Commonwealth v. Steele

not to right the reference to Although police.2 in reference in than the more this case overt testify was pre- to reference Mitchell, interpreted been could have which is more in this case silence, arrest the uncontradicted must, precedent I Accordingly, following, as substantial. Mitchell, join the denial hesitatingly in I somewhat established conclusion that my case based upon of relief overwhelming guilt sufficiently uncontradicted evidence did comments prosecutor’s effect of prejudicial to the verdict. not contribute Majority. I join

In all other decision respects, 961A.2d 786 Appellee Pennsylvania,

COMMONWEALTH STEELE, Appellant. Roland William Pennsylvania. Supreme Court of Submitted March 2003.

Decided Dec. compelling noting Saylor dissent in Mitchell 2. Justice authored stan- view that Mitchell constituted a “dilution of the harmless error Young.” pains apply correctly took Mitch- dard which the Court ell, 839 A.2d at 218 William Steele. for Roland Geary, Esq., Matthew Noah County Pettit, Esq., Washington Amy Zapp, Esq., John C. Office, Pennsylvania. for Commonwealth Attorneys EAKIN, SAYLOR, CASTILLE, C.J., and BEFORE: GREENSPAN, JJ. TODD, BAER, McCAFFERY OPINION BAER.1

Justice January January 10 and trial between Following jury of three convicted Steele was Roland William murder, and two robbery, counts of two first-degree counts of jury The fixed taking. same by theft unlawful counts of first- for the death sentences separate at three punishment this Court appeal, direct murder convictions. On degree Common- and death sentences. See the convictions affirmed (1989). Steele, wealth raised in his PCRA the denial of claims from appeals now herein, affirm the we For the reasons contained petition. relief. denying Appellant the court order case, are complex, and relevant long facts of this while The Horner, of Lucille The bodies of this case. disposition Kuntz, Warrick, age and Sarah age age Minnie secluded, 22, 1985, in a morning found on the June were Pursuant Township. off a dirt road in Cecil area wooded Abernathy L. Wash- Dr. Earnest subsequent autopsy, killed the the victims were County determined ington At p.m. Appellant’s 12:30 and 9:30 p.m. between previous day in- injuries that Ms. Horner’s trial, Abernathy Dr. testified chest, back, chin, and dam- on her bruising significant cluded ribs, heart, her a fracture of numerous fractures of to her age liver, Dr. backbone, larynx. and a torn damage to her her traumatic that the cause of death was Abernathy concluded reassigned to this Justice. 1. This matter

rupture autopsy of the heart. The of Ms. Kuntz revealed face, chest, injuries, including legs, similar bruises on her and ribs, to her scalp, damage lacerations fractured heart and Dr. concluded that the cause of Abernathy liver. asphyxia larynx. death was due to a fracture of the With Warrick, to Ms. Dr. testified that she also regard Abernathy chest, ribs, to the face and fractured bruising sustained heart as as a damage, partially collapsed lung well blow- out of the stomach The cause of death for Ms. Warrick wall. heart, rupture companion was traumatic with numerous injuries. Dr. testified that the Abernathy pattern bruising cases, by was similar in all three caused substantial blunt force blows, which, in opinion, likely were most delivered human hands. learned that the three

During investigation, police together Friday, victims had attended a luncheon June Center, p.m. Shopping they at 1:00 at the Millcraft and that car, had together beige driven to this event Ms. Horner’s Dodge four-door Dart. Mildred testified that on Stitler June observed, she from her overlook- apartment window 21, 1985, lot, ing the center an stand- shopping parking elderly woman bald, well-dressed, man, ing with a African-American identi- Appellant, fied as nеxt to a car. She noticed if pointing something wrong to the rear of the car as with car, the tire. The in' got two into the seat, away, driver’s and drove the other apparently pick up waiting two victims who were for the car at another location in center. shopping Kimberly Oyler testified on June Shopping she was at the Millcraft at approxi- Center 21, 1985, 2:15, and, car, mately as she parking was her she observed (later the rear door of a Appellant holding open vehicle car) determined to be Ms. Horner’s as elderly two women witness, Crothers, A Harry entered the rear seat. third Horner, that he personally acquainted testified was with Ms. who his friend’s Mr. mother-in-law. Crothers owned center, shop across the street from the and observed shopping car, Horner in the passenger elderly Ms. seat of her with two in the back seat Appellant driving, women as the vehicle shopping left the center at about p.m. 2:30 Elements, Joseph of a gas owner station and convenience miles, drive, store 1.5 or a four minute from where bodies found, were testified that he observed a cream Dodge colored or Plymouth four-door sedan into drive his station between murders, 3:00 and 3:30 on the p.m. day of the June 1985. car, out of the Appellant got and there no other were occu- pants store, in the vehicle. Witnesses inside the who identi- fied from a photographic array, stated that he soda, purchased some gold-chain handed a child a neck- lace. He left the store away, and drove heading north. thereafter, Mr. Shortly Elements observed driving heading same vehicle south past the station. Appellant time, appeared 4:30, a third between 4:00 and he when coasted into the station motor off. An employee assisted car, restarting the and he drove Mr. away. Elements identified Ms. Horner’s as vehicle the car he had seen Appellant driving during his multiple stops at the service throughout station the day of the murders. Other witnesses identified the necklace Appellant gave to the belong- child as to Ms. ing Warrick.

Evidence also introduced at trial concerning a burglary day Woznicak, occurred that at the home of Delha which mile, was located three-tenths of a thirty drive, about a second from the Elements service station. Ms. Woznicak testified that her residence was broken into 3:25 between and 4:50 p.m. 1985. June She identified evidence introduced at trial home, as items stolen from her and further identified the bottom of a portion dress that had she found her abode cleaning up while after the burglary, Ms. which Warrick’s relative identified as the dress Ms. Warrick to the wore luncheon.2 time,

At this girlfriend, resided with his Joan Whitlock, approximately thirty minutes from the Elements station. Ms. service Whitlock’s neighbors testified that on the fact, top portion 2. In body of Ms. Warrick's dress was on her when it was discovered June 21, 1985, a driving observed

evening they of June sedan, this car and him from beige unloading four-door saw as to the When belonging items later identified Woznicaks. 23, 1985, items arrested on June numerous Appellant was possession. the discovered in his identified as Woznicaks’ were the one of the property A identified as vinyl purse, white victims, cards in the name of two containing victims and credit Kuntz, found on outside grounds Ms. Horner and Ms. was the Rocks, in one mile approximately a McKees housing project Ms. brother resid- from Ms. residence. Whitlock’s Whitlocks’ there, the night ed testified that visited him and 1985. Alfred Adams testified the Commonwealth June Appellant, Appel- that he and that at one time grew up with yards 600-800 from where apprоximately lant had lived The also estab- victims’ bodies were found. arts, had an instructor in martial lished that been Further, a black belt karate. the Commonwealth held Special from FBI Andrew expert testimony Agent submitted hair Podolak, testified he examined of a samples who the hair found on and determined that Appellant’s clothing, Warrick’s, in his similar that of Ms. had characteristics the hair expert was Ms. Warrick’s. opinion, Hair. The at trial last witness was Sarah Commonwealth’s 18,1985, before the days Ms. Hair testified that June three in her car murders, 6:15 she was approximately p.m., sitting Valley in the lot of Chartiers Center parking Shopping she African- Bridgeville approached when a bald Appellant. man she as American whom identified her car had tire. Ms. inspected told that her a flat Hair tire, nothing ordinary. Appellant but could see out of stated, “fool- that he observed someone persistent, saying she tire. a nail from ing” Appellant attempted with the extract tire, offered to Hair to and after several minutes drive Ms. to have tire refused his repaired. a service station She however, offer, attempted away. drive Appellant, up then bent stood driving away, blocked her from down and scissors, under holding claiming to have found them pair scissors, took take saying the tire. Ms. Hair she would back, them to the took them police. Appellant and stated that incident, he would take them there. As a result of this Ms. Hair made a complaint Township Collier Police. behalf, testified on his

Appellant denying own his involve- ment in the homicides and the He burglary. Woznicak admit- 21, 1985, ted that he inwas the area on June to see an left, but that attorney, he ear to returning by Pittsburgh at about 12:45 or 1:00 a man to him p.m. only with known as Appellant “P.I.” further testified that he in posses- came to be sion of the belongings Woznicak’s after P.I. on meeting with the of the 21st in Hill night the District of Pittsburgh. Other defense evidence experts included defense offered their who that the opinions sustained the by blows victims were the attack, blows, result of karate karate-style or a human hand. Finally, although other Appellant’s witnesses testified as to 21, 1985, on whereabouts June none able to account for were the time noon p.m.3 between 12:00 and 7:00 the

Following guilt phase, trial counsel the presented testi- mony of two penalty individuals at the in phase support mitigator:4” “catch-all Lamont Stephens5 and Appellant’s mother. Mr. testified that Stephens Appellant when seventeen, old, he Stephens, saved Mr. then years two from being by act, killed a train. For this heroic Appellant received Carnegie the Hero Appellant’s mother Award. likewise testi- fied this and about award stated that her son had been always nonviolent. Berkey psychiatric

3. Dr. Richard conducted a evaluation of in guilt phase. Berkey connection with the Appel- Dr. concluded that tendencies; grandiose paranoid lant evidenced some thinking and highly organized; was ideation; there was no indication of bizarre of delusional psychotic and incompetent. did not seem or Trial attempted testimony during guilt phase to introduce his demonstrate that person. was not a violent The trial court Steele, permit testimony, did not this and this Court affirmed. at 911. 9711(e)(8). § 42 4. See Pa.C.S. regarding

5. There is some confusion in the record the name of this Stevens, Stephens, individual: he is referred to as Lamont Lamont and Throughout opinion Lamont Anderson. we refer to him as Mr. Stephens, published Carnegie Lamont as that was the name in the Hero Report. Fund 1964 Annual phase, jury Following penalty conclusion respeсt Ms. found three circumstances with aggravating 9711(d)(6), (d)(8), Warrick, § see Horner and Ms. Pa.C.S. (d)(10), and, Kuntz, jury to Ms. found two respect 9711(d)(8) circumstances, § see Pa.C.S. aggravating (d)(10).6 that the jury aggravating In each instance found mitigator apparently the catch-all outweighed circumstances 9711(e)(8) (“Any other § See Pa.C.S. accepted jury. and record of concerning the character mitigation offense”). the defendant and the circumstances of his sentence, trial coun- Appellant’s After convictions death motions, on March filed which were denied post-trial sel This affirmed sentence June Court before the During years legal wrangling 1989.7 court, and a petition filed a se PCRA pro petition January raising counseled amended PCRA issues, ineffective assistance including allegations of eighteen evidentiary The held a hear- counsel. court limited of PCRA of testimony two present ing, permitting Appellant Attorney investigator trial and his Tershel witnesses: hearing, court denied Following Michael Reid. the PCRA appealed claims. thereafter di- all of rectly to this Court.8 9711(d) provides, part, § 42 Pa.C.S. relevant as follows:

6. (6) killing perpetration a in the of a The defendant committed while felony. (8) by torture. The offense was committed means of (10) Federal or State The defendant has been convicted of another issue, offense, at offense at either before or the time of the committed imprisonment imposable which a life death was or for sentence of or undergoing imprisonment a sentence life for the defendant was of any commission reason at the time of the of the offense. motions, trial, post-sentence represented at and on Liekar, public Esq., appeal by the John same counsel: defenders Tershel, assistant, Esq. A. Mr. Liekar died before the his first Paul litigation. initiation of the PCRA . Appellant's jurisdiction petition because we 8. This Court over has penalty directly post review of conviction relief in death cases the denial 9546(d). pursuant § to 42 Pa.C.S.

359 relief, from the of appeal On denial PCRA our of standard review calls for us to determine whether the ruling by PCRA court the record and free supported 698, error. legal Washington, Commonwealth v. 592 Pa. 586, (2007); Breakiron, 927 A.2d 593-94 566 323, (2001); Pa. 781 A.2d 94 Strong, Commonwealth v. 563 Pa. 1167, (2000). n. 761 A.2d 1170 3 In order to be eligible relief, must prove by preponderance PCRA a that his conviction or sentence resulted from one more of the or enumerated circumstances found at 42 Pa.C.S. 9543(a)(2). §

Further, Appellant must demonstrate that the issues petition raised in his PCRA not been previously litigated have waived, or and that “the failure to litigate prior the issue to or trial or on during appeal direct could not been the have result any rational strategic or tactical decision counsel.” Washington, 9543(a)(3), §§ 927 A.2d at 593 42 (citing Pa.C.S. (4)). An issue has been if previously litigated highest “the appellate court in the petitioner which entitled to review as a matter of has right ruled on the merits of the issue.” Id. 9544(a)(2)); § (citing Pa.C.S. Crawley, Commonwealth v. (1995). 541 Pa. 663 A.2d A PCRA claim is “if petitioner waived could have raised it but failed to do so trial, trial, review, before during unitary or in appeal 9544(b). state prior post-conviction § proceeding.” Pa.C.S. Further, longer we no apply relaxed waiver doctrine in Albrecht, capital appeals. Commonwealth v. (1998).9 Appellant's We petition note that the fact that first PCRA was filed before our decision in Albrecht was decided is irrelevant. The Albrecht merely practice relaxing rule was a clarification of this Court's of rules, waiver and not a rule of constitutional dimension. Common 264, 935, (2001). Indeed, Bracey, wealth v. 568 Pa. 795 A.2d 941 we consistently applied capital appeals have the strict waiver rule in PCRA petition where the was filed before Albrecht. See v. Commonwealth Pursell, 233, 293, (1999) (applying 555 Pa. 724 A.2d 306 Albrecht to conviction, 1991); petition 1982 where PCRA filed in was Common Laird, 629, 346, (1999) wealth v. 555 Pa. (applying 726 A.2d 354 conviction, 1993); petition Albrecht to 1988 where PCRA was filed in Wallace, 397, 916, (1999) Commonwealth v. 555 Pa. 724 920-21 A.2d

360 error, alleged issues of now raises seventeen of assistance of ineffective allegations of which involve many effective, and Pennsylvania, presumed In counsel is counsel. of Common proving bears the burden otherwise. a defendant (1997). Hall, 269, 190, In Pa. A.2d 200-201 v. 549 701 wealth assis on a claim of ineffective to be entitled to relief order counsel, plead prove must petitioner PCRA tance (1) underlying of the evidence preponderance aby merit; (2) is at effectiveness counsel whose arguable claim has inaction; for his action or a reasonable basis issue did have (3) as a result prejudice suffered petitioner McGill, 574 inaction. v. action or Commonwealth counsel’s (Mi (2003); 1014, v. 574, A.2d 1020 Commonwealth Pa. 832 chael) Pierce, 186, 203, (2001); A.2d 213 Common 567 Pa. 786 (1987); 153, (Charles) Pierce, A.2d 973 515 Pa. 527 wealth v. 668, 687, 104 Washington, v. 466 U.S. S.Ct. also see Strickland (1984) that, an 2052, to establish (explaining L.Ed.2d 674 80 claim, that coun defendant must show assistance a ineffective deficient and that such deficiencies performance sel’s defense). counsel’s determining whether When prejudiced reasonable, question do not “we actions or omissions were of actions more courses logical there were other whether rather, examine we must pursued: counsel could have which reasonable basis.” Com any decisions had counsel’s whether (2007) Rios, 920 A.2d 799 monwealth v. omitted) added). Further, (citation to establish (emphasis act that “but for the a must demonstrate prejudice, petitioner of the would proceedings the outcome question, or omission (citing different.” Id. at 799 have been (1999)). it Rollins, 435, 441 Pa. Where 558 three, any failed to meet of the petitioner that a has clear test, may disposed Pierce the claim be prongs distinct alone, that basis without determination whether v. Base been met. Commonwealth prongs other two have (2000). more, n. 23 Pa. A.2d conviction, petition filed in where PCRA (applying Albrecht 1995).

361 review, In accord these criteria for with well-established set petitioner individually substantively must forth and discuss each of the Pierce test. v. James prong Commonwealth Jones, 130, 380, (2005); 583 Pa. 876 A.2d 386 Commonwealth (Aaron) Jones, 112, 994, (2002); Pa. 1003 v. 571 811 A.2d Wharton, 85, 978, v. Pa. 811 A.2d 988 Commonwealth 571 (2002) (“Claims of assistance of counsel are not ineffective (Michael) Pierce, at 221 self-proving....”); (noting 786 A.2d that an appellant prevail cannot on claim of ineffective assis- (Charles) tance of counsel claim is not developed); when Pierce, 515 Pa. In multiple 527 A.2d 973. claims in this case, Appellant only prong, arguing addresses the first merit, claim has underlying arguable by followed a bald assertion of the lack of prej- a reasonable basis and the fact of claims, udice.10 undeveloped boilerplate allega- Such based on tions, cannot satisfy Appellant’s establishing burden of ineffec- Jones, 386; tiveness. See 876 A.2d at Commonwealth v. (2001) (“[sjuch Bracey, 568 Pa. 795 A.2d 940 n. an undeveloped argument, fails to meaningfully which discuss and apply governing standard review ineffectiveness claims, does simply satisfy not burden of establish- relief.”). Thus, he ing that is entitled to any where has failed to set forth all three prongs ineffectiveness them, relief, test and discuss he meaningfully entitled to and are we constrained find such claims for lack of waived As development. infra,, referenced above and discussed many of the claims by Appellant asserted fail on this basis.11 Although analysis encompasses argument 10. the merits that would appeal, petitioner be made if this were a direct must nevertheless ineffectiveness, prongs set forth herein the two other because Sixth Amendment ineffectiveness claims are distinct from merits review. Collins, (2005). 888 A.2d 564 Appellant's point, Saylor, as well as that of Justice that at the time opinions regarding filed his brief in 2003 this Court's recent pleading proof capital “confusing, PCRA cases were inconsistent 7-8, constantly shifting,” given brief has merit acknowledged present capital litiga- difficulties we have are Gibson, (Pa.2008). tion. See Commonwealth v. At brief, however, the time filed his claims of ineffectiveness self-proving, undeveloped were not claims of ineffectiveness were (Aaron) Jones, prove insufficient to an entitlement to relief. See presented in the order the issues not address

We will Rather, implicating the issues begin will we Appellant. of trial. guilt phase Phase

Guilt Regarding Error the I. Trial Court Expert Commonwealth’s trial court error is a claim of first issue Appellant’s FBI testimony Special of the admissibility regarding Podolak, Appel found on samples that hair Agent opined who as Appellant came from one victims. clothing lant’s false, scienti misleading, and without testimony this was serts found The court basis, therefore inadmissible. fic and was, fact, of Mr. Podolak testimony challenged that not, its admission was admissible, that even if it was and error. harmless by Mr. Podolak examination conducted

The FBI forensic hair found on indicating that the report resulted in a pre-trial Ms. Warrick’s clothes shared characteristics with from hair, having originated [Ms. “consistent with was contained report at 42. The Brief for Warrick].” do not constitute' comparisons that “hair qualification Bond, 588, 819 A.2d at 1003. See also Commonwealth A.2d (2002). 40 prove trial counsel’s ineffective- define his burden to In an effort to ness, prongs of ineffectiveness outlined forth the three sets Defining beginning Brief for at 10. of his brief. above at meeting adequately the burden of his brief and his burden at the outset claims, however, thing. are not the same developing his substantive demonstrating ineffectiveness for trial counsel’s When it comes to has, noted, instances, specific as acting failing act in or attempting to demon- opted strate, ineffectiveness rather than for assertions of have example, why the outcome of the trial would how or Rios, question. See 920 the act or omission in been different but for Therefore, Appel- where presumed effective. Counsel is A.2d at 799. merit, arguable that his claim has more than assert lant failed to do omissions, and he for their acts or lacked a reasonable basis conduct, presumption that counsel prejudiced by counsel’s before this prevails. Appellant does not meet his burden were effective by simply, presenting of ineffectiveness regard to claims Court with Strickland, L.Ed.2d U.S. 104 S.Ct. citing jurisprudence, difficulty with Court’s emphasizing perceived this prongs counsel ineffectiveness. asserting he meets the three absolute identification.” Id. Trial counsel personal basis for testimony filed a motion in limine exclude Mr. Podolak’s that the described in the theory opinion report violated States, (D.C.Cir.1923), rule of v. United 293 F. 1013 Frye Pa. adopted by Topa, Court Commonwealth v. (1977)

369 A.2d 1277 to be (requiring gener- scientific evidence in the In ally accepted community). response scientific to that motion, that, the prosecutor indicated consistent with this report, testify concerning findings Mr. Podolak would that the hair had the same characteristics as that of Ms. The Warrick. trial, trial court denied the motion in limine. At Mr. Podolak it his opinion testified the hairs found on “came Appellant’s clothes from” Ms. Trial counsel Warrick. Mr. fully cross-examined Podolak on the contents and accura- conclusions, cy findings of his and Mr. Podolak conceded that his findings were conclusive. The defense called Dr. Wecht, H. a Cyril practicing physician and pathologist, testify origin subject as to the sample, hair which contradicted Mr. Podolak’s testimony.

