Case Information
[MO: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 727 CAP
Appellee : Appeal from the Order entered on May : 25, the Court Common Pleas, : Berks County, Criminal Division No. : CP-06-0006003-2002. v.
: SUBMITTED: January 9, 2017 MICHAEL PRUITT,
Appellant
DISSENTING OPINION DECIDED: June 20,
JUSTICE WECHT
I share the learned Majority's view that there arguable merit Michael Pruitt's challenge to effectiveness of his trial counsel, that counsel could have had no reasonable strategic basis for failing investigate, understand, or to rebut the Commonwealth's presentation evidence at trial. I part ways with the Majority in regard the analysis prejudice. Unlike the Majority, conclude that suffered prejudice from his counsel's manifest dereliction, because there exists reasonable probability that, but for that dereliction, jury would have been left with reasonable doubt as to Pruitt's culpability for rape and involuntary deviate sexual intercourse ("IDSI").
Regardless any concomitant impact upon Pruitt's conviction for first -degree murder, acquittal those felony sexual offenses would have been likely alter the ultimate outcome proceedings, that the jury may have assigned lesser weight the sole aggravating circumstance that found during the penalty phase-that Pruitt *2 killed Greta Gougler while perpetration of a felony. See 42 Pa.C.S. § 9711(d)(6). Identification exploitation of weaknesses Commonwealth's forensic in evidence-and recognition that Commonwealth's expert overstated the strength of that evidence trial-could raised reasonable doubt regarding Pruitt's guilt of these heinous sexual offenses, and, turn, weakened substantially the in Commonwealth's capital case at penalty phase. It follows that there reasonable probability that counsel's failure challenge evidence made the difference between sentence life imprisonment sentence death. As this was "sufficient undermine confidence outcome proceeding,"1 so as to establish prejudice, I conclude that Pruitt's counsel was constitutionally ineffective. Accordingly, respectfully dissent.
I. The DNA Evidence Pruitt was convicted first -degree murder, robbery, burglary, rape, and IDSI. To prove the sexual offenses, the Commonwealth presented evidence relating testing genetic material that was recovered from Greta Gougler's inner thigh. Full comprehension of Pruitt's claims regarding this evidence requires brief description of the testing methodology and the conclusions that may be drawn from that testing.
"DNA genetic material found most types of cells of the human body, including white blood cells and cells contained semen and hair follicles." Commonwealth v. Blasioli, 713 A.2d 1117, 1119-20 (Pa. 1998). DNA organized in twenty-three pairs chromosomes, with one half of each pair inherited from the mother and the other half from the father. David H. Kaye, DNA Evidence: Probability, Population Genetics, the Courts, 7 HARV. J.L. & TECH. 101, 107 n.35 (1993). The
Commonwealth v. Laird, 119 A.3d 972, (Pa. 2015). *3 functional components of DNA are groups of molecules known as "nucleotides," which join predictable pairs known as "base pairs" and, when organized a particular sequence, serve as a code for a specific biological trait. Blasioli, 713 A.2d at 1120. What we refer to as a "gene" is a specific sequence of base pairs is responsible for expression of an individual human characteristic. Id. "Genes are functional units of the DNA molecule." JUSTICE MING W. CHIN ET AL., DNA BIOLOGY, FORENSIC DNA EVIDENCE: SCIENCE AND THE LAW § 2:2 (2017 ed.) (hereinafter "CHIN"). Each gene may be found at a particular "locus," which "represents a specific physical location of a gene on a chromosome." Kimberly Cogdell Boies, Misuse DNA Evidence Is Not Always A "Harmless Error": DNA Evidence, Prosecutorial Misconduct, and Wrongful Conviction, 17 TEX. WESLEYAN L. REV. 403, 408 (2011) (hereinafter "Boies").
