[J-1-2017] [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, 2016 in the Court of Common Pleas,
: Berks County, Criminal Division at No.
v. : CP-06-0006003-2002.
: SUBMITTED: January 9, 2017
MICHAEL PRUITT,
Appellant
DISSENTING OPINION
JUSTICE WECHT DECIDED: June 20, 2017
I share the learned Majority's view that there is arguable merit in Michael Pruitt's
challenge to the effectiveness of his trial counsel, and that counsel could have had no
reasonable strategic basis for failing to investigate, to understand, or to rebut the
Commonwealth's presentation of DNA evidence at trial. I part ways with the Majority in
regard to the analysis of prejudice. Unlike the Majority, I conclude that Pruitt suffered
prejudice from his trial counsel's manifest dereliction, because there exists a reasonable
probability that, but for that dereliction, the jury would have been left with reasonable
doubt as to Pruitt's culpability for rape and involuntary deviate sexual intercourse
("IDSI").
Regardless of any concomitant impact upon Pruitt's conviction for first -degree
murder, acquittal of those felony sexual offenses would have been likely to alter the
ultimate outcome of the proceedings, in that the jury may have assigned lesser weight
to the sole aggravating circumstance that it found during the penalty phase-that Pruitt
killed Greta Gougler while in the perpetration of a felony. See 42 Pa.C.S. § 9711(d)(6).
Identification and exploitation of weaknesses in the Commonwealth's forensic
evidence-and recognition that the Commonwealth's expert overstated the strength of
that evidence at trial-could have raised a reasonable doubt regarding Pruitt's guilt of
these heinous sexual offenses, and, in turn, weakened substantially the
Commonwealth's capital case at the penalty phase. It follows that there is a reasonable
probability that counsel's failure to challenge the DNA evidence made the difference
between a sentence of life imprisonment and a sentence of death. As this was
"sufficient to undermine confidence in the outcome of the proceeding,"1 so as to
establish prejudice, I conclude that Pruitt's trial counsel was constitutionally ineffective.
Accordingly, I respectfully dissent.
I. The DNA Evidence
Pruitt was convicted of first -degree murder, robbery, burglary, rape, and IDSI. To
prove the sexual offenses, the Commonwealth presented evidence relating to the
testing of genetic material that was recovered from Greta Gougler's inner thigh. Full
comprehension of Pruitt's claims regarding this evidence requires a brief description of
the testing methodology and the conclusions that may be drawn from that testing.
"DNA is genetic material found in most types of cells of the human body,
including white blood cells and cells contained in semen and hair follicles."
Commonwealth v. Blasioli, 713 A.2d 1117, 1119-20 (Pa. 1998). DNA is organized in
twenty-three pairs of 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, and the Courts, 7 HARV. J.L. & TECH. 101, 107 n.35 (1993). The
Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015).
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functional components of DNA are groups of molecules known as "nucleotides," which
join in predictable pairs known as "base pairs" and, when organized in 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 that is responsible for
the expression of an individual human characteristic. Id. "Genes are the 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 of 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 is identical to that of every other person, with only
approximately three million out of a total of three billion base pairs varying between
individuals. Blasioli, 713 A.2d at 1121. These variations are called "polymorphisms,"
and they serve as the basis for DNA identification. Id. A particular variation is known as
an "allele," an "alternative form of a gene that can occupy a 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 as a "specific pattern of base pairs at a given
location on a given chromosome." CHIN at § 2.2. Because individuals inherit genetic
material from both parents, there are exactly two alleles at any given polymorphic locus
on any given set of complementary chromosomes. Id. One allele comes from an
individual's mother, and the other comes from the individual's father.
Most commonly, DNA testing is conducted through the identification of alleles by
analyzing repeating sequences of base pairs at a particular locus, called "short tandem
repeats" ("STR"). Comparison of DNA samples involves the identification of STRs at
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standardized, designated loci on certain non -coding areas of the DNA strand. These
areas are not responsible for the expression of any particular biological trait, but
nonetheless contain allelic variations that can be compared to a sample of DNA from a
known source. CHIN at §§ 2.2, 2.3.
