[J-78-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 730 CAP
:
Appellee : Appeal from the Order dated July 22,
: 2016 in the Court of Common Pleas,
: Philadelphia County, Criminal Division
v. : at No. CP-51-CR-0902431-1996.
:
: SUBMITTED: September 29, 2017
WILLIAM RIVERA, :
:
Appellant :
OPINION
JUSTICE DOUGHERTY DECIDED: December 28, 2018
William Rivera appeals from the order of the Court of Common Pleas of
Philadelphia County denying his petition for relief from his death sentence, filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§9541–9546, following an
evidentiary hearing limited to one issue — whether penalty phase counsel was
ineffective for failing to present mental health and life history mitigation evidence. For
the reasons set forth below, we affirm.
We summarized the facts leading to appellant’s conviction in our opinion on
direct appeal affirming appellant's sentence of death. Commonwealth v. Rivera, 773
A.2d 131 (Pa. 2001) (Rivera I). Relevant to the current appeal is the following
background.
Appellant and his co-defendants, Robert Ortiz-Bonilla and Luis Centeno, were
charged with homicide, robbery, criminal conspiracy, and related crimes in connection
with the September 25, 1995, carjacking and murder of Tae Hung Kang (victim). Prior
to trial, appellant’s counsel filed and litigated a motion to suppress appellant’s statement
to detectives in which he admitted shooting the victim. The basis of the motion was
detectives were aware appellant had retained counsel in another criminal case, but
questioned him without informing that attorney. Although appellant was not colloquied
regarding whether he wished to testify at the suppression hearing, Attorney Thomas
McGill (guilt phase counsel) informed the court he had urged appellant to testify, but
appellant refused. N.T. 1/23/98 at 3-4, 57-58. Based on this refusal, guilt phase
counsel requested and was granted an immediate psychiatric evaluation to determine
whether appellant was competent to stand trial. After the evaluation, Dr. Robert Stanton
opined appellant was competent, N.T. 1/30/98 at 3, and after colloquy of appellant, the
court determined appellant was competent to proceed. N.T. 1/23/98 at 10-13. The
suppression motion was ultimately denied.
A panel of potential jurors was selected using a list of Philadelphia citizens who
were either registered to vote or licensed to drive. During jury selection, the trial court
questioned potential jurors regarding their views on the death penalty and whether
those views would prevent them from imposing the death penalty, if appropriate. The
trial court dismissed a number of jurors for cause without individual questioning based
on their affirmative response to the question “[i]s there anyone here who would be
unable for any reason, to impose a death sentence?” N.T. 1/26/98 at 23-28; N.T.
1/27/98 at 12-26, 145-49; N.T. 1/28/98 at 23-28. The trial court also dismissed for
cause two potential jurors, Sandra Taylor and Cynthia Alexander, who were individually
questioned and stated they would be uncomfortable imposing a death sentence. N.T.
[J-78-2017] - 2
1/26/98 at 44-46 (Taylor), 165-67 (Alexander). The prosecutor used 18 of 21 allotted
peremptory challenges: eight to strike Caucasians; eight to strike African-Americans;
one to strike a Hispanic person; and one to strike a person who identified her race as
other. PCRA Court Op. at 38-39. The final jury included six African Americans, five
Caucasians, and one juror who identified her race as other. Id. at 39.
Dr. Gregory McDonald, who performed the autopsy of the victim, was unavailable
to testify at trial so Dr. Ian Hood, who was not present during the autopsy, testified as to
Dr. McDonald’s findings. Dr. Hood testified the victim had four gunshot wounds: one to
the right hand from close range; one to the upper left chest near the collarbone; one to
the upper left chest near the nipple; and another to the upper chest. N.T. 1/30/98 at 78-
80. Dr. Hood further testified the bullets went “almost straight backwards, a little
rightwards, and a little upwards,” and the victim’s chin and lower lip displayed some soot
and gunpowder stippling. Id. at 80-81. Furthermore, there were differing accounts from
witnesses and appellant’s own statement regarding whether appellant shot the victim
while he was still inside the vehicle or during a struggle which occurred outside the
vehicle.
During closing arguments for the guilt phase, the prosecutor argued Lisa Woods,
a Commonwealth witness who was unable to recall the incident during her trial
testimony, had blocked the “horrific events” out of her mind, and that Eric Williams, a
Commonwealth witness who had identified appellant as the shooter in the past, but
identified co-defendant Centeno as the shooter at trial, was better able to identify the
shooter closer to the incident. N.T. 2/2/98 at 73. The prosecutor also relied on Dr.
Hood’s statement the bullets went rightwards to argue appellant shot the victim while he
was still seated in the vehicle. Id. at 75-76. The prosecutor further stated a person who
[J-78-2017] - 3
brings a loaded gun to a robbery is prepared to kill by any means necessary. Id. at 81-
83. The jury ultimately convicted appellant of first-degree murder.1
At the penalty phase proceeding, the guilt phase testimony was incorporated at
the request of the prosecutor. Attorney Norman Scott (penalty phase counsel)
stipulated to appellant’s juvenile record which included a robbery committed using a
screwdriver as a weapon. Dr. William F. Russell, a forensic psychologist, testified on
appellant’s behalf. Using information supplied by penalty phase counsel, Dr. Russell
testified appellant’s “traumatic, uncontrolled, unstructured life” along with his low IQ, and
the trauma of witnessing his mother’s murder, all led to his inability to cooperate with
counsel and control his aggressive actions. N.T. 2/5/98 at 34-37, 40, 47. During
closing arguments, the prosecutor, referencing appellant’s past crimes, remarked
appellant’s level of violence escalated as he got older. N.T. 2/5/98 at 57. The jury
unanimously found the aggravating factor of the killing being committed during the
perpetration of a felony, 42 Pa.C.S. §9711(d)(6), outweighed the catch-all mitigating
circumstance, 42 Pa.C.S. §9711(e)(8), and sentenced appellant to death.2
On appellant’s direct appeal, which preceded Commonwealth v. Grant, 813 A.2d
726 (Pa. 2002), he was represented by new counsel, and this Court afforded appellant
unitary review of claims of trial court error as well as claims of guilt phase counsel’s
ineffectiveness during the guilt and penalty phases.3 Ultimately, we affirmed the
1 Co-defendant Ortiz-Bonilla was found guilty of second degree murder and sentenced
to life imprisonment while co-defendant Centeno was acquitted of all charges. There
are no issues in this appeal regarding the co-defendants.
2 The jury rejected the Commonwealth’s assertion of the applicability of the grave risk of
death to another person aggravator, 42 Pa.C.S. §9711(d)(7), and significant history of
violent felony convictions aggravator, 42 Pa.C.S. §9711(d)(9), as well as appellant’s
assertion of the age mitigator, 42 Pa.C.S. §9711(e)(4).
3 Before Grant, this Court required new counsel to raise claims of previous counsel's
ineffectiveness at the first opportunity after new counsel entered the case, which was
(continued…)
[J-78-2017] - 4
judgment of sentence, holding the evidence at trial was sufficient to uphold appellant’s
first-degree murder conviction, Rivera I, 773 A.2d at 135-37, and appellant’s petition for
writ of certiorari to the United States Supreme Court was denied. Rivera v.
Pennsylvania, 535 U.S. 955 (2002).
Appellant filed a timely pro se PCRA petition in 2002, which was assigned to the
trial judge, Judge Gary Glazer. A counseled amended PCRA petition was subsequently
filed and the PCRA court entered a notice of dismissal pursuant to Pa.R.Crim.P. 909 on
May 14, 2004. The court then dismissed the petition on June 3, 2004, which was the
twentieth day after the notice of dismissal but still within the time period under Rule 909
during which appellant could file a response to the proposed dismissal. Appellant
challenged the dismissal and, based on the PCRA court’s failure to give appellant the
full twenty days to respond to its notice of dismissal, this Court vacated the dismissal
and remanded the case to the PCRA court for further proceedings. Commonwealth v.
Rivera, 65 A.3d 290 (Pa. 2013) (Rivera II). The PCRA court then granted a three-day
evidentiary hearing limited to the issue of whether penalty phase counsel was
ineffective for failing to develop and present mental health and life history mitigation
evidence.
During the evidentiary hearing, appellant presented the testimony of both guilt
phase counsel and penalty phase counsel. Guilt phase counsel testified he had no
recollection of penalty phase counsel’s work on appellant’s specific case, but in his
(…continued)
often on direct appeal. See Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977). This
rule was subsequently abrogated in Grant, which held claims of ineffective assistance of
counsel generally should be deferred until collateral review. Grant, 813 A.2d at 738
(overruling Hubbard). Thus, in direct appeals decided prior to Grant, new counsel on
appeal was obligated to raise claims of guilt phase counsel’s ineffectiveness or risk
having them later be deemed waived on PCRA review.
