Commonwealth v. Davido, T., Aplt

106A.3d 611 Pennsylvania, Appellee, COMMONWEALTH of DAVIDO, Appellant. Tedor Supreme Pennsylvania. Court of Aug.

Submitted 2012.

Decided Dec. Harris, Andrew L. Matthew H. Esq., Lawry, Esq., C. James Moreno, Defender Esq., Philadelphia, Association of for Tedor Davido. Sekula, M.

Kelly Esq., County Attorney’s Lancaster District Office, General, PA Amy Zapp, Esq., Attorney Office for Pennsylvania. Commonwealth of EAKIN, TODD, CASTILLE, SAYLOR, BAER, C.J., STEVENS, JJ.

OPINION PER CURIAM. the order of case, appeals Davido from capital

In this Tedor his County denying of Lancaster of Common Pleas Court Act relief the Post Relief for under Conviction petition (“PCRA”), §§ We affirm. Pa.C.S. 9541-9546. Background

I. affirming case in Opinion set forth the facts of this our We Davido, sentence of death. Commonwealth Appellant’s (2005). 52, summary of following Pa. 868 A.2d 431 The is a raised collateral review. pertinent the facts to the issues 2000, Appellant aggra- served a sentence in Ohio Prior accused against girlfriend vated assault a former whom he had In one of brothers. late having sexual relations with his 2000, and Appellant’s girlfriend, Angelina Taylor, new April two-year-old Appellant her son moved from Ohio to live with sisters, mother, Hager Appellant’s at 26 Street in Lancaster. brothers, and the and children of broth- girlfriend Appellant’s er, Davido, Sunday morning, there. Spanky also resided On an and Ms. arose between May argument deriving suspicion engaged from his she had Taylor Spanky oral sex with Davido. violent, beating dispute Appellant began

The became and a loudly Taylor, calling Ms. her a “whore” berating Trial, 12/5/01, 59. Ms. that “sucks d* *k.” N.T. “bitch” Appel- Taylor begged stop hitting her and asked Appellant’s lant’s sister for When sister told help. at her and beating Taylor, Appellant Ms. cursed stop relatives Ultimately, her to all of Appellant’s ordered leave. residence, them, leaving taking Taylor’s left the Ms. son a.m., shortly inside. At 7:52 only Appellant Taylor Ms. residence, from a leaving the sister called 911 after After herself as a away. identifying several pay phone blocks beating she that a man was a woman at 26 neighbor, reported Hager Street. investi- immediately dispatched

Two officers were police a ... hitting a “domestic situation” that involved “man a gate woman[,]” and were informed en route that loud screaming heard from inside the residence. Id. at 80. The had been a.m., officers arrived at the residence before 8:00 but shortly doors, quiet. They all was knocked at the front and back but in the They opened no one answered. an unsecured window house, any front of the announced themselves and listened for response, nothing. police but heard The officers radioed dispatch regarding for information the 911 caller or for the number within the residence. The officers told phone were that the 911 call had come from a and that dispatch pay phone no number was listed for the address. The officers phone phone heard a inside but the call was not answered. ringing to a that someone inside be Responding “gut feeling” might injured assistance, or otherwise need of one officer entered window, through the residence an unsecured unlocked a dead- door, bolt on the front and admitted the other officer. N.T. Trial, 12/5/01, at 84. The officers continued to announce there, themselves and their reason for being proceeded floor-to-floor, injured conduct a room-to-room search for any who have been in need of assistance. person might house, who had been inside the heard the officers Appellant, enter, window, fled a a through third-story wearing only along and socks. He ran a pair sweatpants rooftop, jumped adjacent ran to the parked alley, onto car an and then He he Gray. Gray home of Michele informed Ms. had Taylor, beaten Ms. and that he had fled when he had heard in the house. He also told her that at the time he police fled, motionless, Taylor pale, unresponsive, Ms. had been having breathing. trouble

Meanwhile, made their to the rear bedroom way officers floor, woman, on the later they third where discovered on a Angelina Taylor, identified as naked under a sheet Taylor seriously injured, mattress on the floor. Ms. body, numerous bruises and cuts visible on her face and on both bruising well as severe region, as including pelvic her Her were eyes. eyes both her throat and around sides of having and difficul- completely unresponsive she was open but response emergency called for The officers ty breathing. The hospital. police to the who took the victim personnel, for the a search warrant the and obtained then secured scene residence. Doe) as Jane (initially the victim identified hospital,

At the comatose being diagnosed after as life-support on placed was unit, a rape-kit In the trauma in the brain. bleeding due to conducted, numerous lacera- which revealed examination was outside the victim’s tions, inside and bruises and abrasions was removed from sperm of motile large quantity A vagina. regained never con- as well. The victim vagina inside her swelling herniated from the and her brainstem sciousness at brain-dead pronounced her head. The victim inside 14, 2000, life-support was removed from May on and p.m. 4:55 established and her identity after her had been day, the next Ohio, arrived at the contacted in who had been parents, life-support. to end gave and their consent hospital house, fled to Harris- Gray’s Appellant Michele After he left name. motel under an assumed overnight at a burg stayed where, to a pursuant the next day He returned to Lancaster warrant, rape.1 of murder and charges he was arrested on Miranda v. rights of his under informing Appellant After (1966), Arizona, L.Ed.2d 694 384 U.S. S.Ct. conflicting accounts gave who police questioned Appellant, the first, strangling At denied Appellant of what had occurred. her victim, that he had choked but he later admitted the ligature cord or other hands, that he used a denying his while the victim’s neck bruising He theorized that the on device. shirt, he on it. pulled her because had could have come from hitting her with the victim but denied slapping He admitted body on her fist. asked about bruises closed When residence, from the other Shortly after the victim had been removed police that family returned to the home and told members fighting. police obtained an arrest victim had been The and the assault, charge aggravated which was warrant for rape. charges following day reflect of murder amended the face, he stated that the victim had fallen down the stairs from the second floor to the first floor and had landed on her face. He explained later that he and the victim had standing been near top and that she had steps grabbed his shirt. He further stated that he then turned around and at grabbed her, and “she flew over head like a dream” my and tumbled 3/28/01, down the face-first. N.T. steps Suppression Hearing, 55; Trial, 12/10/01, N.T. at 677. explained also the bruises victim’s pelvic area had been caused earlier during weekend when he had thrown a football at her accidentally and had hit her in groin. He sperm theorized that the inside the victim had before, been deposited evening when she had engaged consensual sex with him in the bathroom of a movie theater. He police told that the victim had hoping been to become so, pregnant, and after the sexual encounter in the theater bathroom, she had her in kept legs up the air for some time to aid the impregnation process. they He also related that had in engaged consensual sex twice the prior evening, more once car, in bedroom, the and once in the before the fight started. Appellant stated that after Ms. Taylor tumbled down the stairs, move, she had become unable to so he carried her to the second floor. He stated that when he later heard the police enter, floor, he carried her to the back bedroom on the third and then fled the residence because he was At scared. that point during the questioning, Appellant asked the detective that,” whether the police just were “allowed to walk in like and the detective Taylor] being answered that “with hurt [Ms. was,” like she and having received a call that a woman was beaten, being “they check could to make sure [the officers] 12/10/01, Trial, was everything okay.” N.T. at 673-74. Appel- lant later filed an suppress unsuccessful motion to his state- to police they ments on the basis that had not been knowing and voluntary. Appellant suppression any did not seek of evidence the during, on basis that it had been seized or as the of, derivative result an and search the illegal entry of resi- police. dence the trial, Ross, who had Wayne

At forensic Dr. pathologist that the autopsy Taylor’s body, the on Ms. testified performed the was manner of was homicide and that cause of death death injuries traumatic to the head. He testi- multiple blunt force repeated impacts” that the force trauma or “massive fied blunt of delivered “a tremendous amount to the head were ... of force” caused force in excess of hundreds of G’s that center of “shearing directly “twisters” to the injury, going brain,” swelling the and massive resulting bleeding crushed the brain stem and killed eventually brain Id., 12/7/01, to Dr. Appellant objected victim. at 450-52. injury on testimony regarding shearing Ross’s and G-forces Dr. beyond scope expert the basis it was of Ross’s trial court report proffer. the Commonwealth’s The objection challenged testimony overruled the because the Id. injuries.” at 453. “directly to brain relate[d] injuries seen Dr. testified Based Ross post-mortem, Ms. degree within a of medical certainty reasonable had both manual and Taylor ligature strangulation suffered duration and that she had been the victim several minutes’ Id. at 460. nurse penetration rape.” Registered “forced or forensic who McGarrity, Maureen a sexual assault examiner Ms. in the performed rape-kit Taylor examination on unit, vaginal trauma testified that exam during speculum conducted, collecting large she addition to amount sperm, multiple vaginal motile she saw lacerations wall multiple and labial abrasions. presented

The also the of Matt testimony Commonwealth Kauffman, who had been an inmate housed with Appellant Medical of follow- Housing County Unit Lancaster Prison on the Mr. Kauffman ing Appellant’s charges. arrest instant “explained testified what had as Appellant happened” follows: thing had home and were and one they fighting

[H]e c[o]me he her. her hitting led to the next and started He threw [by and was steps drug up hair] down and her back like, her head in the side of a dresser. And he was banging like, her and on her back. kicking stomped Id. at 505-06.

Mr. Kauffman further related that told him that Appellant unresponsive following beating the victim had become then “had sex” with her. Id. at 506. Appellant had cross-examination, Mr. that he During Kauffman admitted had been “in the Medical because of medication and Housing Unit arising because of issues out of Id. at 512. depression[.]” Brown, Additionally, Anthony another inmate in the Medical Prison, testified that had told Housing Unit victim], him that “he steps[,] hit that she fell down the [the ... dragged that she struck her head on her something, [he] back into the bedroom ... he f* *ked Id. at [and] her.” 565. instructed his defense counsel not that he would to the of defense that agree presentation any conceded the intent to adamantly kill. He testified his own defense and maintained that the victim’s death had been accidental and Accordingly, strategy unintentional. the defense to the charge first-degree present murder was to facts which an inference that lacked the might support Appellant had kill specific guilty intent to and to secure a verdict to lesser The of first- degree jury Appellant guilty homicide.2 found degree rape. murder and advised his and the court that he attorneys represent during penalty-phase proceed-

wished to himself Moreover, he the court that he did not wish to ings. informed present any mitigating evidence of circumstances. The court conducted a to determine whether choices colloquy were counsel knowing, intelligent voluntary. Defense made an oral motion for a mental health evaluation and a The court the motion competency. determination denied permitted Appellant represent during pen- himself no alty-phase proceedings. Appellant presented mitigating jury, evidence and the which found a single aggravating Despite Appellant’s pursue any upon an desire not to defense based killing, ultimately requested jury he volun- intentional instruction on tary manslaughter, provided. which the court 232 (that while in killing the committed Appellant

circumstance 9711(d)(6)), returned a § felony, of a Pa.C.S. perpetration of death. sentence sentence, Appellant judgment from the appeal

On direct him to to permit the trial court’s decision challenge raised a to proceed and to evidence mitigating the presentation waive This noted of the trial. Court phase the pro during penalty se that, Amendment U.S. Constitu- to the Sixth pursuant tion, right dispense has the a criminal defendant penalty himself during altogether represent counsel Moreover, Davido, A.2d at 444. capital of a case. phase intelligently, knowingly, had Appellant we determined during penalty to counsel right waived his voluntarily of mitigating evidence right present as well as his phase, Id. circumstances. of Dr. Ross on testimony the trial challenged also

Appellant that Dr. Ross’s conclusions alleged appeal. Appellant direct death, conclusions those particularly the cause of regarding forces, speculative G were testimony regarding based his upon of medical degree a reasonable and not within presented was without merit issue certainty. We determined the cause of testimony Ross’s established and held that Dr. and that his certainty, of medical degree death to a reasonable speculative. of death was not the cause testimony regarding 441-42. Id. at certiorari, was a writ of which filed a petition 1020,126 546 U.S. S.Ct. Pennsylvania,

denied. See Davido v. (2005). filed a se pro then 163 L.Ed.2d 534 subsequently was petition and an amended petition, PCRA Defend- Community the Federal behalf filed (“FCDO”) Pennsylvania, District of for the Eastern er Office was held over evidentiary hearing issues. An raising fifteen testi- which sixteen witnesses days, during course of five witnesses, and dozens of fied, a number of including expert A full of oral day were introduced. evidentiary exhibits heard, also briefed the parties later and the argument judge, The who consideration. issues for the court’s trial, petition, also denied presided had now raises twelve issues for to this Court. appealed our review. review, standard of we must applicable

Under determine whether of the PCRA court are rulings sup error. Common ported by legal the record and are free of (2012) wealth v. 164, 63, Spotz, 616 Pa. 47 A.3d (citing 75 Hutchinson, v. 280, 277, Commonwealth 611 Pa. 25 284- A.3d (2011)). determinations, 85 The court’s credibility PCRA record, Court; when supported by binding are on this however, a de novo standard of review to the PCRA apply we Id. legal court’s conclusions. relief,

