Commonwealth v. Bomar, A., Aplt

[J-46-2013]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 659 CAP

:

Appellee : Appeal from the Order entered on March

: 28, 2012 in the Court of Common Pleas of

: Delaware County, Criminal Division, at No.

v. : CP-23-CR-0005045-1997

:

: SUBMITTED: April 29, 2013

ARTHUR BOMAR, :

:

Appellant :

OPINION

MADAME JUSTICE TODD DECIDED: November 21, 2014

In this capital case, Appellant Arthur Bomar appeals the order of the Court of

Common Pleas of Delaware County denying his petition for relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. For the reasons that follow,

we affirm the order of the PCRA court.

I. Background

The facts underlying Appellant’s conviction and death sentence have been set

forth at length by this Court in Appellant’s direct capital appeal. Commonwealth v.

Bomar, 826 A.2d 831 (Pa. 2003) (“Bomar I”). A brief recitation of the facts is necessary,

however, to provide context for Appellant’s collateral challenge to his conviction and

sentence in the instant appeal.

The evidence adduced at trial, and summarized in Bomar I, established that, on

the night of June 19, 1996, 22-year-old Aimee Willard (“the victim”) was socializing with

several of her friends at a bar located on Lancaster Avenue in Wayne, Pennsylvania.

The victim left the bar alone at approximately 1:25 a.m. the following morning, and her

blue Honda Civic was discovered shortly thereafter on the southbound off-ramp of the

Springfield-Lima exit of Interstate 476 in Delaware County at approximately 2:00 a.m.

No one was found inside the vehicle, but the driver’s side door was open, the engine was

running, and the interior lights and headlights were still on. A pool of blood was

discovered in front of the vehicle, along with a tire iron, the victim’s sneakers, and a pair of

womens’ underwear lined with a sanitary pad containing pubic hairs matching those of

the victim.

Later that day, the victim’s naked body was found face down in a vacant lot at 16th

Street and Indiana Avenue in Philadelphia, with two plastic bags covering her head and a

tree branch forced into her vagina. The victim sustained multiple blunt force injuries to

her head, brain, and face, as well as various other contusions, fractures, and defensive

wounds throughout her body. An intact, degenerate sperm was also recovered from the

victim’s vaginal cavity, and tire impressions were obtained from the scene.

The victim’s murder remained unsolved for nearly a year, until June 5, 1997, when

Appellant was arrested on an outstanding warrant for a parole violation from a prior

second-degree murder conviction in Las Vegas, Nevada. Following his arrest,

investigators questioned Appellant regarding the victim’s murder, and he stated, inter

alia, that he had been at the same bar as the victim on the night of her murder; that he

drove a 1993 Ford Escort until March 1997 (the tires of which were later determined to

match tire impressions taken from the murder scene); and that he routinely traveled on

Interstate 476.

On July 10, 1997, Appellant’s then-girlfriend, Mary Rumer, reported to state police

that Appellant confessed to her that he murdered the victim, stating that Appellant told her

[J-46-2013] - 2

that he watched the victim leave the bar and get into her car, and followed her in his car,

until he stopped her on Interstate 476, flashing a fake police badge. Rumer recounted

that Appellant told her that, after he approached the vehicle, he knocked the victim

unconscious, placed her in his car, and drove her to an abandoned building, where he

removed the victim’s clothes and hit her in the head with a hard object, killing her.

Appellant also admitted to Rumer that he raped the victim, and he later showed Rumer

the location on Interstate 476 where the victim’s car had been abandoned, as well as the

vacant lot where the victim’s body was found.

Forensic evidence taken from Appellant’s vehicle and the crime scene

corroborated Rumer’s story and further linked Appellant to the murder. Specifically,

blood was recovered from the right front door panel of Appellant’s Ford Escort, which

matched the victim’s DNA; the oil pan from the vehicle matched the pattern of a contusion

on the right side of the victim’s body; and, as noted, the tires on Appellant’s vehicle were

consistent with the tire patterns taken from the murder scene. DNA testing also

established that Appellant’s DNA profile matched the sperm recovered from the victim’s

vagina.

