Commonwealth v. Smith

mayor is part Harrisburg’s governing body. mayor, The as executive, has The appointment power. Council attempted assume this without appointment power holding a referendum to amend Harrisburg’s mayor-council Plan A form of govern- ment. may Optional Council not contravene the Third Class City by Charter Law selected electorate Harrisburg’s Otherwise, substitute its own definition of “governing body.” mayoral there would be few which powers Council could not usurp by ordinance. As the ordinance is with irreconcilable Law, Optional Third it City Class Charter is void. void,

Because the ordinance is Council’s purported appoint- void, ments made to the ordinance are pursuant likewise appointees Council’s are not entitled hold seats on the Board of the Harrisburg Authority.

The trial court’s order is affirmed.

Jurisdiction relinquished.

Justice GREENSPAN did not in the participate decision of this case. CASTILLE, SAYLOR,

Chief BAER, Justice Justices TODD and join opinion. McCAFFERY

995 A.2d 1143 Pennsylvania, Appellee COMMONWEALTH of Wayne SMITH, Appellant.

Supreme Pennsylvania. Court of

Submitted Dec. 2004. May

Decided Lev, Nolan, Wayne for Smith. Brian Shawn Stuart Toal, III, of for Commonwealth Amy Zapp, William R. Pennsylvania. EAKIN, BAER, CASTILLE, C.J., SAYLOR,

BEFORE: McCAFFERY, MELVIN, TODD, ORIE JJ.

OPINION EAKIN. Justice him denying pursu- from the order relief

Appellant appeals (PCRA), 42 ant the Post Relief Act Pa.C.S. Conviction relief, and guilt phase §§ We affirm the denial of 9541-9546. relief, for a new penalty phase remanding reverse the denial of hearing. penalty related degree was with first murder and

Appellant charged young death of a woman resulting strangling offenses from trial, in a creek.1 At the Common- body dumped whose transcribed, tape-recorded wealth statement presented rights, after his Miranda2 appellant gave police waiving victim; he stated the killing which admitted in exchange drugs, victim to have sex with him agreed her, he became fearful when he to have sex with attempted him so he her and rape, strangled dumped she would accuse Smith, in a creek. at 1089. body nearby acting claimed he was under a cocaine-induced thus unable to killing at the time of the and was psychosis id. See murder. degree form the intent for first specific underlying disposition 1. The facts are detailed in our Smith, appeal. Commonwealth v. 694 A.2d direct See (1997). 1088-89 Arizona, 384 U.S. 86 S.Ct. 16 L.Ed.2d 694 2. Miranda (1966). admitted his to third murder guilt degree urged jury degree the to find the evidence of reduced the psychosis defense, of murder from first to third.3 Id. In of his support Berman, Dr. appellant presented testimony Perry the a licensed psychiatrist regarding who testified cocaine-induced psychotic Upon objection, disorder. the Commonwealth’s the trial court precluded appellant offering testimony from the another psychiatrist, George Woody, finding Dr. such testimo- Id., ny would be cumulative of Dr. Berman’s. 1090. Dr. was not at the Woody present ruling, having time of this been detained in Philadelphia.

The rebutted Dr. Berman’s with testimony Commonwealth Cohn, that of Dr. Richard a forensic toxicologist pharma- cologist. although Cohn testified that the level of cocaine in appellant’s blood at the time of the murder was not ascer- tainable, victim, if he the had consumed same amount as the amount in found the victim’s blood was insufficient to induce Id. He further psychosis. opined appellant’s ability clarity surrounding recall with the events the victim’s death was inconsistent with psychosis, appel- cocaine-induced lant’s intent specific negated by ingestion. his cocaine Id., at 1090-91. to introduce Dr.

Appellant again sought Woody’s testimony, this time to rebut Dr. the correlation between regarding Cohn amount and cocaine-induced dosage psychosis, and to opine regarding body. cocaine’s effects on the at 1091. Upon objection, the Commonwealth’s the trial court again such as cumulative precluded testimony of Dr. Berman’s. Id. At penalty phase, to estab- sought Commonwealth 9711(d)(12) § lish the circumstance in 42 aggravating Pa.C.S. (defendant has been voluntary manslaughter, convicted of as § defined in 18 2503 or substantially equivalent Pa.C.S. crime any jurisdiction issue);4 in other before or at time of offense at § provides being voluntary drugged 3. 18 Pa.C.S. condition is however, charge; not a defense to a criminal evidence of such condi- may degree tion be offered to reduce the of murder. sought aggravating prove 4. The Commonwealth also circum- 9711(d)(6) (defendant killing during § stance in 42 Pa.C.S. committed file of the court to the admission stipulated defense counsel conviction manslaughter prior regarding appellant’s circum- mitigating sought prove Defense counsel (defendant 9711(e)(2) was under influ- § in 42 Pa.C.S. stances icL, disturbance), mental or emotional ence of extreme (defendant’s 9711(e)(3) criminality of capacity appreciate § law requirements conduct to of to conform his his conduct or 9711(e)(8) id., (any § other and substantially impaired), was character and defendant’s mitigation concerning of evidence appel- that offense) specifically, circumstances of record and — childhood, an and an addiction abusive problem, lant had the testi- presented the crime. showed remorse for Counsel job the from a manager mother and case mony of attended; jury the also heard Dr. training program appellant having the Commonwealth Woody’s videotaped testimony, objections. previous withdrawn its 9711(d)(12) § aggravator The found the jury 9711(e)(2) (e)(8) established; it § were deter- mitigators5 outweighed mitigat- circumstance aggravating mined the 22, May to death appellant circumstances and sentenced ing 1995. one of the issues he raised

Appellant appeal; filed a direct him to refusing permit was that the trial court erred We testimony during guilt phase. present Woody’s raised, claim, rejected this with all other issues along Smith, supra. of sentence. judgment affirmed petition appeal filed a before his direct PCRA final; it without After prejudice. the PCRA court dismissed denied, Pennsylvania, see 525 U.S. certiorari was Smith (1998), 118, filed a appellant pro 142 L.Ed.2d 95 S.Ct. appointed November 1998.6Counsel was petition se PCRA alleging trying perpetration felony), appellant killed the victim while beyond rape jury aggravator proven a her. The did not find this doubt. reasonable jury appellant a Specifically, the found was under mental or emotion- 5. disturbance, remorse and an abusive childhood. N.T. al and had some Trial, 5/22/95, at 152. warrant, appellant was to be executed the week to a death Pursuant 13, 1998; emergency stay an motion for of December he filed raising an amended claims of trial court petition,

and filed trial counsel. Following error and ineffective assistance of petition. appeal court denied the This hearing, PCRA followed. of review of the denial of relief is

Our standard PCRA well we examine whether the court’s determi settled: PCRA free of supported by legal nation is evidence and is error. Williams, Commonwealth v. 732 A.2d (1999). relief, To be entitled to PCRA must estab lish, evidence, by a of the his conviction or preponderance sentence resulted from one or more of the enumerated errors 9543(a)(2), § or in 42 defects found Pa.C.S. his claims have not waived, id., 9543(a)(3), previously litigated § been or and “the trial, failure to litigate prior during issue to or during unitary review or on appeal direct could not have been the rational, any result of or tactical strategic by decision counsel.” 9543(a)(4). Id., § An issue is if previously litigated “the in highest appellate court which the could have petitioner had review as a matter of has ruled on the right merits of the 9544(a)(2). § issue....”

An issue underlying appellant’s one of ineffectiveness claims was raised on appeal; specifically, direct we addressed the trial court’s of Dr. preclusion Woody’s testimony during Smith, However, guilt phase. See at 1089-92. now appellant issue; counsel’s with alleges ineffectiveness connection this therefore, his issue is distinct from that raised on direct appeal previously and has not been Common- litigated. See (2005) Collins, 45, 564, 570, wealth v. 585 Pa. 888 A.2d 573 (term 9543(a)(3) 9544(a)(2) §§ “issue” as used in “refers to the discrete that was on direct legal ground appeal forwarded relief’; and would have entitled the defendant to ineffective- ness claims are distinct from claims raised on appeal, direct and must be treated wholly independent underlying as error). claim of petition. Stay granted

execution the date he filed same his PCRA was 4, December 140 waiver, issues were none of

Regarding this would waive ordinarily, appeal; raised at trial or on direct trial counsel’s ineffec claims of trial error and underlying raise claims tiveness, generally required as is appellant first opportunity at the performance based on trial counsel’s 9544(b); § 42 Com he has new counsel. See Pa.C.S. when (1977).7 Hubbard, 259, A.2d 687 472 Pa. 372 monwealth v. However, represented appellant defender’s office public rule, a general appeal. at trial and on direct “[A]s both the ineffectiveness of another may argue defender public appellate defender’s office since public member of the same counsel, essence, a claim of his to have asserted is deemed Green, v. 551 Pa. or her own ineffectiveness.” Commonwealth (1998) 382, v. 88, Cip 384 Commonwealth (quoting 709 A.2d (1995)); tak, 112, 1161, see also Pa. 665 A.2d 1161-62 542 Bond, 33, 2 Pa. 819 A.2d 39-40 n. v. Commonwealth (2002) (same). his claims related to trial raised stewardship defender’s trial at the first public error and the by public was de longer represented no opportunity for which he received new petition, fender—in his PCRA 581 Pa. Hughes, counsel. See Commonwealth v. appointed (2004) (when n. 7 865 A.2d by appeal, same counsel at trial and on direct represented coun opportunity challenge prior is first proceeding PCRA analysis of such issue does not involve stewardship, sel’s claim). Therefore, required he was not layered ineffectiveness by appellate his claims coun “layer” pleading proving to raise claims of trial counsel’s failing sel’s ineffectiveness for Rush, ineffectiveness.8 See Commonwealth Grant, 48, (2002), abrogated 813 726 7. Commonwealth v. 572 Pa. A.2d rule that ineffectiveness claims based on trial counsel’s Hubbard’s opportunity where a defendant performance must be raised at the first counsel, new and instead held a defendant "should wait to raise has of trial until collateral review.” claims of ineffective assistance counsel Grant, trial, appeal, at 738. At the time of direct and PCRA decided; therefore, however, proceedings, Hubbard still Grant was applied. alleged petition, appellant We in his PCRA as well as in his brief note Court, failing prior were ineffective for to raise to this that "all counsel prior stages presented at all of the PCRA [here] case[.]” the issues Petition, 7/10/00, 90; Brief, Appellant’s at 2.

141 (2003) 651, McGill, A.2d 656 574 (citing Commonwealth Pa. 1014, (2003) (when 574, 832 A.2d 1022 court is with faced claim, “layered” ineffectiveness viable only ineffectiveness counsel, claim that is related to most recent coun- appellate Bond, (where sel)); J., (Saylor, see also at 53 n. 3 concurring) same attorney represented at trial and on direct appellant unnecessary it is appeal, independently consider steward- ship of direct counsel issue appeal regarding presentation and preservation).

To be entitled to relief on a claim of trial counsel’s ineffectiveness, must prove underlying claim is merit, of arguable performance counsel’s lacked a reasonable basis, and counsel’s ineffectiveness caused him prejudice. Pierce, 186, 203, Commonwealth v. 567 Pa. 786 A.2d 213 (2001); Pierce, 153, see also Commonwealth v. 515 Pa. 527 (1987). Prejudice A.2d 973 in the context of ineffective assis tance of counsel means demonstrating there is a reasonable that, error, probability but for counsel’s the outcome of the would have proceeding been different. Commonwealth v. Kimball, 299, (1999). 326, 555 Pa. 724 A.2d 332 This standard is the same context PCRA as when ineffectiveness claims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Basemore, Commonwealth v. 744 A.2d 738 n. (2000) Rollins, 23 (citing Commonwealth v. Pa. (1999)

A.2d (ordinarily, post conviction claim of ineffective assistance of may counsel be denied by showing petitioner’s evidence fails to meet one of any prongs three for claim)). issues, We turn to appellant’s reordered for ease of discussion.