Most of a person's DNA identical every other person, with only approximately three million out of a total three billion base pairs varying between individuals. Blasioli, A.2d at 1121. These variations are called "polymorphisms," they serve as the basis for DNA identification. Id. A particular variation known as "allele," an "alternative form of a gene that can occupy particular chromosomal locus." Boies at 408 (quoting United States v. Chischilly, 30 F.3d. 1144, 1153 (9th Cir. 1994)). An allele also may be described "specific pattern of base pairs at given location on given chromosome." CHIN § 2.2. Because individuals inherit genetic material from both parents, there are exactly two alleles any given polymorphic locus on any given set complementary chromosomes. One allele comes from an individual's mother, and the other comes from the individual's father.
Most commonly, DNA testing conducted through the identification alleles by analyzing repeating sequences of base pairs particular locus, called "short tandem repeats" ("STR"). Comparison samples involves identification STRs at *4 standardized, designated loci on certain non -coding areas of strand. These areas are responsible for the expression of any particular biological trait, but nonetheless contain allelic variations that can be compared a sample DNA from known source. CHIN at §§ 2.2, 2.3.
The variability STR patterns between people is due to the fact that while every person has short repeating sequences base pairs at loci used for forensic identification . . number repeats differs. For example, . at a particular locus, a person may have inherited 12 repeats from her mother repeats from her father. STRs are "short" because they are only two six chemical letters long, "tandem" because they are on adjacent chromosomes, and "repeat" because the pattern repeats. One would say that this person's alleles at locus are "12,14." A person may receive the same allele from both mother father at a locus, resulting a "homozygous" allele pairing of, for example, "16,16." A locus where the two alleles differ is called "heterozygous," for example, "12,14." In forensic laboratory reports, a homozygous locus is often indicated with single number, e.g., "16." When two DNA profiles are compared side -by -side, match means that the DNA could have come from same source, determination is informed .. . by statistical rarity of the DNA profile at issue. at § 2.3.
Although the term "match" often employed when comparing the results STR analysis, the "more accurate description that the individual 'included' opposed to `excluded.'" Boies at 413. Using the above example possible allele pairings, if testing Sample A Sample B reveals an allele pairing of "12, 14" given locus for both samples, then the samples could come from same source, and continued matches additional loci increase the probability that samples originated from the same individual, or, rather, decrease probability that the samples came from different individuals. The individual from whom Sample A was taken remains "included" within the set of individuals who could have provided Sample B. If, however, Sample A reveals allele pairing of "12, 14" specified locus, and Sample B *5 reveals an allele pairing of "16" (indicating homozygous pairing of "16, 16"), then there no match between samples at locus. Because identical samples will have identical allele pairings, follows necessarily that the individual from whom Sample A was taken not the same individual from whom Sample B was taken, so former is "excluded" as possible source of the latter.
In instant case, the sample at issue was collected from Gougler's inner thigh, contained DNA from multiple individuals, ostensibly from both Gougler and her rapist. To obtain usable information from this sample, the Pennsylvania State Police's forensic scientist, Lisa Mihalacki, extracted two DNA fractions. Mihalacki's report explained: "The non -sperm fraction (F) enriched for DNA from sources such as white blood cells or epithelial cells (as found vaginal fluid). The sperm fraction (M) is enriched for DNA from spermatozoa." DNA Report, 5/5/2003, Commonwealth's Exhibit No. 65, at 1. STR analysis fractions, revealing the allele pairings at specified loci for both the male female contributors, then could be compared known blood samples from both Gougler and Pruitt. Of fifteen loci tested, Mihalacki's analysis produced no data whatsoever for three loci of the sperm fraction sample, and the data at two loci did match the results from Pruitt's known blood sample. Mihalacki reported that the results all five of these loci were "inconclusive due insufficient amount of DNA." at 2.