Additionally, while police were investigating Appellant’s involvement in the murder,

David O’Donald, Appellant’s ex-brother in law, who was incarcerated in federal prison for

unrelated offenses, offered to assist police with their investigation. Police transferred

O’Donald to the Montgomery County Correctional Facility, where Appellant was held, for

two weeks in July 1997, and placed him on Appellant’s cellblock to serve as a listening

post. On July 17, Appellant made several incriminating statements to O’Donald,

including, inter alia, “we did whatever we wanted with her, she did whatever we told, and

when we were done, I almost took her head off, and we crammed a tree branch up her

cunt.” Id. at 842. Quincy Jamal Williams, another inmate incarcerated with Appellant in

[J-46-2013] - 3

Montgomery County, also reported to police that Appellant confessed to murdering the

victim.

Appellant was subsequently charged with first-degree murder, rape, aggravated

assault, kidnapping, and abuse of a corpse. The case proceeded to a jury trial before the

Honorable Frank T. Hazel of the Court of Common Pleas of Delaware County,1 and, on

October 1, 1998, Appellant was convicted of the aforementioned offenses. At the

conclusion of the penalty hearing, the jury found three aggravating circumstances — the

killing was committed in the perpetration of a felony,2 Appellant had a significant history

of felony convictions involving the use or threat of violence to the person,3 and Appellant

had been convicted of another murder committed before or at the time of the offense at

issue. 4 The jury also found one mitigating circumstance — the “catchall” mitigator

concerning Appellant’s character and record. 5 After concluding the aggravating

circumstances outweighed the mitigating circumstance, the jury returned a sentence of

death. The trial court imposed the death sentence on December 4, 1998, and, after

deeming Appellant a high-risk dangerous offender pursuant to 42 Pa.C.S.A.

§ 9714(a)(1),6 sentenced Appellant to consecutive terms of 10 to 20 years incarceration

1 Although the trial took place in Delaware County, upon Appellant’s motion for change of

venire, the jury was selected from Westmoreland County.

2 42 Pa.C.S.A. § 9711(d)(6).

3 42 Pa.C.S.A. § 9711(d)(9).

4 42 Pa.C.S.A. § 9711(d)(11).

5 42 Pa.C.S.A. § 9711(e)(8).

6 At the time of Appellant’s sentencing, 42 Pa.C.S.A. § 9714(a)(1) provided that:

Any person who is convicted in any court of this

Commonwealth of a crime of violence shall, if at the time of

the commission of the current offense the person had

previously been convicted of a crime of violence, and has not

rebutted the presumption of high risk dangerous offender . . .

be sentenced to a minimum sentence of at least ten years of

(continuedJ)

[J-46-2013] - 4

on both the rape and kidnapping convictions, as well as a consecutive term of one to two

years on the abuse of a corpse conviction.

Following sentencing, a somewhat complicated procedural history ensued.

Specifically, trial counsel withdrew from the case, and Steven C. Leach, Esquire, entered

his appearance. Thereafter, on January 13, 1999, Appellant filed post-sentence motions

raising, inter alia, four claims of ineffective assistance of trial counsel.7 The trial court

held hearings on the post-sentence motions on March 4, 1999 and April 20, 1999, and

ultimately denied post-sentence relief, concluding in a written opinion that the claims

lacked merit. Appellant subsequently appealed his judgment of sentence. On May 30,

2003, this Court affirmed Appellant’s judgment of sentence of death, vacated Appellant’s

judgment of sentence for his remaining offenses, and remanded for resentencing in light

of our decision in Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000) (holding 42

Pa.C.S.A. § 9714(a)(1) violated procedural due process rights by placing the burden on

the defendant to rebut the presumption that he is a high risk dangerous offender).

Bomar I, 826 A.2d at 862.