[J-78-2017] - 5
experience, it was penalty phase counsel who would normally collect all records
pertaining to a defendant’s childhood, including educational records and Department of
Human Services (DHS) records. N.T. 11/16/15 at 95-101. Penalty phase counsel
testified he had no recollection of whether he interviewed the man who murdered
appellant’s mother and did not remember if he provided Dr. Russell with DHS and
educational records in this case, but it would have been his usual practice to do so. Id.
at 25-26. Both guilt phase counsel and penalty phase counsel testified appellant was
uncooperative during their preparation for trial and the penalty phase. Id. at 27, 47-48
(penalty phase counsel), 115-126 (guilt phase counsel). Edwin Dejesus (mother’s
murderer) also testified, stating appellant (who was then five years old), observed his
mother’s dead body just after he shot her. Id. at 139.
In addition, appellant presented the expert testimony of Dr. Russell and
neuropsychologist Dr. Carol Armstrong. Dr. Russell testified he did not have enough
information regarding appellant’s background at the time of the penalty phase hearing
and, only after receiving extensive materials prior to the PCRA hearing, was able to
diagnose appellant with attachment disorder, post-traumatic stress disorder, and a
severe learning disability. Id. at 15-42. Given this new information, Dr. Russell testified
appellant was under extreme emotional disturbance at the time of the murder and was
unable to conform his conduct to the requirements of the law. Id. at 44-45. On cross-
examination, however, Dr. Russell stated the paperwork previously provided by penalty
phase counsel contained much of the same information provided by PCRA counsel. Id.
at 80-84.
Dr. Armstrong testified, based on her tests and examinations of appellant, he
suffered from extreme mental and emotional distress caused by brain damage and
cognitive impairment, most likely resulting from the extremely unhealthy and
[J-78-2017] - 6
unstructured environment in which he grew up. Id. at 158-159. Dr. Armstrong further
testified those impairments substantially diminished appellant’s ability to conform to the
requirements of the law. Id. at 159. In response, the Commonwealth presented
psychiatrist Dr. John O’Brien, who offered expert testimony that his testing and
evaluation of appellant revealed an educational deficiency but no brain damage of any
kind. Id. at 193. Dr. O’Brien also opined appellant was not suffering from extreme
mental and emotional disturbance at the time of the offense and instead chose not to
conform his conduct to the requirements of the law. Id. at 236. Dr. O’Brien further
stated the additional documentation of appellant’s background provided to Dr. Russell
by PCRA counsel was cumulative of the information in the juvenile file, which was
available at the penalty phase. Id. at 199.
The PCRA court determined penalty phase counsel’s assistance was reasonable
and satisfied the constitutional threshold as Dr. Russell was provided with enough
information to provide a persuasive opinion and penalty phase “[c]ounsel’s investigation
and presentation would have undoubtedly been more thorough and effective had
[appellant] not been uncooperative and actively undermined counsel’s efforts.” PCRA
Court Op. at 26. The court further concluded appellant failed to show prejudice. The
PCRA court credited Dr. O’Brien’s testimony and did not deem credible the contrary
testimony of Drs. Russell and Armstrong. Id. at 28-31. Accordingly, the court dismissed
the petition. On direct appeal4 to this Court, appellant raises eleven principal claims to
which the PCRA court prepared a Pa.R.A.P. 1925(a) opinion addressing those claims.5
4 Appeals from the denial of PCRA relief in cases in which the death penalty has been
imposed are directly appealable to this Court. See 42 Pa.C.S. §9546(d).
5 Appellant’s issues on appeal are ordered as follows: (1) prior counsel failed to
reasonably investigate, develop and present evidence of appellant’s mental health and
life history mitigation at the penalty phase; (2) the trial court erred by failing to instruct
the jury appellant would not be eligible for parole if sentenced to life imprisonment and
(continued…)
[J-78-2017] - 7
I. Review Standards
We review a ruling by the PCRA court to determine whether it is supported by the
record and is free of legal error. Commonwealth v. Blakeney, 108 A.3d 739, 748-49
(Pa. 2014), citing Commonwealth v. Spotz, 47 A.3d 63, 75 (Pa. 2012). Our standard of
review regarding a PCRA court’s legal conclusions is de novo. Id. at 749.
To be entitled to PCRA relief, appellant must establish, by a preponderance of
the evidence, his conviction or sentence resulted from one or more of the enumerated
errors in 42 Pa.C.S. §9543(a)(2). These errors include a constitutional violation or
ineffectiveness of counsel, which “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” Id. Appellant must
also show his claims have not been previously litigated or waived, and “the failure to
litigate the issue prior to or during trial . . . or on direct appeal could not have been the
result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. §9543(a)(3),
(a)(4). An issue is previously litigated if “the highest appellate court in which [appellant]
could have had review as a matter of right has ruled on the merits of the issue.” 42
(…continued)
counsel were ineffective for failing to raise the issue; (3) prior counsel failed to
reasonably investigate, develop and present evidence of appellant’s mental state
defenses at trial; (4) appellant was denied an impartial sentencing jury and counsel
were ineffective for failing to raise the issue; (5) appellant was denied his rights under
Batson v. Kentucky, 476 U.S. 79 (1986) and counsel were ineffective for failing to raise
the issue; (6) appellant was denied a fair and impartial jury due to Philadelphia’s
selection procedure systematically excluding minorities and counsel were ineffective for
failing to raise the issue; (7) appellant was denied the right to testify and counsel were
ineffective for failing to raise the issue; (8) guilt phase counsel was ineffective for failing
to interview and call as a witness Dr. Gregory McDonald, who performed the autopsy,
and appellate counsel was derivatively ineffective; (9) there was insufficient evidence to
convict appellant of first-degree murder; (10) the assistant district attorney committed
prosecutorial misconduct by improperly stating her personal opinion and presenting
extra-record facts and counsel were ineffective for failing to raise the issue; and (11)
cumulative prejudice.
[J-78-2017] - 8
Pa.C.S. §9544(a)(2). An issue is waived if appellant “could have raised it but failed to
do so before trial, at trial . . . on appeal or in a prior state postconviction proceeding.” 42
Pa.C.S. §9544(b).
The majority of appellant’s claims concern the effectiveness of counsel. When
analyzing ineffectiveness claims, we begin with the presumption counsel was effective.
Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). To be granted relief on an
ineffectiveness claim, appellant must satisfy the performance and prejudice standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984) by a preponderance of the
evidence. This Court has applied Strickland by requiring an appellant to establish three
elements: (1) the underlying claim has arguable merit; (2) no reasonable basis existed
for counsel's actions or failure to act; and (3) appellant suffered prejudice as a result of
counsel’s error, with prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different had counsel not erred. See
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
As appellant’s direct appeal preceded Grant and new counsel litigated claims of
guilt phase counsel’s ineffectiveness in that initial appeal, his present claims of trial and
penalty phase counsel’s ineffectiveness may implicate PCRA waiver. However, such
claims may be cognizable as claims of appellate counsel’s ineffectiveness, so long as
appellant has “layered” the claims to account for both levels of prior representation.
Regarding layered claims, this Court has required appellants to demonstrate not only
that guilt phase counsel was ineffective under the Strickland test, but that appellate
counsel also was ineffective. See Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa.
2003). See also Commonwealth v. Ali, 10 A.3d 282, 292 (Pa. 2010).
Furthermore, we are not required to analyze the elements of an ineffectiveness
claim in any order; if a claim fails under any element of the Strickland test, we may
[J-78-2017] - 9
proceed to that element first. Robinson, 82 A.3d at 1005, citing Strickland,
supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998). In addition, we may
begin by assessing the merits of a defaulted underlying claim because, if the claim is
deemed meritless, neither trial nor appellate counsel could be found ineffective.
II. Failure to Present Mental Health and Life History Mitigation
Preliminarily, we agree with the PCRA court’s determination appellant’s
ineffectiveness claim regarding counsel’s failure to reasonably investigate, develop, and
present mental health and life history mitigation for the penalty phase has arguable
merit. We also recognize the PCRA court’s conclusion penalty phase counsel’s
performance was reasonable due to appellant’s lack of cooperation is questionable as
penalty phase counsel provided no reasonable basis for his failure to obtain additional
records regarding appellant’s mental health and life history. N.T. 11/16/15 at 23-26.
However, we decline to analyze these prongs of the ineffectiveness test as we agree
with the PCRA court’s determination appellant failed to show he was prejudiced by the
alleged ineffectiveness. As such, we focus only on whether appellant has established
prejudice.
Appellant claims trial and penalty phase counsel were ineffective for failing to
investigate, develop, and present mitigating evidence, and appellate counsel was
ineffective for failing to raise the claim on direct appeal. Appellant contends this
ineffectiveness was caused by counsel’s failure to: 1) obtain critical records; 2) have
appellant examined by a neuropsychologist; and 3) investigate and present important
mitigation witnesses. In essence, appellant’s claim is counsel’s ineffectiveness
precluded Dr. Russell from concluding he was under extreme mental or emotional
disturbance and was unable to conform his conduct to the requirements of the law at
the time of the murder. Appellant suggests there is a reasonable probability the jury
[J-78-2017] - 10
would have found the mitigating circumstances at 42 Pa.C.S. §9711(e)(2) (defendant
suffered from extreme mental or emotional disturbance) and (e)(3) (defendant unable to
conform his conduct to requirements of law) to be applicable and at least one juror
would have decided against imposing the death penalty.