To on a for a prevail petition petitioner must evidence, plead prove, by and a of the that his preponderance or her conviction or sentence resulted from one or more of the 9543(a)(2). § circumstances enumerated in 42 These Pa.C.S. include a circumstances constitutional violation or ineffective- ness of which the truth-determining counsel “so undermined adjudication reliable process guilt no or innocence 9543(a)(2)® (ii). § could have taken 42 place.” Pa.C.S. addition, In petitioner a must show that claims of error have not been or 42 previously litigated waived. Pa.C.S. 9543(a)(3). § An “if issue has been waived the petitioner trial, trial, could have it raised but failed to do so before on appeal prior or a state conviction 42 post proceeding.” 9544(b). § An issue has been if previously litigated Pa.C.S. “the in which the highest appellate petitioner court could have right had review as a matter of has ruled on the merits of the 9544(a)(2); § 42 Spotz, issue.” Pa.C.S. 47 A.3d at 76. With to claims of ineffective assistance of respect counsel, begin presumption we with the that counsel is effec claim, tive. To on an ineffectiveness must prevail petitioner evidence, satisfy, by a Amend preponderance Sixth Strick ment performance prejudice standard set forth land v. Washington, 466 U.S. 668, 2052, 104 S.Ct. 80 L.Ed.2d (1984). 674 This performance compo Court has divided the Strickland nent of into two subparts dealing arguable Commonwealth v. Baumham- strategy. merit and reasonable 234 (2014). Thus,

mers, 354, 708, prevail Pa. 92 A.3d 719 625 claim, must that: the under- show an ineffectiveness merit; no reason- claim counsel had legal arguable has lying omission; or for his or her action able basis Id. v. (citing as a result. Commonwealth prejudice suffered 153, 973, (1987)). Pierce, regard 515 Pa. 527 A.2d 975-76 With basis,” will conclude that counsel’s chosen to “reasonable we proves basis if strategy only Appellant lacked reasonable “an alternative not chosen offered a success potential actually pursued.” than the course substantially greater Williams, 47 A.3d at 76 (quoting Commonwealth Spotz, (2006)). A.2d establish Strickland Pa. To a reasonable Appellant must show there is prejudice, proceedings that the would have outcome probability or but counsel’s action inaction. Id. been different was new on his direct represented by counsel Appellant 2003, nearly year in a which December appeal, argued Grant, in 572 Pa. after this Court’s decision Commonwealth v. (2002), rule 48, A.2d 726 which general 813 established of on claims of ineffective assistance counsel raised direct (PCRA) should be to the collateral review deferred appeal appeal, Appellant challenge On that direct raised to stage. residence; into his that the entry recognizing the warrantless subject waived, being Appellant claim was deemed alterna- argued failing that trial counsel was ineffective tively only the claim. was the claim of litigate This ineffectiveness Grant, appeal. raised on direct Court Appellant Citing Davido, the claim review. 868 A.2d deferred to collateral at Grant, In below thus light proceedings 440-41. first to raise claims represented Appellant’s opportunity in the assistance of trial counsel. To sounding ineffective his arguments focusing the extent raises stand-alone appeal performance his direct counsel’s on this collateral upon performance prejudice the same appeal, Strickland-based 639, Pa. Tedford, See v. 598 applies. standard Commonwealth (2008) 1, appellate 25 claim of (rejecting 960 A.2d stand-alone not dem- ground counsel ineffectiveness on did appellant appeal onstrate how counsel’s on direct appellate performance Strickland/Pierce). pursuant requirements was defective Suppression II. that “trial counsel ineffec initially posits failed to the admission of evidence found

tively challenge during illegal, Appellant’s an warrantless search of home Fourth, rights guaranteed by violation of his as Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, 8, 9, §§ Pennsylvania Appel and 13 of the Constitution.” Appellant alleges lant’s Brief at 12-13. that the warrantless illegal probable exigent search was because neither cause nor Rather, circumstances existed to it he that the justify argues search was conducted on the basis of an simply anonymous 911 call and on the officers’ “gut feeling” something was not when to the call and found a right they responded quiet, Id. deserted house. at In seemingly reliance States, Wong Sun United mandate of 371 U.S. (1963), Appellant argues S.Ct. 9 L.Ed.2d that “[vir all evidence tually presented trial was derivative evidence doctrine, and excludable under the fruit of the tree poisonous from including Appellant’s flight police; discovery eye witnesses; statement; Appellant’s physical evidence later ex amined to establish rape; physi seizure of numerous cal items.” Brief at 24.3 also claims that trial counsel ineffective by failing rendered assistance seek of the evidence on that basis. suppression

The posits, Commonwealth and the PCRA court deter- mined, entry that the warrantless was both supported by cause and circumstances. The PCRA court probable exigent that existed the 911 call probable concluded cause based on exclusionary remedy protect rights provides 3. The rule the created by Pennsylvania the U.S. and The Amendment Constitutions. Fourth exclusionary by Supreme rule has been construed the U.S. Court as Leon, 897, 916, serving solely purpose. a deterrent U.S. v. 468 U.S. 104 3405, (1984). exclusionary S.Ct. 82 L.Ed.2d 677 The rule under Article I, interpreted by Section 8 has been this Court to serve the dual purposes safeguarding privacy ensuring and that warrants are issued Edmunds, 374, only upon probable cause. Commonwealth v. 526 Pa. 887, (1991). 586 A.2d 899 236 residence, occurring a domestic within the

that assault exigent that the circumstances warrantless permitting and the reasonable someone entry included officers’ belief that within the was in imminent PCRA Court danger. residence 8/31/11, the Op.”]. Additionally, at 7-9 Ct. Opinion, [“PCRA concluded, asserts, the the that court and Commonwealth was a constitutionally permissible “protective sweep.” search determined, the Alternatively, court and the Commonwealth maintains, inevitably that the evidence have challenged would discovered, therefore under the been and was admissible the inevitable doctrine. discovery responds the discovery contours of doc- “independent source/inevitable trine,” pursuant as it has been fashioned Pennsylvania Mason, 560, (1993), v. Pa. 535 637 A.2d 251 Commonwealth Melendez, 323, 544 v. Pa. 676 A.2d 226 Commonwealth (1996), admissibility not here. support do evidence Brief at 20-24.4 entries or are se unrea per

Warrantless searches Constitutions, under our state albeit sub sonable federal and ject to certain exceptions. exception delineated One such exists when there cause and circum probable exigent is both obtaining stances sufficient to excuse warrant. Common (2008). 270, 119, Wright, wealth v. Pa. 961 A.2d 137 The 599 Court has the “Fourth Amend- Supreme recognized U.S. related, Although they independent are doctrine and the source discovery Murray requirements. inevitable distinct v. doctrine have U.S., 533, 538-39, 2529, (1988). 487 U.S. 108 S.Ct. L.Ed.2d 472 previously has not This Court addressed differences between the 391, Wiley, See doctrines. Commonwealth v. Pa. 904 A.2d 905 (2006) (per dismissing appeal, granted; improvidently curiam order as Eakin, separate argue dissents Newman and that merits Justices permit disposition would inevitable discussion differences between discovery independent exceptions source doctrines to exclusion- as doctrine, rule). ary respect independent With we also note source recently that this Court has addressed more Mason Melendez Henderson, Pa. Commonwealth 47 A.3d 804-805 (2012). case, Saylor In Mr. he his concurrence in this Justice notes that rejection discovery here upon would base the claim raised inevitable grounds entry principles. disposition Given was lawful our circumstances, discovery we will not address inevitable under doctrine.

237 ment does not bar officers from police making warrantless they entries and searches when believe that a reasonably v. Ari- within is in Mincey person need of immediate aid.” zona, 385, (1978). 392, 2408, 437 U.S. 98 S.Ct. 57 L.Ed.2d 290 Miller, See also v. 354, Commonwealth 895, Pa. 555 724 A.2d (1999) (limited 900 number of police circumstances will excuse from compliance with Fourth Amendment warrant and proba- ble cause requirements; one such circumstance occurs when police reasonably believe that someone within residence is in Norris, aid); need of immediate Commonwealth 498 Pa. (1982) (warrantless 308, 246, 446 A.2d entry into residence alia, inter be may permitted, “when the officers inmay good faith believe that or they someone within are peril bodily Galvin, accord Commonwealth v. harm.”); 603 Pa. (2009). A.2d 795-96 does not dispute validity of the doctrine that

permits police to enter a residence without a warrant when they reasonably believe someone inside is in need of immedi- Instead, ate aid. disputes applicability doctrine here. Appellant argues that sim- circumstances ply support did not a reasonable belief that a crime had been committed, much less that someone inside the residence was in need of assistance. Appellant acknowledges that the 911 call informed the police “that there was a domestic distur- bance at 26 Hager Appel- Street.” Brief at 13. lant then much grounds argument of his cause probable exigent circumstances were lacking testimony the trial officers, that, of one of the responding who related after doors, no at the receiving response front and back the officers just “both had a gut feeling that was not something right Trial, 12/5/01, there.” N.T. at 84. dismisses the legal effect of the report screaming and an assault on a woman, that the 911 call noting placed anonymously that the saw police nothing to corroborate the information the provided. caller had these circum- Appellant suggests stances should have raised an inference that the 911 call was erroneous or a prank and no crime had occurred and no existed. emergency determined, however, that of any

The the lack PCRA court to the any from the or response sound within residence im- police the were efforts while police’s knock-and-announce loud, the a mediately to and of responding investigating report residence, a supported assault on a woman within domestic of that inside was in need reasonable inference someone court that “the emergency opined assistance. The police in imminent entry was on the belief that someone was based 12/29/11, Thus, Opinion, danger.” PCRA Court that no viola- PCRA court concluded there was constitutional here, assis- that counsel had not rendered ineffective tion to seek on the that by failing suppression tance basis entry illegal. Appellant responds warrantless had been court’s is the record supported by determination not never they anyone officers testified believed because “[t]he aid, victim suspect was in need of immediate or that the and/or in still house.” Brief at 19. were It imminent widely recognized potential is that the for implicates in the physical exigencies harm domestic context may police dwelling. a limited intrusion a justify into 661, 34, Wright, v. 560 Pa. 742 A.2d 664-65 Commonwealth cases). (1999) for the (collecting The U.S. Court Appeals exigencies Ninth has that “the of domestic recognized Circuit that, case, may cases in an present dangers appropriate abuse Black, v. 482 F.3d privacy.” override considerations U.S. Cir.2007) 1035, (9th Brooks, 1040 367 F.3d (quoting U.S. “[cjourts Cir.2004)). 1128, (9th Moreover, recog 1136 have nature and have disputes, nized the combustible of domestic to an belief great accorded latitude officer’s that warrantless justified entry by exigent circumstances when the officer had reason to that one of the to the parties substantial believe Brooks, (citing was in 367 F.3d at 1136 dispute danger.” (2d Cir.1998)). Davidson, Tierney v. 133 F.3d 189 se per do not abuse cases create a suggest We domestic rather, reviewing need warrantless a court exigent entry; to the totality presented must assess the circumstances exigent in if entry officer before the order determine relieved the officer of the to secure duty circumstances however, warrant. do that the have a recognize, police We conflict duty respond seriously reported domestic situa- tions, so, be some doing they must accorded latitude making on-the-spot as to what actions to take and judgments what actions are reasonably necessary protect themselves potential victims abuse.

The of a call domestic abuse is anonymity reporting not fatal to to enter a establishing exigency necessary dwelling totality without warrant under the of the circum Edmonds, e.g., stances. See State v. 47 A.3d N.J. (2012) violence, of domestic even if (“[AJllegations source, coming from a cannot be breezi seemingly anonymous Here, ly investigated.”). dismissed and must be the 911 call reporting domestic violence contained the details fairly specific that a man was beating specifically a woman within a identi residence, fied and a indicated that separate report screaming Yet, could be heard from within that residence. emanating when the shortly officers arrived at the scene before 8:00 a.m. on that three minutes after Sunday morning, approximately received, door, the 911 call had been no one answered the no sound the except ringing could be heard unanswered of a telephone within the residence. recognized

One reason courts have that deference to offi- on-the-spot judgments particularly cers’ reasonable is war- disputes signs danger may ranted in domestic is that “the of Clinton, (1st be masked.” Fletcher v. Town 196 F.3d of Cir.1999). situations, In domestic violence the victim often silent, intervention, remains or or police does not seek lies protect (citing the abuser for fear of retaliation. See id. Statistics, Justice, Bureau of No. Dep’t Rep. Justice U.S. (1998) NCJ-167237, (noting Intimates at v by Violence by one of “most common reasons victims for not contact- given retaliation”)). was that “feared also ing police” they We course, recognize, that a domestic abuse victim who has severely injured been be unable to communicate in may response investigatory to an officer’s efforts outside the home. Thus, apparent exigencies of domestic disturbance situa- necessarily negated tion are not when officers find a quiet of violence. report to a promptly responding residence while Chavez, (Colo.Ct.App.2010) 240 P.3d People See within minutes of when officers arrived heightened (exigencies assault but home reporting physical call emergency domestic knocks on repeated officers’ and no one answered was dark door). objectively are police the actions of front Whether known to the circumstances judged by reasonable is to be Black, 482 F.3d at 1040. them. sure, the silence that

Here, one explanation to be initial arrival and their the officers their upon confronted have been refute the 911 call could to confirm or attempt However, genuine. in error or not the 911 call was because an reasonably have been also could non-responsiveness the silence was legitimate, call was indication that the 911 a still- intimidation incapacity, to the victim’s physical due abuser, intervention. Be- seeking police fear of present or reasonably specific, of domestic violence report cause exigencies, involve inherent domestic abuse cases and because entry into the residence without we conclude that the officers’ non-responsive otherwise injured to search for an or a warrant under the objectively victim was reasonable domestic abuse Indeed, officers would have totality of circumstances. the scene they had abandoned duty been remiss in their agree answered the door. We because no one simply exactly expect is what we on the side of caution “[ejrring objective, the ... where rescue is police conscientious officers crime,” second- “and should not [w]e rather than a search for enter objectively [to reasonable decision the officers’ guess in such a case.” warrant] a without a and search residence Black, 482 F.3d exigency in recognize per we do not se

We reiterate that situations, entry we caution that and abuse and domestic police limited to proper in the context of a rescue is search assistance, need of based on to find a in attempts person be inside the area that such a will person reasonable belief totality be based on the of A reasonable belief must searched. circumstances, inherent exigencies include the may which investí- being promptly of violence is report when a domestic A rescue search is not a search for evidence of gated. here, criminal activity; clearly officers testified their only entering reason for the residence was their concern for safety of a domestic abuse victim. The potential police did any weapons not search for or other evidence of criminal activity. The search for of criminal subsequent evidence was conducted after activity only pursuant issuance (the of a search warrant propriety which has not been challenged appeal) below or on after the discovered the police victim and had her unresponsive transported to a hospital record, trauma unit. this are On we satisfied that the PCRA court did not err in concluding that officers entered the home based on their reasonable belief that a victim would be found inside who needed immediate police assistance. Accord- ingly, agree we with the court that the entry officers’ into the home justified under the recognized “persons immediate exigency need assistance” to the war- exception rant requirement, and we affirm the court’s denial of relief to on his post-conviction derivative claim that trial counsel were ineffective for failing suppression. to seek Testimony5

III. Dr. Ross’s On direct appeal, Appellant unsuccessfully challenged the admissibility expert testimony of forensic pathologist Dr. on the Ross basis that his conclusions the cause regarding of death were not based a reasonable upon degree medical certainty. On this PCRA claims that Dr. appeal, Appellant G-forces, Ross’s testimony regarding his observation during post-mortem exam of a or shearing tearing injury, and his any false, failure to notice evidence of an aneurysm was misleading, “unreliably speculative,” prior and that coun- sel were for failing litigate ineffective this issue. Appel- issues, remaining theory 5. As we turn to we note that a pursued by Appellant hearing present both at the PCRA and in the appeal, implicated arguments presented, which is a number of the is upon that the blows inflicted the victim were not intended to demonstrably enough kill her and were kill not severe her. In issues, support of a number of his contends that the victim bleeding ruptured aneurysm, died of intra-cranial caused a' brain failing adequately pursue and that counsel were ineffective in present aspects theory. various of this Dr. additionally claims that Appellant lant’s Brief at 29. injury testimony shearing Ross’s G-forces regarding trial violation, testimony that his that discovery constituted a false, prior was and that strangled raped victim had been litigate these issues. failing counsel were ineffective that counsel were ineffective Appellant alleges further trial Ross, Dr. his failing effectively impeach cross-examine credibility, successfully testimony his with the testi- or rebut of The re- mony expert a credible witness. Commonwealth alia, inter has failed to establish the Appellant that sponds, arising any multiple merit of his claims ineffectiveness regard testimony. with to Dr. Ross’s Discovery a. Violation testimony Ross’s ex first claims that Dr. in his report

ceeded of what contained scope expert and, thus, Appellant alleges a violation.6 discovery constituted known actual content of Dr. Ross’s “[h]ad counsel testimony, successfully precluded counsel could have proposed alia, which, inter 573(E), it” under provides Pa.R.Crim.P. introducing court evidence not may prohibit party from Brief at pre-trial discovery. Appellant’s disclosed properly responds The is not enti 38. Commonwealth underly tled to on this ineffectiveness claim because the relief The held that no ing issue lacks merit. PCRA court there was discovery because Dr. Ross certain although violation used in his in his testimony terms that were not used phrases were “descriptive were terms” that not different report, these from in his meaning report. in substance or those used atOp. Ct. 3.