Appellant then filed a timely pro se PCRA petition on January 20, 2004, which he

styled as “Defendant’s Motion to Support For Preserved Newly Discovered Evidence

Through A PCRA Petition.” On April 1, 2004, Appellant was resentenced on his

(Jcontinued)

total confinement, notwithstanding any other provision of this

title or other statute to the contrary.

42 Pa.C.S.A. § 9714(a)(1). Section 9714(a)(1) was later amended, removing the “high

risk dangerous offender” presumption and, instead, imposing an automatic ten-year

minimum term of incarceration.

7 Specifically, Appellant asserted trial counsel was ineffective for: (1) failing to call

Appellant’s mother and Betty Howell to testify on his behalf during the guilt phase of trial;

(2) failing to present a diminished capacity defense; (3) failing to move for a second

change of venue or venire; and (4) failing to request a continuance for additional

neuropsychological testing at the penalty phase.

[J-46-2013] - 5

remaining non-capital convictions to an aggregate term of 252 to 504 months

incarceration. Appellant appealed that judgment of sentence to the Superior Court. On

December 22, 2004, while Appellant’s appeal from resentencing was pending, counsel

from the Federal Community Defender Office (“FCDO”) for the Eastern District of

Pennsylvania Capital Habeas Unit filed on Appellant’s behalf a “Petition for Habeas

Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution Statutory

Post-Conviction Relief Under the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.,”

which was deemed to be an amended PCRA petition. The PCRA proceedings were

stayed pending the conclusion of Appellant’s direct appeal. On May 25, 2005, the

Superior Court affirmed Appellant’s judgment of sentence on the remaining offenses, and

this Court denied allocatur. Michael Wiseman, Esquire,8 entered his appearance on

February 3, 2006, and the stay of PCRA proceedings was lifted on February 23, 2006.

Judge Hazel presided over the PCRA proceedings as well.

Nine months later, on November 21, 2006, Appellant’s counsel filed a motion

seeking an order declaring Appellant incompetent to proceed. Following a hearing on

the matter and briefing by both parties, the PCRA court found Appellant competent and

denied the motion on November 16, 2007. Thereafter, the Commonwealth filed a

response to Appellant’s PCRA petition on March 31, 2008, and evidentiary hearings on

Appellant’s petition took place on July 17, 2007, May 28, 2008, November 5-7, 2008,

January 15-16, 2009, April 28-29, 2009, September 24, 2009, October 20-21, 2009,

February 1-3, 2010, July 28, 2010, November 29, 2011, January 20, 2011, and

November 29, 2011. The PCRA court ultimately denied Appellant’s petition on March

28, 2012. Appellant filed a notice of appeal on April 23, 2012, and, on September 4,

2012, the PCRA court filed an extensive 213 page opinion addressing, and rejecting as

8 Attorney Wiseman was also an attorney for the FCDO.

[J-46-2013] - 6

meritless, each of the 22 claims in Appellant’s PCRA petition.9 Of those claims, he

raises nine before us, which we now address seriatim.

II. Analysis

In reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination is “supported by the record and free of legal error.” Commonwealth v.

Rainey, 928 A.2d 215, 223 (Pa. 2007). To qualify for relief under the PCRA, an appellant

must establish, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); that his

claims have not been previously litigated or waived; and that 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. Id. § 9543(a)(3), (a)(4). An issue is

previously litigated if “the highest appellate court in which [the appellant] could have had

review as a matter of right has ruled on the merits of the issue.” Id. § 9544(a)(2). An

issue is waived if the appellant “could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction proceeding.” Id. §

9544(b).

Further, as several of Appellant’s claims concern the ineffectiveness of counsel,

we will briefly summarize the legal framework governing such claims under the PCRA.

To obtain relief on a claim of ineffectiveness of counsel, a PCRA petitioner must satisfy

the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668

(1984). In Pennsylvania, we have applied the Strickland test by requiring that a

petitioner establish that: (1) the underlying claim has arguable merit; (2) no reasonable

9 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of matters

complained of on appeal.

