*1 A.2d 638 Pеnnsylvania, Appellee COMMONWEALTH of MILLER, Appellant. Dennis Supreme Pennsylvania. Court of
Submitted Oct. 2008.
Decided Dec. *10 Hanssens, Mary Angelí, Elizabeth Samuel J.B. Defender *11 Association of Miller. Philadelphia, Dennis Morano, Suss, Nelson, P. PA Kelley Lynn
Gerald Stuart B. General, of Attorney Amy Zapp, Office for Com- Harrisburg, Pennsylvania. monwealth of CASTILLE, C.J., SAYLOR, EAKIN, BAER,
BEFORE: TODD, McCAFFERY, GREENSPAN, JJ.
OPINION Justice GREENSPAN.
This is a an capital appeal from order entered the Court of Common Pleas of Chester Den- County denying Appellant request nis Miller’s for relief to the Post pursuant Conviction (PCRA), Relief §§ Act 9541-9546. Pa.C.S.
sentenced to death his convictions for following first-degree murder, assault, rape, recklessly endangering indecent anoth- crime, er an of and person, possessing flight instrument apprehension. charges stabbing avoid These arose out of the murder of wife in affirm. Appellant’s November of 1995. We the facts convictions are as
Briefly, underlying appellant’s 18, 1995, wife, follows. November and his On children, Dennis, left their two Barbara and with Sherry, mother, Miller, and went to a local bar Agnes called Trib’s where drank some beer and Waystation they
ingested methamphetamine. During evening course became visibly upset angry and when his wife spoke to other men or used her cell The left phone.1 couple the bar at about 1:20 a.m.2
The day, next when Appellant Sherry and did not at appear Agnes Miller’s home planned, as Ms. Miller became con- cerned, especially after no one answered telephone Appellant’s residence. Ms. Miller twice drove to Appellant’s home and observed that the doors to the residence were locked, door, no one answered the and that Sherry’s car was 20, 1995, not there. On November after speaking Sherry’s mother learning that she had not heard Sherry, from Ms. Miller missing filed a with the persons report Pennsylvania State Police. After the investigating trooper was unable to wife, locate Appellant or his he other troopers went to there, their residence. Once they permission received from so, Ms. Miller to break into the residence. Upon doing they discovered the body Sherry naked Miller on a bed in lying upstairs blood, an bedroom. Her body was covered in her bent, were her legs spread, knees were and there was a blood- pillow covered over her Upon body, face. discovering left the troopers residence to wait for a search warrant. An autopsy Sherry body Miller’s indicated that she had head, died because she was stabbed over times in her thirty chest, arms, During and hands. of a knife autopsy, tip *12 was retrieved from her shoulder. The knife from which the in a tip originated was found trash can. The forensic patholo- gist who performed autopsy position concluded from the of hands, the body, defensive wounds on the victim’s the lack of Appellant jealousy 1. This was not first time had exhibited with respect July April pleaded Appellant to his wife. In 1994 and guilty arising involving Sherry to various crimes out of incidents Miller. incident, During gun the second held a to his wife's head. pleaded guilty aggravated He to assault and received a of nine sentence twenty-three living to months incarceration. He with wife resumed his following jail. his release from leaving, Sherry telephone page 2. Before used the in the bar to a man Smith, Sherry named Sean Smith. Mr. who dated while incarcerated, previously shortly telephone in thereafter called bar response page. outside waist, material and the lack seminal below her blood at the to intercourse subjected had been her that she vagina of her time death.3 the seizure of resulted in of the residence investigation
An including Appellant’s crime to the tying Appellant evidence covering the victim’s found bloody palm print pillow on bandage, a and a face, on Appellant’s bloody fingerprint addition, investi- Appellant. bloody footprint belonging the bed on which that the box from gators spring noted had weapon and that the murder victim was found was broken had several thumbprint on it. While bloody thumbprint a it con- thumbprint, with Appellant’s characteristics consistent identi- positively markers to be identifying tained insufficient knife Police by Appellant. been on the having placed fied as kitchen, handwriting, a note in the also found that read: something I whore friends learn hope Sherry’s
Now some far, but go you people I didn’t for it to this from this. want know, put through. what she me Some don’t understand her. Every- about they say something but don’t want to me, did, I had to find out everything told her I but body All friends f— me my what she did. so-called myself And I I had or another. I had no friends. wish way one just I you some of assholes. get more time to even with Brown, you, I have killed Larry would say you, want Smith, time before to tell Donny I told one you, Sean if he know if he did. And to leave her alone. I don’t you better did, something, you somebody you the next time tells I you hope have too. they say. got what I would do Barb, Dennis. I do takes care of somebody my family in hell. you all. I will see some of you love appre- the crime. He was following fled the аrea a authorities tip in Florida because of hended six months later the crime on the television about following report received Most show “America’s Wanted.” incident, following the explained that had the victim moved It was bodily spread to various fluids to be would have caused such movement body. parts of her other
16 the
Following denial of a motion to suppress and waiver trial, of his right jury Appellant’s capital murder trial commenced September trial, of 1997. At the Common- alia, presented, wealth inter the testimony of Michael Torres who for a time was Appellant’s cellmate while he was incarcer- ated on the aggravated assault charge. Torres testified that Appellant often spoke his wife killing and that on the day Appellant was stated, released from he prison “I’ll be back for killing my wife.” The Commonwealth also presented the testimony of forensic M.D., pathologist, Callery, Richard who testified that the victim died because of the numerous stab sustained, wounds she which caused severe internal bleeding. The doctor opined also the victim died while being subjected to defense, forcible intercourse. In his presented the of a witness who stated that Torres had fabricated his testimony. trial, At the conclusion of the the trial court found Appellant of the guilty above enumerated offenses.
After Appellant trial, waived his right jury to a a penalty hearing was held before the trial court. At the penalty hearing Commonwealth presented evidence on aggra- two circumstances, vating namely, that Appellant committed murder during perpetration of a felony, this case rape, 9711(d)(6), § Pa.C.S. torture, and means of 42 Pa.C.S. 9711(d)(8). § Appellant thereafter asserted that two mitigat- ing circumstances applied: Appellant lacked the capacity appreciate the criminality of his conduct or conform his con- law, duct to requirements 9711(e)(3), § Pa.C.S. 9711(e)(8). and the provision,” “catch-all § Pa.C.S. At the penalty conclusion of the hearing, the trial court found one circumstance, aggravating 9711(d)(6), Section and one mitigat- circumstance, 9711(e)(3). ing Section Upon weighing ag- gravating circumstances, and mitigating the trial court fixed penalty death. The court formally imposed that sen- 27, 1997, tence on October with a together consecutive sen- tence of ten to twenty years incarceration on the convic- rape tion. *14 court to that the trial arguing this Court
Appellant аppealed
evidence was
suppress,
his motion to
the
denying
erred
for
and indecent
support
rape
insufficient to
his convictions
assault,
outweigh
did not
aggravating
and the
circumstance
judg-
This
affirmed the
mitigating
the
circumstance.
Court
20,
January
ment of sentence on
1999. Commonwealth
(1999).
Miller,
354,
Pa.
Appellant
Dennis
On Commonwealth a pre-hearing requesting and memorandum that the PCRA court had they dismiss some claims because been previously litigated. On December PCRA court, order, in a opinion granted part written request. denied in the Commonwealth’s part An in late 2003. evidentiary hearing was conducted October several following hearing, Appellant the months filed motions to the record with asking permission supplement relating victim’s medical records and documents to Michael in written requests Torres. The PCRA court denied both 19, 2005, The January orders filed and November testimony to sought permission present also at trial. Callery, pathologist Dr. the forensic who testified clarify to Appellant sought present testimony the doctor’s whether the had respect his trial with victim assigned administratively disposi- 4. The matter to the trial court for was (PCRA Court). tion been raped. Following a hearing, Appellant’s request 30, 2007, denied. On June the PCRA court issued an opinion and order denying Appellant post-conviction collateral relief (PCRA 6/30/07). Court Opinion, thereafter timely filed the instant The appeal.5 PCRA Court a requested 1925(b) Statement, Pa.R.A.P. 2, 2007, and on November 1925(a) (PCRA court issued Rule Opinion Court Opinion, 11/2/07).
The standard of review applicable appeals from the denial of relief requires PCRA this Court to ascertain whether the PCRA court’s are rulings supported by the *15 record and free of legal error. Fahy, Commonwealth v. 598 584, 312, (2008); Pa. 959 Stokes, A.2d 316 Commonwealth v. 574, (2008). 306, 598 Pa. 959 A.2d 309 “In order to be eligible relief, for PCRA petitioner] must a prove by preponderance [a of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 9543(a)(2).” § Steele, 341, Pa.C.S. Commonwealth v. 599 Pa. (2008). 786, 961 A.2d 796
Appellant raises thirteen issues on appeal including prior claims that counsel provide failed to effective assistance of counsel. In order to eligible be for relief on a claim counsel, alleging ineffective assistance of a defendant must establish that counsels representation fell below accepted thereof, standards of advocacy and that as a prejudice result 668, resulted. v. Washington, Strickland 466 U.S. 104 S.Ct. 2052, (1984). 80 L.Ed.2d Prejudice 674 results when “there is that, a reasonable but probability unprofessional for counsels errors, the result of the proceeding would have been differ 694, Pierce, ent.” Id. at 104 2052. In S.Ct. Commonwealth v. 153, 973, (1987), 515 Pa. 527 A.2d 975 interpreted this Court (1) the Strickland as requiring proof standard that: (2) merit; claim of underlying arguable is counsel’s perform (3) basis; ance lacked a reasonable the ineffectiveness of counsel petitioner prejudice. caused the v. Commonwealth 9546(d) by § 5. Jurisdiction is vested this Court 42 Pa.C.S. which post-conviction mandates that review of the denial of relief be conduct- ed this Court.
19 (2008). chosen 237, 244 A Collins, 397, A.2d Pa. 957 598 it unless to have been unreasonable not be found strategy will “ a potential not chosen ‘offered that the proven path is actually pur- the course than substantially greater success 304, Williams, 899 A.2d 587 Pa. v. sued.’” Commonwealth Howard, (2006) 553 Pa. v. 1060, 1064 Commomoealth (quoting (1998)). a 266, 233, prejudice, Finally, prove 237 719 A.2d error, a counsel’s there is must show that but for defendant i.e., that undermines con- probability, probability reasonable would result, proceeding the outcome of the fidence in the Sneed, 318, Pa. 587 have been different. Commonwealth (2006) Strickland, 466 U.S. (citing 899 A.2d 2052). satisfy even one A defendant’s failure S.Ct. of relief. Com- three results in the denial requirements (2008). Cook, 597 Pa. 952 A.2d monwealth v. from applicable appeals articulated the standards Having ineffective alleging the denial of relief and claims PCRA counsel, a review of the issues raised assistance of we turn to have re-ordered issues for ease by Appellant. We guilt, relation to the penal- of review accordance with their ty, proceeding. or PCRA phases
GUILT PHASE ISSUES *16 Trial 1. A New Trial Is Beсause Counsel Warranted Showing Investigate Evidence Failed to and Present Killed in the Heat of Passion. that the Victim Was granted have been a Appellant asserts that he should and investigate pres new trial because trial counsel failed to killed his wife demonstrating ent evidence that claim, faults the heat of of this passion. support Cooke, a during for not trial Dr. Gerald calling trial counsel for the by retained the defense psychologist who had been opined have claims Dr. Cooke would phase. Appellant penalty explosive rage premised with an killing that the was consistent every and drug his use “personality makeup, on Appellant’s about the incident”. he told thing [Dr. Cooke] 440). 10/29/03, also contends Brief, N.T. (citing 18 20
that trial counsel’s representation was deficient because he did not interview or call as witnesses several of Appellant’s family members. According to Appellant, these witnesses would have testified that Appellant and the victim a had tumultuous that relationship was fueled by abuse, drug alcohol men, the victim saw other that she was impregnated by abortion, another man and had an that knives were in the kept bedroom occurred, where the murder and that the bed was broken prior to the day of the murder. Finally, Appellant states that trial counsel presented should have expert testimo- ny demonstrating the manner in which the victim was wounds) killed (multiple stab typical of a “very angry assailant, an assailant,” emotionally charged as well as testi- mony opining that the killing was committed in the heat of passion and that Appellant suffered from brain damage affected his ability appreciate the consequences his actions.6 Appellant’s Brief, 21-22.