Suppression Appellant claims the trial court erred in his denying motion confession, his suppress counsel was appellate ineffec- tive for failing to raise this issue on appeal. direct asserts he was unlawfully invalid, arrested on the basis of an warrant, expired police failed to honor request him; therefore, unlawfully counsel and interrogated his incul- arrest should have been following made patory statement suppressed. showed hearing at the suppression

The evidence presented home, based warrant for appellant’s obtained a search police brother, Jeffrey, with they had on conversations told Jeffrey police appellant William. Jeffrey’s nephew, and Fairmont automobile a woman a Ford strangled told him he body Jeffrey in a creek. and threw her belonging to William came to his house -with appellant told him also stated William the murder and asked to borrow day a woman on the of car; recognized newspaper photograph later William who was with William appellant. the victim as the woman car; to search his Jeffrey’s story police and allowed verified matching and hair they orange lipstick found a tube of black, who is often police appellant, victim’s. William also told Walkman; the victim was last seen alive Sony carried a a black man accompanied by and wearing orange lipstick a Walkman. carrying 8, 1994, December officers obtained a warrant to search

On relating for evidence to the murder. When appellant’s home arrived execute the warrant and announced their they in the they standing saw who had been presence, appellant, room, police appellant run The found living upstairs. clothes; bedroom, him they escorted downstairs changing they what believed to be an placed him under arrest on an assault. warrant for unrelated sexual Unbe- outstanding officers, this warrant had been served on knownst to 2, 1994, charges November and the assault had been appellant at the appear prelimi- dismissed because the victim failed mistakenly the sexual assault warrant was left nary hearing; in the active warrant bin. station, police appellant given at the

Upon arriving Miranda a waiver form. He warnings signed gave police evening a statement he met the victim the indicating murder, with her when her friend would not parted ways but police appellant allow them inside her home. When informed with the victim in information that he was later seen they had car, right invoked his to remain silent William’s him in a cell based requested placed holding counsel. Police warrant, on which not learn was they the inactive assault did later, until the Four a detective following day. invalid hours with appellant being charged informed he was arrested and walking away, the victim’s murder. As the detective was talk, him appellant again told he wanted to so the detective him Miranda another gave warnings appellant signed and waiver form. the Appellant began relay the details of detective; murder to the the a paused detective to obtain tape-recorder gave a third Miranda appellant warning. waived his an Appellant again rights gave incriminating statement, tape-recorded admitting killed victim. It is undisputed appellant’s expired arrest on “ however,

warrant was illegal; not ‘all confessions or admis sions secured from an illegally person arrested are se per ” inadmissible as trial evidence.’ Commonwealth v. McFeely, (1985) 394, 167, 509 Pa. 502 A.2d 170 (quoting Commonwealth 175, Bishop, 661, (1967)); 425 Pa. 228 A.2d 665 see also Ceccolini, 268, 1054, United States v. 435 U.S. 98 S.Ct. 55 (1978); States, L.Ed.2d 268 Wong 471, Sun v. United 371 U.S. (1963). 83 S.Ct. 441 L.Ed.2d Whether such evidence is case, admissible depends on the facts in each considering following factors:

(1) (2) whether Miranda were warnings given; “tempo- (3) confession”; ral proximity of the arrest and the “the (4) circumstances”; and, of presence intervening pur- “the pose flagrancy of the official misconduct”. The volun- is, course, tariness of the statement of require- threshold ment, and the confession must also be “free of element any of coerciveness due to the unlawful arrest.” at 170 McFeely, (quoting Bogan, Commonwealth v. (1978) (citations omitted)). 393 A.2d

The PCRA court concluded the facts set forth in the affida- vit probable of cause for the provided search warrant suffi- cient information for the reasonable belief that a murder therefore, occurred and was the appellant perpetrator; police had probable cause to make a warrantless arrest of appellant warrant. See PCRA Court executed the search they

before ¶¶ 23-24, further con- 12/31/03, 41-42. The court Opinion, arrest, his cluded, appellant’s legality regardless arrest, time after made a short voluntarily was statement and the rights, waiver of Miranda to a pursuant proper was a an invalid warrant executing misconduct in officers’ ¶ mistake. good-faith Bogan, we conclude the factors enumerated Under legality of the voluntary, regardless confession appellant’s times, three warnings Miranda given of his arrest. He was a few hours Only elapsed waiving rights. each time confession; although he had arrest and between counsel, interrogating him as police received ceased yet contact only police was made. The request soon as the in after his was when detective request had charged for the murder and being formed him he was arrested crime; any response this was not to elicit designed with that “the appellant The testified he told appellant. from detective taken would be typed up [appellant] would be paperwork evening.” Sup later that N.T. [j]udge before the sometime 3/9/95, turned to at 161. As the detective pression Hearing, said, “I to Id. This you.” walk want to talk away, appellant any question posed by not in response statement was detective, removed from the immediately who had him holding rights, emphasizing cell and readvised Id., 161-62, at 166.9 for counsel. appellant’s prior request all of his willing rights, indicated he was to waive Thus, offer to talk to gave appellant’s and then his statement. conduct. by police was not elicited police Furthermore, to use the police expired did intend crime; arrest for the instant appellant’s warrant to effectuate rather, error, they mistakenly an administrative be- due to appellant’s testimony suppression did not find credible that 9. The court crime, implicated him in the the detective advised him his brother had him, jury if enough for a to convict and that his brother’s statement was truth, got help drug prosecutor would for his he told the see containing drug parapher- problem, apparent by pouch made a leather Suppres- during appellant’s N.T. nalia found the search of home. See 3/9/95, 210-15, 232, Hearing, 235-37. sion lieved the warrant was still outstanding. police The lieutenant working investigation on the murder testified it was depart- mental to check the practice warrant bin—a file cabinet containing active arrest warrants —for outstanding warrants for persons they whose residences were to search. going executed, an arrest warrant Once has been it bin; however, should be removed from the proce- there were problems dural which did not always make such removal Thus, immediately possible.10 the warrant which appel- under arrested, invalid, lant was although was not fabricated to secure arrest in order appellant’s to coerce his confession. id., 144; U.S., 135,-- see also v. Herring See 555 U.S. -, (2009) (exclusion- 695, 702-04, 129 S.Ct. 172 L.Ed.2d 496 ary rule not where search applicable incident arrest was made on warrant was police thought outstanding but had been recalled; police recordkeeping error was not result of system- atic error or reckless disregard of constitutional require- ments). Accordingly, confession voluntarily given meritless, and was admissible at trial. As this issue is counsel cannot be deemed ineffective for to raise it on failing Carson, direct appeal. See Commonwealth (1999) (counsel A.2d cannot be deemed ineffective for claim). failing raise meritless

Guilt Phase Appellant next claims his rights process to due and counsel were violated when the trial court precluded Assistant Public Defender Shawn from McLaughlin sitting at counsel table defender, Williams, with the other assistant public Ray who case; was lead in appellant’s counsel he appellate asserts counsel should have raised this issue on direct Attor- appeal. ney McLaughlin assigned shortly before trial to assist Attorney in investigating Williams for preparing 10. The already lieutenant testified if a constable served the warrant and it, bin, copy pulled had a of the active warrant would not be from the or might neglect pull an officer to the warrant once the arrestee was Id., brought headquarters. Although into at 136. the list of active updated computer system by warrants would be in the the district clerk, justice’s update always immediately upon did not occur arrest, id., 137-38, police computer and the was not linked to the justice’s system. computer district at 140.

146 Attorney not permit The trial court did penalty phase. dire, her in con- in voir and held to McLaughlin participate courtroom, over late and entered the when she arrived tempt officers, sealed after the courtroom was court by protestation testimony. At the defense videotaped for the of playing to Attorney petitioned Williams of the guilt phase, conclusion concerns; because of certain of ethical withdraw on the basis in confidence contin- good he evidentiary rulings, “[could not] flawed in fundamentally in a so proceeding ue as counsel 5/19/95, Trial, The N.T. at 10. constitutional procedure.” petition. trial court denied the to willing represent indicated she was

Attorney McLaughlin advocacy but her penalty phase, suggested in the appellant in voir by participating have her not may prejudiced been ; comfortable with her as lead dire indicated was appellant Williams, Attorney howev- during penalty phase. counsel er, for withdrawal and continued as petition then withdrew his claims the trial penalty phase. Appellant lead counsel in critical participating portions court co-counsel from impeded later to have her take over as lead sought of the trial and counsel; there was no discussion or argues colloquy he further conflict would Attorney whether Williams’s ethical regarding penalty phase. hamper representation trial court’s interference appellant claims the Accordingly, with counsel of a new relationship requires grant with his trial. contention, the trial court

Contrary with his -with counsel. relationship “[A] did interfere maintain in the authority has the judge responsibility orderly the fair and atmosphere courtroom the appropriate presented.” of the issues Commonwealth Ches disposition (citation omitted). (1991) ter, Pa. A.2d trial, informed the Attorney At the Williams beginning role would be: Attorney McLaughlin’s court what will be McGlaughlin Well it’s not correct that Ms. [sic] handling I will be the death handling phase[.] the death however, assigned has been McGlaughlin Ms. phase; [sic] not as if me in for that So it’s she preparing phase. assist will be the or the conducting presentation, testimony, argu- phase. ment of the death Trial, 5/15/95,

N.T. at 22. In not having Attorney McLaughlin dire, sit at counsel table or in voir the trial court participate simply ensuring attorneys the adhered to the arrange- trial; Attorney ment role in the in regarding McLaughlin’s no way did the court interfere with appellant’s right to counsel or with Attorney McLaughlin’s ability to assist lead counsel. Furthermore, the court was well within its discretion in hold- Attorney ing McLaughlin contempt when she arrived late sealed, for court morning on the were disre- proceedings garded posted security personnel, and entered the court- room in violation trial court’s order.

Regarding appellant’s representation at the penalty phase, the arrangement from the beginning was that Attorney trial; Williams would handle both of the it phases was not until his petition eleventh-hour to withdraw that appellant was faced with the prospect of having Attorney McLaughlin repre- sent him at the penalty This phase. was not the trial court’s doing; court informed Attorney Williams: Well, Williams, Mr. you will You proceed. are an officer of if you Court and don’t will proceed, you be contempt. Now, bench, I think that our oath to this to this bar requires oath, us to proceed further. I don’t think in any way, ethical, moral, whatever, whether it be for or allows an that once attorney they have embarked a course of upon conduct to then their change say mind and because of ethics they Williams, can withdraw.... you, And when Mr. took your case, oath to come before this try you Court and this took it to come try before and this case with the rules as you believed them and the as know ruling you the Court might you expected or would And if it give. give did not they those rulings way you expected they would be [sic] given, that is quell doomage say. as the French [sic] What if you with the case. And will continue you because pity,

don’t, contempt. are in you 12,16-17. Trial, 5/19/95, at

N.T. to handle the Attorney McLaughlin willing was Although with stated he was comfortable appellant penalty phase, Attorney that the court was concerned arrangement, if she’s ever ... I don’t even know was “new and McLaughlin Thus, the trial at 14. penalty phase----” a death handled representation; with to appellant’s right court did not interfere rather, would receive consis- attempted appellant it to ensure exasperated by the court was advocacy. Understandably, tent counsel’s to sow the attempt what it as defense perceived claim, where creating ineffectiveness a situation seeds of an counsel who had option representation by appellant’s only id., 33, 36, See 38-39. in the trial participated phase. with- withdrawal of his to Upon Attorney petition Williams’s draw, with any problem the court asked if he had appellant indicated he “felt com- arrangement; although appellant objection he voiced no Attorney McLaughlin, fortable with” id., See Attorney penalty phase. Williams conduct having appellant’s we no interference with perceive at 40-41. As counsel, meritless, counsel cannot be right to this claim is Carson, ineffective. at 697. deemed failing next trial counsel was ineffective for claims object following or seek a instruction a Common- cautionary reference to his silence. On post-arrest wealth witness’s examination, direct Detective List testified that after he wrote statement, refused to it appellant sign down initial because it incriminate him: might opportunity Did offer you [appellant]

[PROSECUTOR:] had, fact, that statement that he sign signifying reviewed it and that the information contained therein was true accurate? Yes, I him if he would it sign I did. asked

[DETECTIVE:] if it was correct. you Do recall the exact words that you

[PROSECUTOR:] used, if know? you No, I don’t.

[DETECTIVE:] response? What was his [PROSECUTOR:] He sign [DETECTIVE:] refused to it. Did he tell you why?

[PROSECUTOR:] Yes, he said that the may [DETECTIVE:] statement in- criminate him. your Was that the end of conversation

[PROSECUTOR:] with him at that point time on December 1994? Yes, at that point [DETECTIVE:] he was taken down to the holding area in the Chester Police Station. Trial, 5/17/95,

N.T. at 40-41. cross-examination, On trial counsel asked the detective if he any had further conversation with after appellant statement; sign refused to the replied detective he did not: List, Detective you

[COUNSEL:] have said that at the point when [appellant] refused to sign the form it stating would incriminate him you had no further conversation with him. you positive Are about that? Yes, as best I recall.

[DETECTIVE:] Id., at 42-43. Appellant claims this testimony constituted impermissible reference to his invocation of his right against self-incrimination.