Appellant argues that his rights to a fair trial and due process were violated when the trial court permitted the introduce Mr. Podolak’s expert testimony regarding samples the hair found on clothing. Specifically, Appellant argues that there no is scientific basis any for hair examiner to claim the to determine ability that a hair came from sample a specific person. Appellant now seeks a hearing to demonstrate that the Common- expert’s testimony wealth’s misleading. was false and This issue is waived. Appellant argued before the trial court that it had erred in admitting opinion evidence of Mr. Podolak regarding samples hair found on Appellant’s Steele, clothing. See Commonwealth v. Nos. 686-688 of (C.P. slip 3, 1988) at 18-20 op. March Washington County, (1988 Court, however, Trial Ct. Op.). appeal On direct to this did not raise the issue. An issue is if waived trial, “could have raised it but failed to do so before trial, review, during unitary or in a a,ppeal prior state 9544(b) postconviction proceeding.” § (emphasis Pa.C.S. added). the issue Here, could have raised Appellant plainly Court, Thus, to do so. to this but failed on direct appeal claim waived.12 ineffective assistance Appellant alleges the extent

To error this claim of trial court failing pursue of counsel develop failed to address and has appeal, Appellant on direct of the ineffectiveness test. See prongs the three meaningfully 4; Wharton, 988; at 940 n. Bracey, A.2d at Further, Pierce, as discussed (Michael) 786 A.2d at 221. issue, below, coun trial regarding the second connection with Podolak, not agree do Agent cross-examination we sel’s if raised this claim on direct counsel had been different appeal the outcome of that would have appeal, overwhelming against Appel nature of given lant. Analysis Stemming the Hair from

II. Ineffectiveness First, subparts. issue contains several This 305,13 Pa.R.Crim.P. that the Commonwealth violated argues it, reports to disclose requested, expert requires when which on both to disclose continuing duty parties a imposes arises subpart to the other This party. additional evidence above, Mr. testimony. As described from Podolak’s Agent hair does not analysis in the report Podolak stated filed a absolute basis for identification. Counsel an provide The testimony. to exclude Mr. Podolak’s motion in limine motion, and Mr. Podolak testified court denied the trial make, make, identification of positive and did he could to According hair found on clothes. Appellant’s source of the agent disclosed that the the Commonwealth never Appellant, failing to alleges trial counsel was ineffective for assertion, allegedly testimony. expert to refute this false This secure an sentence, require- single falls far short of this Court’s contained in a argu- developing Appellant makes no ineffectiveness claims. ments for test, any prongs the ineffective and has regarding of the three ment therefore, not, establishing to his burden of that he is entitled carried did, fact, Jones, Further, in supra. post-conviction relief. See expert. to refute the Commonwealth's obtain Dr. Wecht since been renumbered to 573. 13. This rule has such, trial. As during this before or opinion, render would deliberately vio- contends that the Commonwealth dis- argues that this discovery. Appellant lated the rules at the rendered defense counsel ineffective covery violation motion in limine proceeding. argues Specifically, Appellant of the content of Mr. Podolak’s that had counsel known actual had been forth- testimony, or if the Commonwealth proposed in the court the on the motion right during litigation limine, the trial court to ex- persuaded counsel would have Frye/Topa requirement as the violating clude community. in the scientific general acceptance fails to re Appellant woefully develop any argument His garding separate prongs the three of the ineffective test. arguable entire seems to be directed towards the argument merit He no mention prong. makes whatsoever whether basis, counsel had a reasonable or how counsel’s failures burden, prejudiced him. fails to meet his and his Jones, Further, supra. See claim must fail. we fail see at the motion in counsel can be how considered ineffective limine in hearing. Based on the information contained trial counsel that Mr. report, argued testimony Podolak’s in opinion report should be excluded because the described not in It generally accepted community. the scientific done, apparent what more counsel could have and the fact agent subsequently conclusively testified does not the motion performance render counsel’s ineffective at limine hearing.

Second, ineffec Appellant argues that trial counsel was failing object Agent testimony tive for Podolak’s trial positively connecting hair found clothes arguable Ms. merit Although Appellant argues Warrick. test, completely he portion ignores ineffectiveness prejudice prong. reasonable basis and As this Court noted Bracey, undeveloped argument, an which fails to “[s]uch meaningfully apply governing discuss and the standard claims, of ineffectiveness does not simply satisfy Appel- review any that he is entitled to relief.” establishing lant’s burden of 795 A.2d at 940 n. 4. Bracey,

Third, that counsel ineffective Appellant argues was cross-examine, and rebut failing adequately impeach, to that, had counsel testimony. Appellant argues Mr. Podolak’s Agent Podo prepared, impeached he could have adequately the of “standard treatises” and testimony by lak’s use including following eight points: other the respects, numerous hair; (2). (1) cuticle cells and cortical fusi in uniqueness (3) the subjective analysis; nature of hair existence of hairs from different individuals examples recorded microscopic from other based on all match hairs individuals (4) characteristics; exaggerated amount of hairs allegedly examined Podolak in relation to the by Agent claimed be hair; examine a necessary adequately single amount of time analysis; error rate in hair comparison the 67% (6) (5) “secondary nature of the transfer” speculative prosecution’s found;14 the location the hairs theory regarding where were accuracy propriety Agent and Podolak’s method (7) (8) hair; to his and comparing questioned samples own Po misleading regarding Agent false and statements alleged an on the source of the hair. ability opinion dolak’s render Brief for at 56-57. Appellant, See a reasonable Appellant contends that was without cross-examining Agent for not adequately preparing basis he points. Podolak on the above He also contends that was the hair by trial counsel’s failures because evidence prejudiced direct him to the crime. As only linking was the cross-examination, such, preparation according adequate to a different Appellant, likely would have led result. We n disagree. clothing from 14. The examined hair was found on that was different prosecution proved Appellant wearing day in- what the was on the Podolak, question. prosecution, Agent that the hair The surmised clothing day deposited wore the of the murders clothing where it found virtue of and was later transferred to the being in the or in other similar fashion. same closet some prejudiced by cannot demonstrate that he was trial counsel’s actions. Even if assume that trial we counsel’s preparation and cross-examination inadequate, were which we hero, not take a position agree need cannot we with the that outcome of the proceeding likely would Rios, have been different. See if supra. jury Even the evidence, the disregarded hair the at trial evidence over- whelmingly demonstrated Appellant’s guilt. Three different at, eyewitnesses near, saw the or with victims Millcraft Shopping Center. The first witness observed Appel- approach lant one of the victims to point the car’s tire. The same witness watched Appellant got as into the drivers’ seat of the car. The second witness Appellant holding saw for open door the other they two victims as entered the A vehicle. third witness identified Appellant driving the car question mother-in-law, around the time in while his friend’s Horner, Ms. was in the passenger seat. then was seen car driving victim’s later that at the day Elements Service Station.

Testimony was also regarding burglary introduced a that shortly occurred after the murders the home of Ms. Wozni- cak, a which was short distance from the Elements Service Station. later by was observed three witnesses unloading the stolen items from Ms. Warrick’s vehicle into his home. girlfriend’s Ms. Woznicak a strip found cloth that later determined to was be from the by dress worn Ms. day Moreover, Warrick the she was murdered. the bodies of the victims were found approximately yards 600-800 from Appellant’s childhood home. The Commonwealth introduced testimony karate, that Appellant was a black-belt in which was victims important because the coroner found that the were killed likely by blunt trauma a human Finally, hand. Ms. just murder, Hair testified that days three before the Appel- lant tried to to her gain access and her by fabricating vehicle tire, problem going vehicle’s so far as to feign seeing a nail in pair the tire and a of scissors under the tire. All of evidence sufficient establish if Appellant’s guilt, even the jury disregarded Thus, the hair comparison evidence.

368 preju- fail he cannot demonstrate claim must as

dice. ineffective that counsel

Fourth, Appellant argues manner, an examina timely expert in a failing request, for car, found in the victim’s cigarette a hair and a tion of testing to order by refusing its discretion the court abused constitu noting his Appellant, mid-trial.15 requested that was defense, relies opportunity present to a fair right tional Oklahoma, 84 L.Ed.2d 105 S.Ct. v. 470 U.S. on Ake Carter, A.2d Pa. (1985) Commonwealth defen (1994) an criminal indigent position prepare expert opinions is entitled to dant assistance introduced trial, the defense. At adequate an in the hair found that an African-American the hair be com did not request Trial counsel vehicle. midway through until anyone or else Appellant pared trial counsel was asserts that Accordingly, Appellant trial. until waiting the case and timely preparing for not ineffective hair. to test the expert assistance request mid-trial and preju- the reasonable basis fails to address Appellant Rather, he advances test. of the ineffectiveness prongs dice assistance of counsel. of ineffective boilerplate allegations only he is burden of such, proving has not carried his Appellant As Jones, supra.16 entitled to relief. See refusing this trial court erred in rejected the claim that 15. We therefore, aspect argument, is appeal. This of the request on direct Steele, litigated. A.2d at 911. previously "overly stringent” allegedly Saylor example of our cites as an 16. Justice arguments of ineffectiveness our consideration Appellant's treatment of stemming from the subparts Appellant's ineffectiveness claim four Specifically, in three of the analysis, which is Claim II. hair claim, argue that he was has failed to subparts to this Saylor notes that in connec- by conduct. Justice prejudiced counsel's I, argument error in regarding Appellant's of trial court with Claim tion testimony expert, char- admitting of the Commonwealth's testimony prejudicial, expresses the view expert's as acterized equally applicable to I is in connection with Claim that this assertion Claim II. characterizing damaging nature of the respect, With all due I trial testimony, Appellant contends in Claim that the expert's which Appellant’s to demon- admitting, obviate burden erred in does not court Admissibility Analysis of Hair Evidence III. issue, that admission Appellant argues

In another rights violated his constitutional comparison the hair evidence Topa, to this Court’s decision pursuant to due process In this Court reversed Topa, 369 A.2d 1277.17 Pa. testimony expert on of an based murder conviction during a voice appellant’s identified spectography, who rejected This Court telephone on a recorded call. confession generally not validity as its spectography the use Id. at 1281. in the same scientific field. accepted by those similarly comparison contends that hair trial. permitted not been unaccepted, and should have issue, a constitutional This to the extent it involves 9544(b). § As is waived.18 Pa.C.S. question, notes, from this issue nothing prevented raising the claim direct seeks to resurrect appeal. Appellant failing for to raise making a blanket claim of ineffectiveness he appeal. Again, meaningfully the issue on does address minimally adequate prongs the three of the Pierce test with Jones, Therefore, supra. too fail. detail. this claim must See Further, as noted in claim disposing we Mr. failing trial counsel to cross-examine was ineffective adequately, against Appellant Podolak the evidence was over- strate, claim, subparts in the that the outcome of of his next substantive the trial would have been different but for counsel's omissions: coun- testimony presented by anticipate sel's failure to the actual testimony expert purported offered Commonwealth’s differed from the object agent's positive expert report; in the counsel's failure to to the clothes; or counsel’s identification the hair found on cigarette request expert failure to an examination of another hair and a found in the victim’s car. very In 17. This issue is similar to thе first issue we addressed. the first issue, argued testimony misleading, Appellant that Mr. Podolak's issue, argues comparison Appellant whereas in this that hair acceptance generally general in is inadmissible because it does not have community, required by Topa. the scientific as argues Appellant counsel should have moved 18. To the extent that trial comparison testimony, we to exclude the hair as have Commonwealth’s noted, did, fact, already limine to trial counsel file a motion in exclude this evidence. cannot conclude that had counsel raised whelming, and we been reversed. the conviction would have appeal, issue on Relating Dire Ineffectiveness Voir IV. jury process next claims that the selection 5th, 6th, to the 8th rights pursuant of his defective violation and and 14th Amendments to United States Constitution I, Pennsylvania 9 and 13 of the Constitution. Article Sections subparts. This has several argument First, ineffec that trial counsel was Appellant argues racial bias specific questions regarding to ask failing tive this case involved an and attitudes towards race because murdering man three white charged African-American trial counsel granted permission The trial court women. (1) three voir dire: “Do following questions during ask the likely are more to commit a crime you people feel that black (2) you any prejudices than “Do have towards people?;” white (3) more credence to the you give black “Would people?;” simply that of a black testimony person person of a white over Brief for at 64. person?” he a because was white trial process, the voir dire alleges during than all three. the first rather only question, counsel asked claims, This, he rendered counsel ineffective. relief, must plead in order to be entitled

Again, (1) a of the evidence prove by preponderance (2) merit; claim counsel whose effec- underlying arguable has at issue did not have a reasonable basis for tiveness is (3) inaction; petitioner the PCRA suffered action or Pierce, a result of counsel’s action or inaction. prejudice as A.2d at 213. mer arguendo arguable that this claim has Assuming it, had a reasonable basis for first turn to whether counsel we three As only permitted questions. one of the asking noted, refrain from attorney may court an effective PCRA racial bias if he juror repeatedly a about asking prospective embarrass, or may anger, annoy potential so doing believes atOp. Court juror attorney acceptable. that the finds 371 Therefore, may legitimate counsel have had a reason not ask all questions to three racial to each concerning prejudice Richardson, juror. See prospective Commonwealth v. 504 Pa. (1984) 358, 1361, 473 A.2d 1364 (noting that there are valid reasons not to ask questions concerning racial issues even in a black); case where victim is white and the defendant (1997) 346, v. Henry, 550 Pa. A.2d 313 counsel (finding was ineffective for to ask racial failing prejudice questions a case a involving black defendant and a victim). white

Moreover, the mere fact that counsel permitted to ask three but questions only asked one does not alone demon- strate prejudice. Having gotten an regarding answer whether juror felt prospective that black more people likely were commit a crime than white people, ‍​‌‌‌​​​​​​‌‌​‌‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌‌‌‌​‌​​​‍it is difficult to see how Appellant could persuasively demonstrate prejudice because counsel did not also ask that jurоr he or whether she had prejudices racial against black or people would credit a white person’s testimony over that of person. a black

Second, Appellant argues trial counsel was ineffective failing jurors rehabilitate who they showed were hesi tant impose death penalty prosecutor when the “death qualifying” them. asserts that the prosecu challenged tor for cause jurors eleven initially who stated some form of opposition to the death penalty, trial object failed to or attempt to elicit more detailed information about whether the particular jurors were so predisposed personal their beliefs would substantially impair their ability judge the sentencing proceeding fairly. See Witherspoon Illinois, 510, 522, 391 U.S. 88 S.Ct. 20 L.Ed.2d 776 (1968) (holding that potential jurors not be may excluded merely because they voice or general moral philosophical reservations about the death penalty).