The was his testimony post-mortem basis of Dr. Ross’s trial pre-trial of which was to the defense in report, copy supplied trial, discovery. objected At defense counsel to Dr. Ross’s testimony not on the regarding shearing injury, G-forces and 4003.5(c), provides which relies on that “the Pa.R.Crim.P. testimony expert may direct trial not be inconsistent go beyond scope testimony discovery or the fair or her in the his interrogatory, proceedings deposition, forth in the answer to an as set Id. separate supplement report, or thereto.” violation, the amounted to a but testimony discovery basis that beyond scope report because it was “well the of the and offer Trial, 12/7/01, N.T. at 453. concedes as proof.” At the Appellant’s hearing, much. Brief at 32-33. testimony trial counsel testified that Dr. Ross’s G- regarding no and that counsel knew Dr. Ross had surprise, forces was testified the effect of in the previously regarding G-forces in injury causation of traumatic brain in unrelated cases County, admissibility testimony Lancaster where the of such been and testified that he litigated upheld. had Counsel testimony] coming,” testimony “knew that “was [the not knew win a battle unexpected,” and “we we wouldn’t Thus, keep it out.” counsel testified that the defense to this had been to strategy respect anticipated testimony in present expert Hearing, a defense rebuttal. N.T. PCRA 6/23/09, at 220-23. trial,

At Dr. presented pathologist indeed forensic Shane, that, in opinion, John who testified his Dr. Ross’s testimony N.T. regarding “highly speculative.” G-forces was Trial, 12/11/01, 845^46, 867. Dr. also testified that Shane he microscopic had examined slides of the victim’s brain tissue or shearing tearing, opined and saw no and he that there was “nothing tearing that describes report [Dr. Ross’s] brain tissue.” Id. at 869. In Dr. Shane’s opinion, the cause of hemorrhage the victim’s death was a subarachnoid concentrat- shearing ed at the base of the brain that occurred without a or tearing injury deep to the interior of the brain. He testified that he did not believe the blows to the head the victim had were “severe subarachnoid or sub- enough sustained cause dural and instead that the victim had a bleeding,” suggested which contributed to the fatal subarach- “preexisting injury” Id. at 867. hemorrhage. noid argue find that counsel was not ineffective in failing

We here, discovery report, violation as counsel had received the testimony, was aware of the substance of Dr. Ross’s expected indeed, matter of trial had strategy, presented as a testimony damaging aspects of Dr. to rebut of Dr. Shane injury. regarding shearing Ross’s conclusions G-forces objection identifies violation discovery Notably, exceeded testimony allegedly trial when Dr. Ross’s only arose However, Appellant report. pre-trial of his the substance fact, testimony counsel, objected concedes In these basis, objection was overruled. and that circumstances, necessarily claim ineffectiveness appellant’s fails. False, Misleading Alleged Unreliable Dr. Ross’s

b. Testimony related ineffectiveness now to

Moving testimony Dr. Ross’s claim, that allegation an premised upon unreliable,” reiterate that on “false, we misleading and was erred that the trial court had claimed appeal, Appellant direct The “speculative.” it was testimony because permitting was Dr. Ross’s claim of trial court error foundation for that tearing going and of brain tissue shearing description brain, blunt force trauma resulting from the center of the force, the absence of of and delivered with hundreds “Gs” those forces had regarding in the how any report mention merit that the issue lacked calculated. We determined been of death based testified to the cause because Dr. Ross had twisting” “shearing “first hand observations” of upon death had been concluded that the cause of injury, and had blunt force to the victim’s as the result of injury brain suffered Davido, reference A.2d at 442. We held “[t]he head. 868 used merely a term ‘g descriptive forces’ was number force; it was not a that the victim was hit to describe Dr. Ross’s Accordingly, the cause of death.... as to linchpin the trial court did not abuse was not testimony speculative it at trial.” Id. admitting its discretion in this was “misled” argues now Court on direct testimony considering aspect G-forces He claims that Dr. Ross’s Brief at 36. appeal. Appellant’s as to both shearing injury linchpin “testimony about Appellant’s precise intent.” Id. specific the cause of death actually was not based on testimony Dr. Ross’s claim is that merely but shearing injury, of a “first hand observations” his observation of a hemorrhage, subarachnoid which can result from either a shearing injury or a ruptured aneurysm.7 Id. at claims that Dr. Ross improperly excluded a ruptured aneurysm as the cause of the subarachnoid hemor- Thus, claims, he rhage did observe. once again, that “it is clear testimony now was not [Dr. Ross’s] based aon reasonable of medical degree certainty,” and that counsel was ineffective in failing litigate claim. Id. at 36. (emphasis in original).

The PCRA court dismissed previously this claim as litigated. We note that “a petitioner cannot obtain additional review of previously litigated claims presenting Sneed, new 1, theories of relief[.]” Commonwealth v. 616 Pa. (2012) 1096, Wharton, 45 A.3d (citing Commonwealth v. (2002)). Here, 571 Pa. 811 A.2d the claim regarding shearing injury sufficiently is distinct from the bar, claim regarding G-forces as to avoid the prior litigation because it ultimately is based on the assertion that Dr. Ross erroneously ruled out a while ruptured aneurysm, the former claim was that his testimony regarding G-forces was not scientifically supportable.

Appellant concedes that there was no direct evidence pre- sented at trial or post-conviction proceedings show that the victim in fact aneurysm. had an At the hearing, PCRA the presented testimony of an expert emergency medicine, Scotti, Angelo Dr. and of an expert pathologist, Dr. Charles Wetli. Both conceded that the experts clinical record did not contain direct of an aneurysm, evidence but both that an opined aneurysm likely was the cause of the victim’s fatal subarachnoid based on hemorrhage, opinions their that injuries the constellation of post-mortem revealed failed to the of a support finding shearing injury resulting from a blow or blows to the head. Both testified that experts definitive proof of a would have been ruptured aneurysm by revealed shearing injury 7. The medical evidence at trial reflected that a is head, typically pre- caused a forceful or blows the blow while a existing aneurysm rupture brain can as the little result of or no outside force. dissection of a structure in the brain called the Circle of Willis base N.T. and the vascular to the of the brain. PCRA supply 6/26/09, 593-94, at 620-22. Hearing, the Dr. Ross’s stated that post-mortem report Circle At aneurysms Willis was intact that no were identified. that his hearing, although postmortem the he testified Willis, report did not state that he had dissected the Circle of injuries his brain of this practice, particularly standard where have been to so. He testified that type present, are would do “The intact.... order to say Circle Willis was [I]n it [y]ou’vegot is intact ... to dissect out.” Id. Circle of Willis at 674.

Dr. Ross further testified that the subarachnoid hemor- was, fact, rhage shearing with injury more consistent than he as ruptured aneurysm. Specifically, testified follows: If were an it have The aneurysm, ruptured. there would posterior blood clot would have been confined to the cranial quickly any fossa and she would have died rather without hemorrhage, significant hemorrhage, swelling[.] or throughout You have all the brain. You have hemorrhage You eleven swelling throughout the brain. have over differ- ent regions scalp areas of bruises to all all due to you trauma. tells have a you blunt force That traumat- ic is injury. swelling brain The this brain classic for injury. axonal diffuse at findings,

When look the constellation of bruises you scalp, you swelling scalp, you look at look all as hemorrhage the subarachnoid over the brain as well brain, are you you dealing base of the that tells axonal injury.[8] diffuse Id. at 678-80. record, has not appellant

On this demonstrated counsel for failing challenge ineffective to further Dr. Ross’s injury” 8. evidence reflected axonal is The medical at trial that "diffuse shearing the result of traumatic forces that occur when the head is false, as testimony misleading and unreliable. Appellant pro- duced experts collateral attack who disagreed with Dr. Ross’s but opinions, that does not prove that Dr. Ross’s different view was false Moreover, or unreliable. put to the attack, challenge on collateral Dr. Ross made clear that he did not haphazardly rule out a ruptured aneurysm as the cause of the subarachnoid hemorrhage he observed. To the contrary, he testified that he considered the relevant medical in factors out, ruling to a reasonable degree medical certainty, a ruptured as aneurysm the cause of death. The determination

was based factors, on a number of observable including bleed- ing and swelling brain, throughout the numerous contusions to head, and an intact Circle of Willis. Accordingly, Appel- lant’s claim that trial counsel was ineffective for failing argue Dr. Ross’s testimony on this point false, misleading, and unreliable lacks merit. Adequately

c. Failure to Impeach Cross-Examine or Dr. Ross

Appellant next characterizes trial counsel’s cross-ex amination of Dr. Ross as “limited and perfunctory,” and therefore ineffective. Appellant’s Brief at 42. The PCRA court rejected this claim as meritless and lacking proof of prejudice. PCRA Ct. at Op., claim is belied by record, which reflects that counsel questioned Dr. Ross extensively about the absence of fractures to any bones head, victim’s face or fractures which be might expected when blows are significant enough to cause a subarachnoid hemor rhage. Counsel questioned also Dr. Ross about the absence of a fracture to the hyoid bone in the victim’s neck and the absence petechial in her hemorrhages eyes, injuries which might be expected when person has strangled. been Addi tionally, counsel established on cross-examination that Dr. rapidly by accelerated twisting or decelerated upon and rotation im-

pact, accidents, falls, may as occur in automobile All assaults. experts agreed shearing injury easily diagnosed by is not imaging exams; studies such as CT scans or MRI tearing the actual generally axons is microscopically; best seen tearing and that while or shearing observation, of white matter can be seen direct visual typically very tears are may small and be obscured. 248 certainty whether with absolute

Ross could not determine of had been the result space within the subarachnoid bleeding N.T. the brain. “outside” or “inside” a trauma from direct a chart established that Trial, 12/7/01, 477. also at Counsel indicated that Sheet” the “Trauma Resuscitation notation on at seen. Id. 475. trauma” had been genital “no direct cross- claims that counsel’s nevertheless counsel did not Ross was deficient because examination of Dr. any shearing observed actually he had ask Dr. Ross whether of photographs Dr. Ross took no why or ask tearing injury, or had aneurysm that no of to document the intact Circle Willis of ineffectiveness “A claim disagree. been observed. We hindsight, ‘through comparing, succeed cannot generally ” pursued.’ alternatives not strategy employed trial Miller, Sneed, v. 572 at 1107 Commonwealth (quoting 45 A.3d (2002)). 623, 504, strategy matters of Where Pa. 819 A.2d concerned, is deemed are counsel’s assistance and tactics course particular if he or she chose a constitutionally effective to effectuate his or designed reasonable basis that had some Colavita, (citing interests. Id. Commonwealth her client’s (2010)). 874, “A that a chosen finding 606 Pa. 993 A.2d it warranted unless a reasonable basis is not strategy lacked not chosen offered can be concluded that an alternative the course greater than substantially for success potential actually Id. pursued.”

Here, attempted trial counsel the record reflects the testimo- presented when he testimony discredit Dr. Ross’s 1) Shane, testimony Dr. Ross’s Dr. who ny opined 2) had slides that Dr. Shane microscopic speculative; tissue; tearing deep-brain no or shearing examined showed 4) 3) hemorrhage; a subarachnoid the cause of death was to have enough head were not severe the blows to the victim’s her death. which caused hemorrhage caused the subarachnoid that the victim’s brain tissue additionally Dr. testified Shane scarring, or “fibroblast” or old “gliosis” showed evidence of that in his injury, opinion, indicating “pre-existing” for an older speaks at the base of the brain “hemorrhage Trial, 12/11/01, Dr. testified at 844. Shane injury.” N.T. if the blows to the head been severe to cause the fatal enough the brain have hemorrhage, “coup-contra- would exhibited coup” bruising injuries contusions or and that such were not Id. Additionally, here. Dr. testi- present Shane fied that the wounds to the victim’s were genitals superficial sex, and could have been the result consensual and that the marks her throat strangulation. were not consistent with previously explained, As counsel testified at the PCRA hear- that his main trial ing strategy discrediting testimony of Dr. present Ross had been to the countervailing expert testimony of Dr. Shane.

