Showers v. Beard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________

No 09-2185

_________

JUDY ANN SHOWERS

v.

JEFFREY BEARD,

Commissioner, Pennsylvania Department of Corrections;

WARDEN MARTIN DRAGOVICH;

NORTHUMBERLAND DISTRICT ATTORNEY,

Appellants

________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-03-cv-02264)

District Judge: Honorable A. Richard Caputo

_______

Argued December 13, 2010

Before: SLOVITER, GREENAWAY, JR., and

STAPLETON, Circuit Judges

(Filed: March 28, 2011)

______

William C. Cole

Office of District Attorney

Sunbury, PA l7801

Amy Zapp (Argued)

Office of Attorney General of Pennsylvania

Harrisburg, PA l7l20

Attorneys for Appellants

Caroline M. Roberto (Argued)

Pittsburgh, PA 15219

Attorney for Appellee

______

OPINION OF THE COURT

______

SLOVITER, Circuit Judge.

Appellants – Pennsylvania Department of Correction

Commissioner Jeffrey Beard, SCI-Muncy Warden Martin

Dragovich, and the Northumberland District Attorney

(hereinafter “Commonwealth”) – appeal the District Court’s

order granting the petition for a writ of habeas corpus sought

by Appellee Judy Ann Showers under 28 U.S.C. § 2254.

I.

On March 23, 1994, a jury convicted Showers of first

degree murder of her husband. Showers was represented by

Michael Rudinski at the trial where it was established that the

cause of her husband’s death was an orally consumed lethal

dose of liquid morphine, otherwise referred to by the brand

name Roxanol.

The Commonwealth argued that Showers

surreptitiously administered the lethal dose. It relied on

circumstantial evidence and the testimony of its expert

witness Dr. Isidore Mihalakis, M.D., a forensic pathologist,

that Roxanol is capable of being masked. The defense argued

that the deceased committed suicide. Showers was sentenced

to life imprisonment without parole.

2

Showers retained William Costopoulos as her

appellate counsel who timely filed a direct appeal to the

Pennsylvania Superior Court. Costopoulos raised several

issues but did not argue that trial counsel was ineffective for

failing to call an expert witness in rebuttal. The Superior

Court affirmed. Commonwealth v. Showers, 681 A.2d 746,

757 (Pa. Super. Ct. 1996) (“Showers I”). 1

Showers retained new counsel, Caroline Roberto, to

file a petition for collateral relief under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541 et seq.

In the petition, Showers claimed for the first time ineffective

assistance of both her trial and appellate counsel. She

asserted that her trial counsel failed to present rebuttal expert

testimony regarding the properties of Roxanol, and that her

appellate counsel was ineffective for failing to raise the same

on direct appeal.

At the evidentiary hearing on the PCRA petition,

Showers presented the testimony of Dr. Cyril Wecht, M.D.,

J.D., then Coroner of Allegheny County, and a nationally

recognized and acclaimed forensic pathologist. Dr. Wecht

testified, to a reasonable degree of medical certainty, that the

lethal dose could not have been administered surreptitiously

or forcefully and that Showers’ husband likely committed

suicide. Dr. Wecht also testified that he would have testified

the same if he had been called as a witness during the jury

trial in 1994.

Showers also presented the testimony of Dr. Harry

Doyle, a psychiatrist retained by the defense at the time of the

trial to investigate the state of mind of Showers’ husband. Dr.

Doyle determined that the central question was whether the

morphine was taken voluntarily or surreptitiously, but did not

1

The Pennsylvania Supreme Court denied a petition for

allowance of appeal. Commonwealth v. Showers, 685 A.2d

544 (Pa. 1996). The United States Supreme Court denied a

petition for writ of certiorari. Showers v. Pennsylvania, 520

U.S. 1213 (1997).

3

have the necessary scientific background to testify regarding

the properties of Roxanol. He therefore advised Rudinski to

secure a qualified expert to address the impossibility of

disguising Roxanol, and provided him with contact

information for three potential witnesses. Rudinski did not

contact any of those experts.

At the PCRA hearing, Rudinski testified that he

believed that Helen Wolfe, a lay witness friend, would be the

most reliable witness regarding whether Roxanol can be

disguised. 2 Rudinski testified that he did not cross-examine

Dr. Mihalakis about the absence of a masking substance

because he “recall[ed]” that there was some other type of

fluid found in the deceased’s stomach. App. at 250.