The decision to juror disqualify is within the court, discretion of the trial be only will reversed for an Carson, abuse of discretion. Commonwealth v. 590 Pa. (2006); Wilson,

913 A.2d Commonwealth v. (1996). be juror may A potential punishment prevents on capital if he holds views excluded from to the trial adhering that substantially impairs person or Carson, 262; A.2d at 913 instructions on the law. court’s (1997). 441, 43, Lark, 698 A.2d 48 548 Pa. v. Commonwealth clarity.” unmistakable proven need not be juror’s “A bias 516, Morales, 400, Pa. A.2d 525 549 701 v. Commonwealth (1997). regarding argument makes no whatsoever

Appellant required that he is not argue nor does he prong, prejudice Therefore, is not entitled argue prejudice. address the neces meaningfully failure to because relief Jones, Bracey, supra, ineffectiveness. See sary prongs its Further, held that a trial court is within have we supra. about reservations jurors expressed to exclude who discretion has no and that trial counsel penalty, the death imposing jurors’ attempt change obligation constitutional Carson, 913 A.2d at 262. views. See jurors that the empaneled asserts Finally, Appellant sentence, it making a life impose if could they not asked were who would juror empaneled least one that likely trial, Prior to penalty.19 the death automatically vote for voir dire specific the trial court to include petitioned that the trial venire, questions including two questions (1) first guilty the defendant you “If found rejected: court death murder, automatically vote for the you degree would (2) is a you capital punishment “Do feel that penalty?” at 68. Brief for to murder?” deterrent dire, probe trial counsel did during voir argues juror once the stated penalty on the death juror’s beliefs that sentence. impose he or she could prospective jurors are process by which "Life-qualification” is the opinion fixed the death jury on their from the based excluded first-degree Com imposed murder conviction. be for a penalty must 520, 450, (2004); Common Speight, Pa. 854 A.2d 459 v. 578 monwealth 608, 611, (2003) (citing 2 613 n. Boxley, 575 Pa. 838 A.2d wealth v. 529, (1999)); Keaton, n. 9 Pa. 729 A.2d 542 v. Commonwealth (2003). Bomar, v. Illinois, 504 U.S. Morgan relies on (1992), United 119 L.Ed.2d where 112 S.Ct. in a capital voir dire during held that Supreme Court States not, the Due Process case, violating may a trial court without Amendment, regarding refuse questioning of the 14th Clause sentence automatically impose a death juror a would whether murder conviction: degree a first following automatically penalty for the death juror A will vote who faith to consider every good case fail will the instruc- mitigating circumstances as aggravating Indeed, juror has him to do. because such require tions merits, or presence on the already opinion formed an circumstances is mitigating of either or aggravating absence such juror.... to such a even one entirely irrelevant If sentence is juror imposed, and the death empanelled is disentitled to execute the sentence. State (emphasis supplied by Appellant); Id. at S.Ct. Appellant Brief for at 67. in arguing

It trial court error appears Appellant rather than trial coun- denying requested questions, counsel’s In Blystone, sel ineffectiveness. (1999), the as appellant argued, Appellant 725 A.2d 1197 here, right impartial he of his to an deprived

does was trial of the trial court’s refusal to allow capital jury as a result claim, jurors. rejected this qualify potential counsel to life We mis- Morgan that the reliance on was appellant’s and found a constitutional rule placed Morgan because was new cases, in and therefore procedure capital criminal for voir dire recognized Id. at 1203. apply retroactively. did not We “had not Supreme the States Court prior Morgan, United that a defendant be afford- imposed mandatory requirement a Nor question upon request.” ed life voir dire Id. qualifying a Therefore, we Pennsylvania requirement. did have such life held that the not entitled to have his counsel appellant was to the at the time of trial. Id. jury, according the law qualify tried reach the same conclusion here. was We rejected in appeal in 1988. This Court 1989. and convicted Thus, the at the time of Morgan decided law juries questioned trial not mandate that be did err in rejecting life and the trial court did not qualification, Carson, counsel’s 262.20 questions. See Testimony Regarding Instructions Identification V. 5th, to the alleges rights pursuant next that his 6th, 8th, to the and 14th Amendments United States Constitu- I, 9 of the Pennsylvania tion and Article Section Constitution the trial court’s failure to instruct by properly were violated testimony. the identification As jury regarding notes, aspect a crucial of the case. Appel- identification was lant that the cross-racial nature of the identification asserts racially the testimony, charged atmosphere combined with court, trial, jury control of the required careful jury regarding the trial court’s failure to instruct questions difficult nature of such identifications raised serious accuracy about the of the verdict. The is in subparts. regard

This issue has two first Crothers, Harry C. who testified for the Commonwealth. Mr. a statement one after the gave police Crothers week day homicide that he saw Ms. Horner’s car on indicating it, but not in a identify position the murders and could observing elderly other than three occupants clearly, see the however, trial, At he driving. and a bald black man women counter driving testified that he the car. To saw witnesses, including identification Mr. Commonwealth’s Crothers, testimony expert the defense of an presented matters af memory, regarding who testified perception identification, the fecting reliability eyewitness specifically Further, the presented cross-racial identifications. defense of three observed a similar testimony the witnesses who man, in the area around the looking Appellant, who was testimony, time of the crimes. In of this defense includ- light ordering the Appellant 20. also asserts that the trial court erred in not transcript appellate production purposes. of the voir dire See entire However, Appellant we Brief for at 70-73. because find that demonstrating carry he is entitled to relief with cannot his burden of regard any implicating jury the of the claims he raises selection procеss, we need not address this issue. the ing testimony expert, request- defense trial counsel Crothers, an respect ed instruction with to Mr. “in an effort to jury channel the in the direction of careful reasoned consider- ation and steer the jury away conjecture.” from Brief for at The requested instruction taken from the standard instructions: jury

A victim or other witness can sometimes make a mistake when trying identify criminal. If certain factors are present, accuracy testimony identification is so doubt- jury ful that a must it receive with caution. Identification (if testimony must be received with caution the witness position, poor because bad lighting or other reasons did criminal) (if good opportunity not have a to observe the (if testimony witness is not positive identity) as positive testimony witness’ [by qualifications, weakened hedging or inconsistencies in the rest of his testimony] [by defendant, his not identifying or someone identifying (at else, (when as the criminal a lineup) showing photo- (_) trial]) (if, graphs) trial, before the before the (__) request defendant’s for a (lineup) to test the ability the witness to make an identification was denied and the subsequently identification) witness made a less reliable (if,-)(cid:127)

Brief for (quoting 76-77 Jury Standard Instruc- 4.07). tions, rejected The trial court request. this argues now the trial court erred in denying requested instruction, based on the Jury Standard Instructions, regarding how the jury should assess the credi an bility weight of identification witness. findWe claim to be waived. Appellant raised it before the trial court after his conviction and sentence. See Op. PCRA Ct. at 23 (citing However, 1988 Trial Op.). Ct. Appellant did not pur Court, sue the claim on direct appeal to this although he could 9544(b) § have. See Pa.C.S. (stating that a claim is waived if an appellant could have raised it but failed to do so on appeal). To the extent counsel failing was ineffective for pursue appeal, this claim on Appellant fails to discuss and such, his As standard. ineffectiveness governing

apply Bracey, supra. claim fails. See present- the defense although that Second, argues identi- of cross-racial unreliability concerning testimony ed court did not and the trial fication, request not counsel did Because trial counsel that on evidence. any instruction give court instruction, claim of trial any such an request not did claim of on a bald tags Although Appellant error is waived. issue, this failing preserve ineffectiveness trial counsel the issues many as argument, underdeveloped above, apply to discuss meaningfully fails discussed such, claim fails. As standard. ineffectiveness governing Bracey, supra. See Unanimity Instructions Trial Court’s

VI. constitutional that his next contends the trial court’s instruction because were violated rights find that it must jury instructed the unanimity improperly acceptable, and that no other verdict Appellant guilty, for circumstances and provides allows though law even The court stated: agree. cannot jury where unanimous, be, be it must your may verdict No matter what choice of each and is, the unanimous it must reflect Each and or count. charge on each every you one of on the final verdict agree concur you must everyone verdict Any court. open return here you will which everyone you of each and not reflect view does which In accept it. other could improper be we would are say you in court and words, cannot come back you three, like that. five, anything ten to or nine to two seven to unanimous, or not guilty guilty either must be The verdict charge. on each (N.T.) contends at 1484. Testimony preserve to failing properly ineffectivе for counsel was

trial and on appeal. this issue at trial litigate and of this claim to the merits compelled find again areWe instruction at object jury not to the Trial counsel did waived. Thus, not Common properly preserved. the issue is trial. (2005). Pa. 887 A.2d Pressley, v. wealth under the Moreover, to this claim attempt revive Appellant’s Appel fails due to assistance of counsel rubric of ineffective necessary prongs meaningfully failure to address lant’s Jones, supra. test. See ineffectiveness Prosecutorial Misconduct VII. allegations claim multiple next involves inflammatory making allegedly misconduct for prosecutorial at both the during closing arguments statements improper

and objected only Trial one of penalty phases. counsel guilt by prosecutor the statements made that now Thus, challenges. any challenges to statements which object properly not are as not they counsel did waived were Williams, preserved. Commonwealth (1995). prosecutor’s 1320-21 As to the statement to, objected pursue that issue on direct did it for appeal, purposes. and thus waived See 9544(b). preserve § Appellant again attempts Pa.C.S. issues them as claims of by baldly blanketing these ineffective In failures conjunction assistance of counsel. the serial again necessary prongs meaningfully, Appellant to address the He tacks on a merely fails to meet his burden this issue. ineffec argument statement at the end of his that counsel was Thus, fail. Bracey, the ineffectiveness claims must See tive. supra. Jury Deliberations

VIII. claim, argues In his last guilt phase impartial jury a fair and process rights right his due jurors, of the prejudice the racial of one were violated and delibera- opinions regarding Appellant’s guilt, predisposed to formal deliberation. prior that were held tive discussions jurors, an declaration of one of the who Appellant references trial. an from the of the inception stated that race was issue in the trial one juror “early The stated his declaration jurors commented on the race of the defendant. of the other that, on race of three and stated He also noted the victims alone, Declara- probably guilty.” that basis the defendant was Mellow, January juror 2000. The continued: Danny tion of I that he articulate his upset prejudice would defendant, ignoring on the instruc- speculate guilt continued at other Judge tions of Bell.... His comments juror, he made racist remarks. First one very breaks and to his gradually then or three more became drawn two jurors on. These also as the first week wore position They efforts of the defense were lawyer. belittled the fun of him. actually critical of him and made openly that made the racist juror juror The also stated that the Id. said, trial, “fry, during get should remark chair or be Id. hung.” is jury testimony rule general regarding post-verdict The 606(b), states: Pennsylvania codified in Rule Evidence which verdict, juror ... a validity an into the of a Upon inquiry occurring or testify any not as to matter statement may to the effect jury’s the course of the deliberations or during any juror’s that or other mind or emotions anything upon concerning a decision the verdict or reaching upon therewith, a in connection juror’s processes mental by 'juror juror’s any affidavit or evidence of statement However, subjects not be received. any may about of these facts not juror testify concerning prejudicial whether may record, knowledge experience, common beyond or brought jury’s to the attеntion whether improperly were bear improperly brought upon outside influence was any juror. any 606(b). referred to as the “no

Pa.R.E. This rule often 529 Pa. Corp., rule.” Carter v. U.S. Steel impeachment (1992) recognized (plurality). We the strict Carter “no rule impeachment” provides a exception for trial “post testimony narrow of extraneous influ might ences have [prejudiced] which affected the jury during Carter, deliberations.” 604 A.2d at 1013 (citing Pittsburgh Co., Nat’l Bank v. Mut. Ins. 425 A.2d 383 Life (1981)). Carter, exception, pursuant juror Under this may testify only influence, as to the existence of the outside but not as to the effect this may outside influence had on have Carter, deliberations. at A.2d 1013. Under no circum may jurors stances testify regarding subjective their reason ing processes. Id. contentions,

Despite Appellant’s the exception gener- to the al no impeachment rule is not implicated here. The exception only influences, to outside applies not statements made Carter, jurors Here, themselves. See A.2d one particular juror made However, some troubling statements. these statements any were based on evidence not of record, or on any Rather, outside juror influences. one attempting jurors’ influence the other opinion, it although done inappropriately Indeed, before deliberations. Mr. Mellow’s declaration states that the “... juror seemed to prey jurors the weaker and tried to them.” sway Declaration of Nevertheless, Mr. internal, Mellow. the influence here was not from outside sources. entered, Once the verdict was jurors, Mellow, including Mr. became incompetent testify regarding any internal discussions or deliberations. Pa.R.E. 606(b); Carter, Therefore, supra. Appellant’s claim fails.

Penalty Phase

IX. Atkins Appellant raises a claim that he is mentally retarded and his death sentence is unconstitutional pursuant to 304, Virginia, Atkins v. 536 122 U.S. S.Ct. 153 L.Ed.2d (2002) 335 (holding that the Eighth Amendment to the United States Constitution prohibits the execution of mentally retard individuals). ed Appellant did not raise this claim before the PCRA court in the proceeding and, to this leading appeal fact, have, could not because the decision in Atkins occurred

380 court and the PCRA petition his PCRA filed

after to this appeal his relief, Appellant perfected before but denied Court. . claim raised his Atkins could not have

Because of his first PCRA to the pendency court due the PCRA before it in a second PCRA is to raise only option petition, order that of the date of the sixty days filed within petition herein. adjudicated petition the first PCRA resolves finally Lark, A.2d Pa. v. Commonwealth See and to (2000). course, required plead still be will Of the time bar under three exceptions one of the prove Lark; 9545(b)(1) 42 Pa.C.S. applies. § 42 Pa.C.S. 9545(b)(1) subchapter, including this under (“Any petition § one year shall be filed within subsequent petition, or second final, the petition unless becomes judgment the date (iii) the right ... proves petitioner and the alleges by the recognized that was right a constitutional asserted is Supreme or the Court States United Supreme Court in this section and time period provided after the Pennsylvania At this retroactively.”). apply that court has been held 302(a) Pa.R.A.P. however, claim is See waived. juncture, and cannot (“Issues court are waived raised in the lower time on appeal.”); for the first be raised (2004) (“The proper Edmiston, but appeal, claims is not on PCRA raising new vehicle be appellant petition, should subsequent in a rather fil- on such serial statutory restrictions satisfy able prejudice. It is dismissed without ings.”). Closing Argument Penalty Phase

X. closing to counsel’s challenge next address We noted, As during penalty рhase. argument phases: and attorneys guilt penalty at the by two represented han- Attorney Liekar Attorney Tershel. Liekar and Attorney investigation prepa- pretrial majority dled the vast Tershel Attorney phases, guilt penalty for the ration a lesser extent. investigation in the pre-trial involved the case trial, actually litigated Attorney Tershel During closing both penalty phase presented and and during guilt not Liekar, say did Attorney though present, while arguments away follow- Attorney passed the record. Liekar anything petition filed the PCRA before ing appeal, direct only Attorney Consequently, raising claims ineffectiveness. In hearing. testify Tershel was available ineffectiveness, Appellant of counsel his claims raising various but attorneys generally these distinguish between does however, his references given “counsel.” It appears, refers to testimony, Tershel’s PCRA when Attorney “counsel,” referring Attorney he is specifically refers mention Liekar or acknowl- Attorney He does not Tershel. discussion, in for trial. For ease we edge preparing his role individually “counsel” and collectively refer to counsel as will name. by presented Tershel penalty phase hearing, Attorney

At the that when he explained of Mr. who testimony Stephens, child, railroad bed walking along he when was a small A train fast caught foot became the tracks. to free himself. Mr. was unable Stephens and approaching, time, only at the people there were other around Although ran from anything. Appellant life to do risked his nowhere,” Mr. life Stephens’s N.T. at and saved “out great personal peril. him from the track at by throwing corroborated Appellant’s mother testified. She Additionally, that as a result of testimony jury and told the Stephens’ Mr. life, Carnegie Mr. received saving Stephens’ Award, a bronze metal. She Hero which included and $500 before, jail had been in although Appellant also testified that anyone; or harmed had never flown he had never been violent loving rage; always protective into a fit of been had offered in to his N.T. at 1559-60. This evidence was family. factor. See Pa.C.S. mitigating of the catch-all support 9711(e)(8). § on this focusing mitiga- that rather than

Appellant contends effectively Tershel aban- closing, Attorney tion verdict, implying attacking jury’s guilt-phase him doned jurors go could rushed the verdict so that the juiy home, it rush to a death suggested similarly that would Attorney penalty phase The Tershel’s entirety verdict. argument follows: guilty reached a gentlemen, you’ve

Ladies and verdict come to that you in this case. I can' see somewhat how conclusion, can be so sure to you but I don’t know how is no hard evidence that someone to die. There still convict circum- anyone Roland harmed here. We have Steele ever a and commit- robbery stantial evidence that he committed theft, anybody. that he harmed you’ve got nothing ted a but to the who testified that there You wouldn’t listen witnesses hands and that he harmed them with his nothing. no or You fingernail scrapings, there was blood is bad. just listened to to these women which happened what man everybody got caught up. You like This got caught up think you to hurt before. Do anything anybody never did just that he do this one time and he would lose would He a kid’s life. No-one else would Why? control? saved that you his life. He’s not a harmful citizen. told risk We in, a killer either and there is no evidence going he’s not that he’s killed these women. you could kill someone? How could beat some- you

How and no blood? did that nothing you one and have Where blood come from? home. up. hurry go

You You were a got сaught Well, see, get it’s almost lunch. can Maybe you let’s before lunch. decision think life bad you imprisonment enough punish-

If don’t ... ment in this case You’ve waited over there for two weeks, couped-up Figure that hotel. that’s being [sic] life, enough? isn’t that your rest n the hell do They they vengeance. said don’t want What justice? an justice, eye eye? call it ... an for That’s you think it. You you You think that about the case and about think decide. you you about what heard left Following argument, Attorney N.T. 1560-62. Tershel session, court in still in never to the' courtroom while return. He did not come back to hear the Commonwealth’s judge’s jury. nor the instructions to the closing argument, Liekar, Co-counsel, had not on the Attorney spoken who trial, during the entire remained at the counsel table. record Attorney argument that Tershel made no Appellant argues to conduct the encourage jury necessary adversarial he make a of the Commonwealth’s evidence. Nor did testing mercy spend any meaningful mitigating or time on the plea In sought summary, Appellant circumstances he to establish. Tershel no for his argues Attorney had reasonable basis actions, and there can be no “... reasonable basis for make an argument defense counsel to that attacks and insults decide his client’s fate.” Brief for jury will at 23. lead, view, in Appellant’s

These observations to the conclu- him, effectively sion that counsel abandoned to a amounting denial of to counsel to the complete Appellant’s right pursuant Sixth Amendment to the United States Constitution. See Cronic, United States U.S. 104 S.Ct. (1984). such,

L.Ed.2d 657 As Appellant maintains that he prove prejudice need not under the test for ineffectiveness. Alternatively, argues was, fact, that he prejudiced argues counsel’s actions. He that counsel’s conduct was professionally unreasonable and was not designed advance conclusion, Appellant’s interests. In Appellant asserts that reasonably likely is also that if “[i]t counsel had not failed to focus the jury any applicable or if he mitigation, had from insulting jury, refrained or if he simply had sat back next to client towel, down his and not thrown in the at least sentence, one jury member of the would for a have voted life after weighing aggravating and mitigating circumstances.” Brief for at 24.

At the PCRA hearing, Attorney explained Tershel his clos- ing argument as follows:

Q. Do after you you remember made that closing argu-

ment leaving penalty phase, walking out of the courtroom?