Appellant is entitled to no relief on this claim. A person is guilty “heat of passion” voluntary manslaughter “if at the time of the killing or [he she] reacted under a sudden passion intense resulting from provocation serious victim.” 106, 390, Commonwealth v. 560 Ragan, Pa. 743 A.2d “ (1999). ‘Heat of passion’ includes emotions such as anger, rage, sudden resentment or terror which renders the incapable Mason, mind of reason.” Commonwealth v. 559 Pa. (1999). 741 A.2d An objective standard is applied to determine whether provocation was sufficient to support the defense of passion” “heat of voluntary manslaugh Laich, ter. Commonwealth v. 566 Pa. 777 A.2d (2001). “The ultimate test for adequate provocation remains man, whether a reasonable сonfronted with this series of events, became impassioned to the extent that his mind was evidentiary hearing, Appellant 6. At the PCRA presented Kessel, M.D., Wetli, M.D., psychiatrist, Julie and Charles a medical pathologist. opinion Dr. Kessel testified it killing that was her that the passion. occurred in the heat of Dr. Wetli testified that the manner of *17 killing angry demonstrated that emotionally charged. the killer was 334; 10/28/03, 10/29/03, 531, N.T. N.T. 546-47. Thornton, 494 of cool reflection.” Commonwealth incapable (1981). A.2d Pa. counsel not indicates that trial opinion
The court’s PCRA job in to establish “exceptional” attempting an only did but also passion,” in the “heat of the was committed killing trial handicapped testify the refusal of unable, testimony, he without Appellant’s counsel because was killing. state of mind at the time of the to establish court wrote: The PCRA circumstances, the the court finds totality
Based on the for to establish failing that trial counsel was not ineffective the counsel did an passion contrary, heat of defense. To argument regarding evidence and job getting exceptional into the record the defendant’s passion despite heat of refusal to take the stand. Further other witnesses would either have been not admissi- alleged Thus, trial was helpful. ble or irrelevant counsel and/or call witnesses failing during not ineffective for said trial. 6/30/07,25. The reasons Opinion,
PCRA Court PCRA Court’s claim that the rejecting they this were correct as indicate rejected court had considered and the evidence submitted by Appellant regarding killing trial his claim that was committed in the heat of and that the additional passion have in a outcome. The evidence would resulted different clear, evidence fails to namely, reason for this is additional that the resulted from a sudden and intense killing establish from passion resulting provocation by serious caused killing. victim with the Once contemporaneously killing, the events he testify surrounding refused about virtually impossible made it for counsel to convince the in the killing passion” court that the was committed “heat of killing as the evidence that the any insofar record lacked the victim or the result of some act committed provocative as a passion” killed the victim in the “heat of him. of the victim’s Under consequence provocation circumstances, relief on this denying the PCRA did not err claim.
22
Even were we to consider the additional evidence and testimony Appellant claims trial cоunsel was ineffective for not trial, presenting at which concerns his wife’s alleged infidelity stormy and their relationship, it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time murdered, the victim was was Appellant acting under a sudden passion or intense brought on the victim. While Appellant claims that the victim’s apparent infidelity and flirtatiousness, coupled state, when with his own mental were sufficient to cause him to act with sudden and intense passion, we note was well aware of his wife’s proclivities prior to the day killing and trial counsel introduced Thus, evidence establishing this. evidence claims should have been introduced on this issue was merely cumulative already Moreover, of evidence presented at trial. the evidence shows that although his Appellant and wife argued bar, while together he calmed down ap- and to peared be control of his faculties following argument. 9/30/97, 213, N.T. Also the note left at the scene evinces that he had not acted the “heat of passion” but rather in a calculating manner. cases,
In numerous
evidence
minor
showing
history of
disputes and
of
allegations
past infidelity has been held
to
not
sufficiently
be
to
provocative
reduce murder to manslaughter.
Frederick,
See Commonwealth v.
508 Pa.
23 voluntary to manslaughter); murder reduce provocation Brown, 423, 260 436 Pa. A.2d v. Walter Commonwealth home, (1970) wife to which caused return (holding refusal her, sufficient to lose control stab husband manslaughter). finding voluntary to justify provocation (1970), Collins, A.2d 440 Pa. Commonwealth defendant, kill his provoked that he was who claimed man he his have seen another while máy because wife wife incarcerated, error refuse a that it was argued himself was passion heat of volun- that the be instructed on request jury *19 claim, no merit to the manslaughter. This Court found tary stating: evidence, true, come
Unfortunately, even if does not this voluntary the of man establishing prerequisites close to in v. 436 Barnosky, as set forth Commonwealth slaughter 59, 64, 512, Pa. 258 A.2d 515: stroke, blow, or re- wounding
“To reduce an intentional
voluntary
in
there must be
sulting
manslaughter,
death to
rage
of
and a state or
or
provocation
sufficient cause
cool,
prisoner
the
placing
beyond
without time to
passion
reason, and
him to
suddenly impelling
the control of his
there
wanting-if
provoca-
the
If
these be
be
any
deed.
of
a sufficient cause
passion
tion without
or
without
passion,
cool, has
there be time to
reason
provocation,
or
murder.
killing
resumed its
will be
Common-
sway,
Drum,
9(17)’[sic];
v.
v.
58 Pa.
Commonwealth
wealth
Paese,
891,
(1908),
371, 373, 69
892
cited
220 Pa.
A.
(]17).’[sie]
Drum,
v.
58 Pa.
Com-2d
9[
Commonwealth
Palermo,
(1968).[sic]
v.
368
762
See Commonwealth
(1951);
Cargill,
v.
Pa.
Collins, A.2d at 885-86. provocation clear the acts of make foregoing
The cases is society not acts which simply were upon Appellant relied to provocation providing to as sufficient prepared recognize Thus, trial to manslaughter. the crime of murder reduce have been ineffective was deemed to correctly counsel to such evidence. failing present however, further this argues, when coupled
evidence is
with the
proposed testimony
the expert
above, it
witnesses identified
killing
establishes that
passion.”
committed
the “heat of
evi
absence of
dence about what
precipitated
simply
one
cannot
killing,
draw
the conclusion that
his wife in
killed
a fit of
rage after she provoked him. While Appellant’s psychological
may have
him
makeup
rendered
unable to handle his wife’s
difficulties,
infidelity and the
marital
couple’s
absent some
evidence that his wife committed an act sufficiently provoca
very
tive at the time of or
shortly before
killing,
testimony
expert
was irrelevant.
witnesses
See Com
McCusker,
(1972)
448 Pa.
monwealth
2. Trial Counsel Ineffective for to Was Investi- gate Expert Testimony and the Present to Rebut Assertion the Commonwealth’s that Victim Was Raped. trial
Appellant providing accuses counsel of him with ineffective assistance of counsel for investigating not and evidence to the presenting rebut Commonwealth’s claim that raped the that victim. submits had such presented, evidence been the trial court would have ruled that charge. the was the support rape evidence insufficient evidentiary the PCRA During hearing, presented DeForest, witnesses, the of two Dr. Peter R. expert professor Jay College criminalistics John Criminal Justice, Wetli, Dr. Examiner for Charles Chief Medical County. Suffolk Dr. DeForest testified that his examination led him to the conclusion the evidence the case physical conclu- reaching had not been this raped. that the victim relied Dr. sion, upon by that the opined grounds Dr. DeForest occurred, the lack of namely, that a Callery finding rape stomach, her vagina, her the volume of fluid in blood below found, insuffi- body in which her was were position occurred, either to more rape cient to that a due prove or lack of N.T. plausible explanations adequate testing. 10/28/03, Dr. further that 285-91. DeForest testified Dr. inade- Callery grossly counsel’s cross-examination of 10/28/03, Dr. that quate. N.T. 292-96. DeForest indicated his examination of the evidence and the he rendered opinions were on scientific that were available in 1997 principles based of trial in this case. N.T. prior commencement 10/28/03,300.
Dr. also testified that there was no evidence of Wetli forcible rape. He based his conclusion on the lack of trauma to the victim’s genital region and fact there was no strangulation evidence of or which he asphyxiation, opined always almost occurs a forcible assault. N.T. during sexual 10/28/03, Wetli, 330-31. According to Dr. the victim’s defen- injuries sive were more consistent with her assailant strad- dling her chest than with his intercourse with her at having 10/28/03, the time. N.T. 333.
Both Dr. DeForest Dr. that they and Wetli conceded could forcibly raped. rule out that victim had been N.T. 10/28/03, 320, cross-examination, 352. Dr. During DeForest qualified opinion his that the of the victim’s position body made it that a occurred unlikely rape by admitting intercourse have in the in which the position could occurred 10/28/03, N.T. He victim was found. also concеded wounds found demonstrated body defensive on victim’s 10/28/03, that she was the attack. N.T. 315-16. resisting he experience, Trial counsel testified that based on his an necessary expert believed that it was not to consult *21 rebut the evidence that a occurred because he did not rape 10/27/03, Callery think that Dr. would be found credible. N.T. 85-87. counsel could not recall what he did Although preparing cross-examine Dr. he Callery, recalled he did take steps testimony. discredit his
The court this claim PCRA found lacked merit for several reasons, the most salient one that being Appellant failed to prove that trial counsel’s actions lacked reasonable basis. 6/30/07, PCRA Court Opinion, 9.7 Trial counsel testified that he did not seek out and retain an expert because his review of the evidence it pellucidly made clear to him that no rape occurred and that it was his anyone belief that who reviewed the evidence would draw same conclusion he did. N.T. 10/27/03, 85-86. Trial counsel also related that it was his belief that he could rebut and undermine the testimony of Dr. Callery, witness, the Commonwealth’s expert respect with whether a rape occurred without the assistance of an expert witness skillful through cross-examination of Dr. Callery. 10/27/03, N.T. 87. Counsel drew this conclusion from his cross-examination of Dr. Callery at a pre-trial hearing during which he extensively cross-examined the doctor and elicited from him several inconsistencies with respect to whether the doctor was of the opinion, to a reasonable medical degree of certainty, that the murder and the sexual intercourse occurred Thus, simultaneously. court PCRA concluded “coun- reasonably sel that he thought did not need to retain addition- 6/30/07, al in this experts case.” PCRA Opinion, Court On the basis of trial testimony, counsel’s we can not say the PCRA court erred in concluding trial counsel had a reasonable an seeking expert basis out witness to rebut Dr. Callery’s testimony. This Court’s review of matters involving strategy is deferential. Trial counsel will be deemed to have acted if reasonably the course chosen by trial counsel had some designed reasonable basis to effectu- 7. The PCRA court noted that also both Dr. DeForest and Dr. Wetli they possibility rape testified that could not rule out the that a occurred. 6/30/07, Opinion, Finally, PCRA Court 10-11. the PCRA court deter- entirely mined that Dr. Wetli’s was not inconsistent with Dr. testified, Callery’s insofar as Wetli Dr. "the attack and the assault to the vaginal occurring general area were concomitant or within the same conclusion, light time frame.” Id. at 12. The PCRA court's evidence, is correct.