The PCRA court conducted a hearing on this claim at which three experts
testified: Dr. Russell and neuropsychologist Dr. Armstrong on behalf of appellant and
psychiatrist Dr. O’Brien on behalf of the Commonwealth. The expert testimony focused
on whether appellant suffered from brain damage which caused extreme mental or
emotional disturbance and rendered him substantially unable to conform his conduct to
the requirements of the law. Portions of the testimony of Dr. Russell and Dr. O’Brien
also focused on whether the extensive background materials regarding appellant’s
mental health and life history provided by PCRA counsel were cumulative of the
information provided by penalty phase counsel.
Dr. Russell testified he did not have enough information regarding appellant’s
background to make any diagnoses at the time of the penalty phase hearing as he had
only been provided a copy of the Commonwealth’s aggravating factors, the police report
for the murder, and some paperwork from appellant’s juvenile file. N.T. 11/17/15 at 15-
16. Dr. Russell further testified he was able to diagnose appellant with attachment
disorder, post-traumatic stress disorder, and a severe learning disability only after
PCRA counsel provided him with extensive materials regarding appellant’s background,
including school records from both Puerto Rico and Philadelphia, DHS records,
affidavits from foster parents, and the details of appellant’s mother’s death. Id. at 19-42.
Dr. Russell stated had he been provided this information prior to trial he would have
recommended appellant undergo neuropsychological testing and also would have been
able to opine appellant was suffering from extreme mental or emotional disturbance at
[J-78-2017] - 11
the time of the murder and was substantially unable to conform his conduct to the
requirements of the law. Id. at 42-46. However, on cross-examination, Dr. Russell
testified although he did not have access to extensive background information and
appellant was uncooperative at the penalty phase, the information provided by penalty
phase counsel showed appellant was a poor student, transient, and may have
witnessed his mother’s murder. Id. at 80-84.
Dr. Armstrong testified she evaluated appellant by conducting a battery of tests
to determine whether he suffered from neuropsychological impairments. Dr. Armstrong
found appellant had strengths in a variety of visual and spatial functions which relate to
being able to tell people apart, navigate in an environment, and remember simple visual
materials. Id. at 126. However, Dr. Armstrong found appellant had impairments in
executive functioning which relates to processing complex, novel, and conflicting
information and verbal processing which relates to processing information given verbally
or in a sequential manner. Id. at 129-30. Dr. Armstrong stated impairments in
executive functioning and verbal processing are strongly associated with impaired
functioning in the frontal lobes of the brain which can be caused by head injuries. Id. at
134, 140, 145. Based on her evaluation of appellant, Dr. Armstrong concluded he
suffered from extreme mental and emotional distress caused by brain damage from
head injuries, growing up in an unhealthy environment, and other stresses during his
development. Id. at 156. Dr. Armstrong also concluded appellant’s specific
impairments, including his inability to process information, diminished his ability to
conform his behavior to the requirements of the law. Id. at 157.
On cross examination, Dr. Armstrong stated she tested appellant in fifty-four
areas of neuropsychological functioning and found three areas of severe impairment,
four areas of moderate impairment, and twelve areas of borderline or mild impairment.
[J-78-2017] - 12
Id. at 168. Dr. Armstrong also testified appellant scored a ninety-three on a full scale IQ
test, which is in the high average range. Id. at 171. Dr. Armstrong further stated her
conclusions were not based on any documentation other than the neuropsychological
tests she performed. Id. at 177.
Dr. O’Brien offered rebuttal testimony on behalf of the Commonwealth based on
his psychiatric evaluation of appellant and review of the materials provided by penalty
phase counsel and PCRA counsel. Id. at 184. Dr. O’Brien stated his evaluation of
appellant included questioning appellant regarding his background, conducting a mental
status examination and a cognitive capacity screening examination which identifies
deficits caused by neuropsychological impairment. Id. at 189-90. Based on this
evaluation, Dr. O’Brien found appellant does not show any psychiatric symptoms and
the variable strengths and weaknesses found during the neuropsychological exam are
typical of most individuals. Id. at 191.
Dr. O’Brien further opined extreme mental or emotional disturbance would
indicate extreme psychiatric, emotional, or cognitive impairments, none of which were
found by himself or Dr. Armstrong. Id. at 192. Further, Dr. O’Brien stated the
impairments found by Dr. Armstrong did not relate to the offense and appellant’s actions
after the offense indicated he had the cognitive awareness to appreciate the
wrongfulness of his actions. Id. at 192-93. Dr. O’Brien also determined appellant chose
not to conform with the requirements of the law rather than being unable to conform to
those requirements, and his evaluation led him to believe appellant was streetwise and
was an individual who was able to see an opportunity and act intentionally to take
advantage of that opportunity. Id. at 193-94. Additionally, Dr. O’Brien stated Dr.
Armstrong failed to substantiate her conclusions with any relevant information that
would have suggested appellant was suffering from extreme mental and emotional
[J-78-2017] - 13
distress and had a diminished ability to conform his behavior to the requirements of the
law at the time of the offense.6 Id. at 196-97. Dr. O’Brien found the opposite was true
because appellant’s statement to police indicated appellant was able to develop and
participate in a plan, effectively carry out that plan, and then act in a manner to avoid
criminal apprehension.7 Id. at 202. Dr. O’Brien concluded appellant does not exhibit
any symptoms which suggest he was suffering from extreme mental or emotional
disturbance, either at the time of the offense or presently, and was not substantially
impaired such that he could not conform his conduct to the requirements of the law. Id.
208.
On cross-examination, Dr. O’Brien did not dispute the fact appellant had a
chaotic and unsupervised life and most likely felt neglected by his father and others who
cared for him, which could have led to his poor attendance and academic functioning in
school. Id. at 222-227 (chaotic life and neglect), 236 (school). Dr. O’Brien consistently
stated, however, appellant’s academic problems were not a result of neuropsychological
impairment. Id. at 236. Dr. O’Brien also agreed the circumstances of appellant’s
6During this discussion, Dr. O’Brien also stated the additional materials provided to Dr.
Russell by PCRA counsel were cumulative of the information provided by penalty phase
counsel and Dr. Russell clearly had enough information to present the jury with
sufficient evidence to find the 42 Pa.C.S. §9711(e)(8) (catch-all) mitigating factor. Id. at
198-99. As such, Dr. O’Brien opined any additional evidence was cumulative and
unnecessary. Id. at 199.
7 Relevant to this observation, appellant, in his statement to police, stated he and his
co-defendants observed the victim and his wife leaving their jewelry store carrying a
manila envelope which they believed contained something valuable. N.T. 1/29/98 at
135-36. Appellant then stated he and his co-defendants decided to follow and rob the
couple as they were stopped at a red light. Id. at 136. Appellant stated he exited his
vehicle, broke the window of the victim’s vehicle, stole the envelope and the purse of
the victim’s wife, shot the victim during a struggle, and fled in the victim’s vehicle. Id. at
136-38. Appellant also stated he hid the gun after discarding the victim’s vehicle. Id. at
138.
[J-78-2017] - 14
mother’s death more than likely had an emotional effect on appellant, but did not rise to
the level of post-traumatic stress disorder. Id. at 233-34. Dr. O’Brien further stated he
did not disagree with Dr. Armstrong’s testimony appellant suffered from impairment in
the frontal lobes of his brain, but continued to opine those impairments did not relate to
any serious impairment in executive functioning and did not correlate to his behavior at
the time of the offense. Id. at 256-57.
As stated above, the PCRA court found appellant’s claim of error to have
arguable merit but determined penalty phase counsel’s performance was reasonable
and appellant failed to establish prejudice; the court was unable to conclude there was a
reasonable probability at least one juror would have reached a different verdict based
on the evidence proffered at the PCRA hearing.
The PCRA court found not credible the testimony of Drs. Russell and Armstrong
after considering Dr. O’Brien’s testimony appellant showed only three out of 54 areas of
severe impairment, none which provided a clear and direct link to the offense
committed. The court further found appellant fell within the average range of
intelligence and his problems in school could be attributed to English being his second
language. As to the Section 9711(e)(2) and (e)(3) mitigating circumstances, the PCRA
court found appellant’s experts’ opinions to be completely incredible based on
appellant’s conduct before, during, and after the offense. The court, in agreement with
Dr. O’Brien’s opinion, determined appellant clearly knew what he did was wrong based
on the high degree of planning, precise victim selection, discarding of evidence, and
avoidance of criminal apprehension. The PCRA court concluded the totality of the
circumstances surrounding the crime completely undermined Drs. Russell and
Armstrong’s conclusions the Section 9711(e)(2) and (3) mitigating factors applied.
[J-78-2017] - 15
In addition, the PCRA court determined appellant’s DHS files and other life
history evidence was either cumulative or equally favored the Commonwealth as they
showed his father eventually provided a warm and clean home and that his brother was
able to remain trouble-free despite the same upbringing. The court finally found the
testimony of mother’s murderer weakened the mitigating evidence as his testimony
contradicted Dr. Russell’s assertion appellant witnessed the actual murder.