A. Ileft. did do that?

Q. Why you say. more to nothing A. I had Later, out of the walking he indicated that at 79. N.T. PCRA do, but that he planned he something was not courtroom to hear the he did not Commonwealth’s left because want Id. at 201-02. closing argument. claim of trial rejected Appellant’s court

The PCRA The ineffectiveness, lacked merit. arguable that it finding Attorney jury Appel- Tershel reminded court noted that a life and that he was not saving someone’s lant’s action Attorney Tershel The court also found person. violent life “If don’t think you the statement mercy pled ... in this case enough punishment bad imprisonment weeks, couped-up being [sic] over there for two You’ve waited life, isn’t that your that for the rest Figure in that hotel. Tershel Attorney court found that Finally, enough?” jury mitigation to consider the evi- directed “strongly” you think about heard the statement: “You what dence with The PCRA court also Op. decide.” PCRA Ct. you had a reasonable basis for Attorney Tershel found argument ... that counsel made his it “clear actions: was had,” jury might doubt that the have any residual appeal id., constitutionally prohib- the court found strategy continued: ited. The court jury to the that some of trial counsel’s comments

It is clear jury to shock the into to be sarcastic and meant were petition- so they were convinced questioning whether Likewise, sentence him to death. they would guilt er’s after deliv- leaving the courtroom trial counsel’s conduct this something phase argument, while ering penalty jury impress upon served to encourages, may court have to more spend of the matter and cause them the seriousness on the sentence.... While deliberating appropriate time sentence, it is not long not deliberate on this jury did of tactic. adopt type for counsel to unreasonable trial at 48-49. Id. prov from the burden of appellant an

Cronic relieves or constructive there has been an actual where ing prejudice

385 counsel, i.e., complete failure has been counsel’s of when denial denied. See counsel has been right if the and it is as 551, 160 565 175, 125 L.Ed.2d Nixon, 543 S.Ct. v. U.S. Florida 686, 172, 941 A.2d 596 Pa. (2004); Mallory, v. Commonwealth Reaves, 134, A.2d 592 Pa. 923 (2008); v. Commonwealth 700 Reaves, (2007). opera described the In this Court 1128 of presumption prejudice: tion of Cronie’s cases, inquiry the prejudice that in some recognized Cronic certain there are is not because required of Strickland the accused likely prejudice are so circumstances “that case is in a particular their effect litigating that the cost at 2046. at 104 S.Ct. Cronic unjustified.” 466 U.S. denial complete there has been that where suggested any are such that the circumstances counsel or where effective provide be unable competent attorney would that he was assistance, need not demonstrate a defendant 659-62, at at counsel’s actions. Id. S.Ct. prejudiced prejudice exception The Strickland presumed 2047-48. or there an actual apply has been found to where was counsel, the state interfered with denial of constructive assistance, had an actual conflict or counsel counsel’s Robbins, 259, 120 S.Ct. v. 528 U.S. interest. See [Smith (2000) 746, 145 L.Ed.2d 756 ]. Puksar,

Reaves, also v. 923 A.2d at 1128. See Commonwealth (Pa.2008). A.2d 292-93 Court, however, has Supreme emphasized The U.S. Nixon, 190, 125 S.Ct. are rare. See 543 U.S.

such instances prejudice required that a of actual (holding showing claimed that counsel ineffective the defendant where trial). Further phase capital at the of a conceding guilt guilt is limited to cases more, stressed that Cronic this Court has type of counsel “the acts or omissions were where the defen confidence that certain to undermine virtually are of the proceed that the outcome received a fair trial or dant reliable, any pretension they because remove ings primarily during assistance counsel’s reasonable that the accused had (quoting 941 A.2d at 700 Mallory, time frame.” the critical Cousin, 386

(2005)). See, 164, v. Pa. e.g., Halley, Commonwealth 582 870 (2005) A.2d 801 counsel failed (prejudice presumed where to file statement of matters of on led complained appeal, which claims); of all Pa. Lantzy, waiver Commonwealth v. 558 (1999) 736 A.2d 572 (prejudice presumed where unjusti- counsel’s failure to file requested appeal direct fied). Nixon, High In Court reiterated that Cronic is i.e., complete, limited to situations where counsel’s failure is “counsel has failed to function the client’s entirely where as Nixon, 189-90, at advocate.” 543 U.S. 125 S.Ct. 551. Accord Cousin, (Cronic 888 A.2d at presumption prejudice 719 trial crime in triggered guilt when counsel concedes lesser trial). closing argument of bench In light precedent Appellant’s of this and the nature of argument, squarely prej- this issue falls within the Strickland cases, udice line of and not Cronic’s limited exception. within The present Attorney presented circumstance—where Tershеl elicit- testimony support mitigation, two witnesses ed testimony Appellant, penalty favorable to and conducted a phase closing argument, Attorney where Liekar remained in the courtroom after counsel out—is unlike' the walked presumed scenarios found in prejudice Lantzy Halley, lapse complete where counsel’s caused the default of direct appeals requested by the client. We cannot conclude that Attorney entirely Tershel failed to function as Appellant’s Nixon, 189-90, advocate. See U.S. 125 S.Ct. 551. Therefore, the brief nature of the closing argument and Attorney Tershel’s decision to walk out at the conclusion does not alone that he It is prove was ineffective. prove prejudiced by

burden to he counsel’s actions in Pierce, accord 527 A.2d at 975. counsel,

In the context of ineffective assistance of means there a reasonable prejudice “demonstrating that, error, but for the outcome of the probability counsel’s different.” proceeding would have been Cox, (2004); Strickland, Pa. supra. ‍​‌‌‌​​​​​​‌‌​‌‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌‌‌‌​‌​​​‍A any death must circum penalty jury weigh aggravating stances that it has determined a reason- proven beyond were against any mitigating able doubt circumstances that it finds 9711(c). preponderance § of the evidence. 42 Pa.C.S. Only when the determines that the jury aggravating circum- outweigh stances the circumstances can the mitigating jury must, however, impose a death sentence. It unanimously agree. jury Id. If the does not unanimously agree, a life Thus, sentence, sentence must be imposed. a life impose juror only one has to find that the mitigating circumstances the outweighed aggravating circumstances. Tershel a

Attorney faced difficult task in this after regard jury rejected the claim of innocence and returned three for first guilty degree verdicts murder. The had jury just Appellant guilty brutally found beating death three direct elderly appeal, women. On described the Court horrific nature of the in killings passing upon Appellant’s challenge sufficiency the the to support the aggravator: torture

The evidence established that the victims merciless- were beaten to in ly presence death the of each other. Doctor Abernathy performed testified that he the autopsy first body the of Lucille Horner. He stated that the left lobe of her thyroidal gland almost torn away was from the windpipe box, and that the larynx, voice and the vocal cord torn were away. He stated the completely liver was almost shattered and that there in hemorrhaging was and the kidneys (7) area pelvis kidneys. Further that seven ribs on right left, side of the rib cage and 8 on the been had bone, broken and vertebra to the back had been broken. He testified that the side of right the heart had been almost shattered hard very blow. Doctor Abernathy de- scribed the conditions of the other bodies as He well. testified that the pattern injury he found the autopsy of Mrs. Horner similar to quite was he found in which subsequent autopsies. He described the injuries detail to he jury. Notably testified that Mrs. Kuntz proba- was bly dead or from dying asphyxia, was due to the her blow to throat, before her liver was shattered and her heart severed. It is reasonable to assume from the nature and suffered consider- that the victims beatings,

extent of the meth- can be drawn from the inference ably. A reasonable victims, did in fact [appellant] that the to kill his od used kill. actually he did inflict before great pain intend to as described the victims Abernathy Doctor Furthermore and the evidence established fragile, very quite old and arts that, a martial appellant stipulated the defense inferred that jury properly could have and thus expert unnecessary of each beating [sic] victim was appellant’s striking torture them before merely done and was painful the final death blow. omitted). (footnote

Steele, The gruesome at 912-13 the three killings supported aggrava- these circumstances 9711(d)(6) found, (killing § jury Pa.C.S. ting factors (d)(8) (d)(10) (torture), and felony), of a perpetration the murder), penalty more the usual and made difficult (multiple Attorney a sentence of life in obtaining prison. task of phase the fact that complicated by task further Tershel’s murders, and by age, frailty, helpless- three the trial for victims, by killings the fact that the were of the three ness torture, fact that of and the by means accomplished The assertion of innocence killings. denied the that did arguing jury the raised the dilemma murders, did, things if he there other commit the but were to consider. difficulties,

Nevertheless, Tershel Attorney these despite catch-all support of the mitigation witnesses presented two 9711(e)(8). Further, Attorney despite § 42 Pa.C.S. mitigator, that failing argue specifically of action Tershel’s course balance the mitigator the catch-all and jury the should find aggravating- the against Commonwealth’s mitigation evidence the catch-all circumstances, found the existence of jury the counsel argues regarding that Appellant For all mitigator. he fails to acknowl- closing argument, in this ineffectiveness present- considered the jury obviously that the evidence edge of) (or closing of the because the nature perhaps despite ed argument. crimes, the of the and circumstances the nature

Given Commonwealth, and the by the submitted factors aggravating there conclude that mitigator, the catch-all we jury’s finding the emphasized had if Tershel Attorney that no probability evidence, particularly of the value mitigating did and as he life, rather than speaking Stephens’ Mr. saved returned verdict out, jury would have walking then Therefore, Appellant than death. rather imprisonment life v. Mar- See prejudice. demonstrated has not (2002) (where penalty shall, A.2d Pa. mitigating of the catchall the existence jury found phase claim of testimony presented, based on circumstance prejudice). for lack of fails ineffectiveness Investigate Failing to for XI. Ineffectiveness History and Mental Present Life and Mitigation Evidence Health not demonstrat has concluded Having penalty phase Tershel’s by Attorney he prejudiced ed that was next address his assertions closing argument, we life present failing investigate ineffective were Attorney Tershel mitigation. mental health history and regard hearing at the limited PCRA testified investigator mitigat investigation presentation ing scope we arguments, addressing Appellant’s Before ing evidence. phase, at the presented penalty review evidence will court, and the PCRA testimo to the PCRA provided ny. consisted of two witnesses. penalty phase case

Counsels’ he a small noted, testified that was Stephens Mr. when As child, in the tracks as a train was caught his foot became train around, only Although people several were approaching. fast mother, Ms. his life to save him. risked Appellant and described Clemons, Stephens’ testimony Mr. corroborated heroism, a bronze received Appellant that as a result of his Commission. Carnegie Hero Award metal and from $500 had although Appellant testified that further Ms. Clemons incarcerated, or he had never been violent previously been harmed anyone, always protective loving was and to his not the family, type person and was strike someone a fit of rage.

In support argument of his that trial counsel ineffec- were failing adequately investigate, tive for and develop, present available life and mental-health history mitigation, Appellant submitted to the court declarations of several family members explained grow- who while was ing up, subjected abject he was little poverty, supervision, mental, physical, and and emotional abuse from parents his and step-parents; he was ostracized at school because of his family’s poverty; parents support his were unable to family; children, because Appellant was oldest of ten he forced to take care of siblings long his before he was mature enough responsibility; Appellant for such adult wit- parents’ physical nessed his verbal and and bore the fights abuse; brunt of their and emotional physical subjected he was discrimination; to racism and and Appellant signifi- suffered occasions, injuries cant head on two for which he did not treatment, any receive medical and which caused headaches and family withdrawn behavior.21 The members further as- serted that growing up, while the adults in his taught life and him to encouraged provide steal to food for the adult, trend, family.- As an he continued this committing burglaries, numerous nonviolent in incarceration for resulting most of his adult life.

As further support argument for his that counsel ineffec- tively investigate present failed to mental health mitiga- tion, Appellant submitted to the May PCRA court the Woods, George declaration of Dr. a licensed physician special- izing in psychiatry neuropsychiatry, who conducted a psychiatric of Appellant evaluation unidentified reviewed materials background regarding Appellant and the offenses. Dr. Woods concluded that a traumatic experienced Specifically, Appellant's 21. sister stated that when was thir- bike, years riding teen he old crashed while and landed on head. Scott, January See Declaration of Lavonne In another inci- dent, Appellant "got guy,” cracked in the head which some led to recurrent headaches. Id. childhood a history injuries and had of head in resulted cognitive disorder not specified otherwise that was evident as inhibition, impairments memory, problem solving, and exec- Dr. utive function. Woods stated that although Appellant adjusted to the prison well structured he setting, suffered stress, from traumatic which further his impaired functioning in high evaluation, tension situations. As a result of his Dr. Woods that at determined the time of the in murders Appellant suffered from an extreme mental or emotional disturbance that his impaired ability to conform his conduct to requirements (3). 9711(e)(2), § law. See Pa.C.S.

Dr. Armstrong, Carol a licensed psychologist in specializing neuropsychology, stated a May 2000 declaration that Appellant suffers from frontal lobe dysfunction from resulting injuries.22 his accidental In head Dr. Armstrong’s opinion, Appellant’s impairments make it difficult for him to learn from or experience to understand the consequences of his conduct. Dr. Armstrong offenses, concluded that at the time of the Appellant suffered from an extreme mental or emotional disturbance that substantially impaired his ability to conform his conduct to the requirements of the law. Dee,

Dr. Henry a licensed clinical psychologist, submitted a 12, sworn affidavit dated May stating that suffered from cerebral lobe damage which has caused him to seriously be psychologically impaired since before the of- fensеs, and this cerebral damage substantially impaired capacity to appreciate consequences of his actions or conform his conduct to the law. Dr. Dee further concluded that the placed Appellant burdens throughout his childhood constituted mitigating circumstances.

Finally, Appellant submitted the October 1985 psychiat- which, ric noted, evaluation of Dr. Berkey, as was conducted in connection guilt phase with the of this case at the request trial counsel. Dr. Berkey’s evaluation stated that he had the Armstrong trauma," "significant Dr. history referenced a of head including injury years at least one pugilistic childhood and ten sport activity including frequent punches kicks and to his head: She identify sports-related did not when the injuries head occurred. make a stage, trying

sense that was on favorable to derive from gratification “seemed impression. he the notoriety, although opposite.” the attention and stated 1985. Berkey, Dr. October Dr. Psychiatric Evaluation and Berkey grandiose felt that “evidenced some tendencies,” “thinking but that was Appellant’s high- paranoid intact. no indica- reality-testing There was ly organized, with not frankly ideation. He did seem tion bizarre or delusional Id. way to stand trial.” Dr. any incompetent or in psychotic antisocial Id. Berkey’s diagnosis personality. was at testimony produced hearing, to the the PCRA Turning Reid, investigation counsel hired to conduct an to Michael who testified Appellant, Appellant’s assist their defense of that was on, the first case he had worked and that did capital mitigation in connection the request not his assistance time, At guilty case until after the that Mr. Reid verdict. from the Stephens, contacted Mr. who had saved train, testimony penalty his for the Mr. phase. and secured obtain request Reid testified that counsel did not that he the file in Carnegie completed Appel- Hero Award connection with life. saving Stephens’ Attorney lant’s for Mr. Tershel award sister, did, however, Mr. to to speak Appellant’s direct Reid Scott, family to obtain information about Appellant’s Lavonne background and childhood. N.T. PCRA at 39-40. Conse- Appellant’s Mr. Reid discussed childhood with his quently, verdict, the following sister at the courthouse and guilty general background, abject poverty, learned of Appellant’s family Appellant’s committing and role robberies history, family’s straights. dire N.T. PCRA at because of his economic investigation, course of Reid 24-26. In the his Mr. visited home, he “squal- childhood characterized as Appellant’s which 26. information conveyed id.” at Mr. Reid this N.T. PCRA Tershel, Attorney request investigate who that he did at 41. Mr. further. N.T. PCRA Reid recalled had investigation focus of been the mitigation Carnegie Hero Award. N.T. PCRA at 31. difficulty recalling Tershel had his

Attorney preparation passage due time between the penalty phase He hearing. May, 2000 PCRA 1986 trial and January, He investigation. mitigation of his scope not recall could trial, nothing” did “personally, probably he that before stated not recall. N.T. he could penalty phase; for the prepare recollection, Tershel Attorney the best of his at 95. To “certainly planning wasn’t guilt phase focused on the had I on defend- sentencing, planning about the worrying regard him, I N.T. PCRA at 92. With I think did.” ing which strategy Attorney mitigation Tershel’s the penalty phase, life, Stephens’ Mr. saving role Appellant’s to focus on him one back.” N.T. PCRA owed argue “society that he called the two he stated goal, In furtherance of moth- Ms. they Stephens had: best witnesses (“He life, I was saved someone’s er. N.T. PCRA at life.”). although He stated jury would save hoping he madе preparation, the details of his he could not remember residual doubt about jury’s call to on the judgment prey a act of heroic guilt by focusing Appellant’s Appellant’s (“I that life, thought at 196 N.T. PCRA saving Stephens’ Mr. had”), not believe that chance and did only was the we impoverished background introducing Appellant’s evidence help his case. Id. would in the participation his lack of

Attorney explained Tershel Liekar Attorney that investigation by noting penalty phase investigation, aspect involved that likely was specifically could not recall what although Attorney Tershel prepare penalty phase. Liekar had done to for the Attorney 91-92, Attorneys at 222-23. Tershel and Lieker N.T. PCRA office at their public had the resources of the defender’s some from the office disposal, “apparently” people sent Attorney N.T. PCRA at 196. investigate mitigation. out try guilt assignment Tershel testified that was 93, 97, the time he became N.T. at and that phase, PCRA involved, Id. at stuff had been finished.” preliminary “[a]ll Attorney try penalty phase, 85. it time to When was the information that we had “given Tershel stated that he was tell important I felt mitigating that be and that was would truth, did, the best evidence gave that’s what we we Attorney at 93. Tershel indicated PCRA we had...N.T. Carnegie Investiga- obtained the Hero Fund may that he have in a grew up poor indicated that Report, tive which it, but he could not recall. N.T. PCRA at 62-63. large family Tershel did not ask why Attorney about questioned When childhood, he that he responded mother about his or large family it relevant that had a did not believe poor: grew up I this—is that any reason—why say

A. I didn’t see would me, I didn’t he has five brothers you’re asking why say what and sisters? family? in his

Q: poverty About I think that poor people. A: I a lot of didn’t know (cid:127) know, you to diffuse have. going—you you don’t want what What, if I’m to ask him Carnegie going

You Award. .have there? your logic he has or sisters? What is five.brothers Attorney at Tershel felt it “ludicrous” to N.T. PCRA 67. family. had a N.T. present large at 93. PCRA re- poor, Attorney his recollection was Tershel

Although Attorney he discussed Mr. Reid and called that witnesses with times, at he recalled many talking Liekar N.T. PCRA members, Wade, Appellant’s family one of several Ivory at guilt after the conclusion of the N.T. PCRA phase. times Further, Attorney 98-99. Tershel was aware N.T. history being burglaries. had a incarcerated for long In the for the preparing penalty course of Romaine, Attorney Attorney Appel- Tershel contacted phase, and prior burglary, counsel from a to discuss lant’s N.T. at determine what kind of witness was. PCRA 58, that Attorney conveyed 98. Romaine her belief Id. Tershel good Although Attorney make a witness. would family specifically remember interviewing Appellant’s did not that he about his N.T. PCRA at he testified upbringing, childhood, of the economic of Appellant’s was aware conditions were divorced. N.T. PCRA at Appellant’s parents and knew no 144-45. He stated he had reason believe abused. Id. at 147. Appellant was discussions Regarding with Appellant, Attorney Tershel testified that he talked to Appellant all the time and discussed the case him every day during the trial. N.T. at PCRA 194, 222. talked They about life Appellant’s and other as- and pects, Appellant appeared competent cooperative. and was N.T. PCRA at 128-29. Although he talked Appellant’s times,” family “numerous id. at he could recall nothing from interviews and conversations with Appellant’s family members or would have made him any aware of mental problems suffered, from which Appellant he had no reason to Berkey’s doubt Dr. conclusion that Appellant was competent. 127-29, N.T. PCRA 203 (agreeing that no family member had ever indicated that Appellant “hasn’t been right since ... any accident.”); event or he had an Id. at 185- there (stating nothing was that indicated that Appellant suffering any from sort of mental impediment and Appel- lant did not reveal that he suffered from anything); Id. at 197 (no one told Tershel Attorney that Appellant might have any issues). mental health Attorney Tershel also indicated that he was not in the involved case when Dr. Berkey’s pre-trial written, report October, 1985, and he believed that Attorney Liekar secured report. N.T. PCRA at

Upon consideration of Appellant’s arguments and the PCRA of Mr. testimony Tershel, Reid and Attorney the PCRA court rejected Appellant’s claim of ineffectiveness for failing to investigate present life history and mental mitiga- health tion evidence. matter, As a preliminary the PCRA court found that Attorney Lieker handled the vast majority pretrial investigation Further, preparation. the PCRA court significant found the time that lapsed had trial between and the PCRA hearing, which caused both the unavailability Attorney Liekar due to his death and Attorney Tershel’s lack of recollection about Appellant’s trial. Finally, PCRA court found that because Appellant had long waited so to file petition, it was difficult for the assertions, rebut and it considered this as a delay factor weighing against the credibility of Appellant’s evidence.