“An impermissible reference to an post- accused’s arrest silence constitutes reversible error unless shown to be nature, harmless.... Because of its an impermissible refer ence accused’s post-arrest innately silence is prejudi Costa, cial.” 95, Commonwealth v. 560 1076, Pa. 742 A.2d (1999) (citation omitted). 1077 rule, To violate this the testi mony must clearly post-arrest refer to silence. Common Mitchell, (2003). wealth v. 576 Pa. 839 A.2d If such reference clearly verdict, did not contribute to the howev er, the error may be deemed harmless. at 214-15 (citing (1978) Commonwealth v. Story, 383 A.2d (factors to consider in determining whether error is harmless include: whether error prejudicial, was and if prejudicial, minimis; erroneously whether de was prejudice

whether untainted, of other merely cumulative admitted evidence evidence; of guilt or whether evidence substantially similar admitted and by properly overwhelming, as established was so evidence, of error was that effect prejudicial uncontradicted insignificant)). detective, refusal to referring appellant’s

The it, transcribed was not after the detective his statement sign ap silence as evidence of post-arrest referencing appellant’s silence, was not on emphasis appellant’s pellant’s guilt; Further, incriminating his initial statement. but rather on exercise of his appellant’s if a reference to even viewed as silent, light error was harmless any to remain right gave himself to his brother and fact incriminated his refusing sign confession after tape-recorded police confession; therefore, were properly these statements initial not strangle never contended he did Appellant admitted. victim; with sufficient intent to he contended he did not do so defense was degree Appellant’s convict him of first murder. it, crime”; “I but it was “I not commit the it was did not did issue; Thus, was not at premeditated.” appellant’s guilt admitted evidence of properly was. The degree guilt any that guilt overwhelming prejudice was so Story, error was by alleged insignificant, caused 164-68, ineffective for to raise failing and counsel cannot be deemed Carson, at this meritless issue. improperly next claims the Commonwealth Cohn, toxicologist, of its credibility expert

bolstered the examiner Dr. Dimitri Conto testimony the of medical through savlos; failing trial counsel was ineffective for he contends object or an instruction. request

The Dr. Contosavlos as follows: prosecutor questioned your attached to Medical Now there is [PROSECUTOR:] that correct? toxicology report, Examiner’s a is report Yes. [WITNESS:] that toxicolo- significance What is the

[PROSECUTOR:] sir? gy report, in the It indicates that there was found dece-

[WITNESS:] system presence dent’s the of both alcohol and cocaine and products broken down of cocaine. And who made that determination?

[PROSECUTOR:] It was Dr. Lictenwalner of the Drug Scan [WITNESS:] Laboratory. normally Do send to the you samples

[PROSECUTOR:] Drug Laboratory testing? Scan for Yes.

[WITNESS:] you And do do that? why [PROSECUTOR:] they’re Because a reliable very laboratory [WITNESS:] I on them to do their work depend my office. even though you’re pa- And forensic

[PROSECUTOR:] doctor, thologist, a medical correct? Yes.

[WITNESS:] your You don’t do own toxicology. [PROSECUTOR:] No, I am not a toxicologist. [WITNESS:] that explains why you And don’t do it. [PROSECUTOR:] Yes. [WITNESS:] added). Trial, 5/17/95,

N.T. (emphasis 104-05 “Improper or for a bolstering vouching government witness occurs where the prosecutor jury assures the that the credible, witness is and such assurance is on either based prosecutor’s personal or other knowledge information not Cousar, contained the record.” Pa. Commonwealth (2007). 928 A.2d on Appellant focuses doctor’s comment that Scan where Dr. Drug Laboratory, worked, reliable,” Cohn was “very contending this constituted Cohn, for the of Dr. who had not vouching credibility yet testified; however, read in the context of the entire exchange, why the comment was an the medical examiner explanation did not his own The perform toxicology tests. medical exam Cohn; iner did not mention Dr. the questioning focus of report, was on the information contained toxicology examiner’s findings report, based on and his examination therefore, Counsel, was not ineffective

of the victim. Carson, at 697. this baseless claim. to failing pursue challenges are related: he first next two issues Appellant’s false, “scientifically outside testimony11 Dr. as Cohn’s to, of, psychiatric, contrary generally accepted realm and Brief, knowledge[,]” Appellant’s toxicologic, pharmacologic and 9; from improperly precluded he then asserts he was at his defense Woody’s testimony to corroborate Dr. presenting Cohn, lacked a testimony the latter’s showing and rebut Dr. argues basis. trial counsel reliable scientific object testimony, to Dr. Cohn’s obtain failing ineffective for or cross- toxicologist, adequately from a testimony rebuttal Cohn, ineffective for and counsel was appellate examine Dr. Woody’s testimony of Dr. failing investigate significance the effect its had on his defense. preclusion dose-related, is psychosis Dr. Cohn testified cocaine-induced tolerance, a appellant develop and chronic users such as Trial, to induce N.T. requiring large psychosis. a dose 5/17/95, 282-85, 296-97, at 300. He cited detailed surrounding killing as clear description of events from cocaine-induced appellant psycho- evidence did not suffer Id., 288-90, Thus, 317-18. was not opined appellant sis. and was of psychosis capable from cocaine-induced suffering intent to kill. at 290-91. specific forming hearing, presented testimony At the PCRA a who testi- Gary Lage, pharmacologist toxicologist, Dr. dose-related, but rather psychosis fied: cocaine-induced is 8/8/02, use, N.T. at 24- long-term Hearing, is related PCRA 26; tolerance to the although long-term develop euphor- users cocaine, they ic effect of do not tolerance to its develop id., effect, 32; psy- a user with cocaine-induced psychotic clarity thought, paranoid pre- chosis has but has ideation id., 39-40; actions, controlling him from venting upon by scientific literature relied generally accepted Id., at 27- actually testimony. contradicted Dr. Cohn’s Cohn 29, 33-34, 39-40, of the testimony 48-50. The PCRA Com- 11. Dr. Cohn was the Commonwealth's appel sole rebuttal witness to psychosis. supra, See at 2-3. lant’s defense of cocaine-induced monwealth’s Dr. Dale expert, Caplan, pharmacologist and toxicologist, was in accord with that of Dr. N.T. Lage. PCRA 5/14/03, 32-36, 38, 40, 61-63, at Hearing, 70-73. evidence,

Appellant argues, based on this Dr. Cohn’s trial testimony was false and to contrary generally accepted scienti- Cohn, fic principles. Appellant further contends Dr. although cross-examination, on noted an exception testimony to his that dose-related, cocaine-induced was psychosis exception this where the only pertained experienced user such psychosis Trial, 5/17/95, the past, which was not the case here. N.T. at Thus, 299-301. appellant contends the court errone- PCRA ously concluded Dr. subsequently Cohn clarified his inaccurate ¶ testimony. See PCRA Court 12/31/03, at Opinion, Finally, appellant claims Dr. that opinion Cohn’s he was not from cocaine-induced suffering psychosis and was of capable forming specific beyond intent was of Dr. scope Cohn’s expertise; appellant contends the testimony PCRA Drs. Lage and Caplan agreement demonstrated their that diagnos- ing medical/psychological condition such as was psychosis not within the realm of a pharmacologist’s expertise. N.T. 8/8/02, 17-19; PCRA Hearing, N.T. PCRA Hearing, 5/14/03, 29-31, 55-56. be- Accordingly, appellant argues cause the testimony Commonwealth’s expert concerning his only state of mind—the contested issue—was neither scienti- reliable, accurate fically nor the verdict and death sentence are likewise unreliable.

Our review of the record reveals trial counsel rigor ously cross-examined Dr. Cohn the correlation concerning effect, Trial, between psychotic 5/17/95, dose and N.T. at 293- 301, 306-14, and concerning his conclusion had appellant psychosis suffered cocaine-induced because of his demonstrat ed mental clarity. 314-24. Prior to Dr. testi Cohn’s Berman, trial mony, presented counsel Dr. a psychiatrist who opined was suffering from cocaine-induced psychosis at the time of the crime and lacked specific intent to kill. disparities Counsel established the between Dr. Cohn’s testi Berman’s, mony and Dr. particularly whether a regarding person experiencing psychosis would be able to recall events Dr. with the scienti- Cohn impeached he further clarity;

with on, him to retreat from forcing Dr. had relied fic manual Cohn exception. and note an dose-relation regarding his opinion hearing that his strate- at the PCRA Trial counsel testified the defense of Dr. Berman to establish gy present rebut the Common- and then psychosis, cocaine-induced Dr. to use Woody; planned with Dr. counsel expert wealth’s cocaine, effects testify regarding specific Woody petitioner’s evaluation of testify regarding Dr. Berman to 4/23/02, at 26-29. Hearing, N.T. actual PCRA symptoms. antici- testified, faster than progressed Dr. Berman trial After in the testify Woody yet present was not pated, and case-in-chief; therefore, had the the trial court defense’s testimony regard- Dr. rebuttal present Cohn’s Commonwealth Trial counsel impeached claim of ing psychosis. Dr. Berman’s testimo- literature and Dr. Cohn with scientific Id., was Trial counsel said it his understand- ny. at 106-09. case when Dr. reopen he would be to his direct ing permitted at 93-94. How- Woody testify. arrived and have him arrived, ever, the trial court Woody finally precluded when Dr. Cohn, Dr. ruling on direct or in rebuttal to testifying him from Trial, N.T. cumulative of Dr. Berman’s.12 testimony his 5/18/95, 8,11-13. at displeasure that when the trial court indicated its

12. Counsel testified long parties taking the of whether with how were to resolve issue testify, Woody if Woody the Commonwealth stated Dr. was Dr. would witness, testifying, it need to call its final and precluded from would not 4/23/02, Hearing, argument proceed. at 51- closing could N.T. PCRA prosecutor if he had The record reflects the court asked call; prosecutor responded depended it on the to another witness regarding Woody, Woody precluded was from ruling Dr. and if Dr. any to call additional testifying, the Commonwealth would not need Trial, 5/18/95, Woody court ruled Dr. N.T. at 11-12. The witnesses. witnesses, testify, more and the the Commonwealth called no would Id.., closing argument. proceeded at 11-13. trial permitted present Dr. penalty phase, trial counsel was At the regarding testimony rebutting opinions Woody’s videotaped Dr. Cohn’s however, 5/22/95, 64-67; tolerance, Trial, N.T. at dose-relation and see 9711(e)(2) (e)(3) mitigating § testimony support this was in factors, rebutting guilt phase nothing Dr. Cohn’s and had to do with testimony. having Woody While Dr. rebut Dr. testimony Cohn’s scenario, may have been the ideal trial strategy counsel’s cannot be deemed unreasonable. Counsel cross- rigorously Cohn, examined Dr. him with impeaching already evidence admitted, and his undermining testimony regarding dose- 5/14/03, relation. See N.T. at Hearing, PCRA 36-37 (noting “stepped Dr. Cohn back” from that position psychosis was dose-related); 4/23/02, N.T. PCRA In Hearing, 108-09. face of the unanticipated trial court which ruling precluded his key rebuttal witness from testifying, counsel argued ad testimony mission of this witness’s a thorough made Id, record containing objection his to the trial court’s ruling. at 110. every by “Not choice made will play counsel out as intended; however, the test is not whether the course chosen successful, is but rather whether in that choice making there logical was a reason supporting counsel’s action.” Common Rizzuto, (2001). wealth v. 777 A.2d Dr. Regarding qualification Cohn’s to render an ex pert opinion concerning whether appellant capable intent, forming specific Dr. Caplan acknowledged “overlap” in psychiatry fields of and pharmacology/toxicology regard cocaine, the effects of ing 5/14/03, N.T. Hearing, PCRA “I think stating, any don’t there’s finite boundary with regard Id, understanding dealing with the substances.” at 29. he Although stated diagnosing psychosis diagnosis is medical doctor, id, 30-31, that must be by made a medical Caplan testified did not believe Dr. went beyond Cohn area in expertise of opining appellant psychosis was not under Id, (“You 45-46, because of his clear recall. at 50-52 might say that the basis of some things of the said [Dr. Cohn] was warranted, or not did meet the status of the literature. But I think he has—he provide is able to the opinion.”). While Dr. Cohn’s opinions regarding the between relationship dose level psychosis may have been it questionable, cannot be said his was methodology contrary generally to accepted Inc., scientific principles. See v. Grady Frito-Lay, 1038,1043-44 (2003) (scientific 839 A.2d evidence admissi ble if its underlying methodology general acceptance has in

