to lose fraudulent Hackett, 567, claim. See Commonwealth v. 626 Pa. 99 A.3d (2014) 11, (Castille, C.J., 39 similar concurring) (explaining claims). incentives with Atkins Dudley FCDO-represented capital Dr. has on defen 1. testified behalf of cases, capital including dants in numerous other Commonwealth v. Baumhammers, 354, 708, (2014); 625 Pa. 92 A.3d 718 Commonwealth Fears, 446, 795, (2014), 624 Pa. v. v. 86 A.3d 813 Commonwealth 262, 1108, (2012), Sepulveda, 618 Pa. 55 A.3d and Commonwealth - Banks, denied, (2011), v. 612 Pa. cert. A.3d 1136-37 U.S.-, (2012). 133 S.Ct. 184 L.Ed.2d 233 a by spawning unintended mischief has fostered an Brown by pursued claims competency of fraudulent industry cottage in their experts, health FCDO, mental complicit with their this case. by exemplified as capital judgments, to undo quest in capital role stronger play and truth should Honesty fraud review; potential this avenue eliminating goal. further that would until a Court remains the law

I that Brown recognize error, Majority properly of its majority is convinced incompetence claim why appellant’s retrospective explains concerns, I Subject to these utterly trial is baseless. to stand join Majority Opinion. SAYLOR, concurring.

Justice only pertains comment join majority opinion. My I existed between 11(A), agreement whether an concerning Part Majority Opinion, and David See O’Donald. prosecutors on the evidence outlined 158-59, at 1192-93. Based 104 A.3d had an opinion I am of the O’Donald majority, by prosecutors, federal known to both state and understanding, trial, the district at if he testified against to federal recommendation a favorable attorney provide would This of his sentence. in of a further reduction support counsel disclosure, which, mind, requires my of type is the scenario thus, and, the motivations jury as to reveal to the so re- harbor.1 In this bias, may witness testifying a possible Hawkins, concurring opinion v. my in Commonwealth explained 1. in As J., 1248, (2008) 85, 1, (Saylor, 1256 n. 1 99 n. 953 A.2d 598 Pa. States v. application in the of United concurring), courts have differed 763, (1972), 150, in 104 Giglio, 92 31 L.Ed.2d 405 U.S. S.Ct. agents government arrangements between less formal context of such Cassidy, generally R. Michael cooperating witnesses. See “Soft Witnesses, Accomplice Problem Hope:” Giglio, and the Words of of 1129, Inducements, (collecting cases 1152-57 Implied 98 Nw. U.L.Rev. Although Giglio). some discussing problems application of only requiring the disclosure narrowly interpreted Giglio as courts have (11th see, Hopper, F.3d 710 agreements, e.g., v. 169 explicit Tarver Zant, (M.D.Ga.1988), Cir.1999); have F.Supp. others 549 Moore v. 682 not rise mandating inducements that do Giglio disclosure of viewed as Reed, (4th See, Campbell F.2d 4 agreements. e.g., v. 594 to contract-like Hill, 704, Cir.1979); 739 N.E.2d 670 432 Mass. Commonwealth v. 202 it that the PCRA court focused too

gard, appears stringently “promise” on the notion of a the contractual sense of that Bomar, 5045-97, term. v. No. slip op. See Commonwealth (C.P.Delaware 2012). 49, 51, 4, Sept. 2012 WL 9515416 To the contrary, emphasized agreement this Court has that such an formal, document, “need not be a but be signed may simply or an that the will promise understanding prosecution extend leniency exchange and favorable treatment for a witness’s 164, 201, testimony.” v. 616 Pa. 47 Spotz, Commonwealth (2012). 63, A.3d I would conclude Accordingly, failed to disclose the existence of an for prosecution agreement leniency with one of its witnesses in violation of testifying Nonetheless, I with the Brady. agree majority has failed to establish the degree prejudice necessary to post-conviction obtain relief relative to either his or guilt- claims. penalty-phase

104 A.3d 1220 Pennsylvania, Appellant COMMONWEALTH of

v. Eugene HILL, Appellee. Elton Supreme Pennsylvania. Court of 3,May

Submitted 2013.

Decided Nov. 2014. (2000); Diaz, People Ill.App.3d v. 231 Ill.Dec. 696 N.E.2d (1998). favoring approach, I am on record as the latter since I addressing believe that it constitutes a more effective means of credibility impeachment holding. Giglio concerns that underlie the See, 455, 469, e.g., Strong, Commonwealth v. 563 Pa. 761 A.2d (2000) (observing prosecutor that a tentative commitment from a might likely encourage testimony cooperating be more false from a promise, greater witness than a firm since the will witness have a curry prosecutor spеcific agreement incentive to favor with the if a has reached). yet not been notes Sadoff that, evaluation, if Dr. suggests Sadoff ‍​‌‌​‌​​‌‌​​‌‌​‌​​‌‌​‌‌​​‌​‌‌​‌​‌‌​‌‌​‌​​​‌​‌​‌​‌‍records to his prior them, incompe- he would have found had received Sadoff, of Dr. crediting testimony than tent. Rather have credited maintains that the court should who, Appel- examination of Dudley, upon of Dr. testimony trial, “Appellant undergoing psychot- after found that was lant as a incarceration during pre-trial ic breaks result, assist counsel and rationally he was unable to 27. Brief at incompetent.” Appellant’s out that points In the Commonwealth response, are based on a incompetency primarily psychiat- allegations

Notes

Brief at 48. the notes Commonwealth Grossweiler, hearing, Diagnostics the PCRA Lisa a Cellmark in this performed the lab work who reviewed analyst DNA evidence, confirmed the DNA tested independently case and Appellant’s a match between declared properly that the lab scene. from the crime evidence recovered DNA and the DNA not that trial counsel did further observes The Commonwealth in arriv- methodology or her conclusions challenge Gotwald’s these conclusions. ing at waived outset, that Appellant the court found At the PCRA of the forensic reliability the challenge to underlying his trial, object to the at as he failed evidence presented manner in which the evidence at trial or the admission of the the issue on he failed to raise presented, evidence was 9/4/12, The at 61. Opinion, PCRA Court appeal. direct ineffectiveness layered court also concluded court noted the PCRA Specifically, claims lacked merit. Grossweiler, DNA Got- analyst by independent as confirmed de- protocols accepted standards generally wald followed Investigation Bureau of and the Federal by the PSP veloped evidence, and her of DNA testing handling regarding offered testi- accurate. While results were testing con- Dr. to refute Commonwealth’s mony from Goldstein DNA, the matched that the DNA evidence clusions proper protocols conceded that that Dr. Goldstein court noted and it ultimate- testing, during were followed and instructions of the results inaccuracy testimony regarding ly found to be incredible. claim rejected Appellant’s court the PCRA Additionally, trial, projector use of the concerning Commonwealth’s presentation about the misleading false or nothing finding reaching In this testimony. DNA evidence or Gotwald’s never asked conclusion, the Commonwealth the court noted

Case Details

Case Name: Commonwealth v. Bomar, A., Aplt

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 21, 2014

Citation: 104 A.3d 1179

Docket Number: 659 CAP

Court Abbreviation: Pa.