Accordingly, the PCRA court concluded appellant failed to show he would have been
prejudiced by penalty phase counsel’s alleged failure to investigate, prepare, and
present additional mitigating evidence.
Appellant now contends penalty phase counsel failed to obtain and provide Dr.
Russell readily available critical records, including his DHS and school records, the
juvenile file of his brother, and the homicide file for mother’s murderer. Appellant
argues the availability of these records at the penalty phase would have allowed Dr.
Russell to diagnose appellant with attachment disorder, post-traumatic stress disorder,
learning disabilities, and possible brain damage and would have caused Dr. Russell to
request that appellant undergo neuropsychological testing. Appellant contends this
additional information and testing would have allowed Dr. Russell to opine appellant
was under the influence of extreme emotional disturbance at the time of the murder and
was unable to conform his conduct to the requirements of the law. Appellant contends
had these opinions been rendered at the penalty phase, he would have been entitled to
ask the jury to find the Section 9711(e)(2) and (3) mitigating circumstances, and there is
a reasonable probability at least one juror would have decided against imposing the
death penalty.
Appellant additionally claims penalty phase counsel was ineffective for failing to
correct Dr. Russell’s misstatement of his age at the time of the murder as twenty rather
[J-78-2017] - 16
than nineteen and failing to provide Dr. Russell with the competency report of Dr.
Stanton who opined appellant was immature. Appellant contends there is a reasonable
probability this evidence would have led the jury to find the 42 Pa.C.S. §9711(e)(4)
(age) mitigator and at least one juror to decide against imposing the death penalty.
Appellant further contends the PCRA court erred by basing its ruling solely on the
credibility of Drs. Russell and Armstrong as the court ignored a mass of other evidence
presented regarding his mental health and life history. Appellant claims the PCRA court
ignored the following evidence which would have led to a reasonable probability at least
one juror would have decided against imposing the death penalty: 1) Dr. O’Brien’s
agreement with Drs. Russell and Armstrong that appellant suffered from an unstable
upbringing and chaotic childhood; 2) the affidavits of lay witnesses who stated
appellant and his brother were shunned by their grandmother and shuffled from home to
home; 3) evidence appellant was an immature nineteen year old at the time of the
offense, and 4) evidence appellant witnessed his mother shot and dying in a pool of
blood at a young age.
Lastly, appellant contends the PCRA court’s credibility determinations regarding
Drs. Russell and Armstrong are not supported by the record as the experts not only
found appellant was severely impaired in three out of fifty-four areas but also had
moderate impairments in four areas and mild impairments in eight areas. Appellant
claims the PCRA court’s statement appellant’s impairments did not provide a link to the
crime was legal error as mitigation is not required to have a nexus to the crime.
The Commonwealth argues appellant has failed to show prejudice as the
information relied on by Dr. Russell at the PCRA hearing was cumulative of the
information in appellant’s juvenile file, which was made available prior to his testimony
at the penalty phase. The Commonwealth also argues appellant fails to show the
[J-78-2017] - 17
absence of neuropsychological testing was prejudicial as the PCRA court found Dr.
Armstrong’s testimony incredible and credited the testimony of Dr. O’Brien who testified
appellant’s condition did not warrant a psychiatric diagnosis, his limited cognitive
impairment did not rise to the level of extreme mental or emotional disturbance, and his
actions surrounding the murder and his refusal to cooperate with counsel and Dr.
Russell were volitional rather than the result of a neuropsychological or psychiatric
impairment.
The Commonwealth additionally contends the PCRA court did not ignore other
mitigation evidence presented by appellant but simply found it not credible or immaterial
and the court’s decision to weigh the evidence in a certain way was supported by the
record. The Commonwealth points out although Dr. O’Brien agreed with appellant’s
experts regarding appellant’s chaotic childhood, his testimony differed on critical issues
including appellant’s intellectual capacity and that his few deficiencies had no relation to
impulse control or whether he had knowledge his actions were wrong. The
Commonwealth further argues there was evidence appellant’s grandmother sent him
away to Philadelphia for safety reasons, and also that the PCRA court correctly
acknowledged appellant was nineteen years old at the time of the murder. The
Commonwealth also argues penalty phase counsel’s failure to call mother’s murderer
as a witness was not prejudicial because his testimony at the PCRA hearing
undermined Dr. Russell’s testimony appellant witnessed the murder itself. In actuality,
the Commonwealth argues, testimony revealed appellant’s mother was shot and killed
prior to appellant’s entering the room.
Lastly, the Commonwealth contends the PCRA court’s failure to list each area of
mild impairment found by Dr. Armstrong was not tantamount to failing to consider those
findings. The Commonwealth argues the PCRA court deemed those findings incredible
[J-78-2017] - 18
after consideration and was not required to credit those findings in light of Dr. O’Brien’s
contrary testimony. The Commonwealth asserts appellant’s presentation of trivial
mental impairments which were unrelated to the crime failed to establish at least one
juror would have decided against imposing the death penalty.
After a thorough review of the record, we find no error in the PCRA court’s
determination appellant failed to establish he was prejudiced by penalty phase
counsel’s alleged ineffectiveness. As the arguments of the parties and the PCRA
court’s resolution of this issue largely depend upon competing expert testimony, we
note we are bound by the credibility determinations of the PCRA court so long as there
is record support for those determinations. See Commonwealth v. Hannibal, 156 A.3d
197, 228 (Pa. 2016), citing Commonwealth v. Williams, 846 A.2d 105, 112 (Pa. 2004).
In Hannibal, which also came to this Court on appeal from a denial of PCRA relief in a
capital case, this Court was tasked with deciding an issue almost identical to the case at
hand — whether penalty phase counsel was ineffective for failing to investigate and
present mental health mitigation evidence at the penalty proceeding.8 Id. at 222. We
denied the claim based on appellant’s failure to establish prejudice, reasoning the
PCRA court dismissed the claim based on credibility determinations which were
supported by the record. Id. at 228. In making this determination, we stated the
following:
Of course, we recognize appellant would have presented his mental
health expert evidence to a jury, notwithstanding its strength or issues of
credibility, leaving the question for the jury. Nevertheless, in the collateral
attack scenario, where a Strickland assessment of prejudice is at issue,
8 Rather than arguing application of the Section 9711(e)(2) and (e)(3) mitigating
circumstances, the appellant in Hannibal argued for application of the (e)(8) mitigating
circumstance due to his belief he had borderline intelligence and organic brain damage.
Hannibal, 156 A.3d at 222.
[J-78-2017] - 19
the PCRA court’s credibility findings are consequential, as Williams
recognized. For purposes of assessing Strickland prejudice here, the
question is whether appellant has shown a reasonable probability, had the
mitigation evidence adduced at the PCRA hearing also been presented at
the penalty phase, the outcome of the proceedings would have been
different because at least one juror would have found the catch-all
mitigating circumstance and would have proceeded to conclude it
outweighed, or was as weighty as, the aggravating circumstance, so as to
convince a juror to find the overall quality of the case in mitigation
warranted a sentence of life in prison. See [Commonwealth v.] Daniels,
104 A.3d [267, 303-04 (Pa. 2014)]. The PCRA court, which heard the new
case in mitigation, and had the trial record before it, answered this
question in the negative based in part on an assessment of the credibility
and strength of appellant’s new evidence. The court’s assessment of
prejudice is supported by the record.
Id.
The situation here is almost identical to Hannibal. The PCRA court made
credibility determinations regarding the testimony of the expert witnesses and those
credibility determinations were supported by evidence in the record — the court
believed the testimony of Dr. O’Brien, who disagreed with the findings of Drs. Russell
and Armstrong regarding whether appellant was suffering from extreme mental or
emotional disturbance and was unable to conform his conduct to the requirements of
the law at the time of the offense. The PCRA court — who oversaw the guilt phase,
penalty phase, and PCRA proceedings — held there was no reasonable probability the
outcome of the penalty phase would have been different had the additional evidence
from the PCRA hearing been available during the penalty phase, and based this holding
on the credibility of the expert witnesses. As evidenced by Hannibal and Williams, we
must defer to the court’s credibility determinations.
Furthermore, appellant’s contention the PCRA court ignored other mental health
and life history evidence and relied only upon the credibility of the expert witnesses in
denying his claim is simply untrue. The PCRA court considered other evidence
regarding appellant’s upbringing and found it to be either cumulative or mutually
[J-78-2017] - 20
beneficial to the Commonwealth. See PCRA Court Op. at 29-30. Specifically the court
considered appellant’s DHS files and the murder of appellant’s mother. The PCRA
court also made an explicit finding regarding whether a review of the entirety of the
evidence changed the weight given to the aggravating and mitigating circumstances in
stating, “[a]fter evaluating all of the evidence presented at the penalty hearing, provided
in the parties’ PCRA briefs, and proffered at the evidentiary hearing, the scales
weighing the aggravating circumstance and mitigating evidence remain unmoved.” 9 Id.
at 30. As appellant’s claim is belied by the record, which shows the PCRA court did in
fact consider the entirety of the evidence, he is not entitled to relief on this basis.