Rudinski explained that he did not ask Dr. Mihalakis

additional questions regarding the lack of any evidence of

force because it “can be very dangerous” to ask questions for

which “you don’t know all of the answers.” App. at 251.

Costopoulos, Showers’ appellate counsel, testified that

he relied solely on the record, and did not conduct an

independent investigation to determine whether to pursue the

issue of the failure of trial counsel to call a contrary expert.

App. at 273. Significantly, he stated that “if [he] had to do it

over again, having lost on direct appeal with the issues [he]

2

Wolfe, who was a friend of the deceased as well as a

cancer patient, had been prescribed Roxanol. She testified

that there is no way to mask the taste of Roxanol. She also

testified that the deceased had administered Roxanol to her

and had asked pharmacists about how to administer it

properly. Wolfe testified that the deceased knew “more about

liquid Roxanol” than she did even though she was a nurse.

App. at 22. The dissenting Superior Court judge suggested

that Wolfe was biased and unknowledgeable. Commonwealth

v. Showers, 782 A.2d 1010, 1024 (Pa. Super. Ct. 2001)

(Tamilia, J., dissenting). There was evidence that Wolfe

previously had an affair with the deceased and Wolfe’s sister

was having an affair with him at the time of his death.

Showers v. Beard, 586 F. Supp. 2d 310, 313 (M.D. Pa. 2008).

4

had raised, [he] absolutely would have raised [trial counsel’s

failure to call an expert on rebuttal].” App. at 274.

The court denied the PCRA petition, finding that

Rudinski had made diligent efforts to locate an expert witness

and that he vigorously cross-examined Dr. Mihalakis.

Showers appealed to the Pennsylvania Superior Court. A

two-judge majority of the Superior Court affirmed the PCRA

judgment. With respect to Showers’ argument regarding the

failure to call an expert witness, the Superior Court found that

Rudinski adequately addressed the issue in his cross-

examination of Dr. Mihalakis and in his closing argument.

Commonwealth v. Showers, 782 A.2d 1010, 1021 (Pa. Super.

Ct. 2001) (“Showers II”). With respect to appellate counsel,

the Superior Court found that “[b]ased upon [] Costopoulos’

articulation of reasons for not raising certain issues [on

appeal],” Showers did not meet her burden of proof “to show

that his course of action did not have a rational, strategic, or

tactical basis.” Id. at 1019 (quotation omitted). One member

of the Superior Court panel filed a vigorous dissent. Id. at

1023-24 (Tamilia, J., dissenting). 3

Showers timely filed the instant petition for writ of

habeas corpus under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) seeking a new trial. Showers alleges

that her trial counsel failed to present rebuttal expert

testimony from an available forensic pathologist, and

appellate counsel failed to preserve the issue. The District

Court granted Showers’ petition on this ground. Showers v.

Beard, 586 F. Supp. 2d 310 (M.D. Pa. 2008) (“Showers III”).

The Commonwealth’s appeal followed.

II.

The District Court exercised jurisdiction pursuant to 28

U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. §§

1291 and 2253. Our review of the District Court’s decision is

3

The Pennsylvania Supreme Court denied Showers’

petition for allowance of appeal. Commonwealth v. Showers,

814 A.2d 677 (Pa. 2002).

5

plenary. See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.

2010). Under AEDPA, where, as here, a habeas petitioner’s

claims were adjudicated on the merits in state court, our

review is limited to determining whether the state court

decision was contrary to or involved an unreasonable

application of Supreme Court precedent or an unreasonable

determination of the facts in light of the evidence presented in

the state court. See 28 U.S.C. § 2254(d). Our review is

“doubly deferential:” the state court was obligated to conduct

deferential review of counsel’s performance and we must

give deference to the state court rulings under AEDPA.

Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).

As a preliminary matter, we reject the

Commonwealth’s objections to our consideration of this

appeal. We conclude that Showers preserved the instant

claims and the Commonwealth has waived its procedural

default argument, raising this issue for the first time after over

a decade of post conviction litigation. 4 See Trest v. Cain, 522

U.S. 87, 89 (1997) (in habeas context, procedural default is

normally a defense the Commonwealth is obligated to raise).

Showers properly layered her claims in the collateral

proceedings. 5 Under Pennsylvania law, where ineffectiveness

claims are properly layered, there is no waiver and no

procedural default. Siehl v. Grace, 561 F.3d 189, 193-94 n.3

(3d Cir. 2009) (If the claims as to trial counsel have merit, a

4

The PCRA court and the Superior Court addressed the

ineffectiveness claims against both trial and appellate counsel

on the merits.