The variability of STR patterns between people is due to the fact that while
every person has short repeating sequences of base pairs at the loci used
for forensic identification . the number of repeats differs. For example,
. .
at a particular locus, a person may have inherited 12 repeats from her
mother and 14 repeats from her father. STRs are "short" because they
are only two to 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 that locus are "12,14." A person
may receive the same allele from both mother and father at a locus,
resulting in a "homozygous" allele pairing of, for example, "16,16." A locus
where the two alleles differ is called "heterozygous," for example, "12,14."
Inforensic DNA laboratory reports, a homozygous locus is often indicated
with a single number, e.g., "16." When two DNA profiles are compared
side -by-side, a match means that the DNA could have come from the
same source, a determination that is informed .. by the statistical rarity of
.
the DNA profile at issue.
Id. at § 2.3.
Although the term "match" often is employed when comparing the results of STR
analysis, the "more accurate description is that the individual is 'included' as opposed to
`excluded.'" Boies at 413. Using the above example of possible allele pairings, if
testing of Sample A and Sample B reveals an allele pairing of "12, 14" at a given locus
for both samples, then the samples could have come from the same source, and
continued matches at additional loci increase the probability that the samples originated
from the same individual, or, rather, decrease the 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 an allele pairing of "12, 14" at a specified locus, and Sample B
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reveals an allele pairing of "16" (indicating a homozygous pairing of "16, 16"), then there
is no match between the samples at that locus. Because identical samples will have
identical allele pairings, it follows necessarily that the individual from whom Sample A
was taken is not the same individual from whom Sample B was taken, so the former is
"excluded" as a possible source of the latter.
In the instant case, the sample at issue was collected from Gougler's inner thigh,
and 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) is enriched for DNA from sources such as white
blood cells or epithelial cells (as found in 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 of the fractions, revealing the allele pairings at specified loci
for both the male and female contributors, then could be compared to known blood
samples from both Gougler and Pruitt. Of the 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 not match the results from Pruitt's known blood sample. Mihalacki
reported that the results at all five of these loci were "inconclusive due to an insufficient
amount of DNA." Id. at 2.
Nevertheless, as the Majority notes, Mihalacki testified at Pruitt's trial that, with
regard to the sperm fraction sample, "[e]very genetic marker, every place that we
checked from this sample and Michael Pruitt's were identical to each other." See Maj.
Op. at 3; Notes of Testimony ("N.T."), 4/26/2005, at 313. As Mihalacki's own report
demonstrated, her statement was false. Mihalacki proceeded to opine that, based upon
her calculations, the odds of the sperm fraction sample coming from anyone other than
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Pruitt were between one in 1.5 billion and one in 39 billion. /d.2 Pruitt's trial counsel
failed to confront Mihalacki with the inconsistencies between her testimony and the
conclusions that she drew in her report, failed to challenge Mihalacki's methodology or
the reasoning behind her conclusions, and failed to present an expert witness to provide
an alternative interpretation of the DNA evidence.3
In the post -conviction proceedings, Pruitt presented an expert opinion regarding
the Commonwealth's DNA evidence from Randal T. Libby, Ph.D., a forensic geneticist.
Dr. Libby opined that Mihalacki's analysis of the DNA testing reflected too many
inconsistencies to permit reliable conclusions. Dr. Libby observed that, even with
regard to the comparison between a known sample of Gougler's DNA and the female
fraction of the thigh swab, which should have produced a perfect match, there were
troubling inconsistencies. For instance, at locus "Penta E," Gougler's known sample
revealed an allele pairing of "5, 13." However, no "13" allele was discovered at that
locus in either fraction of the thigh swab sample. For Dr. Libby, that was a "red flag"
that there were "some problems with the testing procedure." N.T., PCRA Hearing,
8/21/2013, at 54.
With regard to the sperm fraction, which Mihalacki attributed to Pruitt, Dr. Libby
noted that the absence of any data at three loci confirmed that the testing process was
deficient, in that those loci represented "three significant sites in which there's a failure
of the system." Id. He noted further that the results of the testing of the sex
chromosome revealed additional problems. Although every male has both an "X" and a
2 Mihalacki explained that this statistic actually represents "the probability that
somebody in the world could have the same genetic profile." N.T., 4/26/2005, at
. . .
321
3
As the Majority notes, Pruitt was represented by two attorneys at trial.