27 Puksar, Pa. v. 597 client’s Commonwealth ate his interests. (2008). Moreover, 267, a claim of ineffec 240, A.2d 951 277 hindsight, the trial by comparing, tiveness will not succeed the alternatives actually trial with employed counsel strategy disregard com “[although Id. we do Finally, foregone. to available the of other alternatives reasonableness pletely counsel, finding ‘the in favor of a effective tips balance trial that counsel’s as as it is determined assistance soon ” v. Coo had reasonable basis.’ Commonwealth any decision (2007) 119, Pa. A.2d 655 Commonwealth per, (quoting 596 941 (1987)). Pierce, A.2d v. 515 Pa. 527 975 that finding court’s supports Since record PCRA an consulting trial counsel a reasonable basis for not with had witness, respect with this is relief to expert Appellant denied claim. Failing to Trial Ineffective for Investi- Counsel Was
gate, Develop, and Present Evidence Trial Show- ing that Michael Torres Commonwealth Witness Relatedly, a Mental Suffered from Illness. Com- Maryland by Brady v. monwealth Violated With- holding Torres. Evidence Related to Michael claim,
In this Appellant that trial counsel complains any was ineffective because he did not conduct investigation Torres, respect with witness Michael Appel Commonwealth cellmate, lant’s former who testified at trial that Appellant prison killing said he would be back in victim. N.T. 9/30/97, time alleg 180-81. at the he According Appellant, threat, Torres manic- heard utter was edly auditory and was from hallucina depressive bi-polar, suffering tions, treated with medication. being psychotropic and information, maintains, in vari was contained Such report in a reports pre-sentence records and prison ous had after Torres by Northampton officials prepared County robbery charges. Appellant drug been convicted on to obtain these obligation had an submits trial counsel simply them had he could have obtained documents and Appellant argues an of Torres. investigation conducted trial counsel’s failure Torres entitles him to investigate new because Torres provided only direct testimony acted with premeditation when he killed the victim. claim,
aIn related
Appellant accuses the Commonwealth of
violating
holding
Maryland,
Brady
373 U.S.
(1963),
S.Ct.
L.Ed.2d 215
because it
to provide
failed
the defense with a coрy of Torres’s pre-sentence report.
*23
According to Appellant, the
an obligation
Commonwealth had
Burke,
under Commonwealth v.
Pa.
Neither entitles to relief. Appellant Appellant’s attack on trial stewardship counsel’s affords him no relief trial had because counsel no to believe reason that Torres was suffering from mental health problems. Torres Although Appellant’s cellmate for two and spent months time significant with Appellant in never prison, Torres told about Appellant his mental or problems acted in a manner that suggesting he fact, any. had In Torres never advised the or the prosecutor police involved in the instant matter about mental any prob- Torres evidentiary hearing lems. admitted this held in 10/28/03,224, 235-36, this matter. N.T. 244.8 addition, In Appellant claim does not entitle to relief because he has not met his burden of establishing he suffered because of prejudice alleged trial counsel’s nonfea sance. According Appellant, prejudiced by to he was investigate counsel’s failure to Torres because Torres’s testi “was critical to mony specific intent element establishing of as first-degree murder was little else the case [t]here kind of pointed any premeditation deliberation or Appellant he 8. Torres testified that became unsure that threatened to kill his wife after he believed he other heard inmates threaten kill their wives. that he Torres stated could tell whether threats actually by Appellant were the other or uttered inmates whether 10/28/03, they head. emanated from voices in his N.T. 225-26. Brief, 38. is any kind.” mistaken. deadly addition to the use of a on vital weapon parts victim’s left the note wherein body,9 Appellant incriminating Thus, he that he willfully. admitted lulled victim Torres’s testimony was not as critical as claims it was with respect proof he acted with intent to kill. specific
Additionally, the PCRA court found Torres’s recanta tion and Appellant’s ignorance of Torres’s mental health prob lems, claim including Torres’s that he was voices hearing while incarcerated with Appellant, incredible because Torres were spent cellmates and time significant together. 6/30/07, Opinion, PCRA Court 6-7. The court PCRA also noted that Torres had been threatened while in prison, which prompted prison authorities to move him on two occasions to other facilities after he testified against Appellant. The PCRA court attributed change Torres’s to the testimony threats and a desire to assist a friend and former co-prisoner. Finally, PCRA court held that trial counsel effectively undermined Torres’s testimony by presenting the a witness who stated that Torres admitted he was to lie going *24 about Appellant may what have him in said to order to help 6/30/07, himself. Opinion, PCRA Court 7. We find that the reasons proffered by court support PCRA its decision. Accordingly, Appellant has failed to establish that he was prejudiced by trial counsel’s failure to conduct an investigation Torres, therefore, of is not entitled to relief respect with claim this of ineffectiveness. See Common Abu-Jamal, (1998) 485, 79, wealth v. 553 Pa. 720 A.2d 93 (holding where there is support the record for a PCRA determinations, court’s credibility this Court is bound those determinations).
Appellant’s claim that the Commonwealth violated the holding of v. Brady Maryland, supra, by failing provide a copy pre-sentence Torres’s to the report defense lacks specific may 9. The law is clear that intent kill be inferred from the deadly weapon use of a part person’s body. on a vital of another 270, 119, (2008); Wright, Commonwealth v. Pa. 599 961 A.2d 130 621, 916, (2008). Kennedy, Commonwealth v. 598 Pa. 959 A.2d 921 80 claim,
merit
a
Brady
as well.
In order to succeed on a
establish that the
fa
defendant must
evidence withheld was
i.e.,
him,
vorable to
that it was
or had
exculpatory
impeach
value;
ment
the evidence was
suppressed by
prosecution;
Sattazahn,
v.
Pa.
prejudice resulted. Commonwealth
597
648,
(2008).
640,
952 A.2d
658 n. 12
In order to establish
a defendant is
to show that “the evidence in
prejudice,
obliged
was material to
or
that there
question
guilt
punishment, and
is
a reasonable
the result of the
probability
proceeding
would have been different but for the
alleged suppression
Dennis,
159,
the evidence.”
Pa.
Commonwealth v. James
597
(2008)
945,
87,
950 A.2d
966
373
83
(citing Brady,
U.S.
S.Ct.
1194;
419, 434,
1555,
v.
514
115
131
Kyles Whitley,
U.S.
S.Ct.
(1995)).
stated,
point,
L.Ed.2d 490
On this
this Court has
“[i]f
guilt
there is no reasonable doubt about
whether or not the
considered,
justification
additional
is
there is
for a
evidence
no
Green,
599,
new trial.”
v.
Pa.
640 A.2d
Commonwealth
(1994)
97,
1242, 1245
v.
(quoting
Agurs,
United States
427 U.S.
(1976)).
112-13,
2392,
Further,
96 S.Ct.
In Commonwealth the defense provide it to report obtain the pre-sentence it was possessed governmental agency because the Appellant. in the of Commonwealth prosecution involved the rule laid down Burke, this first applied v. Court supra, supra, in Kyles Whitley, Supreme the Court United States a the has prosecution held that Supreme wherein the Court con the evidence duty exculpatory defense with provide to of the police government in the files of same agencies tained the prosecution, though prosecution the even bringing the evidence. The States unaware of the existence of United Court, however, holding agencies its to those Supreme limited Whitley, in the involved accused. prosecution were (“[T]he prosecutor individual S.Ct. 1555 U.S. the of known to has a to learn favorable evidence duty any case, including the behalf the acting government’s others on Here, failed to that the the has establish police.”). the having possession pre or of government agency agencies prosecution Appellant. sentence were involved in the of report the herein had no to Consequently, prosecution obligation we Accordingly, the to the defense. acquire provide report or hold claim of and his allegation ineffectiveness him are meritless entitle Brady rule was violated no relief. Object Failing to Ineffective for Trial Counsel Was Testimony Callery Dr. Richard about
to the of Callery’s Opinion Rape Because Dr. Occurrence Required Proof Fell Below the Standard Commonwealth. he is to a new
Appellant contends that entitled object testimony of trial counsel’s failure to because expert, Callery, Dr. medical Richard Commonwealth’s raped. Appellant had been regarding whether victim objected Callery’s Dr. trial counsel have asserts that should state that a Callery that Dr. failed to ground on certainty. of medical rape degree occurred to reasonable *26 32
A review of the
law
that
applicable
indicates
“magic
words” need not be
an
by
uttered
in order for
or
expert
his
her testimony
Baez,
to be admissible. Commonwealth v.
554
(1998);
Pa.
720 A.2d
728
Commonwealth v. Spotz, 562
(2000).
Rather,
Pa.
A.2d
the
substance
testimony
the
presented
the
must be
by
expert
reviewed
determine whether
opinion
the
rendered was based on the
requisite degree of certainty and not on mere speculation.
Spotz,
Trial counsel he objection testified that did not an proffer Dr. Callery’s because prior three weeks to Dr. stand, Callery’s taking of the witness Callery Dr. testified during a that it pre-trial hearing was his that a opinion rape occurred that if objection, he an the proffered Common- wealth would have been the permitted necessary to elicit addition, the testimony from doctor. trial counsel testified object, that he not give did the Commonwealth an oppor- to elicit from Dr. tunity Callery the words” he “magic because made the tactical decision to use that to argue omission to the that no rape court occurred.
The Court that PCRA ruled this ineffectiveness claim lacked merit because trial counsel had a reasonable basis for 11/2/07, object. failing Opinion, PCRA Court’s 30-31. We agree. objection Counsel was correct that an surmising have likely would resulted in Commonwealth seeking and being granted permission Callery to elicit from Dr. opinion his that a had herein rape given occurred doctor had opinion Thus, offered that to trial. had trial prior counsel proffered objection, an strategy his to use omission to there argue that had been no have been rape negated would by anticipated opinion testimony of Dr. that the Callery victim been raped. strategy had Trial counsel’s was reason- able court given had the trial determined Dr. Call- ery’s opinion testimony was insufficient to establish a rape words,” utter because the doctor did not as trial “magic a counsel the Commonwealth would have been argued, without aggravating Accordingly, viable circumstance. because trial here, objecting counsel had reasonable basis Appel- respect properly lant’s claim with to this issue was denied court. PCRA The PCRA Court Committed an Abuse of Discretion Refusing Appel- to Permit the Defense to Amend lant’s Petition PCRA Two Years after Evidentia- *27 ry Hearing Conducted. Was
Almost two after the years evidentiary hearing, Ap pellant petition filed a with the court requesting per PCRA to supplement mission the record with an affidavit signed by Callery.10 Dr. that Appellant requested Callery also Dr. be permitted to that he testify opine could not to a reasonable of medical that degree certainty the victim had been raped. 27, 2006, In an July order dated the PCRA court denied the petition. Appellant contends that the PCRA court committed an abuse of discretion in denying his the petition because contents of Dr. Callery’s affidavit and his proposed testimony directly refute the finding that the Appellant raped victim. addition, Appellant complains that the have petition should been in granted justice the interests of given that Appellant’s rape conviction served as the only finding basis for the aggra vating 9711(d)(6). § circumstance set forth at 42 Pa.C.S. Fi nally, Appellant asserts that he is entitled to relief because of the who, claims, ineffectiveness of trial Appellant counsel failed to conduct an investigation into whether the victim had raped. been court, 1925(a)
The PCRA
in addressing this claim in its Rule
declared that
opinion,
no relief was due because
was
seeking to introduce Dr. Callery’s
testimony
affidavit and
solely to
the
re-litigate
issue of whether the evidence was
conviction,
support
sufficient to
a claim
rape
this Court
rejected
Miller,
Thus,
on
appeal.
direct
PCRA.11 PCRA Court PCRA Callery’s apparent court further indicated Dr. retraction of his trial does not establish that trial counsel was record, Callery’s ineffective and that even without Dr. testimony, had supported finding rаped 11/2/07, victim. Opinion, PCRA Court 10-11.