The record establishes that the chosen counsel strategy had a designed reasonable basis to effectuate Appellant’s interests, and has failed to show that the suggested strategy alternative of additional offered a reason- questioning Thus, probability able of a different outcome. we determine that the PCRA court did not err in relief denying on this claim. Adequately Testimony

d. Failure to Rebut Dr. Ross’s next argues trial counsel was ineffec in tive of Dr. presenting testimony despite Shane counsel’s belief that Dr. was not a credible witness.9 The general Shane Appellant grounds 9. this claim on a memorandum in counsel’s file documenting initially that the defense did not intend to call Dr. Shane mannerisms, expert as an witness due to his demeanor and and because opinion ingestion may his of barbiturates have been a contrib- uting likely in factor the victim’s death would have been discredited at by laboratory confirming trial tests and records that the barbiturates during had been administered in victim’s treatment the trauma unit. Additionally, the memorandum noted counsel’s concern that Dr. Shane unprepared appeared reading seemed and had to be the medical meeting records for the first time at his initial with counsel. When questioned hearing, about the memo at the PCRA counsel testified that undocumented, ultimately, although obviously change he had had "a of regarding credibility heart” Dr. Shane's "or he would [Dr. Shane] 6/23/09, Hearing, never have set foot in this at courtroom.” N.T. directly point, 242. More to the counsel testified as follows: person. physically Dr. Shane is an odd His mannerisms are and

facially willing say anything odd. He was about that we would ask say[.] him ... Those were concerns that we had. We sat down Ultimately, up using and discussed those concerns. we ended Dr. have is that should not counsel Appellant’s argument thrust he could Dr. an witness because expert Shane as presented that, hemorrhage testify his subarachnoid opinion, not had the result of caused the victim’s death been testimony aneurysm. points the PCRA ruptured that Dr. and as for his contention support of Drs. Scotti Wetli then this poor expert regard, defense Shane failing identify, that trial was ineffective in asserts counsel testify affirmatively an who could present expert locate ruptured the ultimate of a that the victim had died as result aneurysm, injury. and not a diffuse axonal brain trial counsel testified that Dr. Shane hearing, At the PCRA but aneurysm play,” that an was at explored “possibility certainty.” “find Hear- anything he couldn’t N.T. PCRA 6/23/09, at 225. testified that “Dr. Shane didn’t ing, Counsel Id. independent injury.” an causation for her brain find Nevertheless, is clear disput- the record that Dr. Shane no injury axonal he saw finding ed the a diffuse because because, in his shearing tearing opinion, evidence or not to cause victim had been struck with sufficient force was, opinion regard or Dr. in this shearing tearing. Shane’s fact, expressed by in not dissimilar to the Drs. Scotti opinions Wetli, on and both whom testified that the trauma evident caused body the victim’s did not severe to have appear enough Moreover, Dr. hemorrhage. although the fatal subarachnoid certainty degree testified within a reasonable of medical Scotti hemorrhage that the cause of the fatal a aneu- ruptured Dr. in that certain. Dr. rysm, opinion regard Wetli’s was less cause, only aneurysm testified an but “likely” Wetli that was a ultimately, hemorrhage “the cause of subarachnoid [the] that 6/26/09, Hearing, at 623. is undetermined.” N.T. PCRA limiting specific issues that he would Shane and him to that we knew on, thought the work well for us on and we he was credible say opinions we credible. And I that based on found to be there, sense, opinions made medical evidence that was out that that[,] my opinion, jury opinions in a would find reasonable opinions proven. credible and that were based on facts that could be testimony. PCRA Ct. at 232. The PCRA court credited counsel's Id. Op. at 4. Further, Dr. Wetli that the manner of death was agreed aneurysm that an in suggested homicide because the evidence a result of the ruptured physical the victim’s brain had as with Dr. that an aneu- Appellant. agreed altercation Scotti a rysm had existed and had burst as the result of combination Appellant of a altercation with and a fall “down physical Id. at 585. Based on this steps.” apparent agreement that the manner of death was homicide among experts of what event or combination of events had regardless precise that caused the fatal the PCRA court determined hemorrhage, counsel had had a rational basis for Dr. as a presenting Shane witness, Dr. with despite inability testify certainty Shane’s aneurysm. quoted to the existence of a The court ruptured that, counsel’s “at the end of approval testimony PCRA day hemorrhage the cause of the was an aneu- [whether ... rysm shearing injury] important or wasn’t an issue because, best, victim, probably gave eggshell at it us an I’m not sure where us Hear- got anyway.” N.T. PCRA 228; 6/28/09, ing, Op. PCRA Ct. at 4. erred, that the court argues part, now

because counsel’s on this a basic testimony point “betrays facts, both, misunderstanding of the the law or and hence is unreasonable.” Brief at 50. In of this support contention, argues that “causation” was properly conceded, that he striking during had “admitted decedent altercation[,]” an and that “this case has never been about causation[,]” in- always but instead “has been about specific tent.” Id. at 53. testimony that Dr. Ross’s Appellant argues intent to kill supported finding specific repeated based head, “a showing forceful blows to the and that aneurysm decedent suffered a burst a far less violent during ... case altercation would have rebutted the Commonwealth’s intent.” Id. at 51. specific Appellant’s argument fails because the record reflects fact, counsel’s had been to show that strategy, pursued lacked the intent to kill. a number specific Counsel kill, of avenues to establish the lack of intent to not specific Shane, testimony the least of was the rebuttal of Dr. which hemorrhage was not who, that the fatal explained, as testified (as by inflicted Appellant to the head by caused forceful blows had been hemorrhage but that opined), Dr. Ross had injury. triggered by “pre-existing” Moreover, disputing specific that counsel was aware During case. his crux of the defense intent to kill was the statement, that the Commonwealth argued counsel opening intent formed and conscious” fully had to show “specific, specific with the kill, whether had acted and that Trial, in this case.” N.T. to kill was “a critical issue intent 12/5/01, eighteen pages closing encompassed at 89. Counsel’s the facts failed to throughout that transcript, argued and he intent specific had acted with the establish that 12/11/01, Trial, by Counsel concluded kill. N.T. at 886-903. ask you critical have to jury question that “the telling intent is, formed and conscious fully is it yourself specific, a reasonable kill?[,]” jury that if the found suggested intent, then “consid- that it should doubt as to the existence of an appro- of homicide” and return with degrees er the lesser Id. at 902-03. verdict. priate performance not proved has

Accordingly, Appellant that the strate- element of Strickland. The record establishes designed basis counsel had a reasonable gy by chosen Moreover, Appellant has effectuate interests. Appellant’s identi- strategy alternative suggested failed to show that expert an who (presenting his hindsight approach fied was the cause of the ruptured aneurysm that a opine would of a differ- probability offered a reasonable hemorrhage) fatal Thus, denial of relief at trial. the PCRA court’s ent outcome be the record and cannot supported by on this claim is disturbed. Voluntary Manslaughter

IV. failed to trial counsel alleges next volun passion” a “heat of investigate prepare adequately Appel Brief at 56. Appellant’s defense. tary manslaughter facts present counsel in fact did lant trial recognizes finding jury could have supported which culpability rose no than higher voluntary manslaughter, and that the trial court on the elements of charged jury Nevertheless, voluntary manslaughter.10 faults counsel not presenting a better case. The court that, noted even though jury it instructed the on voluntary trial, manslaughter Appellant’s light collateral claim fails in refusal to admit an intent to kill. PCRA Ct. at 4-6. Op.,

Appellant acknowledges that trial counsel argued to the alia, jury, inter that the event “triggering provocation” [and] for the “angry dispute” that “ends with Angie Taylor was that hospital” “Angie makes some comment to Ted about engaging brother, Davido; in a sexual act with his Spanky an oral specifically sexual act with Spanky Davido.” N.T. Trial, 12/5/01, counsel, at 33. also concedes that direct examination of Appellant, elicited that “the testimony argument when began Taylor Ms. told him that she had oral brother, sex with his Spanky.” Appellant’s Brief at 57. Addi- tionally, Davido Spanky testified that was “upset” “angry” “mad” when he confronted Spanky with “[Angie] accusation that said that your she sucked d* *k.” Trial, 12/6/01, N.T. at 295-96. The thrust of Appellant’s argument on is appeal that counsel should have done more to corroborate Appellant’s testimony that the victim told him she performed had oral sex on his by presenting brother testimony of Stephanie (Spanky’s girlfriend, Tsamutalis who events). lived in the residence and witnessed the passion voluntary manslaughter 10. Heat of is defined in the Crimes Code as follows: (a) person General rule.—A who kills an individual without lawful justification voluntary manslaughter commits if at the time of the killing acting passion resulting he is under a sudden and intense from provocation by: serious (1) the individual killed[.] Here, 2503(a). § jury voluntary Pa.C.S. the court instructed the murder, defendant, manslaughter is not but is committed when a malice, person intentionally without kills another and in the heat of passion, following provocation by person, serious the other without Trial, intervening passion sufficient time for the to cool. See N.T. 12/12/01, at 977-78. aware that he was testified hearing, counsel

At the PCRA indicat- a statement police given had Ms. Tsamutalis told saying Angie yelling and “Teddy [Appellant] ing Hearing, N.T. PCRA d* *k[.]” Spanky’s him she sucked then that she had police told 6/24/09, Ms. Tsamutalis at 273. Is this that? saying are why you Taylor, “Angie Ms. asked that[,]” it but that Teddy that she told Angie [said] true? And Id. at 274. not been true. had Tsamutalis to call Ms. he decided not testified that Counsel any asking [her] about concerns significant he “had because to [Appel- the door open the potential that had questions a because we had women with other bad behavior prior lant’s] out.” keep that we wanted to women with other history bad in 6/23/09, reasoning 200. Counsel’s Hearing, N.T. PCRA had also fact that Ms. Tsamutalis on the this was based regard of accusations making had been Appellant that police told the for Taylor and Ms. Davido Spanky between tryst a sexual could addition, other witnesses In one week. approximately his former history accusing a of had Appellant confirm that and that Spanky, his brother sex with having of girlfriends former a against assault aggravated had committed Appellant an accusation. out of such arising in incident an girlfriend chosen strategy the finding that supports thus The record to effectuate designed basis had a reasonable trial counsel by failed to show that interests, has Appellant and Appellant’s hindsight com- by identified strategy, alternative suggested different out- of a probability a reasonable offered parison, claim of relief on this Thus, court’s denial the PCRA come. the record. proper supported in was ineffective trial counsel argues also that Appellant that testimony showing health mental expert failing present sudden, seriously impassioned, from a acted Appellant she had told him that mind when the victim state of provoked reiterat- The PCRA court on his brother. oral sex performed the intent refusal to concede the fact of ed that voluntary required of intention kill, including aspect and, irrelevant evidence any rendered such manslaughter, opened would have event, theory also any pursuit past violence unsavory regarding Appellant’s door to evidence Op., women. PCRA Ct. at 4-6. against relies, testimony of his part, on Appellant Donner, Dr. Lawrence who con- psychologist, forensic expert evaluation of neuropsychological Appellant prior ducted a mental health miti- purposes establishing potential trial for Dr. that trial counsel had gation evidence.11 Donner testified him, but that the heat-of-passion not discussed a defense with of his examination of would have supported results admitted, however, Appel- such a defense. Dr. Donner lant had never indicated to him that he had flown into an when the victim told him she had rage per- uncontrollable Instead, his Dr. Donner stated formed oral sex on brother. he about the psychological impact when asked news, changed subject, and “so it hearing 6/25/09, at Hearing, was never discussed.” N.T. PCRA diagnostic Dr. Donner also testified that his Importantly, Appellant manipulative controlling revealed that is testing Dr. Don- Accordingly, presented of women. had trial counsel the intense expert testimony regarding ner’s mental health have passion voluntary manslaughter, element of it would opened potentially damaging the door to rebuttal evidence. Thus, determine, court, as did the that counsel had we presenting a reasonable basis for not such evidence. Moreover, that failed to Appellant’s adequate- claim counsel belied ly present voluntary manslaughter by evidence of is jury ultimately Appel- record. determined Although higher guilt voluntary lant’s rose to a level of than culpability a claim of ineffective assistance cannot be made manslaughter, out a defense at simply strategy presented because reasonable Thus, trial was not we conclude that trial counsel’s successful. Amend- applicable efforts were to meet the Sixth adequate standard, ineffec- ment and that trial counsel did not render health by expert tive assistance mental failing present either the serious or sudden testimony regarding provocation trial, Ultimately, testify light Appellant's Dr. Donner did not at in of presentation mitigating decision to waive the of evidence. voluntary of elements of the defense intense passion manslaughter. by ineffective assistance that counsel rendered arguing

In voluntary man- case compelling a more presenting not trial, claims that trial counsel also at slaughter malice, and thus was committed with killing conceded that the potential in favor of a defense heat-of-passion negated characterization Appellant’s murder conviction. third-degree record. It is true entirely representation not an fair is murder that, third-degree for the of a arguing propriety of facts showed the existence verdict, stated that the counsel Trial, 12/11/01, intent, see N.T. specific the lack of malice and jury’s consid- 888, did not foreclose clearly at but counsel Indeed, alternative, arguing after lesser verdict. eration of an verdict, appropriate would be an third-degree murder that sup- the existence of facts arguing returned to counsel id. at 891-92. voluntary manslaughter. See finding a ported Nevertheless, strategy defense the main focus of counsel’s intent, which would specific the element of challenge was to as intent manslaughter, finding voluntary a negate tend trial hearing, crime. At the PCRA is an element of that options respect presenting that his counsel testified by Appel- defense were restricted voluntary manslaughter that conceded presented no defense be lant’s insistence that misapprehended now that counsel Appellant argues intent. defining voluntary manslaughter the law because the statute a defendant admit intent include a requirement “does not Appellant’s of this defense.” before able to avail himself being assertion, But, volun- contrary Brief 61-62. law from in fact is differentiated manslaughter tary intent. See Com- third-degree requirement murder (1979) Pitts, 486 Pa. 404 A.2d monwealth v. (“Murder malice legal done with degree killing of the third is Voluntary manslaughter, intent to kill. specific but without but, kill hand, by the intent specific the other involves malice.”). legal contains no provocation, reason of passion to the Here, presenting to tread with care counsel had This murder. first-degree alternative defenses jury these is third-degree voluntary so because murder and manslaugh- ter are internally mutually inconsistent with and exclusive of other, each with respect to the elements of malice and intent. Appellant’s Given insistence that he did not intend to kill Ms. Taylor, unintentional, and that her death was accidental and given the uncontroverted facts and admissions that Appel- lant struck the victim repeatedly, we cannot conclude that presentation show, counsel’s of facts and argument tending to alia, inter of malice but the presence specific lack of intent, Thus, deficient.12 constitutionally court’s denial of relief on this claim is the record. supported by McGarrity’s Testimony

Y. Maureen Appellant next that argues testimony trial of sexual assault forensic examiner Maureen McGarrity was “false, inaccurate and misleading,” and that counsel rendered ineffective by failing assistance to raise or litigate this issue. Appellant’s Brief at 66. The gravamen claim is McGarrity abrasions, Ms. testified she observed contusions, when, and lacerations in the vaginal victim’s area according to abrasions Appellant, only actually and contusions existed. Appellant cites definitions contained in a forensic textbook to pathology establish that abrasions are less severe lacerations, injuries basis, than and on that he alleges trial counsel was ineffective in failing adequately cross- examine or otherwise impeach McGarrity. Ms. argues

further that counsel’s ineffectiveness affected the guilt trial, of his phase because had the “inconsistency” Ms. rebutted, McGarrity’s testimony been he properly likely would not have been convicted of rape. Appellant’s Brief at 68. Appellant additionally claims that perform counsel’s deficient ance prejudiced him at the penalty phase rape because “the conviction established the aggravating by sole factor” found Id. at 69. The jury support sentence death. Moreover, Appellant made it clear to counsel that his ultimate desire outright acquittal theory was to secure an on the that the victim’s death all, was not the result of his actions at but was caused some undetermined, abnormality. Obviously, coincidental fatal brain prospect securing outright acquittal an was a difficult task for given counsel the facts adduced at trial.