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"Y" sex chromosome, the sperm fraction produced only a "Y" chromosome. Because an
"X" chromosome should have been detected regardless of whether the sample came
from a male or a female, its absence was "significant" and suggested that "they're not
detecting all of the DNA which could be present in the 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 in the sperm fraction
was "22." Taken at face value, Dr. Libby explained, the results could indicate that the
source of the sperm fraction was homozygous at that locus, with an allele pairing of "22,
22." Because Pruitt has a "23" allele that was not present in the sperm fraction, the
testing results at locus FGA potentially excluded Pruitt as a contributor to the DNA
sample collected from Gougler's thigh. Id. at 57-58. Mihalacki reported the results at
locus FGA as "inconclusive" due to an insufficient quantity of DNA. However,
Mihalacki's testing of the sperm fraction at locus "D18S51" similarly indicated the
presence of only one allele, "16." Yet, Mihalacki did not determine that the results at
this locus were inconclusive; she concluded that the source of the sperm fraction was
homozygous ("16, 16") at that 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 an apparent homozygous allele pairing matched Pruitt's profile, there was a
match, but, where the same test of the same sample revealed a homozygous allele
pairing that was inconsistent with Pruitt's profile, the results were "inconclusive." Id. at
64-65.
Further highlighting the tenuousness of Mihalacki's conclusions, Dr. Libby noted
the possibility that some of Gougler's DNA could have been present in the sperm
fraction, allowing for misattribution of certain alleles in the sperm fraction. Dr. Libby
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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 it would not be
unusual to find a victim's profile in 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, and the sperm fraction, "it's not probative at all since Ms.
Gougler's profile would be consistent with the evidence sample as would 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 in the sperm fraction that were consistent with
Pruitt's genetic profile. Id. at 72.
Dr. Libby attributed many of the inconsistencies in Mihalacki's analysis to an
insufficient quantity of DNA in the tested samples. Notably, Dr. Libby personally
examined the slides of the tested genetic material, and he was unable to confirm the
presence of any sperm. Id. at 79. Dr. Libby explained that, generally, accurate testing
requires at least "a couple of 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 to quantify the amount of DNA
available for analysis, and those "tests show that there [were] essentially undetectable,
unquantifiable levels of DNA." Id. at 80. Dr. Libby opined that the testing of an
insufficient quantity of DNA does not allow for a justifiable interpretation of the results,
and "when you get results which are clearly inconclusive or absent, that tells you that
the test results are probably not reliable due to the fact that ... all the DNA is not
represented at all the loci." Id. at 87-88. With regard to the population statistics that
Mihalacki related to the jury, reflecting the astronomical odds against the sperm fraction
coming from any individual other than Pruitt, Dr. Libby testified that he understood how
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Mihalacki calculated those numbers, but opined that they were unreliable. Dr. Libby
reasoned that "there are too many inconsistencies in the [sperm fraction] and too many
possibilities for the results being not reproducible and not reliable. Too many instances
in which there are no data whatsoever which could have resulted in exclusion . . . and
too many instances of problems that found through the data." Id. at 94.
I
By way of conclusion, Dr. Libby opined that, to a reasonable degree of scientific
certainty, the data generated through Mihalacki's testing was unreliable, and that he
would characterize the DNA analysis, overall, as "inconclusive." Id. at 95. Finally, Dr.
Libby stated that he likely was available for consultation at the time of Pruitt's trial, and
that any competent geneticist should have been able to provide a similar opinion. Id. 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 that he actually and 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 in Mihalacki's analysis, counsel did not consult with a single DNA
expert. Absent a rudimentary understanding of the DNA analysis, counsel was unable
to conduct an effective cross-examination. Even without a basic familiarity with STRs,
allele pairings, and the like, counsel should have been able to recognize and to call
attention to the disparity between Mihalacki's assertion at trial of a perfect genetic match
and her previous reporting of inconclusive results at five loci. The Majority concludes
that Pruitt's trial counsel failed to conduct a professionally reasonable investigation
regarding the DNA evidence, and that no reasonable strategy may be discerned from
counsel's failure to gain a better understanding of that evidence. See Maj. Op. at 7. I
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agree. Counsel's inattention to the DNA evidence, and particularly the failure to
highlight the potentially exculpatory results at locus FGA, is "simply inexplicable." Id. at
8.