396 Alexander, v. 495 Op. (citing Ct. at 35

PCRA (1981) v. Pa. 432 A.2d 182 Commonwealth McAn- (1987)).23 drews, 404, 520 A.2d Pa.Super. 360 870 merit claim Examining arguable prong Appellant’s Pierce, at history mitigation, life see A.2d respect with from 975, the found that the declarations Appel- PCRA court family “timing not credible because of lant’s were [declarations], the fact that are they of these completion 38. family.” Op. Noting PCRA Ct. [Appellant’s] from he Attorney testimony Tershel’s PCRA was aware life the PCRA court concluded that trial history, did, fact, or his family either question Consequently, his childhood environment.24 PCRA about the arguable found had demonstrated court contention that trial counsel failed ade- prong merit develop evi- investigate potential mitigating quately history. assuming life Even concerning Appellant’s dence merit, however, further the PCRA court found that arguable life history counsels’ decision not to introduce trial Attorney a reasonable tactical decision because Tershel it not be in view of the trial helpful testified would peaceful as and heroic. PCRA strategy portray Appellant at 39. Op. Ct. although Specifically, the PCRA court noted that PCRA counsel was

23. family's completed appointed in were not until declarations Attorney explanation death in 1999. offered no after Liekar’s delay he filed his for the from 1997 to when amended PCRA time, raising, allegations petition first of ineffectiveness. for the Saylor dissenting strayed we have opinion, In his Justice asserts that territory by authorizing court into uncharted the PCRA render credibility on the basis of the content of the declarations determinations evidentiary Appellant's family requiring rather an members than hearing regard Pennsylvania Rule to such declarations. of Crimi- 909(B) evidentiary hearing requires a court to hold an nal Procedure genuine capital petition. fact in a all issues of material raised hearing only not to hold a will be reversed The PCRA court's decision Collins, when the court its discretion. Commonwealth abused (2005). Here, the PCRA court determined Pa. hearing resolved record without that the factual issues could be on the and, thus, testimony family, Appellant's from there was no need for the hearing. We see of discretiоn in this court to hold no abuse determination. regard of ineffectiveness with claim Addressing Appellant’s Appel- found that the PCRA court mitigation, to mental health his claim of merit of arguable prong to the prove lant failed Pierce, at 975. ineffectiveness. See trial counsel Drs. submitted found that the declarations The court for several Woods, Dee not credible Armstrong, and were on information received to be based they appeared reasons: court’s which, in the family, and his PCRA Appellant from or value; report no medical view, their there was diminished alleged injuries Appellant head verifying other evidence alleged rise to mental gave suffered which claimed to have fifteen conducted and the evaluations were impairments; at 41. Op. after the murders. See PCRA Ct. years claim that ineffectiveness Appellant’s determined Having lacked mitigation health investigation mental regarding basis merit, also addressed the reasonable the PCRA court See Common- of the test for counsel ineffectiveness. prong (2004) (“we Pa. A.2d Malloy, wealth v. deci- counsel’s investigation supporting focus on whether ... reason- evidence was itself mitigating sion not to introduce able.”). The court concluded that trial counsel’s inves- PCRA Specifically, reasonable under the circumstances. tigation was Appel- upon opinion Berkey, based Dr. who evaluated Appellant competent, lant to trial and concluded that was prior Attorney testimony Appellant coopera- Tershel’s that communicate, tive, court and able to competent, investigate Appel- that trial counsel had no reason to found no lant’s mental health further because there was cause problems, suffered from mental health suspect Appellant that counsel, therefore, mental reasonably pursue and that did not health mitigation. Court, of his Appellant argues prongs

Before this the three investigate failing claim of counsel ineffectiveness health. history life and mental present Regarding arguable prong merit of these ineffectiveness claims, family states that all of his members were Appellant trial, as was the during to counsel before his available file, Hero and that counsel should have Carnegie Award contained in family, to his become aware of the facts spoken declarations, Carnegie and obtained the Hero family’s sources, that coun- Appellant argues file. From these Award large family, that had a sel should have discovered and did unemployed poverty, poorly lived parents Further, trial counsel school. asserts criminal but failed background, aware of his extensive Romaine, counsel, to ask about Attorney prior contact Had counsel made such family mitigation. or mental health Attorney asserts that Romaine would inquiries, Appellant cognitive her had difficul- opinion have shared failed to ask Dr. ties. further asserts purpose to conduct a forensic evaluation for the Berkey him mitigation, provide mental health and failed presenting Brief for unspecified “background Appellant with materials.” conclu- Additionally, Berkey’s at 27. refers to Dr. Appellant from and Appellant grandiose paranoid sion that suffered disorder, argues tendencies and from a which he personality informed trial of mental health potential should have counsel issues. claim that prong to the reasonable basis of his

Turning life failing investigate history counsel ineffective for was Attorney and mental health mitigation, Appellant points penalty phase Tershel’s lack of recollection about the investi- investigation as evidence that the was not reasonable. gation to the unreasonably gave thought He asserts that counsel no until after the verdict. If counsel had penalty phase guilty poor of reasonably Appellant’s acted discovered evidence ar- injuries, Appellant and abusive and two head upbringing health they presented obtained and mental gues would have Because trial counsel did not conduct a reason- evaluations. be- prejudiced able asserts he was investigation, Appellant or history did not hear of life jury Appellant’s cause Perry, mental health 537 mitigation. See Commonwealth (1994); Strickland, Pa. 466 U.S. S.Ct. Quite meager argument unhelpfully, Commonwealth’s is, represented by on this that point simply, competent reasonably jury who determined that the life if it going spare Appellant’s heard that he had a hard childhood.

After careful of the record review and consideration claims, conclude that the Appellant’s ruling we PCRA court’s is legal supported free of error and the record. by See 593-94; Breakiron, Washington, 927 A.2d at 94; below, Strong, A.2d 761 A.2d at n. 3.25As explained has not established the prongs three of counsel ineffectiveness for failing investigate and life histo present ry and mental health mitigation. We will examine these two categories Appellant’s evidence and arguments separately. Preliminarily, we note that Appellant’s ability to meet his burden and that prove counsel was in regard ineffective to the mitigation investigation impacted is passage of fourteen years alleged between counsels’ ineffectiveness at the 1986 trial, and the hearing in 2000. Attorney While Liekar was not available to testify, Attorney Tershel understandably had difficulty recalling the specific nature of the investigation and conversations he had with family members. to these Appellant points failings as proof counsel did not reasonably investigate available of mitigation. avenues We disagree unavailability Attorney Liekar the inability of Attorney Tershel to recall details of the investigation proves counsels’ investigation possible mitigation evidence was It inadequate. burden prove the lack of a reasonable investigation. If Appellant’s task is made more by difficult the passage likely of time and loss of it memory, does not that Appellant follow can meet his by raising burden an inference of premised ineffectiveness on Attorney Tershel’s lack of memory. While Appellant’s burden to prove counsel’s difficult, ineffectiveness is made more it is not or by obviated lessoned these circumstances. See Com 659, (2007) monwealth v. Rega, 997, 593 Pa. 933 A.2d 1018-19 scope 25. Our findings review is limited to whether the of the PCRA legal supported by court is free from error and the record when such Commonwealth, light evidence is viewed in the most favorable to the as Collins, prevailing party. See 888 A.2d at n. 21.

(“The Appel- rests with ineffectiveness proving burden lant”).26 prong Appellant’s merit arguable first the analyze

We failing investigate counsel was ineffective that argument Pierce, A.2d at 975. see history mitigation, life present and for counsel ineffective- prong of the test To establish the first that Pierce, prove must ness, 527 A.2d at see claim—i.e., charges that he which underlying legal In terms of a merit.” “arguable improperly—has pursued coun- phase from resulting penalty for ineffectiveness claim evidence, present mitigating and investigate failure to sel’s information that there substantial proving this involves that counsel should have investi- at time of trial available statutory mitigating supported that have gated and would Jones, circumstances. See Commonwealth (2006). mind, we conclude With this standard A.2d Appel- court’s finding the PCRA supports that the record that trial counsel failed to investi- not demonstrated lant has Rather, in the as described history mitigation. gate life did, in investigator counsel and their testimony, court Tershel, Attorney fact, history. life investigate Appellant’s in large, poor family, Appellant grew up who was aware divorced, N.T. PCRA parents Appellant’s and that were background, into Appellant’s directed Mr. Reid look Id. at 39-40. “helpful.” information would be believing this Appel- Mr. Reid talked to assignment, In out this carrying sister, Scott, background Ms. who described lant’s and feed and that raise family history helped rely the PCRA court was not entitled asserts resulting passage Appellant’s problems proof from the of time attending the Commonwealth failed to assert before difficulties because prejudiced. Whether the Commonwealth that it was the PCRA court Appellant's burden to argue prejudice is not relevant: it is failed to argue, or prove the Commonwealth chooses to ineffectiveness. What be, may Appellant’s burden in argue, the case does not lesson as to advo- regard. We are troubled the Commonwealth's failure case, specifically one reference the Commonwealth's cate this para- this issue before the PCRA court and one sentence answer on advocacy argument This lack of from the graph before this Court. however, Commonwealth, alter the fact that has the does not proof. burden of Appel- at 24-26. Mr. Reid visited family. N.T. PCRA home, conveyed impressions lant’s childhood “squalid” Additionally, Attorney at 26. Attorney of it to Tershel. Id. times. to Ms. Wade several personally talking Tershel recalled court’s conclu- the PCRA testimony supports Id. at 99. This did, fact, a reasonable conduct sions that trial counsel will not family background. We investigation Appellant’s background for to uncover failing find counsel ineffective fact, did, in that counsel where the evidence shows evidence therefore, Appellant, and discover such evidence. investigate merit regard arguable has not carried his burden to life regarding history mitigation. of his claim prong Appellant’s if merit of arguable Even we were to assume to in- failing counsel ineffectiveness argument regarding that the history mitigation, life also find evidence vestigate we Attorney supports finding credited the PCRA court its not to life was a history Tershel’s decision introduce evidence reasonable, Appellant’s tactical decision. Information about mitigation childhood environment did not fit into counsels’ strategy portray as heroic and nonviolent. See (“I of Appellant’s N.T. at 67 didn’t think that [evidence know, don’t to diffuse poverty] going, you you want what have.”); the idea that you (describing Id. at 73 as ludicrous Appellant’s poverty counsel should presented have evidence at 93 of a large family); (indicating Id. that evidence strate- large, family mitigation did not fit into counsel’s poor gy). investigation, Based on his counsel concluded that mitigation case if he limited the stronger would be evidence testimony concerning Appellant’s receipt Carnegie testimony history about his as Award nonviolence result, by Appellant’s related mother. As a counsels’ decision austere back- present concerning Appеllant’s grounded in a ground strategy designed reasonable Similarly, effectuate interest.27 regarding Appel- Regarding Appellant’s argument counsel was ineffective for failing investigative report completed by Carnegie to obtain the Fund, only Hero new evidence that counsel would have discovered report grades from this is that had bad in school. This that counsel should have uncovered evidence lant’s assertions child, fit would not have abused as a such evidence that he was heroic, a as strategy portraying into counsel’s therefore, proven has not Appellant, individual.28 nonviolent test for ineffective basis prong the lack of a reasonable Pierce, 527 See history mitigation. to life regard ness with 935; 264, Bracey, also 568 Pa. 795 A.2d A.2d at 975. See Basemore, that v. (holding A.2d at 735 Commonwealth 744 pursue to failing be found ineffective counsel cannot where, a reasonable inves despite factor particular mitigating counsel, any not on notice of such put counsel was tigation by Peterkin, v. evidence); 511 Pa. mitigating (1986) of coun the reasonableness (judging 513 A.2d supplied by the information based on investigation sel’s defendant).29 mitigation evidence counsel rea- not have fit into the

evidence would present. sonably decided to that counsel failed to uncover Appellant makes much of the fact 28. Counsel, however, had no reason to abuse. evidence of childhood N.T. PCRA at 147. has was abused. believe alleged of this childhood that he ever informed counsel not established alleged any child counsel had notice whatsoever of this abuse or that only Appe having spoken times with not after at various hood abuse l Hall, family v. and friends. See Commonwealth lant but also (2005) (where appellant n. 9 neither the Pa. abuse, alleged family childhood informed counsel about nor his ineffectiveness); his claim of Common appellant failed to establish Miller, (2000) ("Because appellant 746 A.2d 592 wealth home, family family reveal the extent of abuse and his failed to failing present to evidence of the cannot be ineffective for counsel trial.”). appellant’s pervasive abuse Saylor emphasizes lack of dissenting opinion, Reid's In his Justice investigation. mitigation time allotted for the experience and the short any mitigation investiga- Saylor's position that appears to be Justice It unreasonable, per begins following guilty verdict se tion that strategy mitigation regard whether counsel had a without jury spare Appellant's thoughtful in a effort to convince the resulted sense, Saylor's about the general we share Justice concern life. In a believe, investigating mitigation. We do not lack of time dedicated however, performance unrea- renders counsels’ that this factor alone case, mitigation de- prepared a case. As In this counsel sonable. above, investigated Appel- investigation: was an scribed there times, family history, Appellant and his numerous family talked to lant's testimony Appellant’s Stephens. mother and Mr. and secured the Appellant's investigation, aware of life Through counsel became this Having concluded that has not met his burden investiga- counsel ineffectiveness with to the proving regard history mitigation, tion of life we now turn to his claim that failing investigate present counsel was ineffective for mitigation. mental health The court concluded that claim fails the merit arguable prongs and reasonable basis Pierce, of the test for counsel ineffectiveness. 527 A.2d аt See review, 975. After a careful find that the PCRA court’s we record, regard conclusions in this are supported by claim fails he agree proven because has or arguable prongs merit reasonable basis of his claim of ineffectiveness. first, that,

Addressing arguable prong merit note as we ineffectiveness, all claims of Appellant has the burden of proving arguable the merit of his claim that counsel were for failing investigate present ineffective and mental health mitigation Washington, has. 927 A.2d at Specifically, must there prove was discoverable evidence that he fact, was, in mentally impaired before his trial in 1986 that and counsel failed to discover this evidence. Commonwealth v. Brown, (2005) (where 582 Pa. there illness, was no discoverable evidence of mental appellant the field to the merit prove arguable of trial counsel’s ineffective- ness). If prove he cannot that he actually impair- had mental discover, ments that counsel failed to he has carried his prove burden to that his claim of trial counsel ineffectiveness arguable has merit. We find that Appellant has failed to meet his burden regarding arguable merit prong several Appellant presented injuries; reasons: is no of evidence head provide he did not the mental health providers’ reports, which they declarations; to attach to their purported each of Appel- lant’s providers mental health purported rely unidenti- materials; background fied and link provider each failed to nothing history, investigate but found that should have caused them to judgment family history further or alter their that evidence of and poverty strategy arguing Appellant's would not fit into their life spared previously deserved to be because had saved the life of Stephens. Mr. fifteen mental status in 2000 to their conclusions years before. actually

First, we have only a lead to deterioration injuries, allegedly head which sustained sister, of his health, declaration mental is unsworn in his thirteen, he hit Scott, stated when Ms. who hit in the head once bicycle, after crashing his head Scott, January of Ms. Declaration another individual. by alleged these reflecting are no medical records 2000. There ten refers to although Armstrong Dr. injuries. Similarly, injuries in there prison, related head sports years pugilistic injuries. Fur- alleged these regarding no medical evidence found, Drs. the declarations of ther, court as Woods, are not Preliminari- persuasive. and Dee Armstrong, health to each of his mental refers ly, although Appellant affidavits, of Drs. the declarations declarations as providers’ as cannot be characterized properly Armstrong Woods the declarant such, by not been sworn to they because have to administer oaths. See an officer authorized before (“Affidavit” writing is defined as statement § “[a] C.S. it, to or making sworn signed by party a fact or facts of this an officer authorized laws affirmed before deeds, or author- acknowledgments to take oaths, or officer particular or before ized to administer it to or as the one before whom is designated by law individual of an taken, certified to in the case officially be may office.”). Hall, A.2d at 1188 officer under his seal See (Pa.2005) documents to characterize as affidavits (declining the declarant in accord with by not been to that have sworn 1991). such unsworn questionable § It is whether Pa.C.S. to sustain burden. See Appellant’s are sufficient declarations (Pa.2008) (“it Dennis, stand- that such a document declaration] unsworn appears [an ineffectiveness). In be insufficient to prove alone would ing contrast, to as an by Henry appears qualify the letter Dr. Dee Pennsylva- it and notarized a signed affidavit because was notary. public nia the truth of assuming aside and these concerns