258 Ross, performed autopsy who court noted that Dr. in both victim, testimony McGarrity’s Ms.

on the corroborated term, he his albeit used a different testimony, his and report trial “denuded,” The that than court concluded “lacerations.” Appel- rebut seeking this counsel’s basis not evidence — relationship in a sexual and the victim were consensual lant be advanta- injuries sexual would not emphasis and placing Op. at 18. reasonable. PCRA Ct. geous —was trial, Dr. testimony At counsel of Shane presented Dr. testified rape. Specifically, rebut the evidence of Shane found on were “bruis- only vaginal injuries the victim that the vagina, labia abrasion” inside “superficial to the and a ing” but are injuries rape, that those are not consistent with and sex” “engage very vigorous common when couples quite 12/11/01, Trial, Appellant at 857-58. that is consensual. N.T. that the victim had in his own defense at trial he and testified in the hours before in consensual sex several times engaged The record that counsel’s supports the altercation started. testimony McGarrity of Ms. strategy rebutting one, de- Appellant of Dr. Shane and a reasonable that interests, thus the PCRA to effectuate signed err was not determining did not that Appellant court relief on of ineffectiveness. entitled to this claim Impeach Brady VI. Violation —Failure Jailhouse Informants alleges next the Commonwealth Brady Maryland violated 373 U.S. 83 S.Ct. (1963), failing to disclose to the defense by L.Ed.2d Kauffman and mental health treatment records Matthew Brown, testified for the Anthony jailhouse informants who records argues the treatment Commonwealth. counsel to the credibili permitted impeach would have defense claims that Alternatively, Appellant of these witnesses. ty failing to ade trial counsel rendered ineffective assistance of these investigate the mental health backgrounds quately possible impeachment purposes.” Appellant’s “for witnesses Brown had a Appellant alleges Brief at 72. Specifically, psychological history including depression, post-trau- chronic disorder, disorder, explosive matic stress intermittent alcohol abuse, attempt. Appel- and substance serious suicide alleges similarly history depres- lant that Kauffman had sion, disorder, abuse, attempt- attention deficit substance investigated ed suicide. claims that had counsel them, jury these histories and “the would have been presented able to assess whether and Brown’s mental Kauffman[’]s affected their to tell the truth and remember ability illness Id. at The accurately.” conversations 75.13 Commonwealth that neither claim has merit. responds health The mental records of the witnesses were admitted into hearing. evidence the PCRA The PCRA court noted that rigorously both witnesses were cross-examined at trial rejected ineffectiveness claim on the ground merit, arguable it lacked because had not Appellant shown that the mental health alleged witnesses’ disabilities affected negatively accurately perceive their abilities to or Brady rejected recall events. The court claim on the ground had failed to show that the Common- wealth had even been in of the records at issue. possession PCRA at 19-20.14 Op. Ct. allege

13. We note that does not counsel's ineffectiveness for failing previously allegation Brady raise the of a violation. Accord- ingly, dispose we could of this issue on the basis of waiver. See 1, 595, (2013) Roney, (holding Commonwealth v. 622 Pa. 79 A.3d 609 Brady alleged appeal claim of violation waived on collateral for failure However, appeal). to raise it at trial or on direct the Commonwealth waiver, argued has not and the trial court on the decided issue disposition merits. We undertake a merits of the claim because we see resolving ques- substantive review as the most efficient manner of tion raised in this instance. argument, poor corollary 14. In a claims that Kauffman had a reputation community, for truthfulness in the and that had counsel investigated, testify, he and that would have discovered witnesses to so The PCRA counsel’s failure to do so rendered his assistance ineffective. corollary opinion accompanying court did not address this claim its denying questions in this its order relief. We note that the raised corollary immediately preceding respect issue and in the issue with McGarrity’s testimony original were not contained in the Maureen 2008, petition May presented filed in but were to the court 2009, supplemental petition filed in June less than two weeks before the Weiss, v. rule in Brady Commonwealth We addressed (2009): 573, 986 A.2d 808 604 Pa. declared that Court Supreme

In the United States Brady, withholds the prosecution offended when process due is Brady The court the accused.... favorable to evidence to respond of the obligation prosecution established exculpatory request production to a affirmatively or guilt punish- material to with all evidence evidence guilt material to the evidence ment of the accused. Where withheld, irrespective the accused is or punishment a violation of due of the prosecutor, or bad faith good has occurred. process Pa. Strong, Commonwealth (quoting

Id. at 814 (2000)). 1167, 1171 A.2d 667, 676, 105 473 U.S. Bagley,

In States v. United (1985), Supreme the U.S. Court 87 L.Ed.2d 481 S.Ct. exculpa ... as well as evidence “impeachment concluded rule,” that, evidence, and held the Brady falls within tory material, is favorable evidence request, regardless the by gov its suppression error results from constitutional that, had the probability ernment “if there is a reasonable defense, result of the to the the been disclosed evidence 682, Id. at 105 S.Ct. have been different.” would proceeding that an item of possibility mere Importantly, “[t]he defense, or helped have the might information undisclosed trial, does not establish have affected the outcome might v. sense.” Commonwealth materiality in the constitutional (2003). 1014, 1019 McGill, 574, order to “[I]n Pa. 832 A.2d 574 to disclose evidence a new trial for failure be entitled to defendant must demon credibility, affecting witnesses] may well be determi reliability that the of the witness strate Johnson, his or innocence.” Commonwealth guilt native of (1999). 1089, 216, 1094 See also Common Pa. 727 A.2d 556 (when (1992) 218, 1265, 1272 Moose, Pa. 602 A.2d wealth v. 529 or inno- guilt be determinative reliability may of -witness circumstances, by the PCRA hearing. there was no error Under the addressing this issue. court in not cence, non-disclosure of affecting credibility- evidence witness’s runs afoul of disclosure Brady requirement). mental disability

When witness suffers from a rele observe, vant her ability accurately report to his or recall or events, in jury disability must be informed of the order to assist it in properly assessing weight credibility Rizzuto, 40, testimony. witness’s Commonwealth v. 566 Pa. (2001), abrogated A.2d on other The grounds. evidence can be said to affect when it shows that credibility disorganization witness’s mental his or her impaired capac occurrence, an ity observe event at the time of its it, maintain a clear recollection of toor communicate the accurately observation at trial. Id. truthfully Here, the court determined that made no showing below that either witness’s was affected credibility by an mental alleged disturbance that his negatively impacted observe, recall, abilities to accurately or communicate the facts to which he testified. In this from a appeal, apart single, fleeting, assertion that ... unsupported “depression has a known potential impact on cognition memory[,]” Appel- lant’s Brief at Appellant again makes no to link a attempt specific or mental diagnosis condition suffered either wit- ness to a claim that the witness was unable to accurately observe, recall, or communicate the facts to which he testified. Instead, Appellant appears argue, cursory and specula- fashion, tive and all mental any alleged problems health of the witnesses had relevant potential impeachment value: “Had Brown’s and Kauffman’s mental health been problems put jurors before the jury, could have considered those issues its determination of their at 74. credibility.” [sic] Id. Brady substantive claim of a violation is merit- less. mental health Only impair disabilities a witness’s observe, recall, events, ability to or are report relevant and Here, admissible to impeach credibility. a witness’s Rizzuto. fails to that Appellant show either witness had an impaired observe, ability to accurately report recall or events due to a mental illness. Appellant has likewise failed to show that the pun- or guilt was material to the allegedly

evidence withheld Thus, has not Appellant of the accused. Johnson. ishment had the of a different outcome a reasonable probability shown Weiss, been evidence disclosed. alleged impeachment that we determine analysis, at 815-816. this also A.2d Given of ineffective Appellant’s court’s denial of claims the PCRA by regard supported of counsel in this was assistance record. claim that coun-

Additionally, reject corollary we Appellant’s and to locate failing rendered ineffective assistance sel reputation to Kauffman’s testify poor witnesses to produce trial, es- at counsel During truthfulness. cross-examination statements, and prior in Kauffman’s tablished inconsistencies any that had not forward with established Kauffinan come newspaper until read an information after he had extensive case. to detailing strategy facts about the article Counsel’s was through credibility Kauffman’s cross-examination impeach reasonable, assuming impeachment and that additional even have further reason to disbelieve by reputation provided would witness, failed a reasonable this one has to show Appellant have been of the would proceeding the result probability different. Investigate Appellant’s

VII. Failure Phase) (Penalty Incompetency that trial ineffec next claims counsel were evidence failing investigate, prepare present tive for verdict, following prior but incompetency Appellant’s in order whether colloquy the court’s conducted to determine present and to rights waiver of his counsel penalty phase knowing evidence was mitigating during was claims that counsel voluntary. Essentially, Appellant aware, aware, was incom or should been have goes far as to claim rights. Appellant to waive those so petent role to an of their that counsel’s inaction amounted abdication stage represented a critical proceedings court, denial counsel. The PCRA which constructive court, found no the same as trial evidence upon and relied the extensive any point incompetent was at in that Appellant validly it undertook order ensure colloquy the penalty phase mitigation rights; waived his counsel and testimony proceedings court also noted counsel’s at PCRA and, moreover, Appellant competent that counsel believed was did, fact, in for further that counsel seek a continuance evaluation after the out of an abundance of caution colloquy, a of the death recognition gravity penalty. and Op., Ct. at 11-13.

The notes that counsel requested Commonwealth likewise specifically continuance the waiver order following colloquy, purpose determining to have evaluated for the of his Appellant to make a and waiver of his competence knowing voluntary to counsel and to evidence of rights present mitigation, that court. The request by the was denied the Common- wealth the can raise the only way Appellant maintains that error, by instant claim is trial court a claim the alleging Commonwealth contends has been waived the failure to raise it on direct The further notes appeal. Commonwealth presents analysis no claim or of his Appellant appellate turn, counsel’s maintains that the performance. Appellant, claim is viable as in the of trial counsel sounding performance because, he trial counsel should have asked the court to says, evaluation before the court conducted its permit competency it, colloquy, and not after to determine whether Appellant’s forego present mitigat- decision to the to counsel and to rights ing knowing voluntary. evidence was clear, note the

Initially, parties we that the record is to stand trial. acknowledge, Appellant competent The record is further clear that maintained from the that, if the returned a very stages proceedings jury first the murder, verdict of it was his intention to guilty first-degree forego any potential mitigation evidence of presentation verdict, Following during penalty phase. he from that

requested permitted represent be himself forward, and informed the court that he did not intend to point circumstances. The court present any mitigating evidence of thorough colloquy explain conducted a a deci- of such repercussions very damaging legal potentially decision was know- and to determine whether sion voluntary. intelligent and ing, following ex- colloquy, the court conducted

After occurred: change I point, At this [penalty-phase counsel]:

MR. SPAHN I I believe stated. clarify thing one which would correct or knowing a making Mr. Davido was I I stated that believe there were no threats I meant in that is What decision. decision, him to this and to lead by me whatsoever applied day stated from one. been a he position this has at this time However, I ask the [c]ourt I am remiss if don’t Mr. Mr. Davido evaluate[d.] continuance to have for a murder less than first[-]degree Davido has been convicted of a psycho- that he’s not position hours It is our ago. two knowing, voluntary a absorb that and make state to logical So, to this respect proceeding. decision with intelligent and matter to continue this and I ask the point, [c]ourt at this make such an evaluation. psychiatrist local [retain] this has been the comments that THE COURT: Based on him, or my colloquy go his intent from the word me, point, talk him out of it at this trying to basically idea, decision, it is his good I think it is a although don’t to me. So knowing intelligent to be certainly he seems motion is denied. your Trial, 12/12/01,at 1022-23.

N.T. a defendant’s there is reason to doubt

Where to conduct a required competen the trial court is competency, Uderra, 492, 862 A.2d v. 580 Pa. cy hearing. Commonwealth (2004). according to whether 74, is measured Competency 88 time to pertinent at the ability has sufficient defendant of rational degree with a reasonable consult with counsel as a factual have a rational as well and to understanding, (citing Id. Commonwealth understanding proceedings. (1997), and 50 P.S. A.2d 547 Pa. Appel, 7402). §

Here, Appellant presents meaningful no argument sup- his claim if port request counsel’s for a competency evaluation been made to the prior colloquy, request would court, have granted by been or that the court erred in denying request when it was lodged after the colloquy. out, Additionally, as the Commonwealth points Fox, expert psychiatry, forensic Dr. Robert testified at the hearing PCRA that he could not with certainty opine Appellant was at time any competent not to decide to proceed without counsel and to forego presentation of mitigating evidence during the penalty phase proceedings, in the event that he was found guilty first-degree murder. Because did, fact, counsel request continuance for a competency evaluation, and because Appellant has not shown a proper basis for conclusion any request that the was untimely, or that a doubt existed as to whether was competent when intentions, he acted in conformity long-stated with his court did not err in denying this claim. Penalty VIII. Phase Waivers Not Were Knowing, Intelligent Voluntary and next claims that his waivers of the right to counsel forego and to presentation evidence of mitigat were ing factors not knowing, intelligent voluntary, and and that “trial counsel ineffectively failed to protect Appellant from making invalid waivers.” Brief Appellant’s at 81. The of the claim gravamen is that the court’s colloquy respect to waiver was deficient. Appellant additionally alleges that counsel should have known that Appellant’s mental and emo tional disturbance him prevented from understanding proceedings, waiver and thus duty counsel “abandoned his any insure that waiver by Appellant knowing, voluntary was and intelligent.” Appellant’s Brief at 83-84. alia,

The responds, Commonwealth inter that thus, issue has been on previously litigated appeal, direct and is not reviewable on collateral appeal. agrees This Court that the question regarding the voluntariness of waiv Appellant’s ers litigated determined, was on direct appeal, having

266 to counsel rights waiver of his appeal, Appellant’s

direct during circumstances mitigating evidence of present and to voluntary. knowing, intelligent was penalty phase Davido, derivative Sixth Appellant’s A.2d at 442-44. 868 assistance ineffective that counsel rendered Amendment claim waivers, howev- him from invalid making by failing protect v. See Commonwealth er, litigated. not been previously has (2011) (Sixth 426, Amend- Hanible, 183, A.3d 612 Pa. of counsel raises ineffective assistance alleging claim ment ineffec- underlying even if claim under PCRA cognizable issue (citing Common- previously litigated) has been tiveness claim (2005)). Collins, 45, 888 A.2d 585 Pa. wealth v. of its reiterated the extent issue, the court this PCRA On that, did though even counsel trial and noted at the colloquy interaction at their incompetent given not think further evaluation. trial, reasonably seeking counsel acted already has held 13-15. Because this Court Op., Ct. knowing, intelligent, waivers were on the claim ineffectiveness based his current voluntary, him from invalid making to protect failure of counsel alleged nec- waivers, purposes, previous litigation distinct for though Thus, properly court on the merits. the PCRA essarily fails 659, 933 Rega, 593 Pa. the claim. Commonwealth dismissed (2007) (where right present waiver A.2d 1026-28 intel- knowing, circumstances is regarding mitigating evidence deemed ineffective counsel cannot be voluntary, ligent, mitigation presen- client on imposed by restrictions abiding by tation). Investigate and Present

IX. Failure Mitigating Evidence that, his waiv notwithstanding next claims mitigation of presentation to counsel and to rights er of his trial counsel was ineffec phase, during penalty evidence discover, mitigating and present failing investigate, tive in to claims that trial jury. Specifically, to the evidence avail readily and should have substantial presented counsel and cultural regarding Appellant’s evidence mitigating able mental health that such evidence would background, arguing have “a traumat- presented devastating portrait Appellant’s childhood, abandonment, instability ic familial and mental health deficits that affected profoundly Appellant’s perceptions to the him.” Brief relationships Appellant’s world around at 91. maintains that “it is Appellant baldly reasonably likely that, had counsel and informed investigated properly Appel- evidence, lant of the full breadth of available mitigating Appel- lant rights would not have waived his to counsel and to such, present mitigating evidence.” Id. at 90. As that he was counsel’s deficient alleges “prejudiced by [trial] performance.” Id.15 claim, rejected