Nonetheless, the Majority concludes that Pruitt's claim falls short of the standard
for ineffectiveness of counsel because Pruitt cannot establish that he was prejudiced by
his counsel's deficient performance.4 The Majority acknowledges the uniquely powerful
nature of DNA evidence in the eyes of a juror, and notes that, "were this a case in which
identity was in controversy, we would likely find prejudice to 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 at the post -conviction stage." Id. at 8-9
(emphasis added). For its finding that there was no reasonable probability that able
representation would have affected the verdict, the Majority relies upon Pruitt's
consistent admission that he perpetrated the violent attack upon Gougler, upon the fact
that the physical evidence made it apparent that a rape occurred, and upon the fact that
Pruitt "has never provided any plausible explanation that would persuasively suggest
any other person's involvement in the relevant events that took place in the victim's
house." Id. at 9.
The trial burden never was upon Pruitt, whether to provide a "plausible
explanation" to suggest another individual's involvement in the crimes or otherwise.
4
To establish ineffectiveness of counsel:
[A] petitioner must demonstrate that: the underlying claim is of arguable
merit; counsel had no reasonable basis for the act or omission in question;
and he suffered prejudice as a result, i.e., there is a reasonable probability
that, but for counsel's error, the outcome of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the proceeding.
Laird, 119 A.3d at 978 (citations omitted).
[J-1-2017] [MO: Saylor, C.J.] - 10
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 a different individual
committed the rape, especially in light of the inconsistencies in the DNA evidence. As
the Majority notes, Pruitt gave a statement to police detailing his actions that resulted in
Gougler's death. That statement was memorialized in writing and submitted to the jury
at trial. Pruitt explained that the incident began when he and another man were
smoking crack cocaine in 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, smoked a lot of bags of crack. Me and this guy was in
I
the alleyway smoking and we just came from the 600 block of 9th street
and bought 3 bags of crack from there. Me and the guy was with were I
smoking it and we smoked it all and we were looking at each other and
saying we want more. So we keep walking up the alley and noticed the I
lady in the yard and stopped and told the guys [sic] was going to try and
I I
get some money and he said he was going to try to get some money.
[T]hen he kept walking and stopped and was watching the lady in the
I
yard and waited for her to go towards her door, pushed her inside and [I]
I
went inside.
Statement, 10/2/2002, Commonwealth's Exhibit No. 61, at 1. Pruitt explained that he
demanded money from Gougler and restrained her. He then tied her up with her
5
While Pruitt bears the post -conviction burden of establishing prejudice, see Maj.
Op. at 7 n.6, 9 n.10, that burden does not require Pruitt to demonstrate that he could
have persuaded the jury of his actual innocence of the sexual offenses. One need not
prove innocence to obtain an acquittal-it is more than sufficient to show that the
Commonwealth has not met its burden to prove guilt beyond a reasonable doubt. Here,
we are evaluating the effect of counsel's dereliction, and Pruitt need only demonstrate
that there is a reasonable probability that, but for the deficient advocacy, the outcome
would have been different. The point here, as discussed infra, is that effective
representation with regard to the DNA evidence would have called Pruitt's identity as
the rapist into question, and would have cast doubt upon the Commonwealth's ability to
meet its burden to prove Pruitt's guilt as to that charge. It does not translate into a
requirement that Pruitt must have proven the opposite.
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clothes and a telephone wire so that he could search for money upstairs. He stated that
he tied a rag or towel around Gougler's mouth, and that he thought he punched her in
the head. After he located some money in a 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 to rape or any kind of sexual
offense. At the end of the statement, an investigator asked, "Did you rape the victim?"
Pruitt replied, "No." Id. at 3. The Majority certainly is correct in noting that, following the
introduction of this statement, Pruitt's identity as the robber and killer was not seriously
in dispute. However, the statement does not establish Pruitt's identity as the rapist.
Although Pruitt admitted both to the police and to other individuals that he committed
the acts that constituted burglary, robbery, and murder, and although the fact that a
sexual assault occurred was apparent from a medical examination of Gougler's body,
Mihalacki's DNA analysis was the sole physical or forensic evidence that purported to
connect Pruitt to the sexual offenses.