Putting affida- and Dr. Dee’s in the declarations assertions contained each Although vit, substantively are flawed. the assertions on “numer- their reliance health referred to provider mental did regarding Appellant, they materials” background ous Armstrong Dr. Additionally, or list these materials. identify as- neuropsychological she conducted a forensic asserts that counsel, and of PCRA request sessment of to results of this evaluation neuropsychological attached the however, does not set forth Appellant, her declaration. copy nor does he offer a thereof.30 We report

contents of that conclusions, appear be Armstrong’s are left Dr. which with and family’s on unsworn declarations solely Appellant’s based Further, although Dr. materials. background unidentified in tense present 2000 declaration is when Armstrong’s cognitive Appellant’s inability engage multiple describing judgment to his impairment and the processes simultaneously from resulting she ties to head trauma reasoning, and which not reference she does pugilistic sports activity prison, injuries occurred in relation to the 1985 murders. when these from similar concerns. He Dr. declaration suffers Woods’ that he a evaluation of psychiatric asserts conducted him, a review “numerous following [un- two interviews materials,” consulting and after background identified] Dr. statement tracks the factual Armstrong. Dr. Woods’ in the un- regarding Appellant’s assertions childhood found provided by family assertions members. Appellant’s sworn of the offense Appel- He likewise concluded at the time or emotional distur- lant suffered from an extreme mental bance, and had an to conform his conduct impaired ability law, he able to reach this explaining without how in 2000 about 1985 mental status. Sim- conclusion neuropsycho- performed “psychological Dr. Dee ilarly, numerous, unspec- logical battery” Appellant, test reviewed regarding generally, background, him ified documents “is a opinion, Appellant In Dr. Dee’s proceedings. the trial Although Appellant purported provide the PCRA court with the Dee, Woods, Armstrong, reports Drs. he did not do so. 406 and has been so

seriously psychologically impaired individual Affi- many years, for since well before offense issue.” Dee, 2000. As the other mental May davit Dr. with 2000 explain health Dr. Dee does not how his providers, informed his conclusions of mental con- Appellant’s evaluation dition in 1985. injuries, Appellant’s

Because of the lack of evidence of head failure to include or set forth the contents of the mental health background their reliance on unidentified providers’ reports, materials, and their failure to link their conclusions in 2000 to in supports mental condition the evidence prove court’s conclusion that has failed to PCRA claim merit of his ineffectiveness arguable prong Washington, to mental health regard mitigation. See A.2d at 615 that a evaluation conducted (noting psychological years following appellant seven the murder which was to trial and based on on trial was unavailable trial); Bly- information not to counsel at the time of known stone, A.2d at n. 22 (discounting opinion after the years doctors examined the eleven appellant who in because proximity hearing they murder close to the PCRA any at the time of the murder or at аppellant did not know trial). time has offered no other evidence prior in merit arguable prong of his ineffectiveness support and presented claim that counsel should have discovered jury. mental health to the He does not assert that mitigation any alleged impairments there evidence of his mental medical, school, records, other prison any the form of or or health in 1985 that counsel failed documentation of his mental case not one in there “a to uncover. This which was wealth at the time of that could have sentencing of material available led to Commonwealth v. persuasive mitigation.” (2006) Jones, (affirming trial grant penalty phase court’s of a new where and a substantial amount investigate counsel failed to uncover school, evidence, court, juvenile mitigation including history swings, incarceration records that detailed a of mood hallucinations, difficulty staying auditory visual Jones, reality.) touch with Unlike does not assert that counsel failed to obtain certain records that would have of Appellant’s revealed evidence mental impairments. conclude, therefore,

We that has failed to merit of prove arguable his claim of counsel ineffective ness to the regard with of mental health investigation mitiga tion. assuming arguable Even merit of this argument, however, conclude we that the record further supports the PCRA court’s conclusions to regard prong the second ineffectiveness. With regard to this it is estab prong, well lished that trial counsel has an to conduct “obligation a thorough investigation of the background.” defendant’s Com 370, monwealth v. Gorby, 567 Pa. 787 A.2d 367 at 371-72 (2001); v. Taylor, 362, 1495, Williams 529 U.S. 120 S.Ct. 146 (2000). L.Ed.2d 389 obligation This duty includes the “to discover all reasonably available mitigating evidence and evi any dence to rebut aggravating evidence that be intro may duced by prosecutor.” Commonwealth v. Hughes, 581 Pa. 274, 761, (2004) Smith, 865 A.2d 813 (quoting Wiggins v. 539 524, 510, 2527, (2003)). U.S. 123 S.Ct. 156 L.Ed.2d 471 “[0]ur concern in principal deciding whether exercised ‘rea [counsel] sonable professional judgmen[t]’ is whether counsel should presented mitigation Rather, have case. we focus on wheth er the investigation ‍​‌‌‌​​​​​​‌‌​‌‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌‌‌‌​‌​​​‍supporting counsel’s decision not to intro mitigating duce evidence of [appellant’s] was background itself reasonable.” 425, Commonwealth v. Malloy, 579 Pa. 856 A.2d (2004) Smith, (quoting Wiggins 784 522-23, 539 U.S. at 2527). 123 S.Ct. The reasonableness of a particular investiga tion depends upon counsel, evidence known as well as that evidence would cause a reasonable attorney conduct a further investigation. Wiggins, See 539 U.S. at 123 S.Ct. 2527; v. Rainey,

(2007); Hughes, 865 A.2d at 813-14. Specifically, counsel’s investigation dependent, in part, upon the information given appellant counsel in the course of his investigation. Malloy, 856 A.2d at 788. Counsel’s obligations require do not an investigation into “every conceivable line of mitigating effort be to assist unlikely the would no matter how Id. at 856 A.2d sentencing.”

the defendant at investiga- that counsels’ has failed demonstrate Mal- unreasonable. See mitigation mental health was tion of our focus is on whether (explaining A.2d at loy, introduce counsel’s decision not to investigation supporting reasonable). Before Appellant’s itself mitigating evidence to conduct a evalua- trial, Berkey psychiatric hired Dr. Dr. the guilt phase. in connection with of Appellant tion personality had antisocial Berkey concluded notoriety from attention gratification and derived However, tendencies. paranoid grandiose some evidenced organized, and thinking opined the doctor Based any way incompetent. or in seem psychotic he did not con- reasonably could have counsel Berkey’s opinion, on Dr. investigate Appellant’s to there no basis cluded that was Although of mitigation. source possible mental health as to failing ineffective for that counsel was claims Appellant for materials and background certain Berkey Dr. with provide of for specifically purposes evaluation to an failing request of support to Appellant points evidence only mitigation, not recall Tershel could Attorney is that this proposition As the court Berkey. Dr. PCRA consulting or with hiring much of the inves- found, however, Lieker conducted Attorney health, Berkey Dr. mental and hired into tigation evaluated. having Appellant psychologically of purpose for the failed to asserts that counsel Further, Appellant although materials, background Appel- Berkey certain Dr. with provide they or indicate what these materials identify lant does not have revealed. would nothing there is

Moreover, Berkey’s report, Dr. past looking that indicates Appellant’s argument or in the record no There is evi- unreasonable. investigation was counsel’s Appel- about or should have known dence that counsel knew difficulties, anyone or else Appellant or that cognitive lant’s or had mental impairments that Appellant indicated to counsel difficulties. cognitive led to injuries that could have head observations Attorney Tershel’s own Additionally, we have

409 Attorney family. his and interactions N.T. frequently, that he spoke testified Tershel any that he had 84, 194, suspect and had no reason Rather, Id. at 127-29. problems. mental health potential coherent, cooperative, appeared competent, happen what was effectively, communicate understood able to case, of mental health no indication gave ing with 129, 185, Id. at 197.31 issues. of counsel’s the reasonableness have been clear

We the information part upon investigation depends mitigation 788; A.2d at Com Malloy, 856 appellant. supplied (1986). Peterkin, 299, A.2d v. 511 Pa. 373 monwealth trial, Here, give any did not indication at the time mental illness or head history that he had a to counsel the time of trial indicated injuries. Where the record at illness, have any did not suffer from mental we appellant not information to trial counsel did held that the available investigate counsel to such issues further. Common alert (2005). Brown, 1139, A.2d See wealth v. 582 Pa. Bracey, (finding also 795 A.2d at 944 trial alleged abuse failing present ineffective for evidence family neither defendant nor his informed counsel where Miller, abuse); v. 560 Pa. 746 A.2d Commonwealth (2000) (same); Uderra, (1998) (holding 339-40 that trial counsel was mitigation declining present not ineffective drug use regarding appellant’s psychological problems failed to disclose information about those appellant any when trial). record, Appellant to Based on this has problems prior not demonstrated that trial counsel should have conducted information to investigation further because the available trial to further. investigate counsel did not alert them We will failing produce mitigating find counsel ineffective evi- Appellant contacting for not 31. To the extent that faults counsel Ms. whether, cognitive opinion, Appellant Romaine to ask in her had difficulties, the record indicates that counsel did contact Ms. Romaine. Attorney opinion Tershel asked Ms. Romaine's as to whether good responded in would make a witness. Ms. Romaine the affirma- tive, nothing might explore and added which have alerted counsel to Appellant's further mental health. 410 infirmity to an mental counsel had alleged

dence relative when an might that the defendant have such suspect no reason to 616; Rollins, A.2d at Washington, 927 A.2d 738 infirmity. Howard, 233, 448; Pa. A.2d v. 719 Uderra, (1998); Because counsels’ 706 A.2d at 339-40. reasonable, met the sec- has not investigation was Pierce, prong proving ond ineffectiveness. See A.2d Relating XII. Ineffectiveness in “Good Conduct” Prison asserts that to show the tending evidence well-adjusted prisoner, he a and from which was well-behaved jury regarding Appellant’s could favorable inferences draw and conduct as a if sentenced to life prisoner, character future evidence, in admissible and trial counsel prison, mitigating to the jury. ineffective for such evidence failing present Carolina, 1, 4, 476 U.S. 106 S.Ct. Skipper See South (1986) (holding petitioner 90 L.Ed.2d 1 that evidence that a well-adjusted and from prisoner has been well-behaved jury regarding could favorable inferences which draw future if petitioner’s probable and conduct sentenced character evidence). mitigating to life in is admissible as prison counsel ineffectiveness for Specifically, Appellant alleges failing investigate, develop, present regarding evidence First, in after good prison. years four instances of conduct incarceration, established that he was able to Appellant had no of misconduct. He asserts prison reside instances by simply calling that counsel could have discovered this fact (DOC) requesting Appel- of Corrections Department (7th 106 F.3d Washington, lant’s records. See Hall v. Cir.1997) failing trial counsel ineffective for to investi- (holding good conduct gate present appellant’s Second, life of a Appellant helped save the fellow prison). hang inmate had tried to himself. He claims evi- who Third, jail. Washington County dence available from the another investigation assisted the FBI in its inmate, asserts that he Finally, Appellant Samuel Wallace. saved the lives of in prison. two women while When an named McGrogan approached inmate Robert women, offered him if kill Mary would two $1500 Hoegrel, and Donna Appellant telephoned one of the women her of McGrogan’s and told intentions and later assisted the in McGrogan’s prosecution at his by testifying preliminary hearing. See Commonwealth v. McGrogan, (1987). Pa.Super. 532 A.2d 1203 Appellant asserts evidence of his role in McGrogan’s prosecution readily was to counsel McGrogan’s available because trial took be- place fore Appellant’s trial.32

Appellant asserts that there could be no reasonable basis evidence, failing uncover this because trial counsel clearly thought evidence that Appellant saved someone’s useful, life was as that was the focus of counsels’ penalty phase presentation. Appellant further claims that he prejudiced was failures, by these because evidence that he was a model enforcement, prisoner, an aid to law had assisted corrections inmate, officers in aiding another and had saved the lives of two women jury would have shown the that he posed no threat in society prison. evidence, asserts, while This he would argument have deflated the made the prosecution that although Appellant had saved the life of Mr. Stephens when he young, the personality trait to this leading action had not endured. rejected

The PCRA court Appellant’s four good instances of conduct as adequate prоve First, counsel ineffectiveness. court PCRA found no arguable merit to Appellant’s asser- tion that counsel was for failing ineffective to offer evidence Appellant’s prison lack of misconduct. The PCRA court noted that there was some question concerning Appellant’s behavior while Specifically, incarcerated. testimony re- vealed that Appellant had appeared court on preliminary towel, matters clothed in a and had problems created while incarcerated. Additionally, the PCRA court concluded that trial counsel reasonably decided not to introduce McGrogan approached 32. jail before re- June, leased and killed the three victims in because, as Attor- incarcerated conduct while good testified, to Appellant not have benefited it would

ney Tershel of incarceration. history hear of his jury long the have FBI and the Second, Appellant noted that the PCRA court testified of Mr. Wallace investigation in the involved agent role in the concerning Appellant’s during guilt phase the to reasonably chose “not that counsel and found investigation, assistance with concerning [Appellant’s] the rehash evidence that this evidence sentencing phase given FBI Third, at 50. Op. in the PCRA Ct. guilt phase.” introduced merit arguable that there was no court concluded the PCRA intro- failing for to counsel ineffective claim that were to the in the life of another saving role Appellant’s of duce evidence of this inmate, did not make counsel aware Appellant because 51; Finally, N.T. PCRA at 199. Op. at event. PCRA Ct. of the two saving role in the lives Appellant’s regarding this claim had women, although found that court PCRA failing in merit, not unreasonable counsel was arguable not find Attorney Tershel did this because introduce evidence of penalty phase completion it until after out about trial. Appellant’s that piece each separately address

We will presented should obtained and counsel have argues Appellant First, that he had assertion jury. regarding Appellant’s he claims prison, of misconduct while no instances if counsel had this evidence have discovered counsel would records, readily avail- DOC which were Appellant’s obtained his ineffective- proving the burden of able. bears A.2d at 664. This burden Cooper, 941 ness claim. See the records he obligation prove necessarily includes his existed and were obtaining actually for not faults however, his provide did not Appellant, to counsel. available court, The there- court. PCRA records to DOC they, them to determine whether fore, way no to evaluate had claimed was with- fact, the information contained it, neither the PCRA the records before in them. Without records that the any way verifying has court nor Court do, information that, they if contain the they or exist

418 bald asser- only Appellant’s claims. The record here contains his supported argu- records would tions that his DOC have claims, however, his proving; are not self ment. existed actually that the DOC records failure to demonstrate representations consistent substantively were Busanet, v. 572 to his See Commonwealth argument.33 fatal (2002) 535, 817 A.2d bears (Appellant Pa. exist- demonstrating actually

burden of that relevant evidence Smith, ed); A.2d v. 544 Pa. Commonwealth (1996) Court) (“[Tjrial (Opinion Announcing Judgment failing counsel is not ineffective submit evidence exists.”); mitigation no such evidence where (1986) (“Counsel Buehl, could exists.”). Moreover, only present which while trial, jail, he in resisted awaiting uncooperative was directions, and threatenеd corrections officers with following karate, providing support thus for the PCRA court’s conclu- for Appellant prove sion that failed counsel ineffectiveness of miscon- offering mitigation Appellant’s prison as lack at at 50. Op. duct. See N.T. PCRA 190-91. PCRA Ct. Next, helped we address assertion that he the life of an inmate to commit suicide in save who had tried prison, failing and that counsel was ineffective for to investi- this to the In of this gate present jury. support evidence contention, jail a Appellant presented Washington County incident that that offi- report describes when two corrections noise, floor, cers a an inmate on the investigated they saw Appellant helped the officer hold the inmate down he while They shoestring kicked and convulsed. discovered a around the inmate’s neck. has that he not demonstrated only specific The 33. reference to DOC records before our Court is in the Woods, reviewed, declaration of Dr. who claims to have in [Appellant's] "volumes of DOC records that document life.” Declara- Woods, May forgo submitting tion of Dr. 2000. It is insufficient to purportedly mitigation contain in records that evidence favor of relying merely implies on an assertion in a declaration that that such Further, records exist. Dr. Woods did not indicate the time frame these encompassed, given in records 2000, that Dr. Woods' evaluation was entirely likely it is that his review included DOC records created Appellant's in after sentence In this evidence. present counsel’s failure prejudiced a lack of reasonable merit and arguable to proving

addition actions, must that prove basis for counsels’ strategic Pierce, A.2d conduct. by counsel’s See prejudiced he was officers corrections Appellant helped at 975. Evidence mitigat- be suicide would attempted an inmate had attend who 42 Pa.C.S. mitigator. catch-all See under the ing evidence 9711(e)(8). however, found the existence of noted, jury As argument in reliance on counsel’s mitigator this this additional Stephens. Mr. While had saved the life of of portrayal Appellant bolstered counsel’s have evidence would of the crime and the heroic, nature gruesome as in light factors, aggravating of the Commonwealth’s jury’s acceptance at least one persuaded it have cannot conclude that would we found catch-all already to the juror weight more give life in held out for juror that the would have mitigator, such preju- is to sufficient prove The burden on prison. dice—i.e., the outcome of trial probability a reasonable addition- presented been different had would have Wiggins, 539 U.S. jury. al to the See evidence assessing prevailing standard (articulating S.Ct. in stewardship presentation from deficient prejudice a reasonable “there is terms whether mitigation evidence a juror have struck differ- that at least one would probability Rios, balance.”). 920 A.2d at not done so. See ent He has ground- ineffectiveness claim (rejecting appellant’s 812-13 support more provide failure to ed in counsel’s jury); the by circumstance found mitigating (2000) (where 871, Scott, n. 7 the Pa. A.2d 877 752 circumstance, appel- the jury mitigating found the “catch-all” from his any prejudice that he suffered lant failed to show in of this support introduce more evidence failure to counsel’s mitigator).34 that noteworthy is evidence on the record there It is also following inmate’s Appellant’s role the actually aware of counsel was instructed, presumably attеmpt. Reid that he was Mr. testified suicide counsel, Allegheny County officer at the to talk to a corrections Appellant the an incident where saved who had witnessed courthouse individual, referred to this PCRA at and later see N.T. life of an attempt, N.T. PCRA at involving inmate's suicide see as one an incident

Next, Appellant’s allegation we examine that counsel was failing to the it explain jury ineffective could Appellant’s consider evidence of role in FBI’s investigation the of Mr. or a in request jury regard. Wallace instruction merit, assuming Even this claim has arguable we find that has failed to that he Appellant prove prejudiced by Pierce, counsel’s failure. See 786 A.2d at 213. The jury was already role in Appellant’s investigation aware the because agent the FBI testified in the guilt phase. Although trial counsel not remind jury did of this fact or during closing it, request jury instruction regarding we find because jury just had heard this evidence there not a reasonable error, probability that but for counsel’s the outcome Cox, have been proceeding would different. 863 A.2d at 546. turn to Finally, we contentions that he notified and Donna Mary Hoegrel of Mr. McGrogan’s attempt to hire to kill them. claims that trial counsel presented should have the Hoegrels testify Appellant’s at penalty phase hearing, or presented of Appellants’ effort to save them. Before counsel can be found to be for failing ineffective to uncover substantial mitigation evi- dence, must demonstrate that such evidence exists. Busanet, 817 A.2d at 1070. It appears that there are several possible themselves, sources of this evidence: the Hoegrels records, Appellant’s DOC in Superior opinion Court Mr. McGrogan’s appeal, see McGrogan, Pa.Super.

A.2d which discusses Appellant’s role the McGrogan investigation preliminary hearing, Appellant, who of his obviously was aware role this incident.