Before we review we may any Appellant’s arguments, must determine whether correct PCRA court was that the claim holding previously litigated. If we deter mine the properly previously PCRA court held claim was we are litigated, precluded by reviewing the PCRA from it. Pa. Washington, See Commonwealth v. 927 A.2d (2007) claim is not (holding previously litigated cogni PCRA); Albrecht, zable under the 554 Pa. Commonwealth (1998) (same). difficulty 720 A.2d The here is that allege has raised two claims that do not ineffective assistance of counsel: he that the court commit alleges PCRA an ted abuse of discretion in his and that the denying petition court should have his in the interests of granted petition *28 justice. matters, further claim of complicate Appellant’s To assistance of counsel no these ineffective contains discussion of to failing issues and states that trial counsel was ineffective for interview Dr. whether a had Callery investigate rape and Brief, Appellant’s occurred. 48-49.
A review of the two claims not ineffective assistance alleging to the that com- ineluctably they of counsel leads conclusion whether previously litigated, namely, an issue that was prise the to convic- support Appellant’s rape evidence was sufficient reviewing tion. This becomes clear readily upon Appellant’s to introduce. For sought example, brief and the material he that the PCRA court abused its discretion Appellant argues because it denied the “to demonstrate opportunity the was without evidence of prosecution any competent Brief, He also Appellant’s the commission of rape.” that he be justice granted claims that the interests of demand litigated highest appellate previously if “the court 11. An issue has been right petitioner review a matter of has in which the was entitled to as 9544(a)(2). § 42 Pa.C.S. ruled on the merits of the issue.”
35 an given bemay to “this issue” so he respect relief with of the examiner. the medical to rebut opportunity Brief, 47. A.2d 564 Collins, Pa. 888 v. 585 Commonwealth the (2005), purposes term “issue” for this defined the Court PCRA as follows: term, is understood practice,” as used in and “pleading
That by certain, material deduced single, point, “a and mean af- is parties, the and of the which allegations pleadings Black’s the one and denied on the other.” firmed on side Thus, to the 6th “issue” refers Dictionary, Law ed. 831. appeal that was forwarded on direct legal ground discrete See, e.g., relief. have entitled the defendant to would 10 States, 373 U.S. 83 S.Ct. Sanders v. United (1963) legal “a sufficient (defining “grounds” L.Ed.2d as The the granting sought applicant”). basis for relief are allegations ground simply or in support theories there presented. way, of the issue another subset Stated single can theories of a many allegations support be or 9544(a)(2) issue, legal § refers the discrete ultimately, but Thus, on ground raised decided direct review. level, this prevents relitigation
most basic
section
or allegations.
same
under alternative theories
legal ground
Wilson,
See,
305 A.2d
Commonwealth v.
Pa.
e.g.,
(1973)
same
theory
(concluding
support
a new
since
unavailing
claim of trial counsel ineffectiveness was
previous
in his
adversely
petitioner
claim was decided
Slavik,
424, 297
449 Pa.
direct
Commonwealth
appeal);
(1972) (“A
relitigate
is not entitled to
A.2d 920
defendant
or
theory
time he
a new
validity
plea every
of his
offers
*29
advanced.”).
he
argument
previously
which
had not
Here,
intro-
to
Appellant sought
at 570.
as
A.2d
insofar
that the evidence
question
duce material in
to demonstrate
conviction, rape
to sustain Appellant’s
was insufficient
from
that it
finding
precluded
was correct in
was
PCRA court
previously litigated.
been
the issue because it had
addressing
Miller,
Thus,
See
Although Appellant’s first two are cogniza claims not ble they because concern issues previously litigated, the same is not with respect Appellant’s true to ineffectiveness claim. Collins, In supra, we that ruled claims of ineffective assistance of counsel constitute separate may distinct issues that be raised a collateral proceeding attacking verdict. Col lins, 888 A.2d 570. claims are be analyzed Such to pursu ant to the ineffectiveness three-prong generally test applicable to such claims. Id. at 573.
An claim application that test the instant indicates that any is entitled to relief. that Appellant argues the claim has arguable merit based on an assertion that had experts trial counsel sought Callery, out or “interviewed Dr. there is a reasonable that probability Callery Dr. would have given him same information he provided undersigned counsel, and counsel have exclude could moved to his testimo- ny on as not due rape competent, to an insufficient level of Brief, However, Appellant’s 48. certainty.” Appellant’s argu- ment speculation. amounts more than mere There nothing is no indication the record that Dr. have Callery would advised trial counsel before the trial commenced that it was his belief that no occurred if trial had rape only counsel fact, court, him. according interviewed to the PCRA Dr. Callery twice affirmed at his previous hearings two it was opinion rape despite occurred cross-examina- vigorous Thus, tion trial counsel. 10. Opinion, PCRA Court Appel- lant is not entitled to relief as he has failed to establish was counsel ineffective the reasons stated. previously litigated 12. claims that these issues have not been Callery's reaching "issue of because the Dr. ‘reasonable Brief, certainty’ medical was never raised.” clear It is Brief, reviewing together argues Appellant's from the evidence with he excluded, erroneously sufficiency that these claims concern the evidence.
37 Appellant’s Be Because 6. A New Trial Should Granted Right Jury Right To His to a Trial and His Waiver of Testify Inadequate. Were is that a new trial should be Appellant’s position
It awarded because the ineffectiveness of trial counsel rendered trial right jury right his waiver of his to a and his waiver of his Ac testify unknowing unintelligent to and and thus invalid. cording knowingly intelligently he “could not and Appellant, jury right testify] given waive a trial his counsel’s [or [trial] that investigation dearth of and the wealth of information was available to counsel but of which counsel was unaware.”13 Brief, addition, 50. submits that Appellant’s Appellant pre-trial investigation inadequate, because counsel’s properly Appellant counsel “could not have advised to waive Brief, jury his to a trial.” 50. right Appellant’s is respect entitled no relief with to this issue because we have held that trial counsel was not ineffective for Moreover, by Appellant. reasons stated has prejudice failed to meet the of the ineffectiveness test prong here since he never or that alleged proved but counsel’s ineffectiveness he alleged jury would not have waived a trial. Mallory, See Commonwealth v. 596 Pa. 941 A.2d (2008) (holding that in order to meet the prejudice prong test, the ineffectiveness a alleging jury defendant waiver colloquy was deficient must establish that the outcome different, i.e., would have been that but for ineffec counsel’s trial); tiveness he would not a jury have waived Common Lassiter, (1998) wealth v. 554 Pa. 722 A.2d Court) (Opinion Announcing Judgment of the (stating this presume Court cannot that a defendant would have trial; a jury chosen burden is on defendant to set forth a Appellant's 13. claim that trial counsel’s ineffectiveness vitiated his right jury testify premised waiver of the to a trial and to are on the issues, Appellant’s including previous claims of ineffectiveness raised investigate lay expert testimony supporting trial counsel’s failure to and defense, passion expert lay testimony indicating a heat of and that a occur, indicating rape expert lay testimony did Brief, damage. Appellant’s suffered brain from
factual predicate establishing same before relief bemay grant- ed). a review of
Notably, jury the record of the waiver hearing demonstrates that waiver comported with *31 the law. A valid waiver of the right jury to a trial must contain evidence that the accused understood the fundamental “1) essentials of a trial which are: jury jury that the be chosen (i.e., 2) from members of the a community jury peers), of one’s that the accused be allowed to in the participate selection of 3) the jury panel, and that the verdict be unanimous.” Com Houck, 780, (2008); monwealth v. 596 Pa. 948 A.2d see also Mallory, supra. Instantly, the record demonstrates a written Appellant signed jury colloquy waiver form that set forth the essential elements of a trial jury explained and all of the rights Appellant waiving by deciding to be tried addition, aby judge jury. and not a In the trial court questioned twice on the record his deci regarding 9/24/97,2-20; sion to waive his a right jury to trial. N.T. N.T. 9/29/97, occasions, 9-12. On both Appellant averred that he understood the associated with the a rights right jury to and that he was them waiving knowingly, intelligently, and volun tarily. regard, this waiver of a Appellant’s right jury his to appears trial to be unassailable.
Appellant’s contention that his waiver of his right
testify
to
was invalid lacks merit for the same reason that the
did,
foregoing claim
has failed to
namely, Appellant
prove
ineffectiveness,
but for trial counsel’s
he would have testified.
alleging
Claims
ineffectiveness of counsel
on
premised
allega
tions that trial counsel’s actions interfered with an accused’s
to
right
testify require a defendant
to
either that
prove
“counsel interfered with his right
testify,
or that counsel
advice so
as to vitiate a
gave specific
knowing
unreasonable
and intelligent
testify
decision to
on his own behalf.” Com
(2000).
Nieves,
monwealth v.
560 Pa.
746 A.2d
Uderra,
also
550 Pa.
By testifying not whether guess position having this placed Court to testify. with right interfered his counsel’s ineffectiveness Furthermore, evidentiary hearing at the trial counsel testified and testify during both that he asked 10/27/03,77-78, N.T. refused. penalty hearing on this issue and thus may engage speculation 80. We claim is Appellant’s meritless.
PENALTY PHASE ISSUES Jury Penalty Phase of a Waiver Invalid; Trial Ineffective for Not Was Was Counsel Colloquy for Not Rais- Objecting to the Waiver ing Appeal. on the Issue
Appellant argues that he is entitled to reversal for a penalty hearing his death sentence and remand new *32 the and not jury because waiver was insufficient did colloquy rights advise him of the he adequately comprehensively and guilt the the and waiving was and salient differences between complains a that in penalty phases capital of case. him, him that if the the trial court did not advise questioning verdict, life jury upon could not a a sentence of agree penalty would be recorded and also that imprisonment mitigating by be each the individually circumstances could found of Brief, Thus, he claims his jurors. Appellant’s 59-60. that addition, In unknowing unintelligent. Appel waiver was and accuses of ineffective assistance of providing lant trial counsel colloquy for the defective objecting allegedly counsel to penalty for not on that that a new was arguing appeal and incomplete. the was colloquy warranted because waiver that trial The record of indicates the on separate colloquies Appellant, court conducted three of one 1997, 29, 1997, and 24, one on one on September. September immediately colloquy The final occurred October hearing. the N.T. penalty to the commencement of prior 10/2/97, objection inadequacy was made as to 284-86. No on any time nor was the issue raised colloquies of 40 Thus,
appeal. PCRA, purposes of the claim was waived because it could previously. have been raised 42 See 9544(b). § Consequently, Pa.C.S. order to obtain relief on this claim was obliged to establish that trial counsel ineffective an objection for not proffering asserting that colloquies insufficient legally were for the reasons stated Comm Gribble, Appellant.14 onwealth Pa. (2004). A.2d 455 also Rainey, See Commonwealth v. 593 Pa. (2007). 928 A.2d A review of the record indicates failed to his Appellant has meet burden of proving that trial counsel was ineffective because he hаs to failed establish that he was prejudiced by counsel’s alleged ineffectiveness. issue,
In the previous discussion we referred to Mallory, supra. Mallory, Court this held that order to prejudice establish in a a alleging jury matter waiver deficient, that, a colloquy was defendant must establish but for ineffectiveness, counsel’s he or she would not have waived the stated, a right jury to As we already trial. have the record is devoid evidence demonstrating Appellant would have elected have decide jury his sentence had trial counsel not been ineffective. Since failure establish even one of the three requirements the ineffectiveness standard under it claim, mines an ineffective assistance of counsel is clear that Cook, is to no entitled relief on this issue. supra.15 Failing 8. Trial Counsel Was Ineffective for to Investi- gate Mitigating All Present Available Evidence During Penalty Hearing that trial Appellant contends counsel was ineffective because he investigate present readily failed available evidence *33 above, represented Appellant appeal. 14. noted As trial counsel on Thus, Appellant having "layer” is from excused his claims of ineffec- tiveness, i.e., appellate both trial assert that counsel and counsel were failing preserve ineffective to raise and this issue. Having Appellant prejudice, 15. ruled that we has failed establish adequacy colloquy need not consider the waiver issue. More- over, reject Appellant's stemming we prejudice additional claim that the object juror may from trial counsel’s failure to was that at one least Brief, impose Appellant’s have voted to a life sentence. 63. See supra. Mallory, abuse, Appellant’s family dysfunction, child mental health deficits, school, problems brain while in “com- impairment, and and with the plex tragic” relationship victim.16 Brief, 65, 77. also Appellant asserts that trial counsel should have introduced evidence showing Appellant had a brain lesion removed in drug attended treatment programs, abuse, history had a drug and victim obtained an “order just of Attachment of Income” against Appellant prior to the Brief, slaying. Appellant’s 77. trial Appellant also faults counsel for interviewing as calling during witnesses and/or penalty Miller, sisters, his mother hearing Agnes his Drew, Glenna Saganich, Linda and Brenda Pennington, Sue Miller, Miller, his brother Kenneth daughter his Barbara and the victim’s sister Helen Pennington. these wit- Through nesses, claims, trial counsel could have convinced court, factfinder, sitting trial as to enter a sentence of life imprisonment.