156 States, v. (citing Frye United community) relevant scientific Blasioli, (D.C.Cir.1923); Commonwealth 293 F. 1013 (1998)). He relied on 713 A.2d Pa. Basis Thera- Pharmacological text The accepted generally of (Goodman Gilman, ed.), “bible of pharma- 8th peutics Trial, 5/17/95, opinion, in forming at N.T. cology,” clear recollection on largely appellant’s was also based which opinion The fact this surrounding killing. of the events contrary accepted to not make its basis challenged was does there was norms, Although contends. appellant as scientific with cocaine-induced person whether concerning question recall, Dr. Caplan explained of clarity would have psychosis issue, on this N.T. way studies either there were no clear 72-73; therefore, Dr. 5/14/03, 39-44, at Hearing, PCRA which there is no clear-cut on an issue for opinion Cohn’s norms. It was contrary accepted be labeled answer cannot this was credible expert to determine whether jury for reliable, framed in terms it him so. As this claim is and found ineffectiveness, is whether coun- inquiry trial our counsel’s action, key fact his rebuttal light of the sel’s course from and the Common- testifying witness was precluded was reason- opinion, rendered a questionable wealth’s witness noted, adequately trial counsel cross- able. As previously witness; as counsel’s actions examined the Commonwealth’s reasonable, ineffective- this were regarding expert (failure Rollins, any to meet one claim fails. ness claim). of ineffectiveness test defeats prong Woody’s of Dr. significance further claims the hearing, not made until the PCRA testimony apparent was Woody on Dr. to rebut explained which trial counsel he relied of Dr. Cohn Dr. and conducted his cross-examination Cohn him he would be able to later rebut more assumption with the 4/23/02, at Hearing, N.T. effectively Woody. with Dr. PCRA time, described, the first also 149-50. Trial counsel a factor moving quickly the trial as keep trial court’s desire to 36, 40, 42. Accordingly, Woody. precluding failing ineffective for appellate contends counsel buttress his claim appeal record on direct expand Dr. regarding Woody’s preclusion; he argues counsel should have an conducted extra-record investigation regarding how having Woody Dr. testify was to the de- “devastating” fense’s strategy this explaining testimony’s significance more thoroughly. noted, previously

As appellant did not raise counsel’s inef- fectiveness in connection with the preclusion Woody’s Dr. when he testimony argued the issue on direct there- appeal; fore, the ineffectiveness claim previously is not litigated. Col- lins, However, the “additional evidence” appel- lant claims appellate counsel should have discovered consists of trial counsel’s speculations about the motivation behind the trial rulings, court’s and does not change legal sound basis Smith, for excluding Woody’s testimony. See at 1091 in defense’s (noting nothing offer of showed Dr. proof Woody’s proffered testimony on direct or in rebuttal would not be cumulative). merely Furthermore, we have concluded trial counsel was not ineffective connection with the preclusion of Dr. Woody’s testimony and in his chosen tactic the face of the trial court’s adverse ruling. supra, See 21-23. Accord- ingly, counsel appellate cannot be deemed ineffective. Car- son, at 697.

Penalty Phase

Appellant next claims trial counsel was ineffective in agreeing stipulate to appellant’s manslaughter convic tion during penalty phase without first reviewing file; contents of that court further asserts trial counsel was ineffective for failing object when the prosecu tor read the probable affidavit of cause from the file to the jury during closing argument. The affidavit’s facts described a homicide more serious than manslaughter, to which appel pled Trial, 5/22/95, lant had guilty. See N.T. at 106-08 how (describing appellant “did take the machete and stab [the chest, reason”). in the victim] for no apparent contends the prosecutor used these facts to argue although appellant pled guilty the crime was manslaughter, actually intentional, an unprovoked murder. Appellant argues this evidence, which the sought Commonwealth to introduce in 9711(d)(12) conviction for (prior § aggravator of the

support irrelevant, inflammatory, was voluntary manslaughter), to the false; weight to more jury give he claims it caused the (d)(12) the found—thus jury only aggravator aggravator —the weighing process. the tainting he and the trial counsel testified hearing,

At the PCRA that, having get appellant than to rather prosecutor agreed of the prior obtain the certified record fingerprinted and conviction, prior the existence of the stipulate he would to however, 4/23/02, 68; it conviction, Hearing, N.T. PCRA the fact of only he was to understanding stipulating was his to conviction, pertaining the contents of the entire file the Id., 68-71, 115-16. When counsel realized the conviction. affidavit of reading proba- was the facts the prosecutor the cause, object, so instead he “[got] ble he felt it was too late to Id., at version of events.” right up [gave contrary his] years in his over 20 of trial 121. Counsel also testified object frequently, was not to to avoid experience, practice his keep he was informa- giving jury impression trying Id., as testimony, tion from it. at 119-20. Given counsel’s hearing at the appellant nothing well as the fact offered PCRA cause was prove probable the information in the affidavit of inaccurate, ineffectiveness misleading, wrong, appellant’s or Rollins, claim fails. at 441. next was “infect penalty phase claims a by object request jury trial counsel’s failure to or

ed” victim evi prosecutor presented impact instruction when the and on direct during guilt phase opening dence statement examination. statement, the told the

During prosecutor jury his opening with whom the testimony he would of witnesses present to her death. The prior prosecutor victim communicated stated, will provide you, snapshot “These witnesses [the young by life. was a troubled woman beset She victim’s] to make a drugs. attempting demons of alcohol and She herself, boyfriend her before she was life for her children and 5/16/95, Trial, at 17. this N.T. by [defendant.” murdered case-in-chief, During the Commonwealth’s the victim’s mother children, testified the victim had two lived with her boyfriend, Id., 148-44,146. and the two to move to planned Maryland. Additionally, a medical examiner the victim testified was three Id., 5/17/95, pregnant months at the time of her death. at 96. This evidence was into the incorporated penalty phase. 5/22/95, at 38-39.

At the time of trial appellant’s sentencing, victim impact testimony was se per inadmissible. See Commonwealth v. Fisher, (1996).13 However, 681 A.2d 145-47 prosecutor’s comments and the evidence com- Rather, plains are not victim evidence. impact such evi- dence was admissible to rebut contention he suf- crime; fered from cocaine-induced psychosis the time of the confession, in appellant’s he clearly recalled details of the life, victim’s such as her relationship with her boyfriend and her plan Maryland to move to only she could have told —facts him murder, the of the night which he only could have if remembered his mind functioning clearly was when she confided in him. The Commonwealth argued not so overwhelmed or overpowered by drugs that he lost faculties, control of his recall; as by power evidenced his therefore, the verdict should be first degree, not third degree, Trial, 5/18/95, murder. N.T. See at 101-02.

Likewise, the evidence the pertaining to victim’s pregnancy was not introduced to elicit sympathy jury, from the but to support the theory Commonwealth’s that the victim would have in engaged consensual sex with appellant, thereby sup- (d)(6) the porting aggravator committed (appellant killing while perpetrating felony, Trial, another rape). See N.T. 5/22/95, at 103-05. Accordingly, this evidence was not victim 9711(a)(2) 11, 1995, § 13. 42 Pa.C.S. was amended October effective 60 thereafter, evidence, i.e., days permit impact the admission of victim concerning “evidence impact the victim and the that death of the family victim has had on the of the victim....” Id. The amendment is however, inapplicable, sentencing hearings prior in held to its effective date, in Young, as case. See Commonwealth v. Fisher, (1999) (citing supra). 748 A.2d evidence, be ineffective and counsel cannot deemed impact Carson, claim. at 697. to raise this meritless failing in misconduct engaged the prosecutor next claims penalty phases; at the closing arguments guilt during object to failing ineffective for claims trial counsel was instructions, comments, move or cautionary seek improper a for mistrial. law in this area is well settled:

The a jury to the are not arguments Generally, prosecutor’s the unavoidable of a new trial unless granting basis for the jury, prejudice comments would be to effect such towards the hostility in their minds fixed bias and forming weighing them from prevent properly accused which would Moreover, a true verdict. rendering the evidence and alike are afforded wide latitude defense prosecution The arguing jury. oratorical flair in may employ however, must, matters upon advanced be based arguments may that any inferences upon legitimate evidence and/or Finally, any allegedly improp- the evidence. be drawn from comments must also be examined within the er prosecutorial challenged counsel. If a context of the conduct of defense closing argu- to the defense’s response remark is made ment, and hence response it will be deemed fair generally comment. permissible Abu-Jamal, Pa. 720 A.2d 110 v.

Commonwealth (citations omitted). (1998)

Additionally: must be accorded

[D]uring penalty phase prosecutor the jury his or her to the arguing position reasonable latitude in favor of the may arguing oratorical flair employ A has more latitude in prosecutor presenting death penalty. the penalty phase presumption at the since argument longer applies. innocence no (2000) 859, Bridges, 757 A.2d Commonwealth (citations omitted). prosecutor by telling jury claims the erred (1) his that: intoxication

during guilt phase closing appellant’s a common defense tactic to avoid the death defense was (2) Trial, 5/18/95, 89-91; expert, see N.T. at defense penalty, Berman, a “hired with whom he would not wish gun” id., (3) see work, 93; only at was the witness id., see murder, who could at which was a disprove testify. Ap- reference to decision not to negative with argues prosecutor jury further confused the pellant id., See an of reasonable doubt. at 106. explanation erroneous de prosecutor’s concerning appellant’s The statement fense tactic of intoxication in order to arguing voluntary nothing of murder from first to third was degree reduce works; Pennsylvania more than an of how law explanation remark the limited defense of prosecutor’s simply explained intoxication, voluntary and it constituted fair comment on the Thus, defense’s evidence. this claim is meritless.

The comments about Dr. Berman were prosecutor’s rooted in the fact this witness he worked almost testified exclusively as a defense and admitted on cross-exami expert solely nation that he relied version of the upon appellant’s in forming opinion anyone facts his and had not interviewed else. See N.T. Trial, 5/17/95, 163-64, Thus, they 207-09. trial; were fair comment on the evidence to the presented these remarks can be viewed as an of the expression extent belief prosecutor’s personal regarding credibility of a witness, appellant has failed to demonstrate these comments i.e., case, prejudiced his that the outcome of the guilt phase have they would differed had not been made. claim that the

Appellant’s prosecutor impermissibly against referenced exercise of his Fifth Amendment right self-incrimination was not raised in his or petition PCRA court, see Petition, 7/7/00, by addressed the PCRA PCRA ¶¶ 65-68, 120-28; therefore, waived, it is and we will not 302(a) (“Issues address it. Pa.R.A.P. not raised in the lower court are waived and cannot be raised the first time on appeal.”).

162 doubt, even if of reasonable explanation

The prosecutor’s erroneous, trial court’s correct instruction. by cured the to 5/18/95, jury presumed The is Trial, at 109-10. N.T. See v. Min- Commonwealth the trial court’s instructions. follow (2000). 225, 46, Accordingly, this erd, Pa. 753 A.2d 232 562 meritless, concerning claims appellant’s claim is and none him to argument entitle phase closing the prosecutor’s guilt relief. in his penalty phase the erred prosecutor claims

Appellant (1) consider future jury closing by: urging (“[H]e 5/22/95, Trial, at 106 has killed see N.T. dangerousness, I submit to before, respect, and with all due again, killed (“[W]hen you he will kill 108 stopped, again.”), if he is not you wants, what he he kills.... [T]hat don’t this Defendant give again. He killed once. He killed man there is a killer.' right (2) him.”); stops will kill until the law And he continue to jury rejection psychosis its of the cocaine-induced telling reject that it this defense phase at the mandated guilt defense (3) id., 97-98; the coroner stating at the see penalty phase, between activity appellant indicated sexual had occurred id., (4) murder, 105; see night the victim on the (5) id., 104; the victim was emphasizing pregnant, determining sense of diminishing jury’s responsibility id., at 31.14 appropriate. whether a death sentence was See a prosecutor argue It is not se error for per however, if such argument defendant’s future dangerousness; made, court, requested, it for the trial if appropriate is is Pennsyl that a life explaining an instruction sentence give v. parole. Trivigno, vania means life without Commonwealth (2000); see also 561 Pa. 750 A.2d Commonwealth (2007). Here, Moore, 937 A.2d instruction, the trial request did not such although counsel two was to jury options court informed the that one of its without imprisonment parole.” sentence to “life occurring during mistakenly cites this comment as however, closing; during prosecutor's prosecutor’s it was made phase. opening penalty at the statement Trial, 5/22/95, has Accordingly, appellant N.T. prejudice by prosecutor’s failed to demonstrate remarks. re prosecutor’s argument jury The should —that a miti ject appellant’s psychosis claim of cocaine-induced as circumstance in the because it had gating penalty phase already rejected been as a defense in the a guilt phase—was permissible argument. prosecutor The reiterated argued lesser burden of at the and then proof penalty phase, 9711(e)(2) Woody’s § did not establish the testimony (3) Id., mitigators. at 96-98. The was within the prosecutor jury’s bounds of of proper commentary arguing finding be guilt interpreted rejection theory appel could as of the lant was the evi psychosis, under cocaine-induced and that dence the presented defense did not establish appellant’s ingestion of cocaine affected his to conform his con capacity Therefore, duct. this claim is without merit.