Had Pruitt's counsel put forth a professionally reasonable effort to undermine the
Commonwealth's DNA evidence, Pruitt's identity as the rapist would have been in
doubt. It was apparent from Pruitt's confession that he was in the company of another
man with whom he was smoking crack immediately before the commission of the
crimes. Had Pruitt's counsel demonstrated to the jury that the DNA evidence was too
unreliable to inculpate Pruitt in the rape, or that it potentially exculpated him, it naturally
would follow that the DNA may have come from another individual, perhaps the man
who was with Pruitt just before Pruitt entered Gougler's home. Had counsel exposed
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the weaknesses in the Commonwealth's DNA evidence and the obvious resultant
inaccuracy of the asserted population statistics, and highlighted the fact that no other
physical or forensic evidence suggested that Pruitt committed the sexual offenses, a
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 trial counsel and today's Majority appear to
have ascribed relatively lesser significance to Pruitt's convictions for rape and IDSI,
given the weight of the evidence suggesting Pruitt's culpability for murder. At the time
of Pruitt's trial, counsel largely disregarded the DNA evidence in favor of focusing upon
the elements of first -degree murder. During his closing argument, Pruitt's lead counsel
stated expressly:
Now, I'm also not here to tell you that Michael Pruitt's not responsible for
all these horrible things you've heard. Michael Pruitt gave a statement to
the police in which he admitted committing offenses. . .. And I'm also not
here to talk about the other offenses. There's only one thing want to talk
I
about. And that is whether we have second degree murder or first degree
murder.
N.T., 4/28/2005, at 631-32. Today's Majority concludes that diligent advocacy with
regard to the DNA evidence would not have affected the verdict because, in 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 to prove them, were of undeniable importance to the proceedings, and of
particular significance in the penalty phase of the trial. Testifying in the post -conviction
proceedings, one of Pruitt's attorneys described what he perceived to be the impact of
the DNA evidence and the sexual offenses that it suggested:
Q: How would you describe [the DNA] evidence in terms of impact on the
jury? Do you have an impression?
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A: Devastating.
Q: Devastating?
A: Yes.
Q: Why was it devastating?
A: think it established for the jury beyond a reasonable doubt the charge
I
of rape.
Q: Have you represented Defendants who have been charged with rape
before?
A: Yes.
Q: Does that have any in your experience, does that [play] any
emotional role in the atmosphere of the case that there's a rape charge?
A: Yes.
Q: To the detriment of the client?
A: To the detriment of the client, yes.
N.T., PCRA Hearing, 8/22/2013, at 323-24.
The abhorrent nature of the sexual offenses in this case, and their impact upon
the jurors, doubtlessly carried over into the penalty phase of the trial. The prosecutor
capitalized upon those offenses in arguing for the existence of the statutory aggravating
circumstance under 42 Pa.C.S. § 9711(d)(6), to wit, that the killing occurred while Pruitt
was perpetrating a felony. In his closing argument during the penalty phase of the trial,
the 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, and IDSI, the jury unanimously found the
Subsection 9711(d)(6) aggravator beyond a reasonable doubt. However, the particular
felony or felonies that the jury considered were not enumerated. The jury also found
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one mitigating circumstance under the "catch-all" provision of 42 Pa.C.S. § 9711(e)(8),
that Pruitt had a long history of cocaine use.
Assuredly, even if Pruitt's counsel had been effective in 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 to Pruitt's contemporaneous convictions for burglary and robbery. Were
that the case, however, the jury may have placed lesser weight upon the sole
aggravating circumstance. This Court has recognized that "the weighing process
involves an assessment of the relative strength and weakness of the aggravating and
mitigating evidence, which is necessarily a qualitative and not a quantitative approach,
especially when the catchall mitigator is at issue." Commonwealth v. Daniels, 104 A.3d
267, 304 (Pa. 2014) (discussing Commonwealth v. Tharp, 101 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 of robbery
and burglary, the jury's qualitative assessment of the relative strength of the aggravating
and mitigating evidence would have led to the same outcome. Perhaps it would have.
Perhaps not. The truth revealed about the DNA evidence undermines my confidence in
the result.
Had Pruitt's trial counsel provided effective representation with regard to the DNA
evidence, there is a reasonable probability that Pruitt's culpability for rape and IDSI
would not have been taken for granted during the penalty phase. In turn, there is a
reasonable probability that the jury's weighing of aggravating and mitigating
circumstances would have produced a different result, i.e., a sentence of life
imprisonment rather than a sentence of death. Because this prospect is "sufficient to
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undermine confidence" in the outcome of these proceedings, Laird, 119 A.3d at 978, I
would hold that Pruitt is able to demonstrate prejudice, and that he thus has shown the
ineffectiveness of his trial counsel. I would remand for further proceedings. I
respectfully dissent.
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