During penalty after the hearing, pre- Commonwealth sented evidence that Appellant been had convicted of and rape victim-impact testimony from Appellant’s daughter, Barbara Miller, Appellant witnesses, presented of four testimony Cooke, Miller, Dr. Miller, Gerald Kenneth Agnes Deborah Cooke, Miller. Dr. a clinical and forensic psychologist, testi- fied that he examined and interviewed Appellant August on 14,1997, from him taking personal history and administering a battery interview, of tests. During Appellant related that he was the youngest eight children and that his father was an alcoholic who was abusive to his mother. Appellant attempted father, which, often to protect his mother from his doctor, to the according caused to have problems 10/2/97, school and with anger management. N.T. 297. Re- school, garding Appellant told the doctor that he out dropped in eighth grade because of trouble with Appel- his behavior. lant also indicated that he a good history having had work mainly heavy worked as a machine operator and a truck also asserts counsel was ineffective for not investigating presenting expert rape to rebut that a occurred. This claim mirrors that raised in Issue 2 above. Conse- quently, there is no need to discuss it a second time here. *34 he Appellant driver. admitted that had a substance abuse that problem drugs began involved both and alcohol that his teens. Id. at 298-99. stated that he Although Appellant rehabilitation, Appellant underwent both and alcohol told drug the doctor that he took both habits some months again up after treatment. admitted to Dr. undergoing Appellant Cooke that at the time of the incident he was heroin injecting daily and Id. at 299. using methamphetamine occasionally. Appel- lant denied medical Id. at 300. having any significant history.
Appellant also related to the doctor that he had been arrested assault on two occasions because of incidents incidents, involving his wife. which resulted in One incarceration, arose Appellant’s Appellant angry when became because the victim on a to seek for her reneged promise help own and Id. drug problems. emotional
Based on the he Dr. estimated testing performed, Cooke bеtween 81 and Appellant’s intelligence quotient ranged 89. Id. at 303. also revealed that had low Testing Appellant self-esteem and a need to be which led him to seek accepted constant Id. at Dr. diagnosed Appel- attention. 304. Cooke lant as a having paranoid personality disorder with antisocial and features. Id. at 305. He also added second and explosive third of and alcohol abuse. Id. diagnoses drug dependence circumstances, opined With Dr. regard mitigating Cooke conforming his behavior to the Appellant incapable and alco- requirements drugs of the law and his use hol in the day played on the of the incident a role murder. make an Id. at 306-07. He also stated that could Dr. adequate adjustment prison. Finally, Id. at 303. he that Appellant Cooke testified that found no evidence from a or or kind of thinking psychosis any “suffered disorder major major affective or manic depression disorders such as disorder.” Id. at 296. brother, Miller, testified that he often
Kenneth they and the victim seemed together observed relation- good also to have a happy. Appellant appeared be ingested gram Appellant allegedly consumed twelve beers methamphetamine. stated Kenneth Miller Id. at 319-20. with his children. ship death, greatly it would that if were sentenced him and family. affect his *35 sister, that it Miller, appeared testified Appellant’s
Deborah to be and happy the victim appeared to her that and Appellant Id. at also stated good. that their was 321. She relationship to appeared he prison, was released from Appellant that when family. that he reunite with his be and relieved could happy at Id. 322. mother, Miller, told the trial court that
Agnes Appellant’s at 323. loving and a father. Id. Appellant working was hard were Appellant’s having problems stated that children She and that if were sentenced Appellant because of incident death, Id. at 324. In problems. to it would exacerbate those addition, into incorporated Miller’s trial was Agnes Id. at hearing. the record for 286-87. purposes penalty trial, marriage At she testified that to the victim Appellant’s at but it because of good inception was its deteriorated 9/29/97, denied Agnes and alcohol use. N.T. Miller drug the victim were having any knowledge violent toward one another. Id. at 33. the testimo- evidentiary hearing, Appellant presented
At the ny family of several members as well as that various experts. Agnes Miller testified about the viоlence inflicted on by attempts her her husband and to intervene. Appellant’s in Appellant’s also testified that there were problems She to the victim. She stated that marriage with her attorney relationship did not ask her about her and that if Appellant’s marriage husband or about the state of so, have to to him. agreed speak counsel had done she would 10/28/03, only Miller conceded that the Agnes N.T. 355-69. he usually act was when abnormally time she saw using drugs. Id. at 373. Miller, her testified about Appellant’s daughter, Barbara they stated that often relationship. and their She parents not having her about complained because mother fought family Appellant spent because enough money support father, it on drugs. Although she was with her angry Barbara indicated that she would have testified for him at the penalty 376-93; hearing had she been asked to do so. Id. at N.T. 10/29/03, 397-414.
Kenneth Miller testified that in a Appellant grew up house- hold headed a violent alcoholic father who took little interest The Appellant. family was which further poor stigmatized them the of their eyes schoolmates. According Kenneth, began drinking age nine and quickly graduated using Kenneth also drugs. Ap- testified about pellant’s marriage. He stated that Appellant and victim history had a breaking up reconciling, they both drugs, they grew used and that from the apart family Miller marriage 10/29/03, as their progressed. N.T. 482-501. Ken- neth stated that Appellant job was able to hold a and never *36 any exhibited behavior indicating that he had mental limita- tions. Id. at 503-05. sisters,
Appellant’s Glenna Brenda Saganich, Penning- Sue ton, and Linda Drew each reiterated much of what Kenneth testified to concerning Appellant’s home life. all They testi- they fied that were never interviewed about back- Appellant’s ground it, and that they had been asked to testify they about would have been available to do so. Helen Pennington, sister, victim’s testified about the state of Appellant’s marriage and that Appellant stated worked double that shifts so home, victim could stay Appellant and the victim sold men, that the victim drugs, relationships had with other and had an abortion after she was another man. impregnated by All of these witnesses testified that were they not interviewed and that they would have testified for if to do asked so.
Appellant called two to the experts during stand eviden- tiary hearing of that trial purposes establishing counsel was ineffective for the Dr. preparing penalty hearing. a Armstrong, neuropsychologist, Carol testified that she con- ducted neuropsychological testing Appellant and found evi- dence that he impairment suffered from brain in the areas of control, skills, motor ability, reasoning among verbal and deficits, 10/27/03, according to 121-22. These others. N.T. skills doctor, judgment and impact reasoning had an on his Id. at 124. The doctor and behavior. cognition and affected certainty, degree psychological to a reasonable opined, or an extreme mental brain deficits constituted Appellant’s substantially impaired ability and his emotional disturbance Armstrong Id. at 129. Dr. conform his conduct to the law. a product further testified that because alcohol, home, I.Q. had a low drugs violent an abuser of score, school, in his motorcycle had trouble in had a accident teens, trial counsel scalp and had a lesion removed test- Appellant undergo neuropsychological should have had Id. at 115-17. ing. Kessel, substantiat- psychiatrist,
Dr. a board certified Julie stated, namely ed what Dr. suffered Armstrong to conform his conduct substantially impaired capacity from to the of the law and that he was under the requirements influence of extreme mental or emotional distress. N.T. 10/29/03, 548. based her finding Appellant’s upbring- She on relation- ing, problem, impairment, substance abuse brain victim, doctor, with the which to the affected ship according 535-37, his control on the Id. at impulse night slaying. Trial He evidentiary hearing. counsel also testified at the strategic seeking indicated that he had no reason for not 10/27/03, school or treatment records. N.T. drug 23, 25. He that he did not to Barbara Miller speak stated was a (Appellant’s daughter) prior young to trial because she *37 he from other members family child and because ascertained Id. at 25. any that she did not useful information. possess records, medical trial counsel testified Regarding Appellant’s of his speaking Appellant that after and other members family, fully apprised Appel- he believed that he had been he needed. history lant’s and thus had all of the information Id. 30. by why asked he did not have tested
When he was aware that damage for brain when neuropsychologist user, that he saw no drug replied was a trial counsel evidence that would cause him to suspect that Appellant suffered from brain or mental damage infirmity. Id. at He based his decision on his interaction with Appellant, who was able to him, converse intelligently with on speaking with of Appellant’s members family, and the contents of the report Cooke, prepared by Dr. who found Appellant did not suffer disorder, any from thinking or psychosis, any major affective 43, 56, disorders. Id. at 62-63. He also stated he decided not to present a diminished or intoxication capacity defense based on his conversations with Appellant who provid- ed details of the crime and his reasons for it. Id. committing at 45-47. Trial counsel stated that he had no reason for not seeking out and interviewing other members of Appellant’s and the family victim’s other than that he believed he had received sufficient information from Appellant family and the members to whom he spoke. Id. at 30. he Finally, testified that he decided it would not in Appellant’s be best interests to argue that Appellant killed his wife because Appellant grew in a up dysfunctional home and his father had abused his mother. Id. at 67-69.
After considering testimony presented by his arguments in favor of the grant of a new penalty hearing, the PCRA court denied Appellant relief on his claim that trial counsel had been ineffective respect with to the penalty phase of the proceedings. The PCRA court determined that there record, nothing either from Appellant or from his family, that established that “trial counsel knew or should have known about the [Appellant’s] possible damage.” brain PCRA Opinion, 6/30/07, Court 13. The court PCRA also concluded that Appellant had not been prejudiced by trial counsel’s failure to investigate and present evidence that Appellant suffered from brain damage because the record is devoid of any evidence that a mental demonstrating impair- ment judgment affected his at the time of the incident. Id. at 13-14.