Regarding the statements prosecutor’s concerning activity, any sexual misstatement by prosecutor regarding whether the coroner testified sexual to activity prior occurred by murder15 was cured the trial court’s instruction that arguments counsels’ were not evidence and the was the jury sole fact-finder. at 121-23.16 See Commonwealth Simmons, (1995) 662 A.2d 639-40 (prosecu tor’s inadvertent misstatement of fact during closing argument would not constitute basis for new trial where any prejudicial effect was by telling jury attorneys’ cured instruction argu fact-finder). Thus, jury ments are not evidence and is sole prejudice. has demonstrated The reference prosecutor’s pregnancy to the victim’s in support argument of his that appellant attempted her; the victim rape murdering before it was the Common theory pregnant wealth’s that a woman would not be out after testified, 15. The coroner "There was no evidence of semen in the body orifices the [victim’s] which would be the indication of sexual Trial, 5/17/95, intercourse.” N.T. at 110. opening jury

16. The trial court's to the also reminded it of instruction Trial, 5/22/95, points. these See N.T. at 23-25. in consensual sex with engage rainy night on a midnight fair argument, comment was he claimed. As this as appellant, meritless.17 this claim is jury’s prosecutor claims the diminished by penalty the death responsibility imposing

sense stating: conclude, responsi- about I want to talk a little bit

Before I you that may suggested that it be bility. I have no doubt by your collectively you responsible will be individually and That is not so. The law a man’s life. taking verdict for Murder, Degree of First if an individual is convicted says circumstances proves aggravating and if the Commonwealth [doubt], there are no mitigating a reasonable and beyond [circumstances], must be death. The law is the sentence you. the not poses sentencing, The law responsible. 5/22/95, Trial, argues at 31. these statements N.T. 320, 2633, 105 Mississippi, v. 472 U.S. S.Ct. violated Caldwell (1985), prosecutor which held where the 86 L.Ed.2d 231 that the ultimate jury responsibility to the closing suggested jury, with the but with the death sentence rests not setting courts, must subsequent the verdict be set appellate jury’s the 2633; Id., 328-29, 105 see also aside as unreliable. S.Ct. (1998). Clark, Pa. A.2d 37 710 Commonwealth context, statements did not dilute prosecutor’s Taken in sentencer; such sense of as ultimate jury’s responsibility Pennsylvania’s remarks were an accurate statement of how The prosecutor suggest death statute works. did penalty verdict, only for its that it did not jury responsible was not 9711(c)(l)(iv).18 law, Accordingly, § this namely, make the meritless, concerning claim and none of claims appellant’s is rejected supra, in connec- 17. This claim has been considered appellant’s impact tion with victim evidence issue. jury unanimously if the verdict must be sentence death "[T]he mitigating aggravating circumstance ... and no finds at least one aggravating ... circumstances which circumstance or one or more l(c)(l)(iv) § outweigh any mitigating circumstances.” 42 Pa.C.S. added). (emphasis entitle him to prosecutor’s penalty phase closing argument relief.

Appellant next asserts trial counsel was ineffective for fail- evidence, ing investigate certain present mitigating including: family testimony and friends’ his abusive regarding addiction; upbringing, dysfunctional family, and drug expert testimony his regarding psychological impair- and emotional ment, as well as brain and court and damage; medical records dysfunction, brain regarding family damage, and substance abuse.

At the of the trial beginning penalty phase, counsel moved to incorporate guilt all of the evidence into the phase penalty phase, Trial, Dr. Berman’s N.T. particularly testimony. 5/22/95, at 41. then appellant’s Counsel called mother to testify; briefly she testified was abused father appellant by his Id., drugs long had used for a time. at 42-43. She testified person kind of who wanted to help others, they way so would not “hurt the he was hurting,” and trying had been to overcome his addiction and drug “get in his life that past things happened had to him.” 43-44. Brown, Lynne

Counsel then called the project director for attended, an adult education program appellant testify. Ms. Brown testified that she was case job in a 14-week manager training program and met with him twice a week to discuss any problems difficulties or he had. Id., at 45-46. felt had been appellant working She to deal with his drug problem, very intelligent, “seemed to be world[,]” very concerned about his in the making way and was Id., “worth time on.” at spending 46. She testified appellant computer obtained skills which would have him enabled level gain entry employment, but he went into an outpatient drug rehabilitation when he program job training left the Id., at program. 49-50. She admitted she had no contact Id., with since appellant 1993. at 48.

Finally, counsel presented videotaped testimony of Dr. Woody, who testified as an expert psychiatry and substance and psychosis cocaine-induced Woody described

abuse. Dr. 68-70, effects, id., 62-63, an individual opined at its in his “likely be affected” would suffering psychosis from such of the law. requirements to the to conform his conduct ability documentary evi- Id., any not present did at Counsel the three mitigating found two of jury Although dence. established, were out- they it concluded were circumstances circumstance Common- by aggravating the one weighed wealth established. testimony hearings, appellant presented

At the PCRA counsel, friends, as well as documen- and trial family, experts, evidence, trial counsel failed to of his claim tary support mitigating mental health present adequately investigate evidence. as a meningitis mother testified had appellant

Appellant’s times, N.T. hitting fell several his head. PCRA baby and 4/22/02, neglect described in detail the at 18-19. She Hearing, child, father, by beaten his as being and abuse he suffered as a Id., siblings. father beat his mother and watching well as his sexually father abused his at 19-23. He also was aware his Id., mother testified she was aware Appellant’s sister. at 29. change abused and his would drugs, personality Id., although stated drugs. when he was on 30-31. She with spoke came to her house and her Attorney McLaughlin times, mitigation evidence was not phone couple on the her, id., 32, but if trial mentioned or counsel explained to which she testified at the topics had asked her about the volunteered this hearing, willingly she would have PCRA Id., at 33-34. She admit- penalty phase. information for Attorney McLaugh- not recall she told everything ted she did lin, to talk to her other attorney but stated she told Id., children, she did not. at 62. things who remember might Albert, brothers, testified about Andrew and Appellant’s childhood, rejection including his appellant’s dysfunctional use, father, personal- and alcohol and his by drug abuse his drugs, especially the influence of ity when under changes 99-100, 113-15, 95-97, 117-20. Andrew testi- cocaine. was worse after people attitude towards white fied military, he came home from the almost becoming paranoid. Id., at 100-01. Albert appellant testified admitted the incident occurred, with the victim but he claimed did not know what and was not in his state happened right of mind at the time. Id., at 121. Both they brothers stated would have testified at the penalty phase, although Albert admitted he was in a half- way house before trial family and his did not know how to Id., 102,122,125-26. contact him. at sisters, Carrie,

Appellant’s Audrey and also testified about childhood, appellant’s dysfunctional abuse their including by father, physical neglect, and their father’s sexual abuse of Carrie, Id., of which appellant was aware while growing up. 134-36, at They 148-51. further testified about appellant’s drug abuse and the personality changes he underwent when Id., he 138-39, used drugs, particularly cocaine. at 153-54. They headaches, stated he suffered from severe and Carrie described his difficulty learning new skills and resulting his Id., 139-40, 151-52, frustration and anger. at 154-55. Both stated they Id., would have testified at the penalty phase. 140,155-56. Thomas,

Darlene a family friend of appellant who knew him as a teenager, testified although appellant’s family was “eccen- tric,” Id., she knew him to be easygoing. at 66. stated She she although had not known him to use she drugs, was out of touch with him murder, for six or seven years before the when she saw him shortly arrested, before he was appear- ance and behavior had this changed; led her to suspect was Id., 68-69, on drugs. 71. She stated she would have been Id., willing testify at the penalty phase. at 70. Her husband, Donald, also a childhood friend of appellant, testified about a racial incident where white men threw at him bottles and appellant, calling them “niggers,” police and the did Id., at nothing. 79-80. He admitted he lost contact with five or years arrest, ten before but would have been willing testify penalty at the phase.

Dr. Berman testified he mentioned evaluating appellant penalty Williams, phase Attorney but counsel took no 8, 8/6/02, Dr. Berman at 13. Hearing, N.T.

action. PCRA at the defense capacity for the diminished appellant evaluated family back- dysfunctional appellant’s and noted guilt phase, Id., him if he was Attorney Williams told at 13-14. ground. would Attorney McLaughlin penalty phase, needed for the Id., at 7-8. him; was never contacted. he contact appel- who evaluated a Nagele, neuropsychologist Dr. Drew testified his initial request lant at PCRA counsel’s impoverished performance, school appellant’s poor review of childhood, suggested possibility use drug abusive 4/25/02, at 22. Hearing, N.T. PCRA cognitive impairment. scores on concerning appellant’s then testified Nagele Dr. 76, in the Appellant tests. scored neuropsychological various IQ on the test. functioning, of intellectual range borderline on the Id., average range, in the at 28. He scored Scale, howev- memory ability; which tests Memory Wechsler varied, er, of the test components in different his scores brain visual and verbal discrepancy between indicating Id., fell into the moderate function. at 32-33. Index, Impairment on the Halsted severely impaired range Id., at 44. damage. to test for brain designed which is However, finding, stating although Dr. this Nagele qualified it was not as severe as damage, probably there was brain Id., of the categories portion at 46. On the suggested. test (the test, for brain a 68 cut-off score appellant Halsted scored more); indicated Nagele is 51 or Dr. stated this score damage likely difficulty figuring things to have out appellant was Id., life, Appellant’s as novel tasks. at 46-47. everyday such test on the tactical of the Halsted performance portion scores id., mildly average, from to above ranged impaired on the sea- average/borderline range he scored in the below test, which indicated had rhythm portion shore make out of the world and difficulty being able to sense Id., 49. The he heard. accurately perceive sounds was in indicated perception portion appellant sounds speech which would make it range, to moderately impaired the mild Id., at for him to understand others’ communications. difficult 50. scores,

Given test Nagele opined appellant life, difficulty would have successful in being work due to mild Id., cognitive impairment. at 54. The further noted expert reason, this impairment could affect appellant’s ability use actions; and see the judgment, consequences of his these use, abilities would become even more impaired by drug Id., particularly cocaine. Finally, con- expert that, cluded in his report degree with a of reasonable certain- ty, appellant cognitive had impairments multiple due to events life, throughout his and his limited ability to reason was when severely impaired he was in a cocaine-induced psychosis at the time of the crime. at 59. He further opined was under the influence of extreme mental or emo- crime, tional disturbance at the time of the capacity and his appreciate criminality of his conduct or conform it to the of the law requirements was substantially impaired, thus 9711(e)(2) (e)(3) Id., § supporting and mitigators. at 59- Toomer, Dr. a forensic psychologist who evaluated appellant at request, PCRA counsel’s testified the results of his tests were consistent with Dr. Nagele’s of findings neurological deficits in terms of overall N.T. functioning. PCRA Hearing, 4/26/02, at 36.19 He also testified appellant pattern had a of abuse, id., 45, polysubstance chronic at and confirmed appel- dysfunctional lant’s family background of abuse and neglect. Id., at 62-68. He appellant’s juvenile reviewed records and records, hospital noting they family history; corroborated his they stated were “red flags” terms of potential mental disorders, id., 74-75, at they as appellant’s identified race id., sensitivity, id., at women, his threatened feeling by at 78-79, his “dull normal” intellectual and functioning poor record, id., 81-82, 89-90, academic at his impaired judgment id., analytic 82-83, and thought/planning ability, and the fact appellant quiet and nonaggressive. 89-90. 9711(e)(2) (e)(3) opined § Toomer mitigators and were id., established, 126, 134, appellant’s and of background testing IQ appellant’s 19. Dr. Toomer’s indicated was 96. N.T. PCRA 4/26/02, Hearing, at 38. factor under the mitigating and was a neglect abuse family 9711(e)(8) id., further opined at 132. Dr. Toomer mitigator, § testify concerning witnesses did not penalty phase appellant’s as well as family’s neglect, of the abuse picture the full Id., at 135-36. history drug abuse. com- juvenile records from his his Appellant presented from Development Youth Center Loysville mitment at 22, 1975, which documented May 1972 to September raised, in which he was his environment dysfunctional cognitive and his impairments, and mental psychological records doc- report A 1972 these psychological deficits. as or “dull normal.” The eval- appellant’s IQ umented by his appellant’s feeling notes mentioned unloved uator’s knowledge general and classified his fund parents, and an- vocabulary “extremely impaired,” judgment as “severely planning as and his alytic thought impaired,” “moderately as im- ability relationships and means-end Petition, Evalua- (Psychological Exhibit 16 paired.” PCRA 7/15/72). tion, these records con- Dr. Toomer testified mental health upon by information relied typically tained with his re- they findings were consistent professionals, contained a number of “red they garding appellant, mental potential disorders. See flags” regarding 4/26/02, N.T. at 69-107. Hearing, PCRA also his medical records from Crozer- presented Center, where he obtained treatment for Chester Medical 23-26, and alcohol 1989. These rec- drug addiction October appellant’s dysfunctional upbringing ords further documented as well as corrob- resulting psychological impairments, and the life-long. that such are expert testimony impairments orated extent impact appel- The records also described the and Petition, lant’s and alcohol addiction. PCRA Exhibit drug See 10/23/89-10/26/89). (Crozer-Chester Records, Dr. Medical were consistent with his evalu- Toomer testified these records they because demon- significant ation of and were appellant, difficulty functioning in and corroborated appellant’s strated 4/26/02, Hearing, N.T. dysfunctional his childhood. See PCRA at 107-16. testified that in for

Attorney preparing appellant’s Williams trial, defense, he was concerned with the primarily guilt phase he over for the preparation penalty phase and turned trial, Attorney McLaughlin one month before but her no gave 4/23/02, direction. N.T. PCRA at 57-58. He stated Hearing, he looking flags” was not for “red mental health regarding Id., at beyond guilt phase. issues 82-83. He met with in appellant prison prior preliminary hearing, to the and childhood, abuse, was aware of abusive appellant’s drug Id., 20-21, 58, 60-61, 78, past drug treatment for addiction. at However, 141. although he stated appellant mentioned his childhood, details, abusive he was not with forthcoming and he press appellant did not because Dr. Berman’s report indicated Id., did not wish to discuss his abusive father. 122-24.