[J-46-2013] - 7

basis existed for counsel’s action or failure to act; and (3) the petitioner 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. Commonwealth

v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Counsel is presumed to have rendered

effective assistance, and, if a claim fails under any required element of the Strickland test,

the court may dismiss the claim on that basis. Commonwealth v. Ali, 10 A.3d 282, 291

(Pa. 2010).

Notably, at the time Appellant filed his post-sentence motions and direct appeal,

he was subject to our rule articulated in Commonwealth v. Hubbard, 372 A.2d 687 (Pa.

1977), which required new counsel, upon pain of waiver, to raise claims of ineffectiveness

at the earliest opportunity. Appellant’s direct appeal was not decided, however, until

after we issued our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),

wherein we abrogated the Hubbard rule and required that all ineffectiveness claims be

deferred until post-conviction proceedings in order to provide an appellant with a more

complete record and more time to discover and fully develop his or her claims. Grant,

813 A.2d at 737-38. Nevertheless, in Appellant’s direct appeal, we found that such

concerns were not implicated because Appellant’s counsel properly raised and preserved

his ineffectiveness claims in trial court, the trial court held hearings on Appellant’s

ineffectiveness claims, and the trial court issued an opinion addressing those claims.

Bomar I, 826 A.2d at 853-54. Accordingly, because of the unique circumstances of

Appellant’s case and the fact that an extensive record already had been created to assist

with our review, we created a limited exception to the general rule of deferral in Grant —

subsequently deemed the “Bomar exception” 10 — and entertained Appellant’s

10We recently reaffirmed Grant and limited the Bomar exception to its pre-Grant facts in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).

[J-46-2013] - 8

ineffectiveness claims on direct appeal, rather than deferring them until collateral review.

Id. at 855.

Because Appellant had the opportunity to raise his ineffectiveness claims on direct

appeal, Appellant has waived any new ineffectiveness claims that he did not raise at that

time. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding”). Thus, Appellant may secure relief on claims of trial counsel

ineffectiveness only if he can demonstrate not only that trial counsel was ineffective, but

also that appellate counsel was ineffective for failing to raise trial counsel’s

ineffectiveness on direct appeal. In so doing, Appellant must plead, present argument

on, and prove the Strickland/Pierce elements of ineffectiveness as to each relevant layer

of representation. Ali, 10 A.3d at 292; Commonwealth v. McGill, 832 A.2d 1014, 1022

(Pa. 2003).

A. Favorable Treatment Impeachment Evidence

In his first issue on appeal, Appellant raises prosecutorial misconduct and Brady

claims, asserting the Commonwealth offered O’Donald and Williams “secret deals” in

exchange for their testimony regarding incriminating statements that they overheard

Appellant make while on his cell block; that O’Donald and Williams testified falsely at trial

that no deals existed; and that the Commonwealth violated Brady11 and Napue12 by

failing to disclose evidence regarding these deals to trial counsel and failing to correct the

witnesses’ allegedly false testimony during trial. Appellant additionally contends that, in

11 Brady v. Maryland, 373 U.S. 83 (1963).

12 Napue v. Illinois, 360 U.S. 264 (1959).

[J-46-2013] - 9

evaluating his claims, the PCRA court misapplied the materiality standard for relief under

Brady and Napue.

To prove a Brady violation, Appellant must demonstrate that: (1) the prosecution

concealed evidence; (2) which evidence was either exculpatory or impeachment

evidence favorable to him and; (3) he was prejudiced by the concealment.

Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002); Strickler v. Greene, 527 U.S.