Accordingly, while appellant’s claim has arguable merit and it is questionable
whether penalty phase counsel had a reasonable basis for failing to investigate,
develop, and present additional mental health and life history mitigation evidence, his
claims in this regard were nevertheless properly dismissed by the PCRA court on
Strickland/Pierce analysis grounds, in that it is not reasonably probable at least one
juror would have decided against imposing the death penalty had the competing expert
testimony and other evidence been presented at the penalty phase.10
9 We find the PCRA court’s evaluation of “all of the evidence” also included appellant’s
assertion penalty phase counsel failed to present evidence he was nineteen years old
rather than twenty at the time of the murder and was immature for his age. We further
find the PCRA court did not err in finding this small inaccuracy did not establish
prejudice.
10 On April 9, 2018, appellant and the Commonwealth filed a “Joint Application for Leave
to File Post-Submission Communication with the Court and Joint Motion to Vacate
Death Sentence, Remand for Resentencing to Life Without Parole, and then Transfer
Appeal to Superior Court” (“Joint Application”). In this application, the Commonwealth
agrees with appellant that we should grant relief on this claim. See Joint Application at
¶5 (“The Commonwealth agrees, and respectfully requests, that this Court should grant
relief on Claim I set forth in Appellant’s Brief (ineffective assistance of trial counsel
during the penalty phase of trial).”). The application further requests that we vacate
appellant’s death sentence and remand with a directive that the court of common pleas
sentence appellant to “life in prison without parole on the first-degree murder
(continued…)
[J-78-2017] - 21
III. Failure to Request Simmons11 Instruction
Appellant argues he was entitled to a Simmons instruction as the prosecutor
injected his future dangerousness into the sentencing hearing by comparing the instant
crime with a juvenile offense and arguing his level of violence escalated as he aged.
Appellant further argues guilt phase counsel was ineffective for failing to request a
Simmons instruction and appellate counsel was ineffective for failing to raise the issue
on direct appeal. The Commonwealth argues the issue is doubly waived as appellant
failed to raise the claim both at trial and on direct appeal. The Commonwealth further
argues the claim is meritless as the prosecutor did not argue appellant should be
sentenced to death because he would kill again but referred only to his past conduct.
The PCRA court agreed with the Commonwealth, finding the prosecutor confined her
questioning and comments to appellant’s past violent history, and appellant’s future
dangerousness was not placed at issue before the jury.
When a prosecutor places a defendant’s future dangerousness at issue during
his sentencing hearing, the defendant is entitled to have the jury instructed a life
sentence means he is ineligible for parole, i.e., “life means life.” Simmons v. South
Carolina, 512 U.S. 154, 156 (1994). “The trial court’s obligation to issue a Simmons
(…continued)
conviction.” Joint Application at ¶6-7. We note the Commonwealth’s “agreement” and
joint “request” asserted in the application are in complete derogation of the arguments it
made in its own brief filed mere months ago in this Court, and furthermore, are not
supported by any argument or concession that legal error occurred. As we fully
explained in Commonwealth v. Lavar Brown, __ A.3d __, 2018 WL 5046812 (Pa. 2018),
“neither the parties, by agreement, nor this Court, absent a finding of legal error, have
the power or ability to order that the jury’s verdict be commuted[.]” Id. at *7.
Accordingly, the joint application filed in the instant matter is hereby denied
11 Simmons v. South Carolina, 512 U.S. 154 (1994) (when future dangerousness is at
issue in capital case, jury must be informed “life means life” and defendant is ineligible
for parole).
[J-78-2017] - 22
charge is triggered only upon the existence of twin requirements, i.e., future
dangerousness being placed at issue, and a defense request. These are substantive
requirements, not procedural ones.” Commonwealth v. Spotz, 759 A.2d 1280, 1291
n.14 (Pa. 2000) (emphasis omitted). Such an instruction is required only when the
defendant’s future dangerousness is expressly implicated, and mere references to a
defendant’s past violent acts does not expressly implicate future dangerousness.
Commonwealth v. Patterson, 91 A.3d 55, 78 (Pa. 2014).12
The record supports the PCRA court’s finding this claim lacks arguable merit.
During closing statements at the penalty phase, the prosecutor argued for the jury to
find the aggravating factor of significant history of violent felony convictions. N.T. 2/5/98
at 56-57. In doing so, the prosecutor referenced appellant’s juvenile robbery conviction
for taking a woman’s purse using a screwdriver as a weapon. Id. at 57. The prosecutor
then compared the past conviction with the murder at issue here, stated both incidents
showed appellant was capable of violent conduct, and then remarked “the older he gets,
the bolder he gets.” Id. Although appellant has construed this remark as an attempt by
the prosecutor to place his future dangerousness at issue, this comment does not rise
to the level of expressly implicating appellant’s future dangerousness. See Patterson,
supra. In fact, the prosecutor referred to appellant’s past conduct, within the context of
arguing for application of the past criminal history aggravator. Under these
circumstances, appellant’s Simmons claim lacks arguable merit, and neither guilt phase
counsel nor appellate counsel can be found ineffective for failing to raise the issue.
12 We recognize Patterson failed to acknowledge the more relaxed standard for
assessing when a defendant is entitled to a Simmons charge that applies to trials
conducted after Kelly v. South Carolina, 534 U.S. 246 (2002), but this Court has
determined Kelly does not apply retroactively to instances — such as the present case
— in which a defendant was sentenced before Kelly was filed. See Commonwealth v.
Spotz, 896 A.2d 1191, 1243-46 (Pa. 2006).
[J-78-2017] - 23
IV. Failure to Present Mental State Defenses at Guilt Phase
Appellant argues he was incompetent to stand trial based on Dr. Russell’s
testimony at the evidentiary hearing that his unwillingness to cooperate with counsel
was due to incompetency based on a review of records which were absent at the time
of trial. Appellant contends guilt phase counsel was ineffective for failing to conduct a
reasonable investigation into his competency and demand a competency hearing.
Appellant further argues guilt phase counsel was ineffective for failing to investigate and
present evidence of his diminished capacity and drug use which would have reduced
his degree of mental culpability and avoided a conviction for first-degree murder.
Appellant also argues appellate counsel was ineffective for failing to raise this issue on
direct appeal.
The Commonwealth contends this claim is waived for failure to raise it on direct
appeal and is otherwise meritless. The Commonwealth further contends appellant
chose not to cooperate with counsel rather than being unable to cooperate with counsel.
The Commonwealth also argues guilt phase counsel requested and was granted
forthwith a psychiatric evaluation to determine appellant’s competency after which the
trial court found him competent to stand trial; Dr. Stanton, who performed the psychiatric
evaluation, agreed appellant was competent and any problems appellant had regarding
his cooperation with counsel were due to personality defects rather than mental defects.
Furthermore, the Commonwealth notes Dr. Russell met with appellant three times prior
to trial and never suggested he was incompetent to stand trial. The Commonwealth
further argues guilt phase counsel was not required to continue consulting with mental
health experts until finding one that was willing to find appellant incompetent. As to the
diminished capacity defense, the Commonwealth argues appellant cannot now
challenge the effectiveness of counsel regarding such a defense when he refused to
[J-78-2017] - 24
cooperate with psychological testing prior to trial. Furthermore, the Commonwealth
suggests appellant suffered no prejudice as there was overwhelming evidence
establishing the crime was well-planned and a diminished capacity defense would not
have compelled a different result at trial.
The PCRA court concluded appellant’s competency claim was meritless as he
was found competent to stand trial by multiple experts and the trial court. The lower
court further determined appellant’s diminished capacity claim lacked merit as his
refusal to cooperate in psychological testing caused guilt phase counsel to be unable to
present a defense based on diminished capacity.
We agree appellant’s claim regarding incompetency is meritless. Defendants are
presumed to be competent and the burden is on the defendant to prove, by a
preponderance of the evidence, that he is incompetent to stand trial. Blakeney, 108
A.3d at 752. Furthermore, there is a clear distinction between whether a defendant is
unable to cooperate with counsel or chooses not to cooperate with counsel.
Commonwealth v. Flor, 998 A.2d 606, 618 (Pa. 2010). The record here establishes
appellant chose not to cooperate. Prior to appellant’s motion to suppress, guilt phase
counsel informed the court he was concerned with appellant’s competency to stand trial
as appellant did not wish to testify, did not wish to provide witnesses to penalty phase
counsel, and did not wish to take part in plea negotiations because he had decided to
let God handle the outcome of his case. N.T. 1/23/98 at 4. Following this discussion,
the trial court colloquied appellant regarding his competency and found no question he
was competent. Id. at 10-13. The trial court further ordered a mental health evaluation
which also indicated appellant was competent. N.T. 1/30/98 at 3. As appellant’s
competency claim lacks merit, neither guilt phase counsel nor appellate counsel can be
found ineffective for failing to raise the issue.
[J-78-2017] - 25
We further agree appellant’s claim regarding guilt phase counsel’s failure to
present a diminished capacity defense is meritless. To succeed on the limited defense
of diminished capacity, a defendant must prove he was unable to form the specific
intent to kill. Commonwealth v. Mason, 130 A.3d 601, 630 (Pa. 2015). Furthermore, it
is well settled guilt phase counsel cannot be deemed ineffective for failing to present a
diminished capacity defense when a defendant refuses to cooperate in psychological
testing. Commonwealth v. Bomar, 826 A.2d 831, 857-58 (Pa. 2003). At the penalty
phase, Dr. Russell specifically testified he met with appellant three times prior to trial.