5

Prior to Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002), which held ineffectiveness claims should be raised

collaterally, “defendants were required to raise all claims

alleging ineffective assistance at the first stage at which they

were represented by new counsel.” Commonwealth v.

Fletcher, 986 A.2d 759, 773 n.16 (Pa. 2009). The change in

law effected by Grant does not apply retroactively to

Showers. See Commonwealth v. Bethea, 828 A.2d 1066,

1070 n.2 (Pa. 2003).

6

similar determination will likely be made regarding claims as

to appellate counsel, “in which event there would be no

waiver under Pennsylvania’s layering of ineffective

assistance line of cases,” and “no procedural default by virtue

of the doctrine of cause and prejudice.”) (quotation omitted).

As a result, in reviewing the Superior Court’s decision, the

District Court properly evaluated trial counsel’s performance

on the merits as a necessary predicate for evaluating appellate

counsel’s performance. See Commonwealth v. Rush, 838

A.2d 651, 656 (Pa. 2003) (“[W]hen a court is faced with a

‘layered’ claim of ineffective assistance of counsel, the only

viable ineffectiveness claim is that related to the most recent

counsel, appellate counsel.”). We thus turn to the merits.

Coincidentally, shortly after this case was argued

before this court, the Supreme Court issued an opinion in a

case where a petitioner convicted of murder in a state court

sought a writ of habeas corpus on the ground of ineffective

assistance. Because of what may appear to be facial

similarity between that decision, Harrington v. Richter, 131

S. Ct. 770 (2011), and the one before us, we asked the parties

to file supplemental memoranda regarding the effect of that

decision on the issues in this case.

Richter was convicted of the murder of Klein largely

on the testimony of Johnson, a drug dealer with whom

Richter and Klein had been smoking marijuana on the day at

issue. Johnson testified that he and Klein were shot by

Richter and Branscombe in Johnson’s apartment. Richter,

131 S. Ct. at 781-82. Richter’s defense attorney sought to

show that Klein was shot in the bedroom doorway but the

prosecution introduced expert testimony based on Klein’s

blood pattern that Klein was shot near the living room couch.

Although Richter’s attorney called seven witnesses, the jury

found Richter guilty. Id. at 782. The California Supreme

Court rejected Richter’s Strickland claims by summary

denial, and the District Court agreed. Id. at 783. The Ninth

Circuit reversed by a divided en banc vote, holding the

California decision was unreasonable because Richter’s trial

counsel was deficient for failing to consult experts on blood

evidence. The Supreme Court granted certiorari and reversed

7

the decision of the Ninth Circuit, holding the Court of

Appeals erred in finding that Richter’s attorney was deficient

under the standard established in Strickland v. Washington,

466 U.S. 668 (1984), for evaluating ineffective assistance of

counsel claims. 6

In the response of Showers’ attorney to this court’s

request for comment, she stated that habeas review “remains

robust [as] evidenced by the many cases in which the

Supreme Court has granted relief because a state court

adjudication of a meritorious constitutional claim was

‘unreasonable’ or ‘contrary to’ Supreme Court precedent, or

was based upon an unreasonable factual determination.” 7

In Richter, the Supreme Court stated “[t]he pivotal

question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below

6

First, a petitioner “must show that counsel’s performance

was deficient” in that it fell below an objective standard of

reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 687. Second, a petitioner must show

that the deficiency prejudiced the defense. Id. at 694

(prejudice, if reasonable probability that, but for counsel’s

errors, result “would have been different”). See also Werts v.

Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (Pennsylvania

standard judging ineffectiveness claims is identical to the

Strickland standard).

7

She noted the recent decisions in Sears v. Upton, 130 S.

Ct. 3259, 3261 (2010) (granting relief because state court

misapplied Strickland prejudice standard); Porter v.

McCollum, 130 S. Ct. 447, 448 (2009) (awarding habeas

relief because state court’s determination that petitioner did

not suffer Strickland prejudice “unreasonable”); Miller-El v.

Dretke, 545 U.S. 231, 235 (2005) (granting habeas relief

under AEDPA); Rompilla v. Beard, 545 U.S. 374, 393 (2005)

(same); Wiggins v. Smith, 539 U.S. 510, 538 (2003) (same);

Williams v. Taylor, 529 U.S. 362, 367 (2000) (same).