Regarding that trial allegation counsel had been ineffec- tive for not interviewing members of Appellant’s family sister, the victim’s the PCRA court declared that trial counsel *38 of testimony anticipated the because been ineffective had not cumulative would have been witnesses these court further Id. at 30. The PCRA Dr. Cooke. presented in not reasonably premising had acted that trial counsel stated to relating Appellant’s on the evidence defense Appellant’s noted court The PCRA family history. and abusive childhood that counsel evidence and such present that trial counsel did swayed have would not such evidence surmised that correctly he his wife becаuse killed Appellant to find that the court abused as and had been household dysfunctional in a grew up a child. Id. at 30-31. have should that trial counsel allegation to the respect
With witness, called her as and Appellant’s daughter interviewed ineffec- had not been that trial counsel court ruled PCRA The court testify. her to calling and interviewing tive for not for the helpful have been a witness that she would not held death, mother’s about her very angry she was defense because disagree with hearing appeared during penalty not receive should argument counsel’s during testified for the Commonwealth penalty, death and Id. at 32-33. penalty hearing. was not stated that trial counsel
The court further PCRA Appellant’s introduce to obtain and failing ineffective for or the record school, medical, and treatment records drug ineffective, according order. Counsel was not support I.Q. low court, Appellant’s Dr. testified to because Cooke and introduced evidence trial counsel knew about derelict of 31. It was not Id. at Appellant’s drug problems. records, accord- medical trial counsel not to obtain court, no indication because there was to the PCRA ing Finally, illness. Id. from a mental suffered failure to introduce evidence that the proclaimed PCRA court ineffective- not constitute to the order did support pertaining establishing of record there was no evidence ness because of the order. Id. knew of the issuance that counsel was alleging to claims The applicable standards mitigating investigate present failing ineffective for recently evidence was set forth in Commonwealth Nativi *39 dad, 188, 310, (2007), 595 Pa. 938 A.2d 331 as follows: observed,
As this Court has Supreme the United States Court has held that the Amendment capital Sixth requires counsel “to all pursue available avenues of devel reasonably oping mitigation evidence.” Gorby, Commonwealth v. 589 364, 775, (2006) Smith, Pa. 909 (citing A.2d 790 v. Wiggins 521, 510, 2527, (2003)). 539 U.S. 123 156 471 S.Ct. L.Ed.2d professional Counsel must exercise reasonable judgment, conduct, and examining counsel’s “we on focus whether investigation supporting counsel’s decision not to intro duce evidence ... itself mitigating was reasonable.” Com 425, 767, (2004) v. Malloy, monwealth 579 Pa. 856 A.2d 784 523, 2527, (quoting Wiggins, 539 at U.S. 123 S.Ct. 156 471). L.Ed.2d addition,
938 A.2d at In this has Court stated: Strategic choices made less than following investi complete are reasonable gation precisely to extent that reasonable professional the limitation judgment supports investi assessment, In gation. undеrtaking necessary review courts take all ing are to reasonable efforts to avoid the distorting effects of v. hindsight. See Commonwealth Base more, 258, 289, (2000). 560 Pa. 744 A.2d 735 Neverthe less, courts must also avoid hoc rationalization of “post 526-27, counsel’s conduct.” Wiggins, 539 U.S. 123 S.Ct. at 2538.
Sattazahn, (citation omitted). 952 at 655-56 A.2d the “reasonableness of a
Finally,
particular investiga
counsel,
depends
tion
evidence known to
as well
upon
as
that
cause a
evidence
would
reasonable
to conduct a
attorney
Steele,
further
see
investigation.”
supra;
also Commonwealth
(2004)
Malloy,
(holding
that
Pa.
In failed to establish that had Appellant has presented trial counsel interviewed these witnesses and their a testimony, likely different outcome would have resulted. that established that the trial Appellant presented nothing court have a life if it heard imposed only would sentence had childhood, evidence appellants drug dependence, additional dysfunctional relationship. marital that Appellant also cannot establish trial counsels failure to obtain and review the various records identified ineffective that the above constituted assistance of counsel or court an error of that trial ruling PCRA committed law counsеl was not ineffective for to obtain that material. failing According Appellant, to trial counsel should have obtained it that Appellants Appellant school records because showed had an in the seventies to low and thus was I.Q. high eighties Although Appellant mitigation presented evidence 18. claims that hearing avail- during penalty to a “hollow shell” of the amounted evidence, therefore, be declared to have been able counsel should it, failing gather ignores Appellant for to the lower court’s ineffective finding not have in a that the additional evidence would resulted different verdict. Brief,
borderline mentally retarded. Appellants Appel- 81. lant Dr. ignores Cooke’s that he measured Appel- 89, I.Q. lants in a from range thereby 81 to that demonstrating Appellant, though ability, limited mental clearly was not Moreover, mentally retarded. the fact that jobs able to hold required least modicum of skills demonstrated that Appellants school would records not have resulted in a different outcome had counsel obtained them and introduced them during penalty In view of the hearing.19 foregoing, Appellant has failed to establish that trial counsel acted unreasonably by obtaining these records.
Next, trial counsel cannot be faulted for failing obtain Appellants medical records. Trial counsel testified he received no information from or members of his him family alerting to the fact that Appellant any had suffered or injury had medical problems affecting cognition. addi tion, denied having any medical significant history 9/30/97, when examined Dr. Cooke. N.T. It is therefore clear that trial counsel cannot be for failing faulted to obtain evidence which he had no reason to be aware. See Bond, Commonwealth v. 572 Pa. 819 A.2d 45—46 (2002) (holding counsel cannot be deemed ineffective for failing to obtain records “uniquely” possession of defendant Johnson, family); and his see also Commonwealth v. 572 Pa. (2002) (this 815 A.2d (plurality) Court refuse[s] deem trial counsel ineffective failing present mitigation *41 existed); evidence that he did not know Commonwealth v. Basemore, (2000) 717, (same); 560 Pa. 744 A.2d 735 Peterkin, v. Commonwealth 511 Pa. 513 A.2d 383 (1986)(same). records, trial respect Appellants drug
With counsel was not ineffective for to obtain them because failing Appel them, lant has failed to establish that had counsel obtained outcome of the would have been different. penalty hearing This is the case that Apрellant because has failed to show Appellant's any- 19. Kenneth brother testified that he never observed thing suggesting mentally challenged. Appellant that was N.T. 10/29/03, 503-05. different information records substantial any these contained Moreover, trial trial court. to the already presented from that problem abuse Appellants was aware of substance counsel As court. noted it to trial introduced evidence about above, failing ineffective for intro- counsel cannot be found already evidence cumulative of merely evidence that is duce the record. introduced into that had to establish he Appellant failed
Finally, him. against had been issued knowledge support that a order that the Appellant such cannot demonstrate proof, Without influenced behavior support issuance of the order his on Thus, cannot establish that Appellant incident. night failing counsel ineffective for to obtain order or trial See proof during penalty phase. introduce of its issuance (2004) Pa. A.2d 726 Bryant, v. Commonwealth in a claims of ineffectiveness cannot be sustained (holding vacuum).
Appellants claim that trial counsel was ineffective to have him tested also lacks failing neuropsychologist The trial had merit. record herein indicates that counsel Cooke) (Dr. aby examined whose Appellant psychologist mental any examination of failed to uncover disabili Appellant above, Dr. that he no ties. As noted Cooke testified found thinking from a or evidence “suffered disorder as major or kind of affective disorders such psychosis any 10/2/97, manic major depression or disorder.” N.T.
addition, of his any family neither nor member from neurological advised counsel suffered circumstances, trial or mental deficits. Given these counsel testing securing Appel cannot be faulted for not additional lant. Stevens, 171, 739 559 Pa. A.2d 507
In Commonwealth
(1999),
been ineffective
having
trial counsel was accused
to his expert
he
all available records
provide
because
failed to
defendant,
had trial counsel
According
provid-
witness.
witness, it
have
expert
may
ed the additional records to his
mental health miti-
developed
in a
thoroughly
resulted
“more
*42
gation case.”
We
with the trial
court
has failed to
prove,
evidence,
aby preponderance
that the prepa
ration
presentation
and
by trial counsel of the mental health
expert testimony was constitutionally ineffective. Appellant
hindsight
relies on
benefit of
downplays
and
the diag
noses available to his counsel at the
his
time
case was tried.
Altman,
Counsel testified that he
Dr.
provided
who was his
primary mental health
with
expert,
as much information as
had,
he
including substantial information concerning Appel
lant’s social
and
mental
history
prior
problems.
health
He
relied on Dr. Altman to
present
most favorable mental
available,
mitigation
health
case
attempted
pres
and he
ent this and the other
expert
a manner that
to,
would be understandable
by,
jury.
believed
Indeed, Appellant’s counsel
succeeded insofar as
jury
9711(e)(2)
found the Section
This
not an
mitigator.
is
instance where counsel
present
failed
mental health
case
mitigation
despite the
presence
support
evidence to
Smith,
such a case.
Compare Commonwealth
544 Pa.
(1996),
denied,
Id. Stevens, as in
Instantly, arguing is tangi- counsel should have done more even he had no though ble reason so. Trial counsel in his doing testified that he dealings Appellants family, with failed to *43 anything discern that would have caused him to believe that Appellant had brain deficits. by This belief was confirmed Dr. examination Appellant.20 Cookes these circum- Given stances, trial counsel cannot be not having Appel- faulted for lant examined by experts additional because the investigation he conducted was reasonable and failed to reveal any evidence that showing Appellant suffered from a mental disease or defect further requiring investigation. See v. Commonwealth Brown, 461, 1139, (2005) John Wesley 582 Pa. 872 A.2d 1150 (holding that where record at time of trial indicates that illness, accused was not suffering from mental counsel has no further); duty investigate Uderra, issue 706 A.2d 339-40 (holding that trial counsel was not ineffective for not introduc- ing mitigation evidence regarding psychological defendants problems beсause defendant failed to disclose them prior to trial). Accordingly, we conclude that PCRA Court did not err in finding no merit to claim Appellants that trial counsel was ineffective during the penalty phase of the proceedings.
9. Trial Counsel Failing Object Was Ineffective for
to the Impact Introduction of Victim Evidence Dur- ing Penalty Hearing
Appellant complains that trial counsel was ineffective for not to the objecting presentation of victim impact testimo ny during the penalty phase the trial.21 Appellant asserts 20. Appellant brother Kenneth denied that suffered from 10/29/03,503-05. mental deficits. N.T. "Generally, only 21. qualities those which statements describe of the designed victim uniqueness and are to show the victim’s as an individu- ” impact al fall within the rubric of 'victim evidence.’ Commonwealth Hall, 526, 1177, (2005); v. 582 Pa. 872 A.2d 1185 see also Common- McNeil, (1996). wealth v. 545 Pa. 679 A.2d 1259 n. 11 Miller, During penalty hearing, daughter Barbara victim, picture and the held a of the victim as she testified and showed judge prosecutor. it to the trial when asked to do so die N.T. 10/2/97, addition, prosecutor In 289-90. commented that other family request they testify doing members declined a because so prosecutor would be too emotional. The also stated the victim's impact death had a family.” "tremendous and terrible on [the victim's] 10/2/97, N.T. have been testimony
such was inadmissible and should not in prosecutor were presented because comments addition, claims that because the flammatory. herein occurred to the effective date of relevant prior offense § he is entitled to new amendments to Pa.C.S. McNeil, 545 Pa. penalty hearing. See Commonwealth (1996) A.2d 1253 that victim (holding impact in cases to the 1995 amend originating prior was inadmissible 9711). § ment to 42 Pa.C.S. relief this claim because failed to
No
is due on
object
failure to
proving
meet his burden of
trial counsels
*44
First,
the
him.
the actions
prosecutors
prejudiced
to
actions
insofar as
prosecutor
and comments of the
were innocuous
the victim.
they were
and did not dwell on
fleeting
cases,
prejudice
this
has refused to And
numerous
Court
v. Free-
under similar circumstances. See Commonwealth
(2003)
man,
385,
(holding
Pa.
827 A.2d
414
that brief
573
“peaceful”
that victim was
impact testimony indicating
victim
and “nice” was not
see also Commonwealth v.
prejudicial);
(same).
Rollins,
(1999)
558 Pa.
738 A.2d
for a second reason. The
Appellant
prove prejudice
cannot
court,
factfinder,
it
as
indicated that was
sitting
PCRA
the
by
photograph
prosecutor’s
influenced
the victim’s
or
neither thе
nor the comments
photograph
comments and that
it
rendered.
any
ultimately
had
effect on the verdict
PCRA
6/30/07,
that a trial
presumed
37-38.