N.T. 2/5/98 at 25. Dr. Russell stated appellant was completely uncooperative during the
first two meetings and, at the third meeting, appellant would only talk about religion and
some people in his life rather than submit to psychological testing. Id. at 25-26. As
appellant refused to cooperate with the psychologist provided by his attorneys, his claim
lacks merit and neither guilt phase counsel nor appellate counsel can be found
ineffective for failing to raise the issue.
V. Denial of Impartial Sentencing Jury (Striking of Death Qualified Jurors)
Appellant argues the trial court improperly dismissed certain jurors, Sandra
Taylor and Cynthia Alexander, for stating they would be uncomfortable voting for the
death penalty even though they never stated they would be unable to follow the law or
conduct themselves in an impartial manner. Appellant further contends the trial court
improperly dismissed other jurors after they responded they would be unable to impose
a death sentence without further inquiring as to whether the jurors even understood the
questions as asked. Appellant also argues guilt phase counsel was ineffective for
failing to rehabilitate the prospective jurors and object to the trial court’s conduct and
appellate counsel was ineffective for failing to raise the issue on direct appeal.
[J-78-2017] - 26
The Commonwealth first argues this claim is waived as appellant failed to object
to the trial court’s conduct during jury selection and failed to raise the claim on direct
appeal. The Commonwealth further contends this claim is meritless in any event since
the questioning of Sandra Taylor and Cynthia Alexander showed their views about the
death penalty would interfere with their ability to serve as jurors. The Commonwealth
also argues no further questioning is required of jurors who establish an opposition to
the death penalty which would impair their performance as jurors, and appellant has
failed to establish prejudice by proving any of the dismissed jurors would have
renounced their view on the death penalty upon further questioning.
The PCRA court concluded the questioning of Sandra Taylor and Cynthia
Alexander provided a sufficient basis for the trial court to determine their views would
substantially impair the performance of their duties as jurors. The court further found
guilt phase counsel cannot be found ineffective for failing to continuously question a
juror as to whether they are irrevocably committed to voting against the death penalty,
and prospective jurors may be excused for cause without further questioning if they
would be unable to perform their duties impartially at sentencing.
When a juror’s views on capital punishment would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and his oath,
he is properly excluded from the jury. Commonwealth v. Chmiel, 30 A.3d 1111, 1172
(Pa. 2011). Jurors are also properly excluded when they express an uncertainty about
their ability to impose the death penalty. Commonwealth v. Watkins, 108 A.3d 692,
706-07 (Pa. 2014), quoting Commonwealth v. Carson, 913 A.2d 220, 262 (Pa. 2006).
Furthermore, it is within the trial court’s discretion to strike a juror for cause and such a
decision will not be disturbed absent an abuse of discretion. Id at 707.
[J-78-2017] - 27
The record supports the PCRA court’s denial of relief on this claim. During jury
selection, the trial court struck a number of jurors for cause without individual
questioning based on their affirmative response to the following question: “Is there
anyone here who would be unable, for any reason, to impose a death sentence?” N.T.
1/26/98 at 23-28; N.T. 1/27/98 at 12-26, 145-49; N.T. 1/28/98 at 23-28. The trial court
also struck for cause Sandra Taylor and Cynthia Alexander based on their statements
they would be uncomfortable imposing the death penalty following individual
questioning. When specifically asked whether the possibility of considering the death
penalty would affect her ability to reach a fair verdict, Ms. Taylor responded: “I think it
would bother me a little bit.” N.T. 1/26/98 at 45-46. Ms. Alexander responded to
questions in a similar fashion stating the following: “I wouldn’t be very comfortable with
the death penalty. … I’m not very comfortable voting — for voting for the death penalty.
I’m a Christian. I don’t really believe in the death penalty. … I’m really uncomfortable in
voting for the death penalty.” N.T. 1/26/98 at 165-67. The affirmative response from
the jurors questioned as a group established those jurors would not have been able to
impose the death penalty and, as a result, their performance as jurors in this case would
have been substantially impaired. The responses from Ms. Taylor and Ms. Alexander,
at a minimum, show those two jurors were uncertain about their ability to impose the
death penalty. As such, the jurors were properly excluded and the trial court did not
abuse its discretion. Accordingly, this claim is meritless and neither guilt phase counsel
nor appellate counsel can be found ineffective for failing to raise the issue.
VI. Batson13 Claim
13Batson v. Kentucky, 476 U.S. 79 (1986) (prosecutor may not strike potential juror
based on race).
[J-78-2017] - 28
Appellant (who is of Hispanic origin) argues the Commonwealth exercised its
peremptory challenges during jury selection in a racially discriminatory manner in
violation of the Sixth and Fourteenth Amendments under Batson v. Kentucky, 476 U.S.
79 (1986). Appellant contends the Commonwealth struck thirty-five percent of
Caucasian jurors while striking fifty-five percent of African-American jurors and fifty-eight
percent of all minorities. Appellant further contends the record reveals no race neutral
reason for the Commonwealth’s exclusion of minorities at a rate much higher than
Caucasians. In support of this argument, appellant references a jury selection training
video used by the Philadelphia District Attorney’s Office which taught juror
discrimination on the basis of race and suggested prosecutors could be fired if
discriminatory practices were not used.14 Appellant further argues guilt phase counsel
and appellate counsel were ineffective for failing to raise the issue.15
The Commonwealth responds by arguing this issue is waived as appellant failed
to raise it at trial and on direct appeal. The Commonwealth further contends a prima
facie case of discrimination cannot be first established on appeal as a Batson claim
requires a defendant to raise it during jury selection and allow the prosecutor to place
her reasons for striking each juror on the record. Commonwealth’s Brief at 64, citing
Commonwealth v. Basemore, 744 A.2d 717, 729 (Pa. 2000). The Commonwealth
further argues appellant must now show actual, purposeful discrimination to overcome
14The referenced training video was created by former Assistant District Attorney Jack
McMahon in 1987 and described his views on jury selection, including how to minimize
the seating of African-American jurors. Commonwealth v. Rollins, 738 A.2d 435, 443
n.10 (Pa. 1999).
15Appellant purports to establish a prima facie case of discrimination. However, as
noted below, appellant is not entitled to present a mere prima facie case at this stage,
but instead must show actual, purposeful discrimination. As such, we view his proffer
and arguments in the context of whether actual, purposeful discrimination was present
during the selection of his jury.
[J-78-2017] - 29
the waiver of his Batson claim. Commonwealth’s Brief at 65, citing Commonwealth v.
Uderra, 862 A.2d 74, 87 (Pa. 2004). The Commonwealth also contends a Batson claim
is untenable on this record as the prosecutor only used eighteen of twenty-one
preemptory challenges (eight on Caucasians, eight on African-Americans, one on a
Hispanic, and one on a person who identified her race as “other”) and the jury was
racially diverse (six African-Americans, five Caucasians, and one person who identified
her race as “other”). The Commonwealth further argues this Court has consistently held
the training video referenced by appellant does not prove a general policy of racial
discrimination. Commonwealth’s Brief a 68, citing Commonwealth v. Hutchinson, 25
A.3d 277, 288-89 (Pa. 2011).
The PCRA court found appellant’s Batson claim to be waived for failure to raise it
during jury selection and on direct appeal; the court further held the claim failed on its
merits. The PCRA court determined not only did appellant fail to make a record
identifying the race of each juror excluded by the prosecution, but the record reveals the
prosecutor used her peremptory challenges in a non-discriminatory manner which
resulted in a racially diverse jury. The PCRA court further stated appellant’s reference
to the training video does not establish discrimination or relieve him of his duty under
Batson.
As a preliminary matter, we agree with the PCRA court’s determination that
appellant failed to preserve his Batson claim when he did not raise the claim during jury
selection and on direct appeal.16 Accordingly, “in order to succeed on an unpreserved
16We note an appellant with a preserved Batson claim is entitled to the burden-shifting
test set forth in that case: “[f]irst, the defendant must make a prima facie showing that
the prosecutor has exercised peremptory challenges on the basis of race[; s]econd, if
the requisite showing has been made, the burden shifts to the prosecutor to articulate a
race-neutral explanation for his peremptory challenges[; f]inally, the trial court must
determine whether the defendant has carried his burden of proving purposeful
(continued…)
[J-78-2017] - 30
claim of racial discrimination in jury selection . . . a post-conviction petitioner may not
rely on a prima facie case under Batson, but must prove actual, purposeful
discrimination by a preponderance of the evidence, in addition to all other requirements
essential to overcome the waiver of the underlying claim.” Uderra, 862 A.2d at 87
(internal citations omitted).
The record supports the PCRA court’s determination appellant’s Batson claim
lacks merit. Indeed, the record is devoid of any showing of actual or purposeful
discrimination as required by Uderra and such a finding would directly conflict with the
specific finding of the PCRA court, which also sat as the trial court, that the
Commonwealth used its peremptory strikes in a race-neutral manner, see PCRA Court
Op. at 38-39 (eighteen Commonwealth strikes used to exclude eight African-Americans,
eight Caucasians, one Hispanic, and one person who identified as “other”).