Nevertheless, the Majority notes, Mihalacki testified Pruitt's trial that, with regard the sperm fraction sample, "[e]very genetic marker, every place that we checked from this sample Michael Pruitt's were identical each other." See Maj. Op. at 3; Notes of Testimony ("N.T."), 4/26/2005, 313. As Mihalacki's own report demonstrated, her statement was false. Mihalacki proceeded opine that, based upon her calculations, the odds the sperm fraction sample coming from anyone other than *6 Pruitt were between one in 1.5 billion and one in billion. /d.2 Pruitt's counsel failed to confront Mihalacki with the inconsistencies between her testimony conclusions that she drew in her report, failed to challenge Mihalacki's methodology or the reasoning behind her conclusions, failed present an expert witness provide an alternative interpretation the DNA evidence.3
In the post -conviction proceedings, presented an expert opinion regarding Commonwealth's DNA evidence from Randal T. Libby, Ph.D., forensic geneticist. Dr. Libby opined that Mihalacki's analysis of the DNA testing reflected too many inconsistencies permit reliable conclusions. Dr. Libby observed that, even with regard comparison between known sample Gougler's DNA and the female fraction the thigh swab, which should have produced perfect match, there were troubling inconsistencies. For instance, locus "Penta E," Gougler's known sample revealed allele pairing of "5, 13." However, no "13" allele was discovered that locus either fraction the thigh swab sample. For Dr. Libby, that was "red flag" that there were "some problems with the testing procedure." N.T., PCRA Hearing, 8/21/2013, at 54.
With regard the sperm fraction, which Mihalacki attributed to Pruitt, Dr. Libby noted absence any data three loci confirmed that the testing process was deficient, that those loci represented "three significant sites which there's failure of the system." He noted further that the results testing the sex chromosome revealed additional problems. Although every male has both an "X" [2] somebody . 321 probability that "the Mihalacki explained that this statistic actually represents . have the world could same genetic profile." N.T., 4/26/2005, . at [3] As the Majority notes, Pruitt was represented by two attorneys at trial.
"Y" sex chromosome, the sperm fraction produced only a "Y" chromosome. Because an "X" chromosome should have been detected regardless whether sample came from male or female, its absence was "significant" suggested that "they're not detecting all the DNA which could be present in sample." Id. at 57. This failure cast doubt upon the results at all of the tested loci. Id. at 57.
Most significantly, Dr. Libby observed that, at locus "FGA," Pruitt's known sample revealed an allele pairing of "22, 23," but the sole allele detected the sperm fraction was "22." Taken at face value, Dr. Libby explained, the results could indicate that the source the sperm fraction was homozygous at locus, with an allele pairing of "22, 22." Because Pruitt has "23" allele that was present the sperm fraction, the testing results locus FGA potentially excluded as contributor DNA sample collected from Gougler's thigh. Id. 57-58. Mihalacki reported the results at locus FGA "inconclusive" due an insufficient quantity of DNA. However, Mihalacki's testing of the sperm fraction locus "D18S51" similarly indicated presence of only one allele, "16." Yet, Mihalacki did not determine that the results at this locus were inconclusive; she concluded that the source the sperm fraction was homozygous ("16, 16") at locus, which was consistent with the allele pairing from Pruitt's known DNA sample. Dr. Libby found no support for Mihalacki's conclusion that, where apparent homozygous allele pairing matched Pruitt's profile, there was match, but, where the same test the same sample revealed homozygous allele pairing that was inconsistent with Pruitt's profile, the results were "inconclusive." at 64-65.
Further highlighting the tenuousness Mihalacki's conclusions, Dr. Libby noted possibility that some of Gougler's DNA could have been present the sperm fraction, allowing for misattribution certain alleles the sperm fraction. Dr. Libby *8 noted that "there's oftentimes spillover of fractions, especially if they're disproportionate [in the] quantities of one type of DNA ... versus another source. So would not be unusual to find victim's profile the [sperm] fraction." Id. at 69. As such, Dr. Libby opined that, where the results at certain loci revealed alleles common to Gougler's sample, Pruitt's sample, the sperm fraction, "it's not probative at all since Ms. Gougler's profile would be consistent with the evidence sample Mr. Pruitt['s]." Id. at 70. After redacting the alleles that Gougler shared with the sperm fraction and, thus, eliminating the alleles that Gougler could have contributed, Dr. Libby concluded that there were only three unique loci sperm fraction that were consistent with Pruitt's genetic profile. Id. at 72.