Attorney Williams acknowledged Berman’s letter stat- he would need ing additional information concerning appel- lant’s if family history expert was testimony needed for the however, doctor, penalty phase; he did not contact the assum- ing the doctor would do whatever was needed to obtain Id., appellant’s background information if necessary. at 84- 85, 87-88,138-39.

Regarding his direct examination of mother and why he did call family more members to testify, Attorney explained Williams he told appellant’s mother at trial that he was looking testimony abuse, about appellant’s childhood use, Id., drug family background general. at 100. However, when she did not give many details her testimo- ny, he decided not to ask additional questions, as he “had her,” gotten from her what could from get [he] based on their Id., prior conversation at trial. at 102-03. he could Although not recall which specific family members were for the present penalty phase, stated he would have called whoever there, Id., they unless he felt had nothing add. 97- Finally, OS. Attorney Attorney Williams testified McLaughlin had been with the disappointed per- documents she received taining appellant’s background, but he could not recall reviewing those documents with appellant. assigned she was although testified

Attorney McLaughlin evidence, Attorney regarding mitigating investigation Id., 161, 189. case. at She charge was in of the Williams case, in the and she that time was an issue stressed repeatedly adequate conduct an enough had time to not believe she did the case one month assigned been investigation, having 167-68, 178, 180, 206, Id., 210. She at before trial. her a list by telephone, asking mother interviewed appellant’s seminar, which a death penalty obtained from questions illnesses; however, appel- childhood about questions included mention appellant no and did not gave specifics lant’s mother mention injuries, nor did she any or head having meningitis Id., 168-71,197-99. two She contacted abuse. at physical brothers, talked they could not recall what but appellant’s sister, Carrie, about, gave appellant’s and her interview with wanted to distance herself from her the Carrie impression Id., 172-74,187, at helpful. not be family especially and would obtained Attorney McLaughlin only appellant’s 206. records; records she did not check court military parole file, school juvenile appellant’s his nor did she check records, she was aware drug although records or treatment Id., if she in treatment. 215. She testified had been name, she everything witness’s she did potential received however, other she did not check person; could to find records, files, or wel- members’ court driver’s license family Id., fare records. could not remem-

Attorney McLaughlin testified physical much his childhood and did not mention his ber about Id., abuse, injuries. at 164- or that he had or head meningitis 207, 209, 65, 190, 194, memory stated appellant’s 217-18. She Id., at 217-18. Al- investigation. her problems hampered unusual, were she thought memory problems she though evaluation; warranted a mental health they did not think have however, they Williams that suggest Attorney she did for mitigation purposes Dr. Berman evaluate appellant 208-09, Attorney response 220-21. Williams’ general. character, and she to focus on they going were Id., 165-66, should be for looking character evidence. at 219- 20. Cooke,

The Commonwealth Dr. presented an in expert forensic and who in neuropsychology, testified rebuttal of Drs. Nagele and Toomer. Having reports, reviewed their Dr. Cooke disagreed with some of their testing protocols; specifically, he tests, questioned accuracy the of the IQ which were abbreviat- ed versions of the standard ones usually given, stating appel- lant’s memory strong, likely IQ was so it was his was underes- timated. He also the great noted between Dr. discrepancy Nagele’s IQ finding of 76 and Dr. IQ Toomer’s of 96. finding 5/16/03, 23, 27, 30, N.T. PCRA at Hearing, 45-47. Significant- ly, Dr. Cooke noted was in appellant unimpaired 10 out of the 14 areas on the Halsted Index Impairment by used Dr. Nagele; reason, these were areas affecting judgment, and Id., 31-32, ability to function. at 36. Dr. Cooke further opined mild, four impairment remaining areas was severe, Id., 33-34, 36, moderate to as Dr. Nagele opined. Dr. Cooke testified the validity testing connection with (MCMI) the Millón Clinical Multiaxial Inventory III test by administered Dr. Toomer revealed appellant was malinger- i.e., ing, Id., exaggerating illness and complaints. 60- 61, 171. Dr. Cooke further testified Dr. Toomer used the Bender-Gestalt test to evaluate appellant’s personality, a func- tion Id., for which the test is not designed. at 73-74. Dr. test, Cooke opined, appellant’s based on appellant MCMI Id., not significantly paranoid or delusional. at 70-71. Final- ly, Dr. Cooke concluded in the test nothing results indicated there was significant intellectual impairment of judgment offense, at the reasoning time of the nor was there anything support the conclusion of psychosis cocaine-induced or delu- Id., sional behavior. at 105-06. Based appellant’s on own statement to the police, Cooke concluded appellant’s “thought indicate, ... processes would quite clearly that he appreciated of criminality his acts and he was attempting Id., to avoid discovery arrest.” at 106. if he had been cross-examination, Dr. admitted Cooke

On trial, have he would expert as a defense hired testing, follow with up to interview wanted and medical juvenile in appellant’s the information based on would not Id., expect also he agreed at 141-42. He records. in a normal IQ test results range a varied to find such individual, were indicative of and such results functioning However, 204-05. organic problem. of an possibility with defense although agreed he reiterated unequivocally agree regard- he did not damage, that there was brain experts areas was whether the damage; question ing degree to the relating cogni- were areas damage in which there was Id., crime. at 210- to the leading tive functions and behaviors Nagele’s with Dr. agreed he Finally, emphasized of brain but that’s damage, that “there is evidence statement index impairment as severe as the it’s possibly [sic] 4/25/02, 213-14; N.T. Hearing, PCRA suggests.” cf. at 46. 362, v. 529 120 Taylor, relies on Williams U.S. (2000) Smith, 1495, v. 539 Wiggins 146 L.Ed.2d 389

S.Ct. (2003), 510, 2527, wherein the 156 L.Ed.2d 471 123 S.Ct. U.S. has an held counsel Supreme capital States Court United mental health prepare thoroughly investigate obligation Williams, evidence, 396, 120 S.Ct. mitigating and other on 1495; by relying cannot meet this requirement counsel history from rudimentary knowledge defendant’s] of “only [the 123 2527. In Wiggins, a narrow set of sources.” S.Ct. Williams, (2008), A.2d 294 v. 950 Commonwealth this noted: Court by norms as explicated constitutional prevailing

Under Court, counsel has an obli- Supreme capital United States developing all reasonable avenues for pursue gation a thorough pre- must conduct mitigating evidence. Counsel rendering or make reasonable decisions investigation, trial unnecessary. Strategic choices investigations particular are rea- complete investigation made a less than following extent that reasonable professional to the precisely sonable In investigation. the limitation of the judgment supports 175 assessment, courts are to make undertaking necessary hindsight. all reasonable efforts to avoid effects of distorting Nevertheless, “post courts must also avoid hoc rationaliza- tion of counsel’s conduct.” (citations omitted).

Williams, at 303-04 and footnote further clarified Recently, Supreme United States Court what Washington, Strickland U.S. S.Ct. (1984)20 requires investiga- 80 L.Ed.2d 674 the context of tion and evidence: preparation penalty phase mitigating

The Sixth Amendment entitles criminal defendants to the “ is, ‘effective assistance of counsel’ ”—that representation objective that does not fall “below an standard of reason- ableness” in light “prevailing professional norms.” That necessarily general standard is one. ...' Restatements of standards, we professional recognized, have can be useful as entails, “guides” to what reasonableness but only to the they extent describe the professional prevailing norms when the representation took place. —Hook, U.S.-,-, 13, 16,

Bobby v. Van 130 S.Ct. (2009) (citations omitted). L.Ed.2d 255 The Court held the Circuit Court erred in ABA applying guidelines pertaining to specifics defense counsel investigate should miti- preparing evidence, gation when such guidelines were announced 18 years after the defendant’s trial. The Court reiterated Strick- “ emphasis land’s that such bar standards are ‘only guides’ to means, what reasonableness not its definition.” at 17 2052). Strickland, 688,104 (quoting at S.Ct.

Williams and Wiggins did not establish a new federal by constitutional rule or standard which judge to counsel’s stewardship investigation preparation and of mitigating evidence; they the simply applied well-settled Strickland inef- fectiveness to later standard cases the involving specific ques- tion of duty investigate counsel’s evidence in a mitigating one, capital case. The standard they upheld general is a must be flexible to take into enough prevailing account the "performance prejudice” 20. Strickland the enunciated test for assessing performance. counsel’s performance. counsel’s See at the time of norms professional (“A of fair assessment Strickland, at S.Ct. made to every that effort be requires attorney performance the to reconstruct hindsight, effects of distorting the eliminate conduct, and to evaluate challenged of counsel’s circumstances time.”). the at perspective conduct from counsel’s the hear PCRA presented Based on the evidence “red ignored many Williams Attorney ing, appellant argues health; counsel he contends once his mental flags” concerning neglect through of abuse and family background of his learned of his and was informed family, and appellant’s Dr. Berman counsel should by Attorney McLaughlin, memory problems records, medical the available court and investigated have He him a mental health evaluation. undergo have had should circumstances, jury mitigating found two argues although these the one weight against more given it would have found, it had it heard the additional circumstance aggravating evidence. mitigating mental health un- investigation Viewing Attorney penalty phase Williams’ the time of his norms at prevailing professional der the cannot conclude the record supports we stewardship, there was a reasonable basis court’s conclusion PCRA De- penalty phase. at the Attorney performance Williams’ Berman from that Dr. Attorney McLaughlin spite suggestions for the and Dr. Berman’s penalty phase, evaluate appellant so, that Attorney ignored possibility offer to do Williams which would be health evidence existed mitigating mental 4/28/02, Hearing, see N.T. penalty phase, PCRA helpful 166; instead, only guilt phase focused on the myopically only psychosis, offering generalized of cocaine-induced defense Attorney Williams penalty phase. character evidence at the and the corre- family history aware of abusive issues, id., at 141- between abuse and mental health see lation attempt investigate possibility but made no He mental health evidence.21 did mitigating presenting family spoke appellant's with Attorney Williams testified he never trial, 4/23/02, Hearing, mitigation before see N.T. PCRA about Attorney McLaughlin presence witnesses at to secure the relied on testify it was his strategy painting avoid as rather, mentally he deranged; stated his focus simply lay elsewhere: “I really don’t recall looking something for else going on. I was focusing on what that happened night, and how I was going prepare the defense for that charge. So I can’t I say Id., was looking anything else.” at 82-83. Attorney Williams delegated preparation penalty phase month prior to trial —to Attorney McLaughlin, —one who had little experience in trying capital cases and investi- id., gating mitigation, 161-62, see at yet provided no direction to her Id., regarding investigation or at strategy. Indeed, 180-83. little in the appears record to indicate Attor- ney Williams and Attorney McLaughlin had any meaningful conversations what concerning mitigation evidence might be helpful.

Dr. Toomer juvenile testified appellant’s records and hospi- tal records were flags” “red concerning potential mental disor- ders, demonstrating appellant’s in difficulty functioning and his corroborating abusive childhood. N.T. PCRA Hearing, 4/26/02, 74-75, at 107-16. Even the Commonwealth’s expert, Cooke, admitted (despite disagreement his with the man- conducted) ner in which the defense experts’ if testing had been the trial, defense expert he would have wanted to perform a mental health evaluation based on the information juvenile contained in appellant’s and medical rec- 5/16/03, ords. N.T. 119-20, 133-34, PCRA Hearing, 141-42. Despite knowing appellant had been in treatment for sub- abuse, stance Attorney McLaughlin testified she did not seek appellant’s treatment records or juvenile file. N.T. PCRA 4/23/02, 176, Hearing, presented

Given evidence at the PCRA hearing, we cannot conclude Attorney Williams’ investigation met his re- Strickland, sponsibility under as further explained Wiggins, Williams and to pursue all reasonable avenues for developing mitigation evidence. His narrow on focus cocaine- induced as the psychosis key to the guilt phase, with coupled id., penalty phase, and selected witnesses from those who up. showed at 97.