Furthermore, showing that a prosecutor struck a greater percentage of minorities than
whites is inadequate to prove actual, purposeful, discrimination by a preponderance of
the evidence. See Commonwealth v. Simpson, 66 A.3d 253, 263 (Pa. 2013).
Additionally, this Court has previously stated the training video cited by appellant does
not establish a policy of discrimination in jury selection and does not prove there was
discrimination in his case. See Commonwealth v. Rollins, 738 A.2d 435, 443 n.10 (Pa.
1999). As appellant’s Batson claim lacks arguable merit, neither guilt phase counsel
nor appellate counsel can be found ineffective for failing to raise the issue.
VII. Denial of Impartial Jury (Minorities Excluded from Jury Pool)
(…continued)
discrimination.” Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013), citing
Batson, 476 U.S. at 96-98.
[J-78-2017] - 31
Appellant argues he was denied a jury pool representing a fair cross-section of
his community and a fair and impartial jury of his peers. Appellant contends
Philadelphia’s jury selection procedure systematically excludes minorities by only
including registered voters and those licensed to drive. Appellant further contends the
under-representation of Hispanics in his jury pool constitutes prima facie proof of this
systematic exclusion as Hispanics make up eight and one-half percent of Philadelphia’s
population but only four and one-half percent of his jury pool identified as Hispanic.17
Appellant further argues guilt phase counsel and appellate counsel were ineffective for
failing to raise this claim.
The Commonwealth contends this issue is waived as appellant failed to raise it at
trial and on direct appeal. The Commonwealth further argues the claim is frivolous as
appellant has failed to show significant under-representation. The Commonwealth
contends appellant has only made a guess as to how many Hispanics were included in
his jury pool based on his assessment of surnames, and makes no attempt to establish
that the purported exclusion of Hispanics was systematic. The Commonwealth further
argues this Court has repeatedly rejected constitutional challenges to the neutral
practice of selecting prospective jurors using voter registration lists and driver’s license
lists. Commonwealth’s Brief at 72, citing Commonwealth v. Romero, 938 A.2d 362, 374
(Pa. 2007). The PCRA Court denied appellant’s claim, relying on this Court’s precedent
holding a computer system which randomly selects names from voter registration and
driver’s license databases does not constitute systematic exclusion of jurors based on
gender or race. PCRA Court Op. at 41, citing Romero, supra.
17Appellant claims, based on his evaluation of surnames, only six people out of the one
hundred twenty-five people summoned for his case were Hispanic.
[J-78-2017] - 32
We agree with the PCRA court and find appellant’s claim regarding the racial
makeup of his jury pool to be meritless under Pennsylvania law. “Proof is required of an
actual discriminatory practice in the jury selection process, not merely under-
representation of one particular group. The defendant bears the initial burden of
presenting prima facie evidence of discrimination in the jury selection process.”
Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003) (internal citations omitted).
To make a prima facie showing, a defendant must demonstrate: 1) the group allegedly
excluded is a distinctive group in the community; 2) the representation of this group in
jury pools is not fair and reasonable in relation to the number of such people in the
community; and 3) the under-representation is due to the systematic exclusion of the
group in the jury selection process. Id., quoting Commonwealth v. Craver, 688 A.2d
691, 696 (Pa. 1997). “[S]ystematic” is defined as “caused by or inherent in the system
by which juries were selected.” Commonwealth v. Edwards, 903 A.2d 1139, 1151 (Pa.
2006). Fatal to appellant’s claim, however, is this Court’s precedential jurisprudence
which has consistently rejected arguments that the practice of selecting jury pools using
voter registration and driver’s license lists causes systematic exclusion of any group.
See Romero, 938 A.2d at 374; Commonwealth v. Bridges, 757 A.2d 859, 868 (Pa.
2000). As appellant’s claim lacks arguable merit, neither guilt phase counsel nor
appellate counsel can be found ineffective for failing to raise the issue.
VIII. Denial of Right to Testify
Appellant argues he is entitled to a new trial because guilt phase counsel and the
trial court denied him the right to testify and there was no colloquy regarding his right to
testify at the suppression hearing or at trial. Appellant contends it is likely his testimony
at the suppression hearing would have led to his statement to police being suppressed,
which in turn would have changed the outcome of the trial. Appellant contends without
[J-78-2017] - 33
the admission of his statement, in which he admitted being the shooter, he would not
have been convicted of first-degree murder as other evidence was inconsistent as to the
identity of the shooter. Appellant further argues appellate counsel was ineffective for
failing to raise the issue on direct appeal.
The Commonwealth first argues this issue is waived as appellant failed to raise it
at trial or direct appeal. The Commonwealth also argues the claim is meritless as guilt
phase counsel made clear he and appellant discussed his right to testify and appellant
was urged to testify but refused. The Commonwealth contends appellant does not
dispute he was advised to testify, does not contend he was given bad advice, and fails
to allege what his testimony would have been and how it would have affected the result.
The Commonwealth further contends Pennsylvania law does not require courts to
conduct colloquies regarding a defendant’s right to testify.
The PCRA court concluded this claim was waived for failure to raise it on direct
appeal and is meritless in any event. The PCRA court first determined Pennsylvania
does not expressly require a trial court to conduct a colloquy regarding a defendant’s
right to testify. The PCRA court also acknowledged appellant was made aware of his
right to testify during guilt phase counsel’s discussions with the Court, appellant was
urged by guilt phase counsel to testify, and he refused. Accordingly, the PCRA court
concluded appellant failed to demonstrate he was improperly denied the right to testify.
We agree this claim is waived, but for different reasons than those argued by the
Commonwealth. Although appellant did raise this claim in his original pro se PCRA
petition, see Appellant’s Pro Se Motion for Post-Conviction Collateral Relief, 5/22/2002
at ¶2, it was not raised in his amended PCRA petition, which is the subject of this
appeal. In vacating the dismissal of the amended PCRA petition, this Court gave
specific instructions remanding the matter “to the PCRA court for review and disposition
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limited to the issues raised in the PCRA petition as amended[.]” Rivera II, 65 A.3d at
290. Furthermore, “[w]e have consistently held that in the absence of permission from
this Court, a PCRA petitioner is not entitled to raise new claims following our remand for
further PCRA proceedings.” Commonwealth v. Sepulveda, 144 A.3d 1270, 1279 (Pa.
2016). See also Commonwealth v. Spotz, 18 A.3d 244, 328 (Pa. 2011) (denying
request for remand to consider issues first raised in motion for reconsideration); Ali, 10
A.3d at 320 (finding clams raised for first time on limited remand to be unreviewable);
Commonwealth v. Rainey, 928 A.2d 215, 226 n.9 (Pa. 2007) (raising additional issues
outside of remand order improper); Commonwealth v. Rush, 838 A.2d 651, 661 (Pa.
2003) (remand does not open door to raise new claims on remand). Accordingly,
appellant’s claim he was denied the right to testify and appellate counsel was ineffective
for failing to raise such a claim on direct appeal is waived and unreviewable.
IX. Failure to Interview and Call Dr. Gregory McDonald as a Witness
Appellant argues guilt phase counsel was ineffective for failing to call Dr. Gregory
McDonald, the medical examiner who actually performed the victim’s autopsy, as a
witness after the Commonwealth presented Dr. Ian Hood to testify about Dr.
McDonald’s findings. Appellant contends the prosecutor mischaracterized Dr. Hood’s
testimony in arguing the trajectory of the bullets establish appellant shot the victim while
he was seated in the vehicle. Appellant further contends had guilt phase counsel
interviewed and called Dr. McDonald as a witness, Dr. McDonald would have stated it
was impossible for the shooting to have occurred while the victim was still seated in the
vehicle and there was evidence of a struggle. Appellant also argues appellate counsel
was ineffective for failing to raise the issue on direct appeal. Finally, appellant argues
Dr. Hood’s presentation of Dr. McDonald’s autopsy report violated the confrontation
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clause as the autopsy report was testimonial in nature and inadmissible if not presented
by its author.
The Commonwealth contends this claim is waived for failure to raise it on direct
appeal and on PCRA review.18 The Commonwealth further argues Dr. McDonald’s
affidavit19 does not contradict Dr. Hood’s testimony and does not state the shooting
occurred outside the vehicle. The Commonwealth contends Dr. McDonald’s proposed
testimony would not have undermined the Commonwealth’s case or added to
appellant’s theory of the case and thus appellant has failed to show the verdict would
have been different had Dr. McDonald testified at trial.
The PCRA court determined this claim was waived as it was not raised on direct
appeal and is otherwise meritless. The lower court based its assertion on the fact
appellant did not argue guilt phase counsel was unprepared for Dr. Hood’s testimony or
his testimony was inaccurate or inadmissible, but only that guilt phase counsel was
ineffective for failing to foresee how the prosecution would use Dr. Hood’s testimony
during closing arguments. The lower court further stated guilt phase counsel could not
have been ineffective for failing to call Dr. McDonald as a witness since Dr. McDonald
was unavailable.