Dr. Libby attributed many of inconsistencies Mihalacki's analysis to an insufficient quantity of the tested samples. Notably, Dr. Libby personally examined slides of tested genetic material, he was unable confirm the presence any sperm. Id. at 79. Dr. Libby explained that, generally, accurate testing requires least "a couple hundred" sperm cells, but Pennsylvania State Police scientists reported that they identified possibly one sperm cell. Id. at 28, 80. Dr. Libby further noted that Mihalacki had conducted tests quantify amount DNA available for analysis, those "tests show that there [were] essentially undetectable, unquantifiable levels of DNA." Id. at 80. Dr. Libby opined that the testing an insufficient quantity DNA does not allow for justifiable interpretation the results, and "when you get results which are clearly inconclusive or absent, that tells you that the test results are probably reliable due the fact that ... all not represented all loci." 87-88. With regard the population statistics that Mihalacki related the jury, reflecting the astronomical odds against the sperm fraction coming from any individual other than Pruitt, Dr. Libby testified that understood how *9 Mihalacki calculated those numbers, but opined that they were unreliable. Dr. Libby reasoned that "there are too many inconsistencies the [sperm fraction] and too many possibilities for the results being not reproducible and not reliable. Too many instances which there are no data whatsoever which could have resulted exclusion . . and . too many instances of problems that found through the data." Id. at 94.
By way conclusion, Dr. Libby opined that, to a reasonable degree scientific certainty, the data generated through Mihalacki's testing was unreliable, and that he would characterize the analysis, overall, "inconclusive." Id. at 95. Finally, Dr. Libby stated that he likely was available for consultation the time of Pruitt's trial, and that any competent geneticist should have been able to provide a similar opinion. at 95-96.
II. Ineffectiveness of Trial Counsel As the Majority notes, Pruitt's lead trial counsel conceded that he did not understand the data contained within Mihalacki's report, and actually merely relied upon Mihalacki's assertions that the sperm fraction matched the known sample of Pruitt's DNA. See Maj. Op. at 6. Despite counsel's failure to appreciate the multiple, endemic deficiencies Mihalacki's analysis, counsel did consult with a single DNA expert. Absent rudimentary understanding the DNA analysis, counsel was unable conduct effective cross-examination. Even without basic familiarity with STRs, allele pairings, and the like, counsel should have been able recognize to call attention the disparity between Mihalacki's assertion at trial perfect genetic match and her previous reporting inconclusive results five loci. The Majority concludes that Pruitt's counsel failed conduct professionally reasonable investigation regarding the DNA evidence, no reasonable strategy may be discerned from counsel's failure gain better understanding that evidence. See Maj. Op. at 7. I *10 agree. Counsel's inattention evidence, particularly the failure to highlight the potentially exculpatory results locus FGA, "simply inexplicable." Id. at 8.
Nonetheless, the Majority concludes that Pruitt's claim falls short of the standard for ineffectiveness counsel because cannot establish that he was prejudiced by his counsel's deficient performance.4 The Majority acknowledges the uniquely powerful nature DNA evidence in the eyes of a juror, and notes that, "were this case in which identity was in controversy, we would likely find prejudice be manifest." Id. This is not the case, the Majority holds, because Pruitt's "identity as the robber and killer has never seriously been put into contest, even the post -conviction stage." Id. at 8-9 (emphasis added). For its finding that there was no reasonable probability that able representation would affected the verdict, the Majority relies upon Pruitt's consistent admission that he perpetrated violent attack upon Gougler, upon the fact that the physical evidence made apparent rape occurred, and upon the fact that Pruitt "has never provided any plausible explanation that would persuasively suggest any other person's involvement relevant events that took place in victim's house." at 9.
The trial burden never was upon Pruitt, whether provide "plausible explanation" suggest another individual's involvement crimes or otherwise. [4] To establish ineffectiveness counsel:
[A] petitioner must demonstrate that: underlying claim arguable merit; counsel had no reasonable basis for the act or omission question; suffered prejudice result, i.e., there reasonable probability that, but for counsel's error, the outcome the proceeding have been different. A reasonable probability is a probability sufficient to undermine confidence the outcome proceeding.