The court this again stressing Appel- lant’s consistent “steadfast desire” against presenting mitigat- evidence, had, fact, that trial in ing investigated counsel for prepared mitigation presentation, evidence which se. proceed pro court learned when it to permitted Appellant shows, PCRA Ct. at 15-16. The record as the court Op., stated and the argues, prior waiving Commonwealth to his to counsel rights presentation mitigating and to evidence, Appellant penalty-phase knew that counsel had been to deal of evi- prepared present great potential mitigating dence with the fac- aligned statutory mitigation enumerated notes, tors. As the Commonwealth to the accurately prior penalty phase, open Appellant present, penalty court with phase counsel outlined the substantial carefully mitigation prepared present, thoroughly evidence he was and the court the extreme explained Appellant importance presenting mitigating jury.16 facts Notably, Appellant testify hearing, did not at the PCRA and thus provided support no testimonial for the notion that he would not have mitigation right presentation waived the to a if he had been made mitigating aware counsel of the full measure of evidence available. alia, present, support prepared

16. Counsel was inter evidence to 1) following potentially mitigating Appellant's signifi- factors: lack of a 2) history; Appellant’s cant criminal extreme mental and emotional disturbance; 3) 4) family; Appellant’s age; Appellant's concern for his 5) Appellant's ability family if to remain an active member of his life; 6) imprisoned background, which includ- troubled 7) years; ed emotional trauma in his childhood and formative testimo- Nevertheless, mitigating that certain now claims Appellant fully was not health evidence cultural, and mental social Appel- foundation of specific The by counsel. investigated of, family his are members that he and current claim is lant’s culture, understanding of and that an to Gypsy and adherents in assessing Appel- “crucial and beliefs was customs Gypsy the date of the offense.” state of mind and behavior lant’s hearing, Appellant At the PCRA Brief at 87. Appellant’s Dr. Anne Suther- anthropologist of testimony presented Nevertheless, Dr. culture.17 land, Gypsy is an expert who Appellant’s position not testimony support does Sutherland’s 9) members; 8) Appellant's pastor; testimony from family ny from records; 10) Vegas Family Las County Children and Youth Lancaster records; 11) lifestyle Appellant's the nomadic Services and Youth mother; 13) 12) Appel- Appellant's family; Appellant's father's abuse of 14) siblings; Appellant’s Appellant and his lant's father’s abuse of siblings from his father's mother and attempts protect and shield his education; 16) abuse; 15) Appellant's Appellant's lack of a formal death; jobs family through after his father’s support odd efforts to his death; 18) 17) Appellant of his father’s psychological effect on Appellant preventing testimony had aided prison from a warden Trial, 12/12/01, committing See N.T. prisoner from suicide. another 999-1006. Gypsy things, identified as a Among Dr. Sutherland other Sutherland, Gypsies are heritage. According Dr. by birth and long history persecution, which has made their with a nomadic clans Specifically, non-Gypsies. she very and distrustful of culture insular and to avoid non- Gypsies "have learned to be secretive testified that 11/23/09, Hearing, at 129. Gypsies way of N.T. PCRA as a survival.” Appellant’s grand- patriarchal, and that that the clans are She testified initially the clan to which been the leader of father had leader, father, of the clan had belonged. Appellant’s as the eldest son father, however, Appellant’s in line clan leader. been next to become problems which caused him to fall out of and behavioral had mental splintered, immedi- patriarch. The clan with the favor itself, by Appellant's That father. family a clan unto led ate became suddenly larger who clan was shunned the members clan profound shunning reportedly had a This moved to another state. Appellant’s father Appellant, particularly because impact on emotional leader fell erupted, and the mantle of clan after the schism died soon circumstance only fifteen at that time. This upon Appellant, who was life, years next ten of his as him stress over the reportedly caused much larger group had by the and he clan remained shunned his immediate necessary keep clan leadership his very experience in the skills little addition, organized In Dr. Sutherland testified functioning an unit. as culture, among Gypsy major members of the taboo that oral sex is investigated Gypsy that had known counsel had present culture and intended to evidence about it as of a part mitigation presentation, Appellant would have embraced his to have right present waiving counsel evidence instead it.

Moreover, counsel testified during proceedings had, fact, that he in been aware Appellant’s association with trial, culture at the time Gypsy and had identified several history social but ulti- potential anthropological experts, mately Gypsy determined that association with culture would not have been mitigating by jury. viewed as Specifically, counsel testified that he re- testimony believed culture in garding Gypsy general, specific and the influence of that culture Appellant, would not have been well received by County a Lancaster testified jury. Additionally, counsel present testimony strategic his decision not to such was a one:

I family was aware that the on some level practiced Gypsy culture. I was aware on some level that this moved family Lancaster, to country, put bluntly, around the it between Cleveland, Las other I Vegas, areas. was aware on some level the family they Gypsies, believed that were there was some talk about the father I was being Gypsy. they jobs.... aware that would odd Pm aware that practice they indicated to me that was to the Gypsy somehow related nature of there were certain employment. specifics So lifestyle about the I was aware of. did,

I was aware of the nature of I Gypsy background. his fact, with the idea of an in toy possibly consulting expert I Gypsy compiled potential psychological culture. a list of I contacted Tem- experts. Pennsylvania University, State University, universities. After ple surrounding having that, thought done I it much more. We made a through may Gypsies and that members of a clan be shunned other engaging in oral sex. sort of furthering any down strategic go decision not very testimony. Gypsy nature for I had about the

Basically, Gypsy certain concerns had, I was abso- evidence. The first concern I mitigation convinced, that a Lancaster my experience, based on lutely jury necessarily favorably upon would not look County battle very uphill culture. I think that’s a difficult Gypsy locally. 6/25/09, at Hearing,

N.T. PCRA avoiding that counsel’s strategy has not shown Gypsy phase presentation relating of evidence penalty (assuming permitted by Appellant counsel had been culture all) More- mitigation evidence unreasonable. present over, has been explained as claim supra, underlying counsel did litigated, and we have determined that previously protect by allegedly failing not render ineffective assistance from To the extent waiving penalty phase rights. Appellant distinct sufficiently that the current claim of ineffectiveness is review, rejected this Court similar to warrant additional has Puksar, Thus, the in claims on merits. Commonwealth (2008), his appellant 951 A.2d the had waived Pa. (but not, as evidence at trial did present mitigating to right here, the main- challenge appeal), on direct and then waiver alia, collateral counsel appeal, penalty tained on inter that had evidence informed him of the nature of the mitigating properly permitted presentation. its he would have its importance, and Puksar, (Pa.2008). in addressing 289-92 In the issue Id. at noted had testified at the appellant the Court that the not claim, that, because the hearing substantiate PCRA had maintained steadfastly record showed the appellant evidence, not to and the waiver present mitigating his desire alleged on its face to be counsel’s colloquy appeared thorough, been investigate evidence could not have mitigating failure to had to show and that the failed prejudicial, appellant simply have been mitigation “the outcome of his waiver of would Id. but for counsel’s inaction.” at 292. different Here, the is clear that counsel substantial prepared record steadfast in Appellant evidence and that remained mitigation evidence, not to present mitigating despite his determination and the trial court’s full of preparation explanation counsel’s of a evidence and the importance mitigation presentation Further, potentially consequences dire the waiver. the effect present claim sounds the notion what would decision, have did not upon Appellant’s Appellant been but at the to substantiate the claim. Nor testify hearing PCRA that, did Dr. establish if counsel had testimony Sutherland’s heritage might poten- advised that his cultural be a Appellant circumstance, would have tially mitigating agreed of a case in Because has presentation mitigation. social, failed to establish that he have cultural permitted would and mental health evidence to be if mitigating presented him fully counsel had made more aware of its existence and import, previously Ap- and because we have determined that waiver evidence pellant’s right present mitigating of his court’s denial of knowing, intelligent voluntary, PCRA relief on this claim of counsel ineffectiveness was proper supported by record. Deprivation

X. of Due Process Proceedings in the PCRA claims that the court violated his right due and his to the effective assistance of counsel process right 1) him from post-conviction proceedings, by: precluding 2) presenting expert rebuttal testimony; striking expert 3) reports denying discovery of Drs. Melham and him Mangla; Ross, images expert, used the Commonwealth’s Dr. his not to the during testimony, images previously disclosed 4) defense; and the to allowing present expert Commonwealth without notice without the testimony prior providing and expert’s report to the defense. Brief at 92-93. Appellant’s

The factual basis for this claim is that after Drs. Wetli and Appellant’s hearing Scotti had testified on behalf at the PCRA likely the cause of the victim’s death had been an rebuttal, aneurysm, the called Dr. Ross in and Commonwealth been blunt force cause of death had he testified swelling and bleeding in fatal head that resulted trauma to the Dr. brain, present. had been aneurysm that no in the and autopsy, prepared Ross, who, had explained, performed as trial, at no prepared and testified report, post-mortem review, but had been of PCRA purposes for report additional at the witnesses on the list of Commonwealth potential Dr. Ross relied testimony, rebuttal In his proceedings.18 reprinted cerebral flow studies images scan on CT part He testified that records. from the victim’s medical pres- had been aneurysm that no him confirm images helped evidence, into not entered and studies were images ent. The Appellant’s purposes. identification were marked for but he objection, and confirmed that that he had no counsel stated that had been used all scans and slides copies had CT trial. testimony, Appellant’s Dr. Ross’s direct

At the conclusion of scans, to to review CT counsel a continuance requested rebuttal evidence prepare his and to experts, consult with Dr. The court denied cross-examining Ross. to prior re-direct, cross, Dr. Ross’s after the conclusion of request, and examinations, no presented the Commonwealth and re-cross then renewed his re- counsel further witnesses. testimony rebuttal present expert to for a continuance quest testify being permitted on the basis Appellant objected Dr. to Ross expert report, and because proffer, the lack of an of the lack of a unfair, testimony "the definition of am- permitting would be his 6/26/09, Hearing, The court asked the at 654. bush.” N.T. PCRA attorney proffer, which the assistant district Commonwealth for a replied as follows: First, Secondly, report. I also note that I prepare another he did not may be one of verbally writing that Dr. Ross [counsel] and in advised going testify He's as witnesses in this case. the Commonwealth Wetli and Dr. Scotti why disagrees with the conclusions of Dr. he [to] case, going explain and he’s regarding the of death in this cause [testifying] findings. going about autopsy report He's to be his and, give basically, more looking aneurysms procedures for his why disagrees with conclusions based on explanation he their as to report, autopsy report. his what's contained his Appellant’s objection, but held a Id. at 654-655. The court overruled prior speak with Dr. Ross permit Appellant’s counsel to short recess to testimony. to his

273 date, at a that the would be Dr. stating expert later Wetli. getting The court noted that into the duels of the “[w]e’re a “he-said and situation” that battling experts” and she-said 6/26/09, Hearing, was of “limited value.” N.T. PCRA at 699. Nevertheless, the court advised counsel to and submit prepare report, and the court to “make a determination if it’s agreed Id. The court him back.” bringing worthwhile [Dr. Wetli] provide Appellant copies directed Commonwealth to with of the it during exhibits had marked for identification PCRA and the hearing, complied. Commonwealth submitted three subsequently expert reports support the court to his rebuttal request present expert testimony.19 report essentially Each stated that scans and CT cerebral flow studies have limited in only application ruling that, event, out aneurysms, any images upon relied by Dr. Ross his during testimony did not rule out an aneurysm as cause of the victim’s death. None of Appel- however, lant’s could state experts certainty, that a had been the source of ruptured aneurysm the subarachnoid hemorrhage that had caused the victim’s death. The court granted the Commonwealth’s motions to strike the of reports Mangla,20 Drs. Melham and and declined to the hear- re-open ing for the of Dr. purpose permitting testify Wetli to rebuttal, Dr. although report part Wetli’s rebuttal is record. We address claims in fol- Appellant’s regard this as lows. expert testimony testimony

a. Preclusion of to rebut Dr. Ross that he should have been

Appellant argues permit ted to call Dr. Dr. testimony Wetli rebut Ross’s as to the victim’s cause of death. “The of rebuttal appropriate scope always according has been defined to the evidence that it is Wetli, Melham, Sundeep Mangla 19. Dr. Dr. Elias R. and Dr. each prepared expert report. an rebuttal Thus, Mangla reports (copies Melham and Drs. of which are Brief) not, concedes, appended Appellant's "part are as appellate the record available for review.” Brief at 98. 274 274, Pa. Hughes, v. to rebut.” Commonwealth

offered (2004). well settled 761, “It is 797 n. 40 A.2d sound is within the evidence rejection or of rebuttal admission Bond, 604 Pa. of the trial court.” Commonwealth discretion (2009). will not of discretion “An abuse 985 A.2d exists but rather judgment, error of on a mere be found based or overrides a conclusion [that] court has reached where the mani exercised is law, judgment the or where the misapplies bias unreasonable, prejudice, of partiality, or the result festly 218, A.3d 620 Pa. Bryant, v. or ill-will.” Commonwealth 591 Pa. (2013) Eichinger, (quoting Commonwealth (2007)). 1122, 1140 1, 915 A.2d rebut- expert Here, proposed court precluded the PCRA merely be that it would Dr. on the basis testimony of Wetli tal and, in large record testimony of previous of his cumulative opinions conclusions and measure, a reiteration of simply ruptured that a hearing, such as: during the expressed he had hemorrhage of the fatal the cause aneurysm possibly out a suffered; had ruled improperly that Dr. Ross had victim cause; the constel- and that possible as a aneurysm ruptured axonal consistent with diffuse seen was not injuries lation of as he had at opined, Dr. Wetli report, In the rebuttal injury. as follows: part, hearing, pertinent a massive subarach- died from Angelina Taylor Ms. Clearly, a domestic during or after that occurred hemorrhage noid inflict- trauma was blunt force in which some altercation ed____The hemorrhage is not of the subarachnoid source known, speculate. one is left to medical reasonable of degree to a my opinion It is therefore a massive died from Angelina Taylor that Ms. certainty and that etiology, unknown of hemorrhage subarachnoid injury. axonal evidence for diffuse absolutely there is no 9/4/09, Wetli, M.D., at 4. V. Report Rebuttal Charles there court, assuming “even to the Notably, according PCRA by [Appellant’s] about brought that was aneurysm was an than what ..., would be different the cause death conduct Wetli, to, stated Dr. aptly but as Dr. Ross testified this reason the homicide. It is for of death would be manner medical would be neces- testimony felt that no further [c]ourt (PCRA 2), Op. Ct. Ct. at 19-20. sary.” Op., PCRA 12/29/11 The court did not abuse its discretion in declining re-open hearing permit presentation the PCRA rebuttal testimony essentially that was cumulative and of limited value in determining question the ultimate of whether trial counsel Moreover, had rendered ineffective assistance. has shown no abuse of discretion with to the court’s respect striking reports Mangla the rebuttal of Drs. Melham and as hearsay, clearly because PCRA counsel stated at the PCRA hearing proposed expert rebuttal would be Dr. Wetli. 2,Op. See PCRA Ct. at 20-21. Post-hearing evidentiary

b. motion

At the conclusion of the the court hearing, directed the provide Appellant copies Commonwealth images of the CT scan and flow studies that had been marked for by during identification and used the Commonwealth Dr. testimony. Appellant Ross’s rebuttal concedes that re sponse correspondence asking copies to his for of these im 31, 2009, ages, July “on or about counsel received undersigned a letter from the Commonwealth color of enclosing copies letter, exhibits.” Brief at 94. In that the Appellant’s the[se] reportedly original Commonwealth advised that it had no images, original images but that the could be obtained from Lancaster General In November Hospital. Appellant Studies, filed a Motion for Production of CT Scans and Flow seeking of the CT scans and flow studies that had production been marked for identification at the The hearing. PCRA Appellant motion asserted that had been unable to retrieve the original scans and films from Lancaster General Hospital all originals signed Hospital because had been out the to the Lancaster never County Coroner and had been returned.