8

Strickland’s standard.” 131 S. Ct. at 785. The Court then

proceeded to explain “that habeas corpus is a guard against

extreme malfunctions in the state criminal justice systems, not

a substitute for ordinary error correction through appeal.” Id.

at 786 (quotation omitted). The Court noted that even under

de novo review the standard for judging counsel’s

representation is a most deferential one; the question is

whether an attorney’s representation amounted to

incompetence under “prevailing professional norms.” Id. at

788 (quoting Strickland, 466 U.S. at 690).

The Richter Court held that in a habeas proceeding

whether a state court is “within the bounds of a reasonable

judicial determination . . . to conclude that defense counsel

follow a strategy that did not require the use of experts”

depends on the specific circumstances of the case. Id. at 789.

Based on the facts in Richter, the Supreme Court concluded

that it was reasonable for the state court to find that Richter’s

defense counsel was not ineffective for failing to consult

forensic blood experts or introduce expert evidence. Id. at

789-90. In discussing the circumstances, the Supreme Court

stated that the potentially exculpatory forensic evidence was

not apparent at the time of the trial. Id. at 789 (Strickland and

AEDPA prevent “[r]eliance on the harsh light of hindsight to

cast doubt on a trial that took place now more than 15 years

ago.”) (quotation omitted). Further, the Supreme Court

reasoned that even if expert testimony had been available,

defense counsel was entitled not to use it because there was a

“serious risk” that it could have “destroy[ed]” the defendant’s

case and distracted the jury from assessing the credibility of

the defendant’s testimony. Id. at 790. The Court concluded

that counsel in Richter put on a thorough defense, vigorously

cross-examined the prosecution’s expert, and called seven

witnesses, including the defendant himself. Id. at 782, 791.

The facts in Richter were radically different from the

facts and circumstances here. The dissenting judge in the

Pennsylvania Superior Court stated that “[t]he defining issue

in this matter is whether the victim, who according to the

Commonwealth’s theory unknowingly ingested a toxic

substance, Roxanol (liquid morphine), would have or could

9

have done so without any evidence that the drug’s acute

bitterness was masked so as to conceal its presence.”

Showers II, 782 A.2d at 1023 (Tamilia, J., dissenting). The

properties of Roxanol and the autopsy results were known

well before the trial. If Roxanol could not be masked by

another substance, the only plausible explanation for the

manner of death would have been willing, self-administration.

The Commonwealth’s evidence in the case against Showers,

other than expert testimony regarding the properties of liquid

morphine, was wholly circumstantial, making scientific

evidence all the more important. See Duncan v. Ornoski, 528

F.3d 1222, 1235 (9th Cir. 2008) (“It is especially important

for counsel to seek the advice of an expert when he has no

knowledge or expertise about the field.”). Dr. Doyle

provided Showers’ counsel with the names of three experts

but counsel failed to consult even one of the three experts that

Dr. Doyle had already suggested would have supported the

defense’s suicide theory.

The Superior Court rejected Showers’ claim that

Rudinski, Showers’ defense counsel, was deficient because

his cross-examination of the Commonwealth’s expert

effectively elicited testimony helpful to the defense. Showers

II, 782 A.2d at 1021. The District Court concluded that the

Superior Court’s decision was unreasonable. After Dr. Doyle

told Rudinski that he was not qualified to testify to the crucial

properties of Roxanol, “it was incumbent upon Attorney

Rudinski to produce” an expert who could so testify.

Showers III, 586 F. Supp. 2d at 329. The record reflects

“little meaningful effort” on Rudinski’s part to do so. Id.

Although Rudinski elicited testimony from Dr.

Mihalakis, the prosecutor’s expert, that he had only tasted two

drops of Roxanol for the purpose of the litigation and never

tried the substance in a masking agent, this testimony was not

nearly as strong as that which could have been provided by an

expert, such as Dr. Wecht. 8 Rudinski relied on the testimony

8

Questions posed by counsel themselves do not constitute

evidence that can be considered by the jury and the trial court

instructed the jury in this regard. See Pa. SSJI (Crim), §2.07

10

of Wolfe, who was hardly an expert on Roxanol. Indeed,

Rudinski stated in his closing that Wolfe had only tried the

drug once in a masking agent. 9 Her lack of expertise was

further undermined by her suspect credibility. See supra note

2.

