concurring.
I concur in the result and write to Appellant’s issues 9, 11, and 13.
Claim 9 — asserted Bruton violation — I agree with the majority that Appellant’s claim under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), was previously litigated. I also believe that the statutory previous litigation doctrine constitutes a reasonable limitation in relation to state habeas corpus jurisprudence. For these reasons, I am constrained to abide by the Court’s prior ruling on this issue.
Claim 11 — asserted ineffective assistance of counsel for failing to object to testimony of the Commonwealth’s forensic pathologist — I disagree with the majority’s reasoning concerning Appellant’s claim of ineffective assistance of trial counsel based on his failure to object to certain opinion testimony from the Commonwealth’s forensic pathologist, Dr. Mihalakis. In particular, my difference with the majority relates to Dr. Mihalakis’s opinion, predicated on the position of spent firearm shell casings, as to Appellant’s location at the time that he shot the victim. The majority acknowledges that Appellant’s claim in this regard may have arguable merit (as the testimony was outside the area of expertise for which Dr. Mihalakis was qualified), but reasons that counsel pin-sued a reasonable strategy in acceding to the admission of the evidence, since Appellant’s location at the time of the killing was irrelevant to the defense strategy. This conclusion, however, does not comport with the trial l-ecord. *659Appellant offered no testimony or evidence in his own defense at the guilt phase of trial. Rather, as reflected in trial counsel’s closing statement, his defense was predicated largely on a statement that he had given to police after the killing in which he admitted his involvement, but claimed to have acted under compulsion from his brother, Mark Marinelli. See N.T., May 8-19, 1995, at 744-54 (defense counsel guilt phase closing speech). Specifically, Appellant claimed that he and his brother were standing inside the doorway of a particular bedroom on the upper floor of the victim’s house when: Mark Marinelli instructed Appellant to kill the victim; Appellant refused; Mark Marinelli produced a gun, pointed it at Appellant, and threatened to kill him if he did not comply; and Appellant, feeling threatened, walked from the bedroom to a position approximately five feet from the victim and fired the fatal shots. See N.T., May 8-19, 1995, at 633-86. Counsel also relied upon Appellant’s statement as a basis for suggesting that the victim may already have been dead at the time Appellant shot him. See id. at 751-51. The aim of the defense was for the jury to credit this statement (or at least for a reasonable doubt to arise by its account), thereby militating against a finding of the culpability necessary to support a verdict of first-degree murder.
In anticipation of such strategy, the Commonwealth offered, inter alia, the testimony, quoted by the majority, in which Dr. Mihalakis opined, based upon the position of spent shell casings, that Appellant had been in the hallway where the victim was killed in a different physical position (on the other side of and closer to the victim) than Appellant related in his statement to police. See Majority Opinion, at 1268. The intent and effect of this testimony was to undermine Appellant’s statement and, correspondingly, the foundation for his defense. See N.T., May 8-19, 1995, at 831 (prosecutor’s guilt-phase closing) (arguing, in rebuttal to Appellant’s version of events, “[a]nd there is no explanation whatsoever [under Appellant’s theory of the case] why the casing should be over here[;] Dr. Mihalakis says you can’t believe thatL;][t]hat is impossible”). While trial counsel may have suggested in the *660post-conviction proceedings that Dr. Mihalakis’ testimony was consistent with the defense theory of the case, he obviously was of a different mind as of trial, when he argued:
Spent cartridges, again, consistent with Kevin Marinelli’s statement; but make absolutely no sense in the Commonwealth’s theory of this case, that the spent cartridges are out in the hallway, and Kevin Marinelli says he was in the bedroom. ■
Again, the spent cartridges; if the person was out in the hallway, was firing a semiautomatic gun that ejects automatically from the right, how does a spent cartridge get on this side of the body under the body? It can’t. It had to have happened as Kevin Marinelli said.
N.T., May 8-19, 1995, at 747 (defense counsel guilt-phase closing) (emphasis added). The majority is correct that the defense strategy was to “mitigate [Appellant’s] involvement” in the killing; however, it misses the point that Dr. Mihalakis’s opinion was offered precisely to establish the aggravated degree of Appellant’s participation. I therefore cannot agree with the majority’s reasonable strategy assessment.
I would hold, however, that Appellant has failed to establish the necessary prejudice regarding this claim, since Dr. Mihalakis’s stray opinion testimony was sufficiently cumulative of substantial, properly admitted evidence. For example, testimony concerning Appellant’s proximity to the victim at the time of the killing based on an examination of one of the gunshot wounds substantially undermined Appellant’s version of the encounter, see, e.g., N.T., May 8-19, 1995, at 184 (direct examination of Dr. Mihalakis) (describing a wound to the victim’s head as “near contact”), as did other evidence. Thus, while a closer question might be presented, in my mind, had this claim arisen as one entailing trial error subject to harmless error review, I agree with the majority’s ultimate conclusion that no relief is due at the post-conviction stage.
Additionally, in rejecting Appellant’s claim of ineffective assistance of counsel for failing to produce a defense expert to *661rebut Dr. Mihalakis, the majority relies on the same conclusion that the defense theory of the case at trial was consistent with the Commonwealth’s expert evidence. I therefore disagree with the majority’s (and the PCRA court’s) finding of reasonable basis in relation to this claim for the reasons stated above. Again, while trial counsel attempted to reconcile the physical evidence with his theory of the case, it cannot reasonably be disputed that Dr. Mihalakis’s conclusions concerning the import of the physical evidence were antagonistic to the defense. Further, the defense strategy in the attempt to reconcile the Commonwealth’s evidence with Appellant’s own self-inculpatory statement, characterized by shifting and spreading of blame and rendered out of the presence of the jury, was a weak one, particularly in light of the inherent unreliability of such statements. Finally, I disagree with the majority that defense counsel’s re-elicitation of a Commonwealth witness’s direct testimony constitutes such effective cross-examination as would obviate the call for contrary defense evidence. See Majority Opinion at 1270 (quoting cross-examination of Dr. Mihalakis).
Nevertheless, regardless of the appropriate decision concerning the reasonable strategy prong of the ineffectiveness test, I would find no relief due on the prejudice prong of the inquiry. The expert testimony offered by Appellant at the PCRA hearing, if believed, might bring into question the scientific validity of particular conclusions by Dr. Mihalakis, see N.T., Jan. 27, 2000, at 439-49, thus fostering some potential for doubt concerning the weight that should be accorded those specific opinions. But, since it does nothing to affirmatively support Appellant’s theory of the case, which was presented to the jury only indirectly (via Appellant’s statement to police as related during the Commonwealth’s case) and in argument and was contradicted by other evidence not addressed by Appellant’s post-conviction expert, it is not sufficient, in my view, to create the requisite controversy regarding the reliability of the verdict to support an award of post-conviction relief.
*662Claim 13 — asserted ineffective assistance of counsel in the penalty phase — I have previously expressed my view that, in the performance of their obligation to conduct a reasonable penalty-phase investigation, counsel in capital litigation faced with a recalcitrant client should not merely appear at the penalty proceeding and present little or no evidence, but rather, should bring the matter to the attention of the common pleas court at the earliest opportunity to enlist the court’s direction and assistance. See Commonwealth v. Michael, 562 Pa. 356, 375-78 & n. 1, 755 A.2d 1274, 1284-86 & n. 1 (2001) (Saylor, J., dissenting). A majority of the Court, however, has deemed the failure to do so an insufficient ground to support an award of post-conviction relief. See, e.g., id.