The court denied motion on the basis that the (which exhibits marked for identification at the were hearing copies originals) already provided themselves of had been Appellant, really and thus seemed to be no basis for “[t]here the Motion since had what for.” [Appellant] asking [he] relevant any has not cited Op.

PCRA Ct. at 21. PCRA court authority support argument his “[t]he Brief in denying discovery request[.]” Appellant’s erred this any why forth as to argument at 98. Nor does set or necessary images pro- were here how the original images Moreover, fully request not his for satisfy images. vided did (in of re- by Appellant support expert report each submitted evidence) the for the of rebuttal opening hearing presentation review marked proposed expert’s images referenced the hearing identification at as basis for the conclu- for sions drawn. general discovery

The rules for allow pre-trial “[w]hen party are items one which the other requested by party there disclose, may refused to make demanding party has 573(A). The appropriate procedural motion.” Pa.R.Crim.P. petitions discovery rules allow applicable capital first i.e., narrowly, good more cause shown. Pa. only upon 902(E)(2). Here, there was no refusal to disclose. R.Crim.P. Indeed, Appellant’s Motion Production of CT Scans “copies” scans sought production Flow Studies CT studies while hearing, and flow marked for identification at the acknowledging already copies received “color having the[se] ¶ Motion, 11/13/09, at The motion p. exhibits.” frivolously sought already Appel- of material production thus, we no in the court’s possession; perceive lant’s error denial of the motion that basis. Permitting testify

c. Dr. Ross of Dr. Ross’s presentation characterizes expert rebuttal at the PCRA as “trial testimony hearing “fundamentally ambush” that was unfair” because it was a thus, evidence,” a viola disclosure of and “surprise prejudicial Brief process. Appellant tion of due at 95-96. Appellant’s detailing that he not first a argues provided report was testimony, the substance of Dr. Ross’s PCRA and rebuttal thus, allegedly inkling might he no as what Dr. Ross had to, or even Dr. Ross was witness. testify potential a The Commonwealth that Dr. Ross had been on the responds potential list of PCRA witnesses and that his rebuttal testimo- ny primarily findings was based on the contained in his original post-mortem report, a document of which Appellant was clearly Notably, aware.21 court PCRA described objection to Dr. Ross’s testimony presentation of the on appeal issue as in of the fact “disingenuous,” light in possession was as well as the report of Dr. transcripts testimony. Ross’s trial Opinion, PCRA 12/29/11, dated at 20.

This claim lacks merit. At the proceeding, Appellant clearly possession of the post-mortem report Dr. Ross prepared to the supplementary autopsy report, very and knew well that the essence of Dr. Ross’s that that opinion was trauma, fatal had been the injury result of blunt force and not a ruptured aneurysm. also was obviously aware that his PCRA had been critical of experts Dr. Ross’s alleged conclusions regarding the victim’s brain’s Circle of inWillis his post-mortem and that Dr. report, certainly Ross would be called to rebut their Dr. opinions. Ross did so at the PCRA his hearing, reviewing post-mortem report statement that the intact, Circle Willis had been that in order explaining observation, have made this forensic he would have had to alia, basis, inter dissect and examine that structure. On that Dr. Ross aneurysm determined that no had been present brain, the victim’s a determination to the contrary opinions of Wetli, Drs. Scotti and who testified that a ruptured aneurysm likely had been the cause of the fatal subarachnoid hemor- rhage.22 Additionally, the- Commonwealth asserts this sub-issue is waived pursuant because never made a motion to Pa.R.Crim.P. 573(B)(2)(b), provides expert which that if an for the Commonwealth court, motion, prepared report, upon may has not "the order” preparation report. disclosure of 111(d), explained supra,

22. As in Section while Dr. Wetli testified that a ruptured aneurysm likely hemorrhage, had been the cause of the fatal ruptured aneurysm undoubtedly Dr. Scotti that a testified had been its court, however, cause. The determined that Dr. Scotti was not a credible witness. 278 witness, potential knew Dr. Ross was a Appellant

Because in of Dr. Ross’s possession had been and because his as report opinion and knew the substance of post-mortem death, that Dr. claim Appellant’s the victim’s cause of or “trial surprise constituted unfair testimony Ross’s PCRA unavail- his to due is rights process ambush” violated ing. Error

XI. Cumulative next effect cumulative argues relief. this has in his case entitles him to Court errors While may “no number failed claims emphasized that repeatedly they individually,” fail collectively warrant relief to do so i[f] 1108, 1150 262, v. 618 Pa. A.3d Sepulveda, 55 Commonwealth 67, (2012) 928 v. 593 Pa. (quoting Rainey, Commonwealth 215, (2007)), “if recognized multiple we have also A.2d found, of deficient are the assessment performance instances be cumulation.” properly may premised upon of prejudice Johnson, 600 at 1150 Sepulveda (quoting Commonwealth (2009)). 966 A.2d we have advert- Although Pa. number of assessing to the absence of prejudice ed claims, upon are even Strickland we satisfied that Appellant’s cumulation, Accordingly, no is entitled relief is due. on this to no relief claim. Prospective

XII. Preservation of Future Claim raised, counsel, the final appellate In the “issue” FCDO, we claim and which poses following argument, entirety: verbatim in reproduce its A MED- XII. THE DECEDENT HAD PRE-EXISTING HER THAT TO ICAL CONDITION CONTRIBUTED DEATH; THE EXIS- EVIDENCE CONFIRMING BEEN LO- TENCE OF THAT CONDITION HAS NOT DESPITE OF DUE CATED COUNSEL’S EXERCISE BY DILIGENCE HAS BEEN WITHHELD AND/OR THE PROSECUTION. above, forth from Drs. presented

As set we evidence decedent’s likely and Wetli that cause of the Scotti not was the have berry aneurysm. death We rupture symp- that the decedent had confirming discovered evidence night an to the but we aneurysm prior question, toms of claim, such surface or be do not waive this should evidence in disclosed the future. requir- Brief at 100. This does not state an issue

Appellant’s review, obviously upon and we make no comment whether ing or the preservation, statement is relevant to the FCDO’s of, any merit future such issue.

XIII. Commonwealth’s Post-Submission

Application for Relief 15, 2012, this ordered the August On Court FCDO may a federal order it have produce copy any appointment authorizing pursue secured in this matter it court, in petition citing behalf state 18 U.S.C. 3599(a)(2) § (authorizing appointment indigent of counsel actively corpus state defendants federal habeas relief pursuing sentence). attached an response from death The FCDO’s Giles, order former T. Judge U.S. District Court James 7, 2006, represent dated March the FCDO to appointing only in federal habeas corpus proceedings. seeking The Commonwealth thereafter filed an application counsel, disqualification copy of the FCDO as and attached a above, of the federal habeas docket at the number which showed that the federal habeas matter had been marked in a “civil “closed for statistical sus- purposes” placed in pense” evidentiary file December 2008. We are not an court, circumstances, and in similar where the Commonwealth sought disqualification capital has of the FCDO state post-conviction appeals, we have remanded to the PCRA court for a determination of the involvement. propriety FCDO See, Mitchell, CAP, e.g., Commonwealth v. 2013 Pa. No. 2013) order). (per curiam (Pa., LEXIS 74 Jan. offering

While no view on the merits of Commonwealth’s concerns, judicial we economy, deny the interest of Relief, Application Commonwealth’s Post-Submission the denial of PCRA affirming determination file our simply relief. relinquished.

Affirmed. Jurisdiction or in the consideration did not participate EAKIN Justice of this case. decision BAER and and Justices CASTILLE

Chief Justice join opinion. STEVENS concurring opinion. files

Chief Justice CASTILLE opinion. a concurring files Justice SAYLOR result. concurs in the Justice TODD Chief Justice CASTILLE. I write entirety. in its join Opinion

I the Per Curiam (1) the supplement Opinion’s to for two reasons: separately ineffectiveness claim of trial counsel analysis appellant’s obtained via war- of evidence suppression to seek the failing (2) residence; and to address entry appellant’s into rantless Community Defender’s Office the Federal the role of (“FCDO”) case, by the Commonwealth point in this stressed brief, illustrates the mischief because it at the outset of its the state and tactic of entity’s playing by occasioned each other. systems against court off federal I. issue, with agree I Justice suppression the

Respecting holding, premised alternative that the court’s Saylor rejection of require discovery, inevitable is sufficient upon However, the by I am also Court’s persuaded claim. the I would analysis, supplement which circumstances exigent “anonymi- states that the The Court following point. the (a made revealed to have been call call later ty” sister) and domestic abuse probable reporting own appellant’s exi- establishing was “not fatal” the address giving police view, the caller did my though In even circumstances. gent herself, could understand reasonably police identify not being ordinary the call as from an citizen an incident reporting short, out of concern for another’s life and In wellbeing. caller did not suffer from any apparent falsify; motive to there quid pro quo was no for the information provided so as there be, might with a criminal informant example, seeking leniency. Many of the cases concerns with involving anony- mous calls involve crimes or other drug circumstances impli- the criminal cating underworld. “Concerned citizen” calls reporting activity hand, criminal on the police, other are generally understood as a modicum having reliability and See LaFave, credibility. Wayne R. and A Search Seizure: (5th 3.4(a), § at 266-73 Treatise Fourth Amendment ed.2012) (collecting concluding cases and that “when an aver- age citizen tenders police, information to the should police be permitted they assume that are with a dealing credible person in the special absence of circumstances suggesting case.”). such might not be the course, any anonymous may

Of call be of dubious worth-the call be a it prank, could could be intended to harass neighbor, report or the could be an premised upon unsubstan- But, tiated hunch. against counterbalanced this is prospect many neighbors family go members wish to unnamed out of safety, concern for their own should the perpetrator him, learn reported who or for or family neighborhood harmo- id. said, See ny. totality 283-87. That of circum- stances, a call like the one here made stands on its own merits specifics. the context of Ultimately, the information Torres, See Commonwealth matters. 564 Pa. 764 A.2d (2001) (Castille, J., 545-48 In concurring dissenting). case, matter, this specifics and context did leading police victim, straight to the not in time save although her life. indicates, As the volatility Court and violence of domestic abuse demands that if reports police, anonymous, even must view, be taken In seriously upon rapidly. my police acted unreasonable, nothing arbitrary, did or wrong under these circumstances; blundered, the constable not there is no having See Commonwealth reason that the criminal free. go should Henderson, (2012) v. 277, 797, (Castille, 616 Pa. 47 A.3d 808

282 229, U.S., 131 564 U.S. Davis v.

C.J., concurring) (quoting (2011), in turn 2419, 2434, quoting 285 180 L.Ed.2d S.Ct. (1926) 585, 13, 150 N.E. 242 N.Y. Defore, People J.)). (Cardozo,

II.

A. 15, this Court 2012 order from an August In response appoint- federal any copy to produce the FCDO directing Pennsylva- in appellant authorizing represent it to ment order August in an the FCDO admitted proceedings, nia state court Instead, no such order. 27, that it had response 7, district 2006 federal of a March copy attached FCDO in appellant to represent the FCDO authorizing court order The corpus petition. habeas a “to-be-filed” federal pursuit habeas petition. to file that days the FCDO granted order now, PACER docket according to the on Eight years matter, filing is attached to a which federal habeas appellant’s any petition. filed such still has not the FCDO appeal, in this 1, (E.D.Pa. filed Mar. Beard, No. 2:06-cv-00917 Davido v. See 2006). appoint- After the FCDO’s

But, busy. has the FCDO been nominally filed a appellant purposes, for federal habeas ment Pleas of of Common for relief in the Court se pro petition Act Relief the Post Conviction County under Lancaster 31, 9541-9546, May on On (“PCRA”), §§ 42 Pa.C.S. woodwork and 9, 2006, came out of the the FCDO November court, before the just in the PCRA appearance entered an Davido v. expire. set to See time-bar was one-year PCRA’s 660, 1020, 163 L.Ed.2d 534 126 S.Ct. 546 U.S. Pennsylvania, 2005). 14, The then (2005) Nov. FCDO certiorari on (denying they which petition, PCRA leave to file an amended secured 2008, years two May court filed with PCRA finally challenge commenced. state collateral appellant’s after time, actively pursued while the FCDO During this court directive courts, 2006 federal the March relief our pend- remained petition file a federal habeas that the FCDO docket, to the federal it was not until ing. According PACER 28, 2008, March the federal district court vacated the extended deadline it had allowed the for filing FCDO habeas The order vacated the petition. long-since-passed deadline because petitioner FCDO] indicated that antici- “[the Order, a pates filing petition.” Query: why 3/28/08. open, did the FCDO the federal even it keep petition though court, already was a PCRA in state pursuing petition apparently informing without the federal court of the truth? The explains, Commonwealth’s brief and the PACER docket corroborates, that the the federal discov- abusing FCDO ery in order to state law claims: process develop pursuing

Rather than relief in state court post-conviction affirmed, judgment after his of sentence was Defendant filed motions in the United States District Court for the alia, Eastern District of Pennsylvania requested, inter that the be him in appointed represent [FCDO] connec- tion with anticipated filing of a for writ of petition corpus. Attorney Lawry habeas Matthew was subsequently appointed represent Defendant connection with the federal case.