It is
Opinion,
Court
court,
factfinder,
disregard prejudicial
can and will
sitting as
Davis,
Pa.
421 A.2d
evidence.
See Commonwealth
Brown,
179, 183 (1980);
David
11. PCRA Court Testimony the Was that Victim Exclude Law to Appellant. by than Impregnated Other Someone counsel asked hearing Appellant’s evidentiary the During the victim had him that told whether trial counsel man. The another by getting pregnant after had an abortion Law, Commonwealth the objected arguing that Rape Shield § the prohibited Pa.C.S. dissemination of such informa- tion and that the information seeking the defense was to elicit was irrelevant because the abortion occurred five alleged years prior to the PCRA slaying. The court sustained the 10/27/03, objection. N.T. 28-30. asserts the court erred the sustaining objec- PCRA Commonwealth’s tion because it relied upon Rape the Shield Law to do so.
This claim is explained meritless. The PCRA court in 1925(a) its Pa.R.A.P. it opinion that did not sustain the Com objection application monwealth’s based on the of the Rape Law but relevancy hearsay grounds. Shield rather on 11/2/07, Moreover, during PCRA Court 5. the Opinion, PCRA hearing PCRA court later that the acknowledged Rape apply Shield Law did not not to and could be used exclude to history. evidence the victim’s medical N.T. relating 10/29/03, addition, 426-27. other since witnesses later hearing testified the PCRA that the victim an abortion had man, being after impregnated by any another error resulting from the PCRA court’s constituted harmless error. ruling to Accordingly, Appellant is entitled no relief on this claim. Refusing The PCRA Court Abused Its Discretion to Provide the Defense with Certain Evidence In- Negatives cluding Crime Photo- Scene graphs.
Appellant submits that the PCRA court committed an abuse of discretion when it to refused order the Common a provide computer wealth the defense with disc containing high-resolution negatives scans of the crime digitized requested photographs. Appellant scene asserts he be scanned a disc negatives digitally nega onto because contain may appear photograph tives detail not closely the scanned can be examined. negatives Appel more Brief, According Appellant, by denying 95-96. this lant’s attempt him in his request, prove PCRA court hindered victim as the raped, rape that the when served basis *46 aggravating for the sole circumstance found court. by Appellant’s request The court denied because PCRA of the crime copies the defense with provided Commonwealth photo- of the generation” prints scene “first photographs, of the containing copies negatives. and a contact sheet graphs, 11/2/07, 7. The court also relied Court PCRA Opinion, PCRA Police, the Pennsylvania governmen- on the fact that the State have of the did not agency having possession negatives, tal onto a disc and the contact equipment negatives scan par were of a on a with containing negatives quality sheet find error in the rationale digital employed scans. Id. We no therefore deny the PCRA court to this claim and hold the trial court not commit an abuse of discretion. did 902(E)(2)
Rule of the Rules of Pennsylvania Criminal Procedure provides:
(E) Requests Discovery for
(2) case, petition penalty On first counseled a death discovery permitted any stage proceed- no shall be at leave court after a of ings, except upon showing good of cause. 902(E)(2).
Pa.R.Crim.P. The of a defense request denial an seeking discovery materials is reviewed under abuse Sattazahn, 662; discretion standard. 952 A.2d Common- Carson, 220, (2006). wealth v. 590 Pa. 913 A.2d Baumhammers, Commonwealth 599 Pa. 960 A.2d (2008), discretion,” recently this Court discussed “abuse of stating: Widmer,
In Commonwealth v.
560 Pa.
The imports judgment, term ‘discretion’ the exercise of conclusion, dispassionate wisdom and skill so as to reach a law, within the framework of the and is not exercised effect to the will of the purpose giving judge. reason, be on the Discretion must exercised foundation motivations, or prejudice, personal caprice as opposed when the course arbitrary actions. Discretion is abused an error of but pursued represents merely judgment, *47 58
where the is judgment manifestly unreasonable or where
the law
applied
is not
or where the record shows that the
partiality,
action is a result of
or ill
prejudice, bias
will.
(citation omitted).
CUMULATIVE EFFECT THE OF ERRORS 13. The Effect Cumulative of the Errors in This Case
Entitles to Relief. claim, In his final Appellant argues that he is entitled to relief because of the cumulative prejudicial effect of the errors he alleged and raised in this This appeal. Court has repeatedly stated that may “no number of failed claims collec tively warrant relief if fail they individually.” to do so Wash 617; ington, 927 A.2d at see also v. Tedford, Commonwealth (2008). Therefore, 598 Pa. 960 A.2d this issue is without merit.
CONCLUSION we affirm the Accordingly, ruling issued the PCRA court denying Aрpellant’s collateral re- request post-conviction lief.23 TODD, BAER, join opinion.
Justices and MeCAFFERY Prothonotary Supreme The Court is directed to transmit entire record in this case to the Governor in accordance with 9711(i). § Pa.C.S. concurring opinion files a Chief Justice CASTILLE joins. which EAKIN Justice opinion. files a dissenting
Justice SAYLOR CASTILLE, concurring. Chief Justice exception points with the join Majority Opinion, I minor express my below. separately addressed I write of two of Majority’s analysis appellant’s with the disagreement raised recurring point claims and to address a and important *48 reasoning in dissenting opinion. My Mr. Saylor’s Justice follows: V
Claim faults court for procedural grounds, V the PCRA on Claim in to his permit petition to amend PCRA refusing appellant Callery to from Dr. at the PCRA present order opinion rape related to as to whether a hearing changed his occurred. the resolu- disagree Majority’s
Like I with Saylor, Justice evi- upon sufficiency tion this claim the grounded of the related that the claim has Majority’s dence and conclusion clearly challenges been claim previously litigated. the claim of the court’s and related procedural ruling PCRA challenge compe- to the failing trial counsel ineffectiveness the testimony, sufficiency Dr. rather than Callery’s tency rape the the conviction. supporting evidence Nevertheless, disagree the I with the I concur in result. litigated, Majority’s previously characterization of claim as is the PCRA appellant’s challenge the substance of to since to supplement his late ruling request court’s denied This Callery’s testimony. changed PCRA with Dr. petition it to a not as relates previously litigated claim has been However, immediately below. ruling the court procedural to request the belated denying I no abuse discretion see why Callery’s I not see Dr. petition, do supplement (or appellant as would changed “elaboration” alleged opinion it) have was necessary to the substantive claims which sound
in ineffective assistance of counsel.1
Claim VI claim, appellant alleges this that trial counsel’s ineffec- tiveness rendered right invalid his waiver of his to a jury trial right and his to testify. develops this claim primari- ly waiver, in terms of the jury faulting counsel’s advice to waive, then, respecting right testify, to merely states exact same to reasoning “[t]he his applies [sic] waiver of to right testify.” of Appellant, Brief I Although join claim, the Majority Opinion I concerning this dual would also note that in on briefly ruling claim of appellant’s ineffective- ness to right testify, related his court to PCRA concluded merit, that the claim was without opted since appellant testify despite contrary. counsel’s advice to the While the Majority notes this fact in it intimates that we passing, would “guess have to whether counsel’s ineffectiveness interfered with [appellant’s] right testify” and that will not we engage in such I speculation. Respectfully, go far, see no need to given that PCRA aptly pointed court out that counsel ineffective, cannot be deemed since he encouraged appellant to only Thus, testify, instance, have refuse. appellant this any complaint regarding appellant’s decision not to testify is *49 placed squarely on appellant’s shoulders and cannot a support claim of trial counsel ineffectiveness. inexplicably fails dispositive to account for this fact in asserting that his twin claims on depend the same reasoning.
Claim VIII join
I
Majority
the
on this claim
only
and write
address
two
raised
points
by
Saylor’s Dissenting
Justice
Opinion.
First
the role of
is
recent decisions from the U.S. Supreme
Court rendered on federal habeas review of
court
state
convic-
by
I am also convinced
PCRA
the
court's alternative rationale that
there
sufficient
supporting
rape,
circumstantial
evidence
as
by
explained
opinion,
the PCRA court earlier in the
when it states that
Callery,
even
Dr.
without
of
the evidence was sufficient.
Thus,
agree
Majority’s
appellant
I
with the
observation that
cannot
by
alleged
prejudiced
that he was
establish
counsel’s
ineffective-
32-35,
Majority Op.
ness. See
61
362, 120
1495,
tions,
as
v.
529 U.S.
S.Ct.
Taylor,
such Williams
Smith,
510,
(1999),
123
v.
539 U.S.
Wiggins
The Amendment criminal Sixth entitles defendants to the is, “effective assistance of counsel”—that representation fall an objective does not “below standard of reason- in light ableness” That “prevailing professional norms.” necessarily particular standard is one. “No set of general detailed rules for counsel’s can satisfactorily conduct take account the variety of circumstances faced defense range legitimate counsel or the decisions how regarding best to a criminal represent defendant.” Restatements of standards, we can useful as professional recognized, have be entails, to what but to the “guides” only reasonableness they extent describe the norms when professional prevailing took representation place. Hook, at-, Furthermore, at 16.2 Van 558 U.S. 130 S.Ct. *50 opinion only Van Hook stressed that reasonableness can Although separate concurring opinion 2. Justice Alito wrote a in one case, began responsive opinion by stating, join per he “I the Court's
62 prevailing professional be assessed light norms at the time by of trial clear that making a court should not look to ABA guidelines that were eighteen years announced after Indeed, the trial. the Court made it clear that abundantly ABA guidelines should not be treated as “inexorable com- mands” with which all capital defense counsel must fully “ but comply, means, are ‘only guides’ what reasonableness at-, not its definition.” Id. 130 S.Ct.
Additionally, the Court’s review in Wiggins, Williams and Rompilla was specifically by circumscribed the terms of the (AEDPA), Antiterrorism and Effective Penalty Death Act which authorizes federal courts to final upset judgments state only to, if the state court analysis of a federal claim is contrary of, or involves an unreasonable application existing, binding precedent High from the Court. can Observers and do debate majorities whether the court in Wiggins, Williams and Rom- were pilla faithful to AEDPA’s deference notably standard — decisions, all of these involving controlling question whether a reasonable, state court judgment objectively (1) were sharply divided. What cannot be that: debated is cases did not to break new purport ground; constitutional (2) us, they decisions bind are important because cases, those like the more recent pre-AEDPA decision Van Hook, stand as the High Court’s directive as to what was commanded Strickland itself. See also Porter v. McCol- lum, U.S.-,-, 447, 452, S.Ct. L.Ed.2d -(2009) (confirming capital defendant entitled to relief only if he can establish that the state court’s rejection his ineffectiveness claim was to or an unrea- “contrary involved Strickland). sonable of’ application Obviously, any court a case addressing posing materially identical hard-pressed circumstances would be to deviate from in a holding Strickland-application case decided under opinion....” give "special curiam Justice Alito would no relevance” to determining attorney's per- ABA the 2003 Guidelines in whether an required by representation formance meets the standard for effective Hook, at-,
the Sixth Amendment. Van
558 U.S.
63 Porter, relief was war- supra (explaining AEDPA. See as to “counsel Wiggins because the case was similar ranted or witnesses interviewing the first of step did not even take records”). But, easy there is no frankly, quite requesting with faith decisions good to the of what to do question answer in the between when the Court by long years rendered courts it in then announced what and announced Strickland Williams, Wiggins, Rom- necessarily meant in cases such as long interreg- In that pilla, and now Hook and Porter. Van ren- num, may in faith have perfectly good courts operating in with of now seem to be tension some dered decisions that Strickland-application the later decisions. Court’s Strickland-application by the decisions Theoretically, since law, continuing no new the purport definition establish by validity of should be measurable pre-Wiggins decision fact, High of point Strickland itself. comparison Wiggins much its and signaled commenting Court as when on in standard in Van Rompilla light decisions Strickland by Hook stating: in attorneys
This is not a case which the defendant’s failed powerful to act while evidence stared potentially mitigating face, U.S., them in 539 at 123 Wiggins, S.Ct. cf. 2527, or any would have been from documents apparent obtained, attorney reasonable would have Rompilla cf. Beard, 389-93, 545 162 125 S.Ct. L.Ed.2d U.S. (2005). case, itself, like in 360 It is instead a Strickland more” mitigat- which defense counsel’s “decision to seek “than ing background already evidence from defendant’s professionally was in hand” fell “well within the range reasonable judgments.” Hook, at-, Similarly, at 19. 558 U.S. 130 S.Ct.