Rudinski failed to establish key facts that could have

led a jury to find that Showers’ husband voluntarily

consumed the morphine. Most importantly, the defense failed

to establish that a large dose of Roxanol cannot be masked

without a large amount of liquid or food, if at all, and that no

such substance was found in the deceased’s stomach.

Rudinski’s failure to adequately question Dr. Mihalakis was

based on Rudinski’s flawed understanding of the facts. At the

PCRA hearing, Rudinski testified that he did not ask follow-

up questions regarding the masking agent because he believed

that the autopsy revealed some other type of fluid in the

deceased’s stomach. There was no such evidence. See App.

at 204-05. He likewise did not follow up on the lack of

evidence of force because he feared asking questions for

which he did not know the answers. This court agrees that it

may be risky for an attorney to ask questions for which he

believes the answer may be harmful. However, it is no

excuse for failing to elicit significant evidence when the risk

of an adverse response has been created by counsel’s failure

to conduct a thorough investigation or understand key,

undisputed facts in the record. See Couch v. Booker, 632

F.3d 241, 246 (6th Cir. 2011) (“To make a reasoned judgment

(2005) (“The questions that counsel put to the witnesses are

not evidence.”). To the extent the Superior Court reviewing

the PCRA petition relied on the questions themselves in

making this determination, such reliance is unreasonable.

9

At the PCRA hearing, Rudinski testified that Wolfe took

the drug on a daily basis to bolster his decision to rely on her

testimony in lieu of an expert. However, this contradicts

Rudinski’s minimization of Wolfe’s exposure to Roxanol in

his closing statement to the jury.

11

about whether evidence is worth presenting, one must know

what it says.”).

Although Rudinski did prepare and present some

evidence favorable to Showers at her trial, it was not

outweighed by his serious omissions. Rudinski failed to

investigate readily available key evidence in support of the

defense’s chosen theory, i.e., that Showers’ husband

committed suicide, or make a reasonable decision that

investigation was unnecessary. See Strickland, 466 U.S. at

691 (“counsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary”). See also Porter v. McCollum,

130 S. Ct. 447, 449 (2009) (penalty phase representation

found deficient where counsel “told the jury that [defendant] .

. . was not mentally healthy” but failed to investigate or

present readily available evidence which would have proven

this very fact) (quotation omitted); Rompilla v. Beard, 545

U.S. 374, 387 (2005) (attorney has duty to investigate all

avenues leading to facts relevant to the merits); Couch, 632

F.3d at 246 (state court unreasonably rejected habeas

petitioner’s argument that counsel should have investigated

causation defense where counsel ignored readily available

evidence); Dugas v. Coplan, 428 F.3d 317, 329 (1st Cir.

2005) (representation found deficient where counsel failed to

investigate “not arson” defense and seek expert assistance or

educate himself on techniques of defending arson).

Although “[e]ven the best criminal defense attorneys

would not defend a particular client in the same way,”

Strickland, 466 U.S. at 689, even the most minimally

competent attorney here would have consulted at least one of

the experts suggested to him by Dr. Doyle. Testimony by any

of the available experts would have injected significant doubt

regarding Showers’ guilt. Reliance on Wolfe was not

objectively reasonable.

This court and others have overturned a state court on

habeas review based on deficient performance even where

experts had been consulted but defense counsel failed to seek

a second opinion when the facts so warranted. See, e.g.,

12

Hummel v. Rosemeyer, 564 F.3d 290, 302 (3d Cir. 2009)

(defense counsel’s failure to obtain additional psychiatric

evaluation of defendant’s mental capacity to stand trial

deficient because previous evaluations were equivocal and

client’s behavior would have put competent counsel on

notice); Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir.

2007) (“[T]he mere hiring of an expert is meaningless if

counsel does not consult with that expert to make an informed

decision about whether a particular defense is viable.”).

We do not hold that defense attorneys must always

enlist expert testimony but it depends on the specific

circumstances of the case. The 1989 American Bar

Association (“ABA”) Guideline for Appointment and

Performance of Counsel in Death Penalty Cases, which is

informative, albeit not dispositive, calls for retention of expert

witnesses when necessary or appropriate for preparation of

the defense, adequate understanding of the prosecution’s case

and rebuttal of any portion of the prosecution’s case at the

guilt/innocence phase. § 11.4.1(D)(7). The District Court

held that the 1989 Guideline is relevant for evaluating

prevailing norms and provides added support for its

conclusion that Rudinski provided deficient performance and

that the Superior Court’s contrary conclusion was

unreasonable. 10 See Hummel, 564 F.3d at 297 (“The [ABA]

standards are guides, but only guides, to what is

reasonable.”). We agree.