To prove arguable merit claim prong Appellant’s counsel ineffectiveness for failing Hoegrels call as Pierce, in the penalty phase, witnesses see (1) existed; must demonstrate that: the witnesses (2) (3) defense; such testify witnesses were available to for the of, of, or knew should have known existence of the (4) witnesses; the witnesses willing testify were for the passed 46. Mr. Reid obtained this individual's statement and it on to counsel. N.T. PCRAat 29. 416 (5) of such wit

defense; testimony absence of the the a the petitioner as to have denied prejudicial so nesses was Fletcher, 266, 561 Pa. 750 v. fair trial. See Commonwealth (2000). attempted prove has not 261, Appellant A.2d thus, factors; cannot conclude counsel was we any of these Regarding Ap to call these witnesses. failing ineffective for information source of possible records as DOC pellant’s as McGrogan’s prosecution, role in Mr. regarding Appellant’s to the PCRA noted, not these records provided has Appellant of a Court, finding cannot form a basis they or this so court Busanet, the A.2d at 1070. Nor was ineffectiveness. notification describing Appellant’s Superior opinion Court avail testimony against McGrogan Mr. Hoegrels and his it filed because was during penalty phase to counsel able trial. 21, 1987, Appellant’s completion after October himself as a source of us to consider That leaves however, that he argue does not Appellant, information. involvement, ready willing counsel of his told phase, at the or penalty testify about involvement him of and ask for counsel to be aware any there reason Therefore, arguable not proven has about it. he because claim of counsel ineffectiveness merit of his prong avail the evidence existed or was has demonstrated to counsel. able Regarding Jury

XIII. Instructions Mitigating Circumstances phase jury that the argues penalty next unani jury that the must erroneously suggested instructions circumstance, in v. violation Mills mitigating find a mously 1860, 100 L.Ed.2d 384 108 S.Ct. Maryland, 486 U.S. (1988). Duffey, in Commonwealth recently explained As we (2005) Cox, 863 A.2d at collateral not be available on Mills violation will alleged “an error occurred before alleged in cases in review which in In this decision Mills.” Supreme States Court’s United case, given erroneous instruction was allegedly never 1988 decision Mills. before the Court’s the trial court or on a Mills claim before preserved raised or Mills is such, regarding claim As appeal. direct Cox, Duffey, supra. waived. Cox, attempts Dujfey Appellant in and appellants

Like the all counsel were by asserting prior to overcome waiver He raise this issue. failing preserve for to and ineffective however, this of his not, develop aspect to attempt does event, trial counsel In not deem any we will argument. in the law. change failing anticipate for ineffective Duf- ineffec- trial counsel was not Accordingly, 889 A.2d fey, decision, Appellant’s and the Mills failing anticipate for tive necessarily fails. claim of ineffectiveness Impact Evidence XIV. Victim evidence, concerning which “evidence impact Victim of the has had the that the death victim impact the victim 9711(a)(2), § 42 was Pa.C.S. family on the victim....” 11, 1995. See Commonwealth before December inadmissible (2007); Romero, 275, 362, A.2d 379 Common v. 595 Pa. (1996). 130, Fisher, 145-47 545 Pa. 681 A.2d wealth v. McNeil, See also Commonwealth (1996). trial, Thus, victim at the time of pro from criminal testimony completely barred

impact was Rios, argues 920 A.2d at 806-07. ceedings. See at his trial presented was impact that unlawful victim Paul; prose of Ms. Delilah the ways: testimony in three the and trial counsel’s phase closing argument; penalty cution’s that trial asserts closing argument. Appellant penalty phase evidence, counsel’s object to the as well as counsel’s failure to assistance of counsel. constitutes ineffective argument, own victims, old friend of one of the ninety-year Ms. Paul awas orga- a luncheon she that the victims attended and testified ac- nized on behalf of the “Child Welfare Club.” testimony of this was legitimate purpose that the knowledges for at 90. As the time of death. Brief to narrow found, testimony Paul’s established court Ms. began at 12:30 luncheon held on June 1:00, around that the meal was served She established p.m. the meal. present We and that all three victims were agree with the PCRA court that this evidence was introduced concerning narrow time death “evidence impact the victim and the that the death of the has had victim 9711(a)(2). family § on the of the victim....” Pa.C.S. See Romero, Therefore, also 938 A.2d at 379. cannot prove the merit of his arguable argument counsel was failing object. ineffective for In closing argument during penalty phase, prosecutor highlighted testimony of Ms. Paul to illustrate active, that the people community: victims were viable I you would like to talk to a little bit about the victims case. their ages they We know and we know that were active, still viable in this people community proba- and that can be in bly your testimony best drawn back minds to the of Mrs. Paul stated that proudly years who she’s 90 old and this; she’s the one that all of that luncheon ... arranged day that ... the first of ... day day summer the last these ladies’ lives. by

These ladies lived themselves and the of the oldest So, three was thе one that drove her car that these day. active, ladies productive community were members of the society every right and of and had out their golden live years and to die of natural causes.

N.T. 1565-66. Again, object. trial counsel did not The PCRA court found that had failed to prove counsel was ineffective because he not prejudiced by argument. was this We that the agree supports this finding. Specifical- ly, prosecutor’s characterization of the victims in the closing argument represents a brief section of the closing argument, spans pages. which a total of ten take no While we position on the appropriateness characterization of the in community, victims’ role conclude that it fleeting we was when viewed in the context of the entire closing argument. 184, 559, See Commonwealth v. 587 Pa. 898 May, A.2d 567-68 (2006) (finding no resulted from prejudice testimony was fleeting when in the context of a trial that viewed consisted more than one-thousand pages testimony). prosecu- The remark, all, tor’s if not prejudicial was “so severe as

419 prejudice jury point that it could not render a true and fair Robinson, verdict.” also Id.See Commonwealth v. 358, 433, (2005) 583 Pa. 877 A.2d 443-44 (finding appellant was not prejudiced by prosecutor’s reference to the victim’s religion because the comment so brief it was did decision); Freeman, not affect the jury’s Commonwealth v. 385, (2003) brief, 573 Pa. A.2d non- (holding that, murder, specific testimony to her prior the victim was “peaceful” and “nice” so fleeting general, was it Rollins, prejudicial); Commonwealth v. 558 Pa. 738 A.2d (1999) (finding brief that a testimony boy was afraid guns as result of witnessing the crime prejudice did not appellant). Because prove fails to prejudice, his claim of trial counsel’s ineffectiveness fails.

Although Appellant refers to a comment by trial counsel in closing that evidence, he characterizes as victim impact he does not identify the comment or develop his argument Therefore, regard. we cannot vague consider this reference as sufficient development of his claim. See Bracey, supra; Natividad, (2007). Regarding

XV. Instruction Aggravator the Torture The trial court instructed the jury that it permit ted to consider whether the offenses question were commit ted means of torture:

Torture is the infliction of a considerable pain amount of and suffering heinous, a victim is unnecessarily which atrocious or cruel manifesting exceptional depravity. It must beyond be shown reasonable doubt that the defen- dant intended to torture his victims to death and the actual commission of the offenses included such concurrent acts as to set the apart felonies, crime from the norm of capital is the or pitiless conscientiousness the crime which is unnec- essarily painful to the victim or victims.

N.T. at 1574. Appellant asserts that this instruction was overbroad, unconstitutionally vague and and that counsel failing object ineffective for to and for failing raise this 420 raise that counsel did court found The PCRA on appeal.

issue it, addressed this and Court appeal, on direct this issue litigated. previously that the claim is concluding indeed consider whether did Court appeal, direct On torture to the submitting question erred in the trial court sup- of torture was jury’s finding the and jury the whether Steele, analyzing In 559 A.2d at 913. the evidence. by ported conclud- jury to the and issues, charge the reviewed these we ed as follows: properly that the trial court reflects the record

Moreover of a as the infliction torture by defining jury, the charged that it must be by stating and pain amount сonsiderable intend- the defendant doubt that a reasonable beyond shown presumption There is a to death. torture his victims ed to given the instructions jury followed in the law that thus, appellant found that properly and judge the trial v. Stoltz- the victims. intend to torture did Commonwealth (1975) (We 43, 55, 879 will 337 A.2d fus, and the duty their jurors disregarded presume Court); Oil Com- v. Standard Dauphin instructions of (1933) (The presump- 167 A. Pa. pany, instructions). the court’s jury complied tion is that charge trial court’s Therefore, question because Id. previously aggravator the torture regarding the jury satisfy arguable cannot rejected, Appellant litigated ineffectiveness. to counsel’s regard Pierce with merit prong Dennis, Pa. See (2008). of Counsel Ineffectiveness

XVI. failures counsels’ prior that “all Next, argues of the issues each and all investigate present properly in this appeal proceedings Appellant’s presented baldly In assert- at 98. Brief for ineffective.” were counsel, has failed of prior the ineffectiveness ing Therefore, fashion. meaningful in any this claim develop the ineffective- argument respecting boilerplate to establish an entitlement insufficient counsel is prior ness of

421 244-45; relief. See Rainey, 928 A.2d at post-conviction 1, 1191, 1250 (2006); Spotz, Commonwealth v. 587 Pa. 896 A.2d Bond, (2002) 588, 33, 41 Commonwealth Pa. 819 A.2d 572 (noting boilerplate allegation prior that a all were litigate issues does not dis failing ineffective waived ineffectiveness); burden of charge appellant’s proving v. Abdul- 940, 4; Bracey, 795 A.2d at n. Salaam, (2001). 79, 558, 570 Pa. 808 A.2d 560 n. 3

XVII. Cumulative Effect of Errors Finally, contends that he is entitled to relief because the cumulative effect of the errors he asserts denied him a fair long trial. We have held “no number of failed may collectively they ‍​‌‌‌​​​​​​‌‌​‌‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌‌‌‌​‌​​​‍claims warrant relief if fail to do so Natividad, 340-41; Rainey, individually.” 938 A.2d at (James) Williams, 245; Commonwealth v. A.2d at 586 Pa. denied, (2006), cert. 896 A.2d 549 U.S. (2007); Blystone, S.Ct. 167 L.Ed.2d 88 725 A.2d at 1208- Williams, 09; (Craig) Commonwealth v. (1992).

716, 722 Accordingly, the order of the court is affirmed.35 Justice GREENSPAN did not in the participate consideration or decision of this case. EAKIN,

Justice Justice TODD and Justice McCAFFERY join opinion.

Chief Justice files a concurring opinion CASTILLE joins. which Justice McCAFFERY

Justice SAYLOR files a dissenting opinion. CASTILLE, concurring.

Chief Justice I join the learned Majority Opinion, but write two points of elaboration and to address an issue raised Mr. Justice Saylor’s Dissenting Opinion, regarding whether it be would Prothonotary Supreme 35. The Court is directed to transmit the complete pursuant record of this case to the Governor to 42 Pa.C.S. l(ij § 971 per- counsel for present sua remove sponte

appropriate briefing ceived deficiencies. claims, I

First, analysis appellant’s Majority’s to the ineffec recognizes appellant’s add that this Court would Amendment, and the are under Sixth posed tiveness claims 466 Washington, v. thus, standard is Strickland governing the (1984). 2052, “To secure 668, 80 L.Ed.2d 674 104 U.S. S.Ct. Strickland, prove must and plead a defendant relief under deficient’ and performance that his ‘counsel’s both ” the defense.’ Common prejudiced the performance ‘deficient (2007), 134, 1119, Reaves, 1127 Pa. 923 A.2d wealth v. 592 Strickland, 687, 104 at S.Ct. 466 U.S. quoting Strickland, the Ma- acknowledge Majority the does While Pennsylvania.” the defense burden “[i]n also jority speaks 360, emphasize at I 961 A.2d 796. would Majority Op. not a distinct or approach is Pennsylvania the three-pronged ineffectiveness, more merely but counsel test for weaker governing two-part Strickland applying focused manner of “ ineffectiveness is that the test for counsel test. ‘It is settled Federal Pennsylvania and Constitu- the same under both test set forth prejudice and performance it is the tions: Williams, v. ....’” Commonwealth Washington v. Strickland (2007), v. 12, 366, quoting A.2d 19 Commonwealth 594 Pa. 936 (2004) Gribble, 647, 455, (collecting 863 A.2d 460 580 Pa. 698, cases). 592 Pa. Washington, v. Accord Commonwealth Hawkins, (2007); 586 586, v. A.2d 594 n. 8 927 (2006). 716, “This has 366, 721 n. 10 Court Pa. 894 A.2d by performance prong consistently applied ] [Strickland against the clаim lodged merit of examining arguable both the objective reasonableness in addition to (citation Williams, A.2d at 19 936 actions taken counsel.” omitted). his claims of failure to include within to the argument relevant non-boilexplate ineffectiveness their re- requires test prejudice performance Strickland jection. Saylor’s

Second, Majority Opinion Justice both Albrecht, 554 discuss Commonwealth Dissenting Opinion (1998). 693, 31, abrogated Albrecht Pa. 720 A.2d 700 be- doctrine on PCRA review relaxed waiver discretionary 423 cause, other among jurisprudential failings, its relaxed waiver inconsistent I squarely provision. PCRA waiver Albrecht, addressed at the effect of length have elsewhere including accurately “clarify whether it could be described as relaxed it be ing” rightly applied waiver whether could to a before the “retroactively” petition abrogation filed upon occurred and which relied the doctrine. See Common (2001) 935, wealth v. Bracey, 795 A.2d 948-57 Ford, (Castille, J., concurring); see also Commonwealth v. (2002) (Castille, J„

Pa. 346 n. dissenting), denied, cert. U.S. S.Ct. 157 L.Ed.2d 1044 (2004). Albrecht was before appellant decided filed the amended PCRA petition subject which is the of this appeal, appellant challenge and does its or reach. legitimacy Thus, issue, and, indeed, it no poses retroactivity no Albrecht issue is raised. to

Turning Saylor’s Mr. Justice al- Dissenting Opinion, though my colleague esteemed does not agree with Court’s assessment of the of in adequacy appellant’s briefing this case claims, that, and the resultant of waiver he suggests given our waiver, of sua findings sponte of counsel and removal remand for of appointment new PCRA counsel is warranted. Dissent- 430-31, ing Op. A.2d at 839. For of purposes responsive discussion, I that, case, assume in will an appropriate properly Court may remove PCRA counsel sua appeal sponte, heard, that we do so may without counsel to be allowing and that no of finding Strickland-type is I prejudice required.1 agree Majority’s with the findings view, In my waiver. however, here, on the record the fact that counsel has chosen not to develop appellant’s claims of in ineffective assistance a fashion to ensure designed merits under review Strickland support does not the sua sponte removal of counsel.

Appointed counsel of record on is appeal Geary, Noah hails from Esquire, Washington County, who the County note, however, (1) why I do that it is not self-evident counsel should removal; (2) not be replaced, heard before and be counsel should and doubled, appeal expense the PCRA rather than be ordered to file a conforming brief. tried appellant occurred and was the murders where Brief, 9- Initial 98-page has filed a Geary Mr. convicted. (and dis- cursory Brief to the Commonwealth’s page Reply Appendix and a thick Appellee, Brief for unhelpful) tinctly record, that apparent appellant it is From the Exhibits. the additional proceeded counsel have with appointed his the Defender Association assistance of what now substantial capital litigation. to specialized unit dedicated Philadelphia’s ” filed modest, initial se was “pro petition Ñolas, Billy Esquire, assistance of the volunteer 1996 with Pennsylvania time director of litigation at that was who (PPCDO). Along Organization Defender Post-Conviction organization Ñolas offered that his filing, Attorney to appointed if it willing represent appellant be were would Washington Letter trial court. See Ñolas do so Court, May following year, The County Clerk 6/5/96. Dunham, Esquire, who and co-counsel Robert Ñоlas Pennsylvania capital a successor then associated with were for Edu- Legal the moniker Center organization with defense (CLEADA), the re- Defense Assistance renewed cation and opinion In an represent appellant. appointed to be quest 6, 1997, request, denied the judge the PCRA dated June counsel of appointed not entitled to appellant noting choice, PCRA defense competent appointed The court county. appointment available initial appointed attorney represent appellant; a local withdraw, however, and the permitted counsel was PCRA Darragh, Esquire. Peter K. appointed court then Fed- Meanwhile, Philadelphia, the Defender Association of com- Division, lawyers of the had many absorbed who eral Dunham, CLEADA, and Attorneys Ñolas and including prised defense assistance expanded capital assumed and also in and engaged had been PPCDO function which in these successive lawyers The who served CLEADA.2 Legal Intelligencer, According the size of the to a recent article in The 2. three law- capital habeas unit has ballooned from Federal Defender's today. yers lawyers and an overall staff of 83” in 1996 to "to 36 case on a working appellant’s continued organizations basis, Attorney Darragh. approval voluntary Thus, because the in secured a continuance Darragh him in assisting of Philadelphia Defender Association was peti- amended PCRA researching preparing appellant’s filed the 95- Darragh ultimately January tion. On 10, 2000, is the amended which petition nineteen claim PCRA page, subject appeal. of this peti- to the amended responded

After the Commonwealth for tion, hearing May scheduled a PCRA the Court history recited the hearing, At the outset of that court case, Philadelphia its of the Federal including approval counsel, which voluntary appointed Defender’s assistance day, Also on that grant had led the court to continuance. Saunders, Attorneys styled Ñolas and Anne of what was now Unit, formally Defender Habeas entered Capital the Federal The appearances voluntary appellant. their as Defenders hearing day, PCRA was held that same Ñolas all and Saunders conducted defense examinations witnesses. still hearing, petition After the and while the PCRA was Darragh granted to withdraw and pending, permission Geary appointed. exception Attorney With Atkins claim, Brief tracks the by Geary filed this Court petition amended the Federal Defender had PCRA which addition, In familiar in prepare. very the Brief is helped format, and substance: it reads much like the briefs style very cases it is capital the Federal Defender files where counsel of record. Brief,

In counsel’s I consider the back- assessing would substantial ground summarized above. Counsel has filed litigation strategy employed and the PCRA pleadings, the benefit of consultation with throughout was arrived with Defender. The Defenders are well- the Federal Federal financed, defense advocates. sophisticated capable capital effect than this Court knows—the They well know—better litigation that their state-side advice and decisions will have Legal Duffy, Skipper is Defender, Shannon P. New Federal The Chief 2, 2008, Dec. at 1. Intelligencer, relief. I believe corpus for’federal habeas upon prospect below, appellant’s petition that the structure and content of the result of a realized appeal, fully and his Brief in this are one сon- litigation strategy, primary collateral whose capital anticipated federal laying groundwork cern is with relief. corpus habeas Brief, the Federal Defender in by

This like other briefs filed frame, very the issues in a poses the same time general scope In its statement of the way. distinct and deliberate review, in of and in the summary argument, standard of its (entitled For argument “Eligibility to the lengthy preamble Claims”), the Brief is And The Nature Relief Of Thus, in the careful to characterize claims alternative. is for relief on his appellant eligible Brief first declares that In of federal constitutional error.” “substantive claims the Brief “seeks substantive regard, says appellant review of constitutional principles of his claims under the established and cites the direct harmless noted this brief’ review law asserts, The Brief then as “additional error standard. claims,” entitle to relief arguments appellant that the same Finally, assistance of counsel. under the rubric of ineffective claims, a of the same basic poses, the Brief as third version and the is entitled to relief under “State Law” appellant PCRA, us believe is different than which counsel would have 1-2, 5-6, 6-11. Initial Brief of federal law. . A for federal habeas relief can turn prospects defendant’s claim, claim. A “constitutional” upon preserved the form a (where harmless subject appeal to direct standard review beyond error have to be a reasonable doubt proven would Commonwealth), to a constitution- preferable derivative claim, of counsel. al such as ineffective assistance Under overcome, Strickland, competency there is a presumption if acted enough reasonably, mere error is not counsel A proven by actual must be the defense. defendant prejudice counsel are to federal habeas standards would savvy who way state collateral claims in a every pose make effort the more securing that maximizes the favorable prospect highly likely standard. I believe that it is review out, strategy carefully mapped their federal this case have and that strategy Brief, dictated the form of the including the allocation of space to of development direct review claims versus collateral claims. It is a strategy that may be borne of that, an if anticipation and when appellant proceeds to federal review, he will argue something the lines of: I along posed my PCRA claims as claims of direct constitutional error in state court; I was entitled to do so under relaxed waiver or some other theory; the Pennsylvania Supreme Court’s of findings procedural honored; default should not be my underlying claims reviewed, therefore should be merits, on their without deferring the anything Pennsylvania state courts had to say. Even respect with to appellant’s allegations alternative ineffectiveness, of counsel collateral counsel probably will ar- ticulate a theory why they believe the state defaults this Court has found should be disregarded.