Van Porter, guided by inquiry the Court was clear that Supreme “unreasonably whether Florida Court applied Porter, -, 130 S.Ct. at U.S. Strickland:’ added). Thus, jurisprudence recent con- the most (emphasis as ultimate test which we firms that Strickland remains the must of ineffectiveness. a court measure claims my
For part consistently with the High Court’s most recent pronouncements, I do not required believe we are jettison past approaches, or analyses, holdings this (1) cases, they Court’s Strickland unless: are squarely pre- Court, aby Supreme cluded decision from the such U.S. as Strickland, decision; which existed when we rendered our or (2) it beyond is reasonable debate that our is decision both materially to, to, identical one contrary later *52 case, Strickland-application decisions. this I have no diffi- culty with Majority’s the our application precedent. of
Second, the Dissenting Opinion with expresses concern ap- pellant’s argument that the of appellant’s admission written “background history materially and statement” was prejudi- cial, and that suggests strategy trial counsel’s in proffering the 68, statement “seriously misguided.” Op. was at Dissenting 987 A.2d at Although admission of the ultimately cause, may statement not have I appellant’s advanced would merely add that counsel’s statements at the PCRA hear- reveal that he was ing struggling with the manner in which he proffer could appellant’s version of the events leading up to on the in night question, since appellant had refused to N.T., 10/27/08, testify. at 78. Counsel believed that the best to do was way appellant just this urge things as it “[tell] a by writing words, [sic]” was statement in own his explaining leading up the events to and on the in question. Id. at night counsel, 66. Based on the facing circumstances I would not respect find counsel ineffective with to this decision. joins EAKIN concurring opinion. Justice this SAYLOR, dissenting. Justice dissent, it appears majority opinion I since to me that the sufficiently arguments does not address material or conform in a of prevailing law number areas.
Guilt Phase
I—The
first
claim
majority
rejects Appellant’s
Claim
of
deficient
in
stewardship
investigation
presentation
of
victim
of passion,
evidence
was killed in
heat
that, even if
reasoning
Appellant’s additional evidence were
credited, “it is clear
evidence still was insufficient to
conclude that the
was committed in the heat of
killing
passion
as the record is devoid of evidence that at the time the victim
murdered,
was
a
or in-
acting under
sudden
passion brought
tense
on
the victim.”
Majority Opinion
rationale, however,
In this regard, majority’s substantive analysis concern- ing the unavailability heat-of-passion defense also does not take into account: whether any there is role for individual (such characteristics of the defendant in the analysis as wheth- er a mentally defendant is retarded or damaged); brain extent to which the cumulative of a impact series events may be considered in assessing provocation, see Common- McCusker, wealth 448 Pa. 389 & n. 292 A.2d (1972); n. 8& or various of the actual events alleged by *53 and, another, to one or degree reflected in evidence of record. These include Appellant’s release from incarcera- tion a short time before his initial killing; residence with mother; victim’s, his Appellant’s daughter’s, and her sister’s efforts to him alleged entreat back into a relationship victim; (cid:127)with the emotional uncertainty but eventu- al acquiescence; the service of a support order on Appellant day on the of the killing; allegation the victim previously had aborted another during man’s child the mar- riage; wounds, the number and nature of the victim’s and/or which support tend to his theory that he lost control.1 I also differ with the majority’s characterization of the above circum- presented judge hearing, 1. the statement penalty to the trial at the and in his penalty-phase post-conviction conversations with the and experts, Appellant immediately precipitating also related that the event killing just having engaged was the victim's after in indication — sexual relations with he was to leave the marital —that moving residence and that another man would be in with her. See N.T., 2, 1997, D-4; N.T., 29, 2003, October Ex. October at 446.
stances, finder, to the be a fact degree they might accepted by history as to “a of minor and being analogous disputes allega- 22, infidelity.” Majority tions of at 987 A.2d at past Opinion reasons, For the above and the absence of a more directed assessment of as summarized Appellant’s arguments above, join majority’s disposition I am unable to of the first claim. rejects next the claim that majority
Claim 2—The
counsel was ineffective for
and
failing
investigate
present
testimony to rebut the Commonwealth’s assertion
expert
the victim was
trial counsel’s belief that “the
raped, crediting
evidence
it
clear to him that no
occurred
pellucidly
rape
made
...
belief that
who reviewed the evidence
anyone
his
conclusion he did.”
at
Majority Opinion
would draw
same
counsel’s,
Declaration of an inaccurate based on disposition support 2005. I cannot a claim. characterization of
Penalty Phase
trial coun-
claim that his
resolving
8—In
Claim
avail-
present
failing
investigate
was ineffective
sel
*55
able mitigating evidence
during
penalty
hearing,
ma-
jority initially appears to
approve
counsel’s investigation.
See Majority Opinion
47-49,
at
The
next couches the post-conviction evidence as
merely cumulative of the evidence presented at trial. See
Majority
47-49,
Opinion
believe,
The majority also credits trial counsel for presenting Appel-
lant’s written “background history and statement” concerning
Appellant’s life history, the
abuse
observed and was
subject to while growing up, as well as evidence of his drug
47-49,
use. See Majority Opinion at
[T]rial counsel affirmatively harmed Appellant by present ing to the Court a “statement” by hand-written which could not possibly have aided his case for life. The statement ... contained numerous profanities below, separate question, It is a degree discussed whether enough justify finding difference prejudice. Presently, my is a majority’s focus is on the cumulativeness determination. delibera sentencing the trial court in its by was interpreted for the incident to shifting responsibility tions as statement, in a vacuum and presented deceased. Such any explanation paranoia psychiatric without formative during years, his rage developed Appellant as both have been construed the court easily could remorse.[fn] fact, in its sentenc and void of *56 disrespectful decision, “I take note of the the lower court stated also ing lack of remorse of the defendant in connection with the total ... me that the defendant has ex homicide troubles [I]t no in connection with this pressed remorse whatsoever fact, in in the penalty phase hearing, crime. And of the letter that was handed that most of up basically implied belonged the fault on the victim in connection with this 10/27/97, matter.” NT at 10-11. [fn] The tactically presentation of letter harmful that one this is so handing judge. if
wonders counsel read it before it over to the Brief for at 86-87 in (emphasis original).
In line with a review of Appellant’s argument, statement confirms that the it to a fact strategy presenting finder seriously misguided, was because the statement con- a For it inflammatory example, tains multitude remarks. is victim, replete upon judge with blame cast which the trial both at and in the conveyed sentencing post-conviction pro- See, N.T., 28, 2003, was offensive. at ceedings e.g., October comment, “I’m not (reflecting judge’s trial/PCRA going just to sit here and listen to this woman be trashed present passion mitigated testimony.”). this heat of defense Further, trial counsel at the although attempting penalty was in the heat of hearing portray killing having as occurred reflects a far and more passion, starkly deeper statement on for the victim’s life. disregard, Appellant’s part, entrenched See, N.T., 2,1997, (reflecting Appellant’s Ex. D-4 e.g., October victim, stating, of a assault “This is description prior upon lucky I she was she put gun Sherry’s when head and I in ad- day pissed.”). Similarly, didn’t die that cause was bar, he told a an incident at indicates dressing my man “if at the women I’m to ram you yell anymore going pool stick down throat.” your Id. when Particularly consid- ered in light of the note in Appellant penned the aftermath of the killing, the “background history and statement” suggests violent, deep-seated volatile qualities, substantial tension with the isolated, sudden, defense of an theory uncontrollable rage experienced by an otherwise non-violent individual.3 It is difficult to why envision any competent attorney put would such a statement before the fact finder the form in which it presented. regard
With to the distinct matter of trial counsel’s failure to obtain a copy support order during penalty his investigation, indicates, the majority “Appellant failed to es- tablish that he had knowledge that a support order had been issued against him.” Majority Opinion at at A.2d I believe it however, should at least be acknowledged, the support discussed order and its him impact upon in his handwritten statement presented to the trial judge the penalty N.T., 2, 1997, hearing. See October Ex. D-4. Thus, (albeit there was some evidence questionable quality) *57 of on knowledge Appellant’s part. majority
The
also
substantially
relies
on Commonwealth v.
Stevens,
171,
(1999).
559 Pa.
71 issuance), with id. at to their prior to litigated cases Wiggins J., concurring dissent- 335-37, (Saylor, at 398-99 A.2d Wiggins apply that Williams and (advancing position the ing) in cases, post- were rendered the as the decisions prior Court Supreme context and the States conviction United law). that it no new Wiggins made explained of the reasons summary, many I do not with agree of its decision to affirm presented by majority support Moreover, although the PCRA court’s verdict. penalty have it would not rendered may analysis implicitly suggest been post-conviction pre- evidence different verdict had agree I with penalty hearing, sented to court at do in the majority finding explicit opinion. that such a is See 49 n. A.2d at n. 18. Majority Opinion at Furthermore, opinion the PCRA court’s embodies a loose- in capital which is inconsistent our requirements ness -with instance, in Dr. post-conviction finding cases. For its Armstrong’s post-conviction testimony merely was cumulative Cooke, of the of Dr. which at the testimony presented the PCRA that the penalty hearing, court indicates circumstance, experts of both reflected the same mitigating it lack which described as a criminali- capacity appreciate law, 42 and conform conduct to the ty requirements 9711(e)(3). slip § Court Opinion, op. Pa.C.S. See PCRA however, opinion, The fails to passage 38.4 material M.D., Kessel, that the Julie B. recognize testimony given of an psychiatrist, support lends claim addition- that he was under the influence mitigator, namely, al at the time of his extreme mental or emotional disturbance 9711(e)(2). See, N.T., crimes, October e.g., § 42 Pa.C.S. Therefore, for the PCRA court’s at 548. the basis *58 generally on the matter erroneous. See Com- conclusion is 458, 489-90, A.2d 395 v. 600 Pa. Beasley, monwealth (2009) in the decision- imprecision on material (commenting capacity mitigator "The of the The actual of the is: 4. formulation criminality or to his appreciate of his conduct conform defendant impaired." substantially requirements law was to the conduct added). 9711(e)(3) (emphasis § Pa.C.S. of a making capital post-conviction court in a connection with remand, “We indicating, provide orderly intend to an system adjudication of post-conviction fair produces just results, governing anchored law upon and rational reason- ing.”).
ORDER PER CURIAM. NOW, December, 2009,
AND day this 29th of the Petition GRANTED, for Allowance of is Appeal LIMITED TO forth issues set below. Allocatur is DENIED as to all remain- issues, ing The rephrased clarity, issues. are: (1) 25(b) light Act City Section does
Pittsburgh subrogation against have valid claim Peti- tioner Cassandra Oliver’s settlement with third par- equal tortfeasor ty the amount of benefits that she received under Heart and Act? Lung (2) Does Petitioner immunity Cassandra Oliver have from City of Pittsburgh’s reimbursement claim under 44? 23 of Act
Section