Instead of for pursuing petition corpus, writ of habeas however, 30, 2006, Defendant filed a motion for June discovery indicating that the federal habeas would petition challenge theory Commonwealth’s of the cause and manner Specifically, of death. Defendant averred that the injuries victim suffered from a condition pre-existing Despite that contributed to her death. the fact litigated appeal issue had not been on direct to this Court, Defendant claimed that he was entitled to discov- ery “Pennsylvania in federal court because the state given opportunity to, fact, courts were an and did in address this claim.” discovery Defendant’s motion was granted and the took an to the appeal Commonwealth Third of Appeals arguing Circuit Court that Defendant was not discovery entitled to prior actually filing petition 19, 2007, writ of habeas corpus. January On the Third Circuit dismissed the as In March appeal interlocutory. tissue requested viewed attorneys Defendant’s pathologist. with their along slides

sample has been filed corpus of habeas .... No for writ petition Defen- petition, amended] PCRA filing [an to date. Prior directing the the trial court] an order requested [from dant file of Lancaster a of the copy to produce Commonwealth had per- K. Ross who Pathologist Wayne County Forensic 18, 2007, Taylor. May On autopsy Angela the formed motion and the Commonwealth the granted the trial court file to defense counsel. copy of the provided (emphasis supplied). Brief at 3-4 Commonwealth’s the respecting points two proves preliminary This maneuver first, had no intention of obviously tactics: FCDO FCDO’s it had exhausted habeas before petition a federal pursuing Thus, for federal discov- request its rights. PCRA appellee’s successful) (and Pennsylvania to skirt ploy an obvious ery was by embodied discovery, which is law to PCRA respect 902(E)(2): in a petition the first counseled Rule “On Criminal case, any be discovery permitted no shall death penalty after a leave of court except upon stage proceedings, 902(E)(2); see also cause.” Pa.R.Crim.P. showing good 771, Williams, 405, 781 Pa. 86 A.3d Commonwealth default, with (2014) (“The as the discovery rule establishes no party request- cause is shown good an when exception does not like this obviously The FCDO ing discovery.”). court, Nevertheless, perhaps the federal district restriction. FCDO, way. other The FCDO looked the duped by not, that the knew, judge court did if the district certainly from remedy appellate had no effective federal Commonwealth or not— by the district court that —whether intended ruling state and was Pennsylvania processes contemptuous PCRA dis- concerning rules to subvert this Court’s designed covery.

Second, already appel- had decided if courts Pennsylvania and manner of the out of the cause arising lant’s federal claims court to the federal represented the FCDO victim’s death —as would claims discovery extra-PCRA in order to secure —those Yet, fact, claims respect- on PCRA review. be unavailable ing cause and manner of the victim’s death are front and center in appellant’s petition, and are renewed on this The appeal. near-exclusive of federal habeas review purpose1 of state convictions is to pass upon reasonableness of state courts’ determinations of federal constitutional claims that already have been actually fairly presented to the state (“exhausted” courts in habeas In parlance). conducting habe review, as federal courts of course are to confine themselves to made, made, the record presentations and the in the state Jones, courts. See Commonwealth v. 617 Pa. 54 A.3d (2012) (“With (Castille, C.J., concurring) very rare excep tions, point of federal go habeas review is not to on fishing to find new expeditions facts and claims not already presented court; in state federal courts are to only review the federal courts, constitutional claims properly to state presented while showing required deference to the reasonable decisions of the courts.”). sovereign state The U.S. Supreme recently Court had to in with a step primer to remind the lower federal judiciary Pinholster, of this bedrock principle in v. Cullen 563 170, 1388, 179 (2011): U.S. 131 S.Ct. L.Ed.2d 557 2254(d)(1)

We now hold that § review under [28 U.S.C.] Corpus) is [ {Habeas ] limited to record that was before the state court that adjudicated the claim the merits. 2254(d)(1) refers, tense, Section in the past to a state-court adjudication that “resulted in” a decision that contrary to, of, or “involved” an unreasonable application established law. This backward-looking language an examina- requires tion of the state-court decision at the time it was made. It follows that the record under review is limited to the record ie., in existence at that same time the record before the state court.

This understanding by of the text is “the compelled whole,” broader context of the statute as a which demon- strates Congress’ intent to channel prisoners’ claims first to Co., the state 337, courts. Robinson v. Shell Oil 519 U.S. 341, 843, (1997). 117 S.Ct. 136 L.Ed.2d 808 “The federal habeas scheme leaves with the primary responsibility state exceptions 1. There are arcane not relevant here.

286

courts____” Visciotti, 27, 19, 123 v. 537 U.S. [Woodford (2002) 2254(b) 357, re- ]. 154 279 Section L.Ed.2d S.Ct. ordinarily state reme- must exhaust prisoners quires It filing federal habeas relief. would be before dies petitioner to that to allow a to overcome contrary purpose evidence intro- adverse state-court decision new an that court a federal habeas court reviewed duced effectively first instance de novo. in the 2254(d)(1) the state-court Limiting review to [Section] precedents interpreting record is consistent "with our emphasize that review under statutory provision. Our cases 2254(d)(1) a court knew focuses on what state [Section] against are measured this did. State-court decisions as of “the time the state court renders precedents Court’s Andrade, 63, 71-72, 123 Lockyer its decision.” v. 538 U.S. (2003). 1166, 155 144 To determine whether L.Ed.2d S.Ct. law, to” “contrary decision is then-established a particular “applies federal court must consider whether the decision the decision “con- rule that contradicts such law” how fronts the set of facts” that were before the state court. 362, 405, 406, Taylor, 120 S.Ct. Williams U.S. Williams). (2000) If the (Terry 146 L.Ed.2d state- legal princi- the correct governing court decision “identifies time, in existence at the a federal court must assess ple” “unreasonably principle the decision applies whether Id. prisoner’s the facts of case.” S.Ct. 1495. analyze It would be to ask federal courts to whether strange adjudication a state court’s resulted a decision that unreasonably federal law to facts not before the applied state court.

131 at 1398-99. S.Ct.

Moreover, global agen- whether squares it the FCDO’s not, fact sovereign power or remains that states retain da courts, including in their procedural to matters regulate If by pursued. which state collateral attacks are procedures such as procedural provisions, believes that state defendant (which is the discovery rules, only are unconstitutional our raise), he itself must objection objection federal could be

287 Properly managed by raised and exhausted state court. courts, is attentive and dutiful federal federal habeas review decidedly not to allow a state defendant to subvert designed discovery any state courts—on matters or other matters. And, course, lawyer it is unethical for a not only affirmatively misrepresent the reasons for federal seeking discovery, habeas but also to be less than candid about the And, true reasons for a it be discovery request. doubly would offensive if the federal courts were in the undermin- complicit rather than ing, simply being duped by legal ploys. unethical It enough prisoner is bad when a who has already properly and honestly exhausted his state court remedies proceeds review, federal habeas and then demands and improperly Jones, discovery. receives additional 54 A.3d at 20 (citing See Abdul-Salaam, 297, Commonwealth v. 615 Pa. 42 A.3d 983 (2012) Abdul-Salaam, 214, and Commonwealth v. 606 Pa. (2010), A.2d 482 two cases pre-Cullen FCDO where serial petitions premised PCRA were federal upon discovery habeas orders). But, the FCDO subversion of our rules discovery suggested by this case is worse: it appears that the FCDO managed to secure improperly discovery from the federal courts before even file bothering appellant’s amended courts, petition in our and it used the fruit of this ill- gotten “discovery” federal habeas in that very amended PCRA petition effectively while the case on both tracks. delaying —all

This end-around is what happens dubiously when a author- ized, FCDO, federally-financed entity such as the whose prop- er role is representing purposes defendants for federal ripe habeas litigation, pursues instead its own collateral agenda, operating stealthily systems, both court one off of playing other, creating delays, looking to subvert ways state processes. See Commonwealth v. 610 Pa. Spotz, (2011) (Castille, C.J., A.3d 329-49 concurring, joined by J.) abuses). McCaffery, (outlining multiple Tellingly, similar as indicated Majority, given when an opportunity prove that it did not divert federal taxpayer funds for its state Mitchell, court in cases such as agenda Commonwealth v. (and has gone come clean CAP, has refused to the FCDO so). and to do lengths pains great

B. in Spotz, concurrence my the of years filing In the since in global agenda of FCDO’s multiple examples additional I ad- themselves. cases have revealed Pennsylvania capital recently in a in detail painstaking the circumstances dressed motions tangential opinion disposing single-Justice my that I withdraw including request in its Spotz, FCDO filed Spotz, I denied. Commonwealth Concurring Opinion, which (2014). I described opinion, In that Pa. 99 A.3d 866 comprehen- posed by of the FCDO’s problem the extent of itself sive, obstructionist, ethically-dubious insinuation and cases: Pennsylvania capital into case, in this motions post-decisional Consideration in- in matters capital other intervening developments court, in have confirmed state volving appearances FCDO with the conduct concern heightened grounded case, with its importantly, in this and more the FCDO incre- [T]he cases.... Pennsylvania capital in global agenda Pennsylvania capital into mental insinuation of FCDO pervasiveness. in its stealth and cases has been remarkable Capital itself the de State designated The FCDO has facto Office, virtually all only itself not involving Defender’s capital appeals, also in direct but capital litigation, even, instance, on behalf of a as amicus curiae in one nation, Mexico, a Mexican national who support foreign or federal— authority No people. murdered three —state role, statewide and no to take on this appointed the FCDO Pennsylvania the arrangement. has authority approved office; and capital prosecutor’s not have a statewide does cases, the chief law enforce- in a notably, great many capital General, Commonwealth, Attorney ment officer of the position has taken the county echoed by prosecutors, Pennsyl- continue in permitted not be the FCDO should au- specific its federal proving vania cases without capital to do so. thorization

In addition to itself in state comprehensively involving authorization, without has capital litigation any FCDO established its means known to monopoly through only itself. when this to Remarkably, provide directed Court modest simple confirming and information a claim that it has not its case in supported private capital agenda Pennsyl- funds, vania with improperly diverted federal the FCDO court, response response of these officers of the to the —the supervisory Court with over the of law in authority practice Pennsylvania been refusal and the removal of cases to —has court, federal ensuring yet more FCDO in those delay capital matters.

The circumstances and obstructionist effect of the FCDO’s silent takeover of the capital PCRA defense func- tion in Pennsylvania reassert requires Pennsylvania control over the of state litigation capital matters. Death FCDO, penalty opponents, such as the can then redirect arena, their efforts to the political they belong. where This a responsibility judi- Court has for the entire Pennsylvania swift, system, fair, cial to ensure the of delivery and even- justice handed in all cases. are obliged indulge We not or group countenance a which and abuses the manipulates judicial in process Pennsylvania in the of hopes achieving global political result that it has failed to secure through political process.

This proper authority restoration of will leave a void in But, the short run. opportunity the void is an to return capital advocacy case The restora- principled moorings. authorities, tion will require Pennsylvania including this Court, and ensure the step up provision funding, and training necessary capital resources to ensure that representation Pennsylvania defense in meets fully Sixth standards, Amendment with competent, properly compen- lawyers zealously sated and dedicated who act to advance clients, well, the cause of their but who act ethically as justice mindful of their to the courts system duties overall. I believe the Commonwealth is to the up challenge. principled representation

I not in least criticize do defendants; endeavor principled such indigent capital But, the bar. in the best tradition of lawyering represents continues Opinion], later in the the FCDO explained [as one mere agenda beyond representation, an zealous pursue here, instances, as routinely pushes, frequent which lawyers appear far exceeds ethical boundaries. FCDO Court; only officers conse- Pennsylvania courts as of this long to the as the they are answerable Court. So quently, global unauthorized to its organization pursue remains authority, long so as by any Pennsylvania agenda with the about its authori- refuses be candid Court FCDO its be to continue funding, permitted zation and it cannot in Pennsylvania, defendants absent representation capital en- authorizing specific federal court order the specific in state in an individual case. deavor court Id, (footnotes omitted). at 866-68 in in a war on if the FCDO explained Spotz, persists

As courts, sovereign power in our this has the candor Court lawyers I Pennsylvania suggest remove FCDO from cases. that, appears court here if and when the FCDO the trial in hand it with a serial PCRA again, petition before behalf, further, as delay it be removed appellant’s seeking counsel. SAYLOR, concurring.

Justice agree in the result. I with respectfully Although I concur majority in analysis presented by much of the substantive claims, of I have sufficient Appellant’s its treatment various of that I am unable to differences with various elaborations joinder. a full supply II majority opin- as to Part particular, pertains

In claim steward- ion—which addresses of deficient failure to attorneys’ suppression virtue his seek ship —I conclu- with that the PCRA court erred its agree disturbance, of a anonymous that an domestic report sion “gut feeling,” with a officer’s meets coupled responding so as to requirement aid to the warrant emergency exception into a justify entry by police residence. Accord Kerman v. York, (2d Cir.2001) City New 261 F.3d 232-36 (holding that a entry by police warrantless into an based on apartment uncorroborated, an anonymous report “mentally of a ill man ... acting crazy and possibly possession gun” [in of] Amendment). violated the Fourth majority The references no decision which is closely akin to facts, but, instead, present proceeds to bolsters its com- via a mentary series of case citations attended by loose parentheticals. For example, majority characterizes Peo- Chavez, ple 240 P.3d 448 (Colo.App.2010), as a decision reflecting “exigencies heightened when officers arrived within minutes of emergency domestic call reporting physical assault but home was dark and no one answered officers’ repeated knocks on front door.” Majority Opinion, at 106 A.3d at Chavez, however, call, did not involve an anonymous but rather, concerned circumstances in which the caller identified herself daughter as the of the domestic violence victim. See Chavez, that, Chavez, 240 P.3d at 450 (explaining “the officers knew there had been a 911 call from the woman’s daughter reporting domestic violence that sufficiently Indeed, serious to cause her to flee the home at night”). Chavez court went out of its way distinguish the circum- stances before the court from the anonymous-call paradigm. (“The See id. at 452 information from the daughter —an ‘citizen-witness’ personal knowledge identified reported and no known reason to pre- fabricate —was facts added)). sumptively reliable.” (emphasis view, my In the majority’s approach to this issue represents a substantial and unwarranted attenuation emergency aid doctrine and Fourth Amendment law. From my point view, the responding officers should have investigated further, anonymous report example, by checking neighbors, before into a making entry private home.

I am able to concur in the result relative to this claim only rationale, because I credit the PCRA court’s alternative apply- ing the inevitable discovery exception to the warrant require- Williams, 431, 447, ment. See generally Nix v. 467 U.S. (1984) (“[W]hen, here, as 2511, 2501, L.Ed.2d 377 S.Ct. been discovered inevitably have would question evidence misconduct, is there error or police reference to the without is and the evidence a taint provide nexus sufficient no admissible.”). Indeed, at hand to I find the circumstances exception. of such for application a instance paradigm present 106 A.3d 656 BRAUN, of herself and Michelle on behalf situated, Appellee, similarly all others Corporation, STORES, INC., Delaware WAL-MART Club, Operating Segment of Wal- an and Sam’s Stores, Inc., Appellants. Mart Hummel, and all on behalf of herself Dolores situated, similarly Appellees, others Stores, Inc., Corporation, Delaware Wal-Mart Segment Club, Operating an and Sam’s Stores, Inc., Appellants. Wal-Mart Pennsylvania. Supreme Court of Argued May 2013. Dec.

Decided

Case Details

Case Name: Commonwealth v. Davido, T., Aplt

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 15, 2014

Citation: 106 A.3d 611

Docket Number: 638 CAP

Court Abbreviation: Pa.