Laird, 119 A.3d (citations omitted). *11 The burden always was upon the Commonwealth to establish Pruitt's guilt beyond a reasonable doubt as to each crime charged.5 Regardless, information was available to defense counsel that could have raised the possibility that different individual committed the rape, especially in light inconsistencies in the DNA evidence. As the Majority notes, Pruitt gave statement to police detailing his actions that resulted in Gougler's death. That statement was memorialized writing and submitted to jury trial. Pruitt explained that the incident began when he and another man were smoking crack cocaine an alley near Gougler's home, but ran out of crack and sought to find money to purchase more. Pruitt's statement began:
I was getting high, I smoked lot of bags crack. Me and this guy was in alleyway smoking and we just came from the 600 block 9th street and bought 3 bags crack from there. Me and the guy I was with were smoking and we smoked it all and we were looking each other and saying we want more. So we keep walking up the alley and I noticed the lady the yard and I stopped and told the guys [sic] I was going to try and get some money and he said he was going to try to get some money. [T]hen he kept walking and I stopped and was watching the lady yard and waited for her to go towards her door, pushed her inside [I] went inside.
Statement, 10/2/2002, Commonwealth's Exhibit No. 61, 1. Pruitt explained that he demanded money from Gougler restrained her. He then tied her up with her [5] While Pruitt bears the post -conviction burden establishing prejudice, see Maj. Op. at n.6, 9 n.10, that burden does not require to demonstrate could have persuaded the jury of his actual innocence sexual offenses. One need not prove innocence obtain acquittal-it more than sufficient show that the Commonwealth has not met its burden prove guilt beyond reasonable doubt. Here, we are evaluating the effect of counsel's dereliction, and Pruitt need only demonstrate that there reasonable probability that, but for deficient advocacy, outcome would have been different. The point here, as discussed infra, that effective representation with regard evidence would have called Pruitt's identity as the rapist into question, cast doubt upon the Commonwealth's ability to meet its burden prove Pruitt's guilt as to that charge. It does translate into requirement that Pruitt must have proven the opposite.
clothes telephone wire so that he could search for money upstairs. He stated that he tied rag or towel around Gougler's mouth, and he thought he punched her in the head. After he located some money in room upstairs, he returned downstairs and discovered that Gougler was dead. He explained that he used the money to purchase more crack, smoked some of it, then returned to the scene, where he untied Gougler's body, began to clean up the scene, and apologized to Gougler's lifeless body. Pruitt then fled the scene.
Notably, Pruitt's confession involved no admission rape or any kind sexual offense. At the end of the statement, investigator asked, "Did you rape the victim?" Pruitt replied, "No." 3. The Majority certainly is correct noting that, following the introduction of this statement, Pruitt's identity as the robber and killer was not seriously dispute. However, the statement does establish Pruitt's identity as rapist. Although Pruitt admitted both to the police and other individuals that he committed the acts that constituted burglary, robbery, and murder, and although the fact that sexual assault occurred was apparent from medical examination Gougler's body, Mihalacki's analysis was the sole physical or forensic evidence that purported to connect Pruitt to sexual offenses.
Had Pruitt's counsel put forth professionally reasonable effort undermine the Commonwealth's DNA evidence, Pruitt's identity rapist would have been in doubt. It was apparent from Pruitt's confession that he was company another man with whom was smoking crack immediately before commission crimes. Had Pruitt's counsel demonstrated jury that evidence was too unreliable inculpate the rape, or potentially exculpated him, it naturally follow that the DNA may come from another individual, perhaps the man who was with Pruitt just before Pruitt entered Gougler's home. Had counsel exposed
[J-1-2017] [MO: Saylor, C.J.] *13 the weaknesses in the Commonwealth's evidence and the obvious resultant inaccuracy the asserted population statistics, and highlighted the fact that no other physical or forensic evidence suggested that committed the sexual offenses, significant doubt likely would have remained as to whether the Commonwealth met its burden of proving Pruitt's culpability for rape and IDSI.
Why did this matter? Both Pruitt's counsel today's Majority appear to have ascribed relatively lesser significance Pruitt's convictions for rape and IDSI, given the weight evidence suggesting Pruitt's culpability for murder. At the time Pruitt's trial, counsel largely disregarded the DNA evidence in favor of focusing upon elements of first -degree murder. During his closing argument, Pruitt's lead counsel stated expressly:
Now, I'm also not here tell you that Michael Pruitt's responsible for all these horrible things you've heard. Michael Pruitt gave statement to the police in which he admitted committing offenses. . .. And I'm also not here to talk about other offenses. There's only one thing want talk about. And that is whether we second degree murder or first degree murder.