178 mitigating of mental health other forms his for disregard penalty phase, at the have been useful which would evidence strategy. a reasonable See have been be said to cannot (“[A] must 527, reviewing court 123 2527 at S.Ct. Wiggins, to- sup- said investigation of the the reasonableness consider by obligation cannot meet his Counsel strategy.”). port [a] knowledge defendant’s] of “only rudimentary [the on relying 524, sources,” 123 Wiggins, narrow set of history from a Williams did. 2527, Attorney what exactly which is S.Ct. that, health Furthermore, had such mental say we cannot still have jury would presented, evidence been mitigating id,., 123 2527 verdict. S.Ct. arrived at a death See (standard stewardship from deficient assessing prejudice for whether “there is a evidence is mitigating presentation juror would have that at least one probability reasonable balance.”). of case de- type This is struck a different mitigat- “potentially powerful as one where by Bobby scribed from documents apparent ... would have been ing evidence ” Bobby, would have obtained.... any attorney reasonable omitted). (citations Accordingly, appellant prejudiced 19 for a and remand inadequate investigation, trial counsel’s by is penalty phase required.22 new affirmed in of the PCRA court is Accordingly, order a the matter is remanded for part, and reversed in and part relinquished. phase hearing. new Jurisdiction penalty in the participate MELVIN did not Justice ORIE or of this case. consideration decision CASTILLE, Justices TODD Chief Justice join the opinion. McCAFFERY concurring opinion. BAER files a Justice dissenting opinion. concurring files Justice SAYLOR he to relief because of the cumula- also asserts is entitled " However, that 'no alleged it is well settled tive effect of all the errors. collectively they may attain merit if could not number of failed claims ” Dennis, individually.' v. 597 Pa. 950 A.2d Commonwealth do so 945, (2008) Bracey, (quoting 795 Commonwealth (2001)). A.2d BAER. Justice join

I but write Majority Opinion, separately address two Mr. points by my distinguished colleague raised Justice Saylor Concurring Dissenting Opinion, in his to elaborate thoughts, clarity my positions on his and to ensure on these matters. important issue,

First, I suppression agree Majority as to the with the that the trial court not err in motion denying Appellant’s did suppress inculpatory following statement made arrest, and, further, that was not ineffective illegal counsel this issue on The rule failing pursue appeal. exclusionary preclude Appellant’s does not admission of statement when police independent probable the had cause to make a warrant- of Appellant less arrest at the time the invalid arrest warrant executed, and, as the recognized by Majority, the connec- tion between the illegal subsequent arrest and the confession was so attenuated as taint dissipate any arising to therefrom. Majority’s

While not the disputing general application of state and federal law in this regard, Concurring and Dissenting Opinion Saylor of Justice raises the salient point Edmunds, that in Commonwealth v. 586 A.2d 887 (1994), we policies held that the underlying exclusionary I, rule are substantially broader under Article of the Section 8 Pennsylvania Constitution than under federal Fourth Amend- ment jurisprudence. solely Rather than to deter mis- police conduct, we have held that “the rule in exclusionary Pennsyl- vania consistently has served to bolster the twin aims of I, 8; to-wit, Article Section the safeguarding of privacy the fundamental that warrants shall requirement only be issued upon probable Although cause.” Id. at 889. not of I dispositive appeal, agree Saylor’s this with Justice recita- tion of jurisprudence. this Court’s state constitutional that, Saylor proceeds personal opinion Justice to offer his “ devices, however, my to own I would a prefer “[l]eft more of the at the open acknowledgement growing unwillingness exclusionary federal and state levels to rule in the apply or, grossly absence of intentional at least negligent, police 183, 995 Dissenting Opinion Concurring conduct.” “unwilling- an acknowledging Contrary openly to at 1175. A.2d contexts, I rule in certain exclusionary apply to ness” rule to exclusionary zealously guard that we would prefer cher- most society’s of one of our the erosion against protect unreasonable free from right to be freedoms—the ished of schol- Saylor’s Appreciative Justice and seizures. searches the instant case does concerns, that cognizant arly constitutionally pro- Pennsylvanians’ erosion of an implicate only emphasize to separately I write right privacy, tected to restricting the instant decision as not view the that I do case. As proper rule in the exclusionary of the application invaluable the use of this said, any erosion of opposed I am citizens’ tool, right our appropriate, preserve when remedial their lives and interference into from coercive state to be free affairs. Saylor’s thoughtful I write to comment on Justice

Secondly, challenges Majority’s disposition Appellant’s remarks on contrary generally as false and testimony to Dr. Cohn’s that Appel- testified scientific Cohn principles. accepted because psychosis from cocaine-induced suffering lant was not users, dose-related, such as and chronic is such disorder tolerance, a dose to requiring large Appellant, develop rigorously that trial counsel Recognizing psychosis. induce Cohn, rejects Appellant’s Majority Dr. the cross-examined “[wjhile the claim, opinions regarding that Dr. Cohn’s finding have been psychosis may dose level and relationship between methodology his it cannot be said that questionable, accepted principles.” Op. scientific contrary generally to Inc., 576 Pa. Frito-Lay, (citing Grady 155, 995 A.2d at 1159 States, 293 F. (2003) v. United Frye and 839 A.2d 1038 (D.C.Cir.1923) admissi- that scientific evidence is (holding 1013 in acceptance has underlying methodology general if its ble Say- In community)). response, scientific Justice the relevant that “if Dissenting Opinion in and Concurring lor opined interpret Frye narrowly justify as to to so going the Court is falsely opinions or speculative opinions, the admission of literature, time has come for I believe the couched in scientific Daubert[1] Pennsylvania to move to the standard.” Concur ring Dissenting Opinion A.2d at 1177.

My view personal particular on this issue is somewhat nuanced. While I recognize cogency Saylor’s of Justice position, my consistent with prior pronouncements in this area, join that, I Majority case, in in concluding the instant cases, as in most it is the role of the to jury determine whether Cohn, expert, was credible and reliable. The fact that Dr. Cohn’s opinion may not have been consistent with the majority of authority scientific can be brought to the jury’s attention through However, cross-examination. like Justice I Saylor, can also envision a case in which a conclusion by rendered an expert is so completely in unsupportable scientific community that the trial court should be provided the discretion to preclude Thus, its admission. while I believe the Frye test should remain the law in Pennsylvania, I await a case which this may Court consider whether Frye should be extended to apply unscientific conclusions reached by ex- perts, addition to the current of application Frye to unscien- tific methodologies employed by experts in reaching those conclusions. Junk science should be no more admissible through experts’ conclusions than it is through experts’ meth- odologies.

Justice SAYLOR.

I concur in the result as penalty and respectfully dissent as to I guilt, as would remand for an opinion with appropriate conclusions,

factual findings legal and I write to the following: Suppression

I. In light I prevailing precedent, support majority’s application the attenuation doctrine as consistent with the Pharmaceuticals, Inc., 1. Daubert v. Merrell Dow 509 U.S. 113 S.Ct. (1993) (overruling 125 L.Ed.2d Frye superseded by as Evidence, requiring Federal Rules of judges federal to make a preliminary testimony’s assessment of underlying whether the reason ing methodology or scientifically is applied properly valid and can be issue). the facts at 182 Illinois, in Brown v. decision Court’s Supreme States

United (1975). 416 See 2254, 45 L.Ed.2d 590, 95 S.Ct. 422 U.S. As a 140-46, A.2d at 1150-54. at 995 Op. Majority Opinion, the Brown however, to me that it seems pure logic, matter of than in the Pennsylvania differently apply should factors to be considered forum, circumstances are since the federal rule,” exclusionary by the to be served light policy “in of the 2262, 604, and this Court Brown, 95 S.Ct. 422 U.S. policies underlying that the has maintained least previously Pennsyl under substantially broader rule are exclusionary the Fourth Amendment under federal than jurisprudence vania 398, Edmunds, 374, v. Commonwealth ompare law. C (“[T]he (1991) Pennsyl rule in 887, exclusionary 899 586 A.2d twin aims of bolster the consistently served to vania las to-wit, and I, 8; privacy the safeguarding Article Section only warrants shall be that requirement the fundamental Leon, cause.”), v. with United States upon probable issued (1984) 897, 916, 82 L.Ed.2d 677 104 S.Ct. U.S. exclusionary solely rule serves that the federal (explaining Moreover, artificial to it seems somewhat purpose). deterrent an illegal between an arrest and that the causal chain say the taint is “broken” and confession ensuing subsequent the subject illegal remains where the defendant “purged,”1 circumstances detention, intervening in the absence of Certainly warnings. mere of Miranda beyond giving behavior thinking in fields of human knowledgeable those an impact ongoing view of the very hold a different may on arrestee behavior. illegal detention Nevertheless, Court has estab- Supreme the United States the matter into the largely test and prevailing put lished the review, fact-finder, appellate to deferential subject of a hands this direction Com- this has followed previously Court (1985), Pa. 502 A.2d 167 as McFeely, monwealth devices, own howev- develops. my Left to majority aptly of the er, acknowledgment grow- a more open I would prefer levels to apply at the federal and state unwillingness ing Brown, (explaining that more S.Ct. at 2261 422 U.S. at 1. See illegal "purge primary taint” of an required to than voluntariness is chain, illegal arrest and statements causal between arrest —"the broken”). subsequent thereto [must be] made

183 or, in at exclusionary rule the absence of intentional least conduct.2 grossly negligent, police

II. Guilt multiple claims of trial-counsel ineffec- Appellant presents relative the testimony tiveness of the Commonwealth’s expert pharmacologist, Dr. Cohn. toxicologist Appellant 1) challenges testimony Dr. Cohn’s: trial that cocaine psycho- sis is dose as false dependent contrary generally 2) accepted principles; testimony scientific that Appellant’s detailed recollection of the events of the of the night killing 3) was inconsistent with a psychosis; cocaine-induced to render a competence diagnosis forensic as to whether fact, in Appellant, psychosis suffered from cocaine-induced at view, killing. my time of the In the majority’s approach of tandem, these addressing arguments Majority see Opinion, 155-56, 1159-60, atOp. 995 A.2d at obscures the difficulties Thus, with its resolution. the arguments are discussed sepa- rately below.

Regarding dose Dr. dependence, jurors Cohn told the at Appellant’s trial that psychosis “toxic ... is usually reserved to indicate adverse effects of substance —of a substance taken in large cocaine, amounts. Certainly with a toxic psychosis N.T., 17, is dependent.” 1995, dose May at 282 added). (emphasis The majority characterizes this on opinion as dose-dependence “questionable.” Majority Opinion, See 155, Op. However, at 995 A.2d at 1159. the PCRA court is, fact, recognized that it a “misstatement.” See PCRA ¶ 163, Court Opinion, Op. Indeed, 995 A.2d at 1164 11. Commonwealth’s own post-conviction expert toxicologist, Dr. Caplan, N.T., testified similarly. 14, 2003, See May at 62 Notably, majority’s analysis suggests away a movement from a exceptions narrow requirement, construction of to the warrant as it references a Supreme applying decision of the United States Court good-faith exception federal requirement supportive to the warrant as position, Majority Opinion, of its Op. see 995 A.2d at 1153 States, (citing Herring v. United 555 U.S. 129 S.Ct. 172 (2009)), though L.Ed.2d 496 previously even this Court has maintained exception pertain that the Pennsylvania does not under constitutional Edmunds, Again, law. See 526 Pa. at 586 A.2d at 905-06. when moving away prior precedent, my preference from is for a more direct discussion and treatment. known.”). As Appellant is

(“The it’s not dose related fact that at the brief, post- presented in his length experts details and the Commonwealth hearing by both conviction was dependence on dose opinion testified that Cohn’s literature, upon the text including in the scientific unsupported at trial.3 which he relied that “it cannot be said [Dr. nonetheless states majority