In the words of Judge Tamilia, the dissenting member

of the Pennsylvania Superior Court: “[R]ebuttal testimony by

10

The Supreme Court case cited by the Commonwealth for

the proposition that ABA standards “do not have any special

relevance for assessing attorney performance” is inapposite.

Appellant’s Br. at 30 (citing Bobby v. Van Hook, 130 S. Ct.

13, 20 (2009) (Alito, J., concurring)). In that case, the court

of appeals used the wrong ABA standards, those from

eighteen years after the defendant’s trial, so the Court merely

found that those standards did not speak to the current

prevailing norms, not that the then effective standards would

not be relevant.

13

an independent, credible expert witness was necessary to

present to the jury the sharp, crucial contrast between

voluntary and involuntary ingestion of a bitter toxic

substance, the single most critical element in this case, as well

as evidence or lack thereof relating to refluxation,” such

testimony was indisputably available, and it “would have

been far more convincing to the jury than that of a lay witness

friend.” Showers II, 782 A.2d at 1023-24 (Tamilia, J.,

dissenting). Judge Tamilia continued, “Such inaction by

counsel caused appellant irreparable harm, exemplifies

ineffectiveness and cannot be excused.” Id. at 1024.

With respect to the second prong of the Strickland

ineffectiveness inquiry, the Superior Court found that

Rudinski’s closing argument sufficiently exploited gaps in the

Commonwealth’s evidence to overcome a finding of

prejudice. Id. at 1021. The Court rested its conclusion on the

belief that because the autopsy showed no masking agents in

the deceased’s stomach (even if Roxanol could be masked), a

second expert would not have added anything and Rudinski

could have made the same closing arguments. This

conclusion is unreasonable and misreads the record.

It is established that closing arguments are not to be

considered evidence and the jury in this case was repeatedly

so instructed. See Pa. SSJI (Crim), §7.03 (2005) (“The

speeches of counsel are not part of the evidence, and you

should not consider them as such.”). Moreover, as the

District Court found, Rudinski’s closing “simply posed a

number of questions to the jury” failing to establish crucial

links. Showers III, 586 F. Supp. 2d at 329. An expert such as

Dr. Wecht would have testified to the amount of the masking

agent necessary to disguise such a large dose of morphine,

time of absorption, and analyzed the autopsy results

accordingly. As found by the District Court and the

dissenting member of the Superior Court, rebuttal testimony

from a credible, objective expert witness such as Dr. Wecht

would have cast serious doubt on the prosecution’s case and

there is a reasonable probability the outcome would have

been different. It was unreasonable for the Superior Court

majority to hold otherwise.

14

We also agree with the District Court that because the

underlying claim of trial counsel’s ineffectiveness has merit,

“there is a reasonable probability that Showers’ direct appeal

would have been successful had appellate counsel adequately

raised the issue.” Id. at 331. As the District Court concluded,

Rudinski’s failure to raise the issue was “unreasonable and

did prejudice the defense.” Id.

The Superior Court determined that counsel made a

tactical decision not to include all of the arguments on appeal.

This court agrees that counsel need not, and should not, raise

every non-frivolous claim but rather may select among them

in order to maximize the likelihood of success on appeal.

Smith v. Robbins, 528 U.S. 259, 288 (2000). Here, however,

without conducting an independent investigation of the need

to consult an expert rebuttal witness, counsel ignored an

argument going directly to the issue of guilt that is “clearly

stronger than those presented.” Id. (quotation omitted). For

example, appellate counsel included an argument challenging

the sufficiency of the evidence, which rarely prevails. See,

e.g., United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.

2008). The fact that counsel had a reason for exclusion, the

desire not to “shotgun” the appellate court, does not excuse

his performance. App. at 273.

The Commonwealth provides no argument that

appellate counsel was not ineffective except insofar as it

rejects the claim that trial counsel was ineffective. We agree

with Showers that the Commonwealth has all but conceded

the point. Thus, we conclude that the Superior Court’s

decision here is contrary to and an unreasonable application

of clearly established federal law.

III.

15

Accordingly, we will affirm the judgment of the

District Court granting habeas relief in the form of a new

trial. 11

11

In light of our judgment, we will deny as moot Showers’

alternative request that we remand to the District Court for

the determination of her remaining habeas claims.

16