N.T., 4/28/2005, 631-32. Today's Majority concludes that diligent advocacy with regard to the DNA evidence would not have affected verdict because, part, it was clear that Pruitt was the robber and killer. See Maj. Op. at 8.
This misses the point. The sexual offenses, and the DNA evidence that purported prove them, were undeniable importance proceedings, and of particular significance the penalty phase the trial. Testifying the post -conviction proceedings, one of Pruitt's attorneys described what perceived to be impact of evidence and the sexual offenses that suggested:
Q: How you describe [the DNA] evidence terms impact on jury? Do you have impression?
[J-1-2017] *14 A: Devastating.
Q: Devastating?
A: Yes.
Q: Why was it devastating?
A: think established for the jury beyond reasonable doubt the charge rape. Q: Have you represented Defendants who have been charged with rape before?
A: Yes.
Q: Does that have any your experience, does that [play] any emotional role in the atmosphere of the case that there's rape charge? A: Yes.
Q: To the detriment the client?
A: To the detriment the client, yes.
N.T., PCRA Hearing, 8/22/2013, 323-24.
The abhorrent nature the sexual offenses this case, and their impact upon jurors, doubtlessly carried over into penalty phase the trial. The prosecutor capitalized upon those offenses arguing for the existence statutory aggravating circumstance under 42 Pa.C.S. § 9711(d)(6), to wit, the killing occurred while Pruitt was perpetrating felony. In his closing argument during the penalty phase the trial, prosecutor mentioned Pruitt's culpability for rape or IDSI nine times. See N.T., 5/3/2005, at 156, 158, 165-66, 168. Unsurprisingly, given Pruitt's contemporaneous convictions for robbery, burglary, rape, IDSI, jury unanimously found Subsection 9711(d)(6) aggravator beyond reasonable doubt. However, the particular felony or felonies jury considered were enumerated. The jury also found
[J-1-2017] [MO: Saylor, C.J.] *15 one mitigating circumstance under the "catch-all" provision of 42 Pa.C.S. § 9711(e)(8), had a long history of cocaine use.
Assuredly, even if Pruitt's counsel had been effective discrediting the Commonwealth's DNA evidence, and potentially obtaining acquittals on the rape and IDSI charges, the jury nonetheless could have found the Subsection 9711(d)(6) aggravator due Pruitt's contemporaneous convictions for burglary and robbery. Were the case, however, the jury may have placed lesser weight upon the sole aggravating circumstance. This Court has recognized that "the weighing process involves assessment relative strength and weakness of aggravating and mitigating evidence, which is necessarily qualitative and not a quantitative approach, especially when the catchall mitigator is issue." Commonwealth v. Daniels, 104 A.3d 267, 304 (Pa. 2014) (discussing Commonwealth v. Tharp, A.3d 736 (Pa. 2014)). In the instant case, the jury weighed one aggravating circumstance against one "catch-all" mitigating circumstance. We cannot know whether, absent Pruitt's convictions for two heinous sexual offenses, and left with the less emotionally charged offenses robbery burglary, the jury's qualitative assessment relative strength aggravating mitigating evidence would have led to same outcome. Perhaps it would have. Perhaps not. The truth revealed about evidence undermines my confidence in the result.
Had Pruitt's counsel provided effective representation with regard the DNA evidence, there reasonable probability that Pruitt's culpability for rape and IDSI not have been taken for granted during the penalty phase. In turn, there reasonable probability that jury's weighing of aggravating mitigating circumstances would produced different result, i.e., sentence life imprisonment rather than sentence death. Because this prospect "sufficient to *16 undermine confidence" outcome these proceedings, Laird, A.3d 978, I hold that Pruitt able demonstrate prejudice, thus has shown the ineffectiveness of his counsel. would remand for further proceedings. I respectfully dissent.
[J-1-2017]