The scien- accepted methodology contrary generally Cohn’s] 155, 995 A.2d at Majority Op. at Opinion, tific principles.” States, 293 F. indirectly, v. United (referencing, Frye (D.C.Cir.1923)). I it thwarts contrary, To the believe is based on litera- say opinion norms to an accepted scientific which, fact, contrary proposition. in a supports ture I testimony, nature of expert Because of the powerful screen- meaningful should maintain a judges believe our trial testimony. admissibility expert of evaluating role ing that like the explained Frye, In this this Court has regard, Pharmaceuticals, test under Daubert v. Merrell Dow federal (1993), Inc., 579, 2786, 469 is a 113 125 L.Ed.2d 509 U.S. S.Ct. evidence only expert means of that reliable scientific “insuring Inc., 546, v. 576 Pa. Grady Frito-Lay, is admitted at trial.” (2003).4 1038, Thus, 557, Frye I not see how 839 A.2d 1045 do expert the admission of misstatements. supports See, N.T., 8, 2002, (reflecting testimony e.g., August at 24-25 of 3. expert been Appellant’s post-conviction that “the studies that have done, psychosis a dose consistently have that toxic is not shown relationship period time that response that it is more related to the cocaine, they using somebody using that are has been not the dose clearly any given are studies that show one time. And there several N.T., 14, 2003, individuals.”); May related in at 33 that it is not dose post-conviction expert “the (testimony that of the Commonwealth’s dependent relationship indicates that there is not a dose literature cocaine”); (testimony directly with id. at 48 of the Commonwealth’s expert, regarding upon by post-conviction the text relied Dr. Cohn dose-related”). trial, that the authors "do make a statement that it’s Although standard in terms Daubert is understood as the more liberal Joiner, 136, 142, 118 admissibility, General Elec. Co. v. 522 U.S. of see 512, 517, (1997), purpose guard 508 its remains to S.Ct. 139 L.Ed.2d disguised against by jurors of unreliable evidence as consideration Inc., Cheminova, scientifically-based expert opinion. 400 See Rink v. 1286, (11th Cir.2005). Supreme Court of Texas has F.3d 1291 As explained:

185 It also be that an into the might suggested inquiry admissi- bility opinion Frye Cohn’s under was not on implicated, theory methodology that the was not novel. employed See Puksar, 240, 255, 267, v. Commonwealth 951 A.2d (2008) that the test is (explaining Frye limited to novel meth- however, believe, I odologies). do not that we should permit speculative or manufactured conclusions to be merely couched and, thus, within established scientific methodologies, to elude judicial results, screening. This would lead to be- perverse cause was never Frye questionable intended to insulate expert exclusion; testimony rather, from critical review and it was designed to screen out unreliable opinions disguised as sci- Coon, (Alaska 386, ence. Accord State v. 974 P.2d 393-94 1999) (deeming Frye “potentially capricious” part because it may admit evidence that rigorous cannot withstand scientific scrutiny if such evidence is at ostensibly least based on a generally accepted methodology). Perhaps why this is number of our sister states have adopted the standard set Daubert, forth in under which it is broadly understood that pleas judge common must a more accomplish evaluative type screening to ensure relevance and a reliable founda- See, Coon, 395; tion. 974 P.2d at e.g., Farm Bureau Mut. Foote, Ins. (2000); Co. 341 Ark. 14 S.W.3d Porter, (1997); State v. 241 Conn. 698 A.2d State Foret, 1116, (La.1993); v. 628 1121 So.2d Mississippi Transp. McLemore, 31, v. (Miss.2003); Comm’n 863 So.2d 35-40 Expert extremely prejudicial impact witnesses can have an on the jury, part way in jury perceives because of the in which the a witness expert. jury "expert” just labeled as an To the an is an unbridled authority figure, and as such he or she is more believable. A witness by expert appears who has been admitted the trial court as an often inherently jury more lay credible to the than does a witness. ... potentially prejudicial Added to the expert influence of the term is the difficulty evaluating inherent in scientific evidence. Robinson, 549, E.I. du Pont de v. Nemours & Co. 923 S.W.2d 553 (Tex. 1995) (citations omitted); quotation and marks accord Common- 223, 232, 1277, (1977) Topa, wealth v. (express- 369 A.2d 1282 ing proof may concern that "scientific in some instances assume a posture mystic infallibility eyes jury of in the laymen”); of a of cf. Robinson, ("Professional expert 923 S.W.2d at 553 witnesses are avail- opinion able to an any theory, regardless render on almost of its merit.”).

186 862, 215, N.W.2d Neb. 631 262 Agland Coop, v. Schafersman Brooks, 556; 162 Robinson, State (2001); 923 S.W.2d 867 Jamieson, (1993); 984 Bunting v. 643 A.2d Vt. Indeed, going is to if the Court (Wyo.1999). P.2d of justify the admission narrowly as to Frye so interpret in couched scientific falsely opinions or opinions, speculative Pennsylvania has come for literature, I the time believe Daubert standard. move to the main- courts should pleas our common I believe that Again, in the admissibil- determining role meaningful screening tain special claim to laying from those evidence adduced ity of “novel,” in the Thus, the term interpret I would expertise. to subsume applicability, Frye’s test to determine screening in terms fully explained cannot be method which any scientific a close evaluation. theory upon scientific generally accepted of meaning independent some Frye apply, Even if does evidentiary rules of our requirement be to the given should will be considered if it testimony only should expert that or deter- the evidence the trier of fact understand “assist evidentiary 702. While the fact in issue.” Pa.R.E. mine a to the sound discretion is committed generally determination courts, 104, I not believe the trial see Pa.R.E. do of the trial as to admit accorded so much discretion courts should be literature based on scientific misrepresenting opinions on a scientific expert that the relied cursory understanding is warranted if our rules inquiry a more Clearly probing text. any meaning.5 are to have

Second, testified falsely that Cohn Appellant complains night recollection of the events on that clear Appellant’s rigorously Cohn was cross- majority also indicates that Dr. 5. The opinion regarding his dose- to retreat from "forc[ed] examined Majority Op. exception.” Opinion, and note an See relation However, minimally qualify causing expert an A.2d at 1158. causing opinion to be excluded opinion is of a effect than lesser witnesses, end, many expert In the in the fashion the first instance. gave ground where sparred some Dr. Cohn with defense counsel however, Ultimately, able to maintain his central necessary. he was embodying “general rule” a linear grounded, part, on a opinion opinion psychotic support his effect to relationship between dose psychosis. Appellant did not suffer from cocaine-induced that theory with the defense that he killing was inconsistent the extent the psychosis. from cocaine-induced To suffered claim, this it does so as follows: majority addresses fact was does not make its basis opinion challenged The this norms, as contends. contrary accepted scientific a Although question concerning person there was whether recall, clarity with cocaine-induced would have of psychosis way there were no clear studies either Caplan explained issue; therefore, opinion on the Dr. Cohn’s on an issue for which there is no clear-cut answer cannot be labeled con- jury norms. It was for the to determine trary accepted reliable, it expert whether this was credible and found him so. (citations 156, A.2d at

Majority Opinion, Op. 1159-60 omitted). however, Appellant, rely does not on the mere fact opinion majority that as the challenged, suggests. Rather, with to the Appellant supports argument citations record, which advancement post-conviction spe- reflects his of cific evidence that Dr. the scientific misrepresented Cohn literature at trial. See Brief 14-15. The rationale majority simply does address such evidence and on its terms. argument motion, a

Notably, upon proper Frye proponent scientific establishing evidence bears the burden of all of the admission, elements for its which showing includes the that Inc., is satisfied. Frye Grady Frito-Lay, See (2003). however, 839 A.2d The majority, to treat scientific appears presumptively evidence as admissi- Majority Opinion, ble. See 995 A.2d at 1159-60 Op. (“Dr. opinion Cohn’s on an issue for which there is no clear-cut answer cannot be contrary accepted labeled norms. It was for the to determine jury expert whether this was credible and reliable[.]”). treatment, however, Such is plainly contrary to and, view, admissibility my established standard I regard deleterious dilution what as the critical gatekeep- function to be the trial ing played by screening courts put lay jury. scientific evidence to be before a and that, toxicologist phar- a Third, contends as Appellant a forensic to render unqualified was Dr. Cohn macologist, from cocaine-induced did not suffer that diagnosis own post- regard, In this Commonwealth’s psychosis. that: Caplan, Dr. confirmed toxicologist, expert conviction re- diagnosis is a medical psychosis “The of diagnosis 14, 2003, N.T., at 30-31. May a medical professional.” quires on rely court majority and the PCRA In both response, he in which testimony, of Dr. Caplan’s passages different faults in Dr. Cohn’s of impact multiple to soften the sought follows: testimony as trial testimony opinion not share Cohn’s [the] [that

I would I think that’s a little been permitted]. should not have know, a you for some of the harsh. That the basis facts— accu- may of a fact be misrepresentation or representation words, you through In other can look rately stated. know, is in here’s a statement which say, you literature and it—the is opinion, question but is your general conflict with itself, to a present in and of is whether or not the statement that. You to be able to make degree certainty sufficient of know, are thing things possi- the old always you can —all — It does not inhibit it evokes possibilities. ble. So I believe that Dr. to make the statements. So ability and make the to use the literature qualified is [Cohn] earlier, I would use the you As I indicated to opinion. as a the field symptom or the medical outcomes psychosis into an individ- get diagnosing We would not toxicology. of be, know, an ual, evaluating I you a would patient. or what they psychotic, to see whether or not are individual psychia- or mental condition is. But even the their medical have only in the case of individuals could have—would trist mean, I because the —if the to use the same literature. occur, short-lived, goes away, might is psychosis time given it occurred at a is ability say it’s—the that num- literature a statistical supports matter of whether the type And I do not see that occurring. ber of that presence that in the literature. what anywhere information So of that of definitive literature means is that the absence other, answers the one question way or the there’s going be a difference—there could be a difference opinion. know, And that difference opinion, you I think people are examination, entitled to. You have cross you you and — know, you figure it out. But it doesn’t prevent opinion. I don’t think there’s anything I wrong. So think —the your answer to I question say think —to that Dr. is [Cohn] I think unqualified a little probably might harsh. You that the say basis of some of the things said was not warranted, or did not meet the status of the literature. But I think he has—he is able provide the opinion.

N.T., 14, 2003, May at 50-52. view, however,

In my such testimony is inconsistent with law prevailing concerning the admission of scientific evi- In dence. terms of Dr. opinion Cohn’s that did suffer from psychosis, cocaine-induced Dr. Caplan appears to be that saying psychiatrist even a is unqualified to render a therefore, diagnosis; forensic Appellant’s since psychiatrist one, rendered the Commonwealth’s toxicologist was free to do so also. Dr. Caplan also to believe if appears that the science sufficiently is not developed anyone for to express supported opinion, anyone should be to permitted say whatever he wishes, since “all things others, are This possible.” Court and however, at least previously rejected have squarely such a let- it-all-in-and-let-the-jury-decide proposition. supra See note 4. Moreover, I do not believe it appropriate is for a toxicologist testify as to the state of the literature in- the field of psychiatry, express or an opinion concerning what a psychi- qualified atrist is diagnose the first instance. Dr. Caplan was not qualified as an “expert on and his experts,” views concerning admissibility carry should no with weight this Court, particularly as his testimony jumbled reads more like a justification.6 series weak excuses than a credible I minority expressed by also share the view former Chief Justices Flaherty Zappala testimony Woody that the of Dr. would have been surrebuttal, proper expressed appeal. as in the dissent on direct See Smith, 65, 85-87, v. Commonwealth 694 A.2d 1096-97 C.J., (1997) (Flaherty, dissenting). Such particularly conclusion flows Woody’s specialized expertise pertaining from Dr. toxicity, to cocaine above, stated basis reject would the PCRA’s view of the I

In remand for an evalua- claims and of the above for resolution eligibility governing salient criteria remaining, tion of the I regard, In this relief, requirement. including prejudice defense strength Appellant’s have reservations about short-lived, psychotic episode, transient on a claim of a resting there are and where any history, prior absent particularly of his faculties. While maintained control indicia that he science applicable that the to be correct Appellant appears clear sensorium psychosis confirms that cocaine-induced exclusive, least very defense is at mutually are not presented. in view of the circumstances counterintuitive to be Thus, are reasonable differences I believe that there inquiry. in the prejudice addressed A.2d SCRANTON, Respondent, CITY OF OF the FIRE LOCAL UNION NO. 60 FIGHTERS OF FIRE INTERNATIONAL ASSOCIATION FIGHTERS, AFL-CIO, Petitioner.

Supreme Pennsylvania. Court of

June N.T., 6, 2002, (reflecting testimony August post-conviction see describing Woody experts person and the as “one of the world’s diagnostic and statistical section on cocaine who wrote the book on diag- adducing a toxicity”), and the Commonwealth’s tactic of medical range regarding toxicity beyond of its the effects of cocaine nosis ("It expertise. particular- at 23 n. 19 is witness’s See Brief for expert permitted provide ly ironic that the Commonwealth’s was diagnosis, expert jury opinion but the defense with a medical rebutting opinion precluded pharmacologist’s medical because from however, doctor, recognize, pharmacologist.”). I that he was a not a majority position point represents the law of this case. on this

Case Details

Case Name: Commonwealth v. Smith

Court Name: Supreme Court of Pennsylvania

Date Published: May 27, 2010

Citation: 995 A.2d 1143

Docket Number: 436 CAP

Court Abbreviation: Pa.