18 Appellant first made this confrontation clause claim in his amended PCRA petition
filed in September 2003, but later abandoned it in his PCRA petition on remand filed in
February 2015. Moreover, although appellant made the argument in his reply brief in
the current appeal, he did not include it in his principal brief.
19 The undated affidavit provides the following relevant statements from Dr. McDonald:
1) he performed the autopsy of the victim; 2) he was unable to give an expert opinion
regarding whether the shooting of the victim occurred inside or outside of the vehicle;
and 3) he was not contacted by guilt phase counsel and would have testified to the
above facts had he been contacted. Appellant’s PCRA Petition on Remand 2/6/2015 at
Exhibit 27.
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We agree appellant’s claims regarding guilt phase counsel’s failure to call Dr.
McDonald as a witness and failure to object to the testimony of Dr. Hood based
specifically on a violation of the confrontation clause are waived. However rather than
focusing on waiver in the context of appellant’s direct appeal, we find appellant waived
both claims during the course of his collateral review.
In his amended PCRA petition, appellant claimed guilt phase counsel was
ineffective for failing to file a motion to exclude the testimony of Dr. Hood on the
grounds appellant was deprived of his rights to cross-examination and confrontation.
Appellant’s Amended PCRA Petition, 9/2/2003 at ¶75-85. On remand, after this Court
vacated the erroneous dismissal of his amended PCRA petition, appellant abandoned
this claim and instead argued only that guilt phase counsel was ineffective for failing to
interview and call Dr. McDonald as a witness without referencing a right to
confrontation. Appellant’s PCRA Petition on Remand 2/6/2015 at 52-56. Appellant also
failed to raise the confrontation clause claim in his jurisdictional statement and principal
brief to this Court. Appellant sought to resurrect the claim for the first time in fourteen
years in his reply brief in the current appeal. Appellant’s Reply Brief at 24-27.
Appellant’s failure to preserve this claim results in waiver. See Commonwealth v.
Bracey, 795 A.2d 935, 940 n.5 (Pa. 2001) (appellant prohibited from raising new issues
or remedying an original brief’s deficient discussions in reply brief).20
20 This Court recently decided Commonwealth v. Darnell Brown, 185 A.3d 316 (Pa.
2018), in which we held autopsy reports are testimonial in nature such that the
confrontation clause requires the report’s author be available for cross-examination
before it may be admitted as evidence at trial. Although his briefs in this appeal were
filed after we granted allocatur in Darnell Brown, appellant does not refer to that case in
his arguments. In any event, appellant’s failure to preserve the claim throughout the
PCRA proceedings means our decision in Darnell Brown is immaterial to the disposition
of this case. Furthermore, as appellant makes the claim within the ineffectiveness
rubric, we note “counsel cannot be deemed ineffective for failing to predict changes in
the law.” Commonwealth v. Cousar, 154 A.3d 287, 303 (Pa. 2017).
[J-78-2017] - 37
Moreover, appellant failed to raise the separate claim of counsel’s ineffectiveness
for failing to interview and call Dr. McDonald as a witness in his amended PCRA
petition, raising it for the first time in his PCRA petition on remand filed twelve years
later. As stated in Section VIII supra, this Court’s remand order was limited to the
issues raised in appellant’s amended petition, see Rivera II, 65 A.3d 290, and he was
not entitled to raise new claims following that remand order. See Ali, 10 A.3d 320
(finding claims raised for first time on limited remand unreviewable). As such, this
additional claim is waived and unreviewable.
X. Sufficiency of the Evidence — First-Degree Murder
Appellant argues there was insufficient evidence to convict him of first-degree
murder as there was conflicting evidence from witnesses regarding which defendant
was the shooter and whether the shooting took place inside the vehicle or during a
struggle outside the vehicle. Appellant further argues appellate counsel was ineffective
for failing to challenge the sufficiency of the evidence on direct appeal and the claim has
not been previously litigated because of that failure. The Commonwealth responds by
arguing the issue was previously litigated and not cognizable under the PCRA as this
Court previously conducted a sufficiency review and determined the evidence was
sufficient to convict appellant of first-degree murder. Commonwealth’s Brief at 80, citing
Rivera I, 773 A.2d at 136. The Commonwealth further argues the claim is meritless as
appellant admitted to shooting the victim and the evidence established the victim
suffered multiple gunshots wounds to a vital area of his body. The PCRA court
concluded appellant was not entitled to relief on this issue as the claim was previously
litigated and disposed of by this Court. PCRA Court Op. at 43, citing Rivera I, 773 A.2d
at 136.
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Although our reasoning differs from that of the Commonwealth, we agree this
claim is waived. Similar to his claim regarding the denial of his right to testify, which we
disposed of in in Section VIII, supra, appellant raised a sufficiency of the evidence claim
in his original pro se PCRA petition, see Appellant’s Pro Se Motion for Post-Conviction
Collateral Relief, 5/22/2002 at ¶17, but failed to raise it in his amended PCRA petition.
This claim is therefore waived and unreviewable.
XI. Prosecutorial Misconduct
Appellant claims the prosecutor improperly characterized certain testimony by
witnesses (Lisa Woods and Eric Williams) during closing statements, and this purported
prosecutorial misconduct entitles him to relief. Appellant further contends the
prosecutor improperly relied on matters outside the record and distracted the jury from
deciding the case based on the evidence. Appellant also argues the prosecutor
inflamed the jury and misstated the law by stating an individual who brings a loaded gun
to a robbery is prepared to kill by any means necessary. Appellant’s Brief at 89, citing
N.T. 2/2/98 at 81-83. Appellant insists guilt phase counsel and appellate counsel were
ineffective for failing to raise the issue of prosecutorial misconduct at trial and on direct
appeal.
The Commonwealth first contends this issue is waived as appellant failed to raise
it at trial or on direct appeal. The Commonwealth further argues the misconduct claim is
meritless in any event as the prosecutor simply referred to matters of common human
experience that could be inferred from the evidence. Furthermore, the Commonwealth
contends the prosecutor’s arguments regarding Eric Williams’s testimony squared with
appellant’s admission to committing the shooting. The Commonwealth asserts the
prosecutor’s statement of law regarding bringing a loaded gun to a robbery was correct
[J-78-2017] - 39
and was used to contrast the requisite intent for first-degree murder with that for second
degree murder.
The PCRA court concluded there was no prosecutorial misconduct as to the
statements about the testimony of Lisa Woods and Eric Williams. The court determined
the prosecutor did not state her own personal belief appellant was guilty, but only used
oratorical flair to make characterizations that could be reasonably inferred from the
evidence. PCRA Court Op. at 46. The PCRA court further found the prosecutor’s
argument regarding the loaded gun did not misstate the law but instead properly
distinguished the different degrees of murder.
We agree with the Commonwealth that this claim is waived, albeit for different
reasons. Just as he did with his claims discussed in Sections VIII and X, supra,
appellant raised this prosecutorial misconduct claim in his original pro se PCRA petition,
see Appellant’s Pro Se Motion for Post-Conviction Collateral Relief, 5/22/2002 at ¶16,
but failed to raise it in his amended PCRA petition. Accordingly, appellant’s
prosecutorial misconduct claim is waived and unreviewable.
XII. Cumulative Prejudice
Finally, appellant contends, even if he is not entitled to relief on any particular
claim, he is nevertheless entitled to relief because the cumulative effect of all claimed
errors denied him a fair trial, fair sentencing proceeding, and the heightened procedural
safeguards in capital cases. Appellant argues the PCRA court erred when it held no
individual claim demonstrated deficient performance, and since appellant failed to
overcome his burden on each of the preceding claims, there can be no finding the failed
claims warrant relief in the aggregate. PCRA Court Op. at 49. The Commonwealth
responds by arguing appellant has failed to provide this Court with the required
“specific, reasoned, and legally and factually supported argument” supporting his
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assertion of cumulative prejudice but instead only offers a boilerplate claim that
prejudice from ineffectiveness claims may be evaluated in the aggregate.
Commonwealth’s Brief at 92, citing Commonwealth v. Hutchinson, 25 A.3d 277, 318-19
(Pa. 2011).
This Court has stated on numerous occasions that “no number of failed claims
may collectively warrant relief i[f] they fail to do so individually,” Commonwealth v.
Sepulveda, 55 A.3d 1108, 1150 (Pa. 2012), quoting Rainey, 928 A.2d at 245. However,
this Court has also acknowledged that “‘if multiple instances of deficient performance
are found, the assessment of prejudice properly may be premised upon cumulation.’”
Id., quoting Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). As we have
found the great majority of appellant’s individual claims lack merit, we are satisfied
appellant is not entitled to relief based on cumulative prejudice.
Conclusion
For the foregoing reasons, we hold the PCRA court properly dismissed
appellant's petition for PCRA relief following a hearing limited to one issue. Accordingly,
we affirm the order denying relief.
Chief Justice Saylor and Justices Baer, Donohue and Mundy join the opinion.
Justice Todd and Wecht join the opinion except for Part III.
Justice Wecht files a concurring opinion in which Justice Todd joins.
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