Material briefing respecting deficiencies the Strickland ver- sions of appellant’s claims important Court, are to this course, because Pennsylvania does law not permit appellants to pursue claims, waived and Strickland claims are not self- But, proving. as I elsewhere, have addressed there is a difference between what this do, Court has the power to given the PCRA, terms of the and the respect our restrained decisions will be Ford, shown federal habeas review. See 809 A.2d at 846 n. 8. State court defendants with an eye toward federal habeas relief have a powerful incentive seize upon whatever they can to argue that state courts have engaged treatment, in unequal or have unreasonably failed to review the defendant’s preferred claims, form of his thereby opening door for de novo federal consideration. And a lower federal court a predisposition with to engaging in non- deferential de novo review possible whenever be receptive will to such arguments. This Court has no control over how federal courts decisions; will construe our we must simply And, our discharge duties. to the extent we would concern ourselves with coin-flip review, is federal habeas law, result can be very bad since every state court response a particularly egregious, unusual circumstance will be argued, court, federal as proof that state procedural rules of default are uneven and should not be honored. sponte assessing of sua performance purposes

For here, the a point capital counsel defendant’s necessarily not with litigation do dovetail collateral incentives limited, on collateral attack. authorized review Court’s (and Strickland may compliance view (and itself) briefing time as a waste of comparative the PCRA content of the Brief here indicate space): the familiar tone and less that is said about may as much. Counsel believe claims, the easier it be to claim the ineffectiveness will court that to raise his waived appellant obliged federal claims here under guise “constitutional” derivative course, candid Strickland. hearing Of absent and counsel’s sure, counsel’s testimony, strategy we cannot know it, may to reveal where particularly be disinclined has sought plainly counsel’s removal. What is appellant however, a is that the in this case is not briefing apparent, and of or inattention—it is deliberate negligence function And, federal entirely given if not candid. the sophisticated, to to them seeming receptiveness allowing court’s theories Pennsylvania procedural capital state court in ignore defaults cases, briefing strategy it cannot be said that counsel’s PCRA simply agenda. has a unreasonable. Counsel different joins opinion.

Justice McCAFFERY SAYLOR, dissenting. Justice nine going specifically guilt raises claims to trial, The his labels IV XI and phase through which he XV. IV, VI, VIII, IX, X, XI are indicates that claims and majority appellate to a presentation due deficient unreviewable in on claims V and for the same part denies review VII treated appears claim XV be Only guilt-phase reason.1 its entirely on merits. seventy approximately

The thus declines majority review claims, due to the percent Appellant’s guilt-phase repeated present majority Specifically, focuses on counsel's failure develop arguments governing in for terms of standard claims require- to meet attorney of his part present failure on brief, however, was appellate briefing. Appellant’s ments for requirements in in period filed in a time which transition, given cases in briefing capital were appellate of relaxed had abolished the doctrine recently the Court degree form and concerning waiver was divided to address such Appellant attempts development required. difficulty as follows: opinions that this recent respectfully

It is submitted Court’s cases аre regarding pleading proof capital confusing, constantly shifting.5 Appellant’s inconsistent and vacillating require is his attempt comply brief ments of the decisions. Court’s Uderra, 5152-5158, Term 1991 5. See No. Oct. (this (Phil. 24, 2002) (Poserina, J.) May CCP at 5 n. 5 Court’s “recent counsel] decisions issues of ineffective assistance of show a frac- [on court, issues”); majority tured with no clear consensus on these Com- Marshall, (2002) Jerry

monwealth v. 570 Pa. (reviewing assistance); "boilerplate” allegations merits of claim with of ineffective (Castillo, J.) (lamenting id. at 1229-33 lack of consistent claims); application pleading rules to such Commonwealth v. Jerome Marshall, (2002) (declining 812 A.2d 539 to review merits assistance). "boilerplate” allegations of claims with of ineffective Brief for Appellant introductory at 7-8.2 This comment is followed discussion of the lengthy prevailing require- governing ments of ineffec- post-conviction review and claims tive assistance of counsel. id. at 6-11. From my perspec- See tive, Appellant’s generally present brief reflects an effort to framework, claims an acceptable particularly within when filed, against assessed the time frame in it the which was and majority’s treatment of summary arguments overly various is stringent.3 See, e.g., Majority Opinion 364-65,

ineffective assistance of counsel. at 961 A.2d at 799. contexts, acknowledged In various this Court the has difficulties 2. See, presented addressing litigation. e.g., capital in Commonwealth v. Gibson, 402, 421, 1110, (2008) (“We recognize 597 1121 Pa. 951 A.2d that, now, Supreme for some time both this Court and the United States swing operating majorities Court have been with slim and votes in the claims."). capital-sentencing arena of ineffectiveness Indeed, depth development, distinguish I in terms of of am unable to 3. Appellant’s presentations gar- treatment of various of his claims from nering past. in merits review the recent

430 majority of the indicates

By way example, deriv failed, in of his claim of ineffectiveness subparts several the Common analysis presented by from hair ing expert See, wealth, e.g., Majority of any prejudice.. to make mention However, 364-65, at 961 A.2d at 799-800. Opinion, as expert testimony “sweeping the challenged described that, Brief for at and indicated damaging,” “[t]he verdicts, only as it the jury’s affected the testimony likely Mr. with the vic connecting Steele physical direct tims, arguing the in Mr. by prosecutor emphasized 1450-51, I Id. at 42. see no See N.T. 1457.” guilt. Steele’s assertions repeated to have these within need of this attacking presentation of his claim every subpart evidence, appare gist argument express of his when view, in finding deficiency briefing of a my nt.4 In others, an unduly results from as well as several point, argu to the compartmentalized approach formalistic and/or ments presented. holding light majority’s

In forfeited, to meet by failing of his claims seventy-percent has I note that a requirements, capital post-conviction briefing entitlement to effective assis maintains a rule-based petitioner petition. counsel on a first See Common tance of PCRA Priovolosernest, 364, 368, 420, 422 Pa. 715 A.2d v. wealth (1998). perva- in finds such capital In cases which Court my respectfully maintain difference with the characterization I also Albrecht, (1998), retroac- v. 554 Pa. A.2d abolishing practice capital post-conviction tively the relaxed waiver in cases, "merely Majority Opinion at 359 n. as a clarification." majority While I remain bound the decision of A.2d at 796 n. 9. course, regard I have come to our decision the Court to maintain Further, change. implementing I am not

Albrecht as a substantial jurispru- say entrenched prepared to that the retroactive abolition of an parties potential detriment of who have relied dential doctrine to the Indeed, I continue upon implicate constitutional concerns. it does directing application retroactive to believe that we made a mistake 398-99, Ford, 809 A.2d Albrecht. See Commonwealth J., (2002) (Saylor, concurring). 337-38 ultimately argument Notably, majority address the undertakes to single subpart of concerning prejudice, albeit in connection with a 365-68, Majority Opinion at 800-01. Appellant's claim. See

431 sive ineffectiveness manifest of the upon appellate face submissions, I that the appropriate believe course is to re mand for the of substitute appointment counsel. Common Cf. Williams, (2001) 553, 566, 517, v. wealth 782 A.2d 525 (citing 344, Commonwealth v. 561 Spence, Pa. 750 A.2d 303 (2000) curiam), Saranchak, (per and Commonwealth v. 559 (1999) curiam)). Pa. A.2d (per resolve, The majority merits, does undertake to on the claim Appellant’s stewardship of deficient failing investi gate and present mitigating circumstances at penalty phase 397-411, of trial. Majority Opinion, op. See at at Initially, majority 819-27. finds sufficient evidence to sustain the PCRA court’s conclusion that trial counsel con ducted a reasonable investigation of Appellant’s background. 400-01, See id. at conclusion, 961 A.2d at 821. To support this majority relies on the investigation conducted Michael Reid, as as trial well counsel’s own investigative efforts. See id. view,

In my the majority’s reasoning rests on an incomplete assessment of both the record and the prevailing requirements record, As I law. to the find it important that Reid testified that experience he had no with investigating mitigat circumstances, ing and that he was not asked to conduct a mitigation until investigation after the guilty verdict was ren N.T., 30, 2000, dered. May 22-23, See at 30.5 Notably, occurred day around noon on the immediately preceding com mencement of the penalty proceedings. According to his testimony, Reid’s contact Appellant’s sister, upon which relies, the majority venue, occurred in a public namely, the courtroom, lobby of the again, immediately after the verdict. See id. at 25. I fail to see how a mitigation in a investigation capital case conducted under such circumstances can be Towns, deemed reasonable. Accord People 182 Ill.2d (1998) 231 Ill.Dec. 696 N.E.2d cases for (citing case, the proposition that “in a capital where the defendant’s stake, life is at may it be objectively unreasonable for an majority passing, 5. The mentions such factors as well as others below, 392-93, Majority Opinion discussed see 961 A.2d at but it appear does not disposition to consider them in its actual claim, see id. at 47-51. to begin prepare verdict to guilty until after a

attorney to wait if Even un- sentencing hearing.”). capital the imminent for timing the allows professional, an by experienced dertaken records; interviewing witnesses for gathering time insufficient trust, reflection, candid in an environment conducive consulting may develop; disclosure; they leads as pursuing selec- be; reasonable making need as professionals other presented.6 to be concerning tion decisions investigation timing testimony concerning Reid’s See, N.T., May e.g., counsel. by trial supported was he, that Further, indicated repeatedly counsel at 92-93. investigation. Counsel himself, penalty-phase no conducted explained: on the trial and whether main focus was say my

I can be convicted. or not would [Appellant] on, I focused main focus. That was what was my That was know, I do, the road. you down going I not what was sentencing, about the worrying on certainly planning wasn’t him, I think I did. which defending I on planning 30, 2000, 92; (“My assignment id. at 93 N.T., at see also May (“As I said to id. at 97 guilt phase, period.”); try trial, after we penalty phase on the my focus was you, that.”). it asked No, When what lose. I wasn’t focused the penalty phase, purposes he before trial did N.T., indicated, “I, probably nothing.” did personally, counsel 30, 2000, at 95. May have may predecessor it is whether

Wbiile unknown it investigation, seems thorough mitigation a more conducted trial counsel and by the one undertaken clear that reasonably Moreover, since an in and of itself. insufficient Reid was investigation thorough life-history is due to its importance The of a Lynaugh, generally Penry v. penalty verdict. See potential impact on the 2934, 2947, (1989) 302, 319, 106 L.Ed.2d 256 S.Ct. 492 U.S. 109 background and char- about the defendant’s (explaining that "evidence belief, society, long by held relevant because of the acter is to a disad- criminal acts that are attributable who commit defendants may problems, be background, and mental vantaged or to emotional (quoting excuse” culpable who have no such than defendants less 837, 841, 538, 545, Brown, L.Ed.2d 107 S.Ct. U.S. v. California J., (1987) (O'Connor, concurring))). strategic reasonable predicate is a investigation appropriate 668, 691-92, choices, Washington, 466 U.S. see Strickland (1984), I 2052, 2066, also differ with 80 L.Ed.2d 674 104 S.Ct. court’s, finding that this record majority’s, and the of reasonable by pro- the exercise trial counsel demonstrates 400-02, 961 A.2d Majority Opinion, at judgment. fessional See at 821-22.7 case, is also manifest

In this trial counsel’s ineffectiveness where penalty-phase proceedings, on the actual record of verdict, Majority see jurors guilt he berated the for their 381-82, in the face of prosecu- 961 A.2d at Opinion, op. majority overwhelming. tion as See evidence described Further, 368-70, counsel sarcasti- id. at 961 A.2d at 801-02.8 the jurors judgment the to rush to and left cally encouraged courtroom, responsibility in of his to complete disregard given abjectly stewardship, client. this deficient Particularly in I that light Appellant’s evidentiary proffer, of believe develop he entitled to a full his claim of opportunity at prejudice hearing.

At the center of this issue is the court’s approach PCRA making credibility judgments various based on written witness finding strategy, majority In reasonable also faults failing Majority Opinion to advise counsel of childhood abuse. See at 28, Counsel, however, 402 n. 961 A.2d at 822 n. 28. testified he N.T., family doubted that he asked or his about abuse. See 30, 2000, May majority correctly at 146-47. While the relates that supplied by capital family may information relevant, a defendant and his be principle it does not account for the associated that "[t]he upon identify types onus is not a criminal defendant to what of evidence may require development pursuit. duty be relevant and Counsel’s efforts, through including pointed is to discover such evidence his own 425, 459, questioning Malloy, of his client.” Commonwealth v. 579 Pa. 767, Smith, (2004); 510, Wiggins 788 see also v. 539 U.S. 525- 26, 2527, 2537-38, (2003) (framing 123 S.Ct. 156 L.Ed.2d 471 duties, inquiry obligations relevant in terms of counsel’s and not on the witnesses). part capital defendant himself or the overriding strategy penalty proceed- 8. Counsel testified that his in the N.T., ings "try put juror’s] May was to doubt back into minds.” [the 30, 2000, 73; (reflecting accord id. at 196 counsel’s characterization had”). only strategy of residual doubt as "the chance we Even if such against was not ill conceived in the first instance when viewed guilt, proper implementation obviously Commonwealth's case for require sensitivity jurors’ perspective. would reasonable to the Such however, sensitivity, clearly lacking perform- is in trial counsel’s actual ance. 434 Steele, 687, 686, 688 v. Nos.

declarations. See Commonwealth 2001). (C.P.Wash. 37-38, This Sept. 41 op. at slip rules, an implicate our which tension with is substantial in issue. there are material facts evidentiary hearing where 909(B). See, the breadth written Given Pa.R.Crim.P. credibility court on rejected by submissions into majority strays well it to me grounds, seems authorizing post-conviction in terms of territory uncharted factual controver despite summary dispositions courts to issue by set Moreover, of a consistent direction in the absence sy. Court, continue to see it evident we will appears concern judges different PCRA among disparate approaches In 'when, my a is degree, hearing permitted. and to ing what best consis view, justice would be served the interests that, core where principle to the tently requiring adherence issue, hearing required facts in disputed there are Thus, for a supple I remand development. fair would permit hearing.9 post-conviction mental remand, I permit supplementation in the would Finally, claim encompass Appellant’s post-conviction pleadings 536 U.S. S.Ct. Virginia, under Atkins v. (2002). claims of has treated similar This Court L.Ed.2d (which underlying attack the directly do not ineligibility death rather, sentence, the continued challenge or but conviction sentence) under state habeas arising as matters vitality of the 141-42, Judge, See Commonwealth corpus. (2007).10 511, claims are not properly 520-21 Such A.2d appears to be majority's rejection of mental-health evidence The 9. based, evidentiary large part, requirements for on a set of enhanced 403-07, Majority Opinion 961 A.2d at 823-25. Nota- proffers. See at curable, procedure bly, and our rules of the asserted deficiencies are ability remedy to such matters. policy a of fair notice and an reflect Further, 909(B)(2)(a). although majority re- See Pa.R.Crim.P. "prove” of his failed to elements peatedly indicates that has 824, 405-06, claims, see, Majority Opinion 961 A.2d at it bears e.g., at develop primary proofs an permitted repeating that he was not differently, require post- a evidentiary our rules do not record. Stated affirmatively pleading petitioner prove elements at the conviction stage. cognizable in specifically argues his Atkins claim is 10. Brief for at 16- corpus, independent of the PCRA. See habeas however, summarily claims are majority, declares that such 17. The subject id. jurisdictional the PCRA’s See time deadlines. Atkins, generally See at U.S. S.Ct. at 2252 (explaining that “the [United a ‘places States] Constitution substantive restriction on the power State’s to take the life’ of a mentally retarded offender” (quoting Wainwright, Ford v. 399, 405, 2595, 2599, 477 U.S. 106 S.Ct. 91 L.Ed.2d 335 (1986))). Further, I see no reason awhy capital post-convic tion proceeding corpus habeas matters cannot proceed Thus, consolidated fashion to foster efficiency. given the case, substantial of this age and as I believe that remand is event, in any warranted I would permit supplementation as require noted and the resolution of Appellant’s Atkins claim developed on a evidentiary record.

961 A.2d 842 Pennsylvania, Appellant COMMONWEALTH of

v. McMULLEN, Appellee. Richard Pennsylvania, Commonwealth of ‍​‌‌‌​​​​​​‌‌​‌‌‌‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​‌‌‌‌‌​‌​​​‍McMullen, Appellee. Richard Supreme Pennsylvania. Court of

Argued March 2007.

Resubmitted Oct. 2008.

Decided Dec. 2008. subject one-year any developed the PCRA's time bar without consid- argument. eration of Majority Opinion See A.2d at Notes surren- juror real risk that a would created a this instruction in order to about the case and beliefs feelings der his or her short, claims this instruc- In he verdict. reach a unanimous at 80. See Brief for “judicial coercion.” tion was Chester, A.2d about (“It brought (1991) that a verdict is well-established alleges also nullity.”). Appellant legal coercion is a judicial

Case Details

Case Name: Commonwealth v. Steele

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 18, 2008

Citation: 961 A.2d 786

Docket Number: 358 CAP

Court Abbreviation: Pa.