263, 281-82 (1999). In order to prove prejudice, Appellant must show a “reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Commonwealth v. Burke, 781 A.2d 1136, 1141

(Pa. 2001). Stated differently, the undisclosed evidence must be “material to guilt or

punishment.” Paddy, 800 A.2d at 305. Further, “[i]mpeachment evidence which goes

to the credibility of a primary witness against the accused is critical evidence and it is

material to the case whether that evidence is merely a promise or an understanding

between the prosecution and the witness.” Commonwealth v. Strong, 761 A.2d 1167,

1175 (Pa. 2000). Mere conjecture as to an agreement between the prosecution and

witness is insufficient to establish a Brady violation, however. Commonwealth v. Chmiel,

30 A.3d 1111, 1131 (Pa. 2011). Finally, we note that “[t]here is no Brady violation when

the appellant knew, or with reasonable diligence, could have uncovered the evidence in

question.” Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011).

1. David O’Donald

Appellant maintains that O’Donald had an agreement with Delaware County

prosecutors that he would testify in Appellant’s case in exchange for a reduced prison

sentence, and that the prosecution failed to correct O’Donald’s false testimony at trial that

there was no such agreement. In support of his claims, Appellant notes that O’Donald

[J-46-2013] - 10

testified at the PCRA hearing that prosecutors in Appellant’s case told him that federal

prosecutors would file a Fed.R.Crim.P. 35 motion for a reduction in his federal sentence

after he testified in Appellant’s case; that O’Donald cooperated in Appellant’s case in

order to receive a sentence reduction; and that O’Donald’s federal prison sentence was,

in fact, reduced from 17 to 14 years shortly after Appellant’s trial had concluded.

Appellant also points to a document from the District Attorney’s office entitled “Points to

Cover Re: Prison Informant,”13 which was discussed during a July 2, 1997 meeting

between O’Donald and local prosecutors concerning his cooperation in Appellant’s case,

and which stated, in pertinent part:

6. Do you understand that I am the First Assistant District

Attorney of Delaware County and therefore not a member of

the United States Attorney’s Office?

7. Do you understand that since I am not a member of the

[U]nited States Attorney’s Office that I have no authority or

capacity to appear in court to make a recommendation to the

court which shall sentence you?

8. Do you understand that I will have the ability to provide

information to the [U]nited States Attorney’s Office and to any

other relevant party as to my opinion of the sincerity and

candor of your cooperation?

9. Do you understand that any benefit that you may

receive for your cooperation is not dependent on any

information you may or may not provide, but will flow solely

from your sincere and candid cooperation in terms of your

willingness to serve as a “listening post” for Bowmar [sic].

Appellant’s Brief at 14 (quoting PCRA Exhibit 79) (emphasis original). Appellant claims

this document unequivocally established that O’Donald reached a bargain with Delaware

13 The Commonwealth stipulated that this document was contained in the District

Attorney’s file. See N.T., 1/15/09, at 10.

[J-46-2013] - 11

County prosecutors regarding his cooperation in Appellant’s case, which he alleges came

to fruition on October 15, 1998, when federal prosecutors filed a Motion for Reduction of

Sentence for Changed Circumstances Pursuant to Fed.R.Crim.P. 35(b), and, according

to Appellant, was based “solely” on his cooperation in Appellant’s case. Appellant’s Brief

at 16.

Preliminarily, we note that Appellant’s alleged Brady evidence would appear to

have been available at the time of Appellant’s trial, post-sentence motions, or his direct

appeal, as Appellant’s counsel had in his possession O’Donald’s plea agreement with

federal prosecutors at the time of trial; the Motion for Reduction of Sentence in O’Donald’s

case was filed two weeks after the conclusion of the guilt phase of Appellant’s trial; and

O’Donald received a reduced sentence days later. While Appellant maintains he raised

his Brady claim at his first opportunity to do so, he fails to indicate when he became aware

of the alleged Brady violation and fails to explain why, with reasonable diligence, he could

not have uncovered evidence of the alleged violation at an earlier time. Accordingly,

because Appellant failed to raise this issue in an earlier proceeding, the claim appears to

have been waived. See Commonwealth v. Roney, 79 A.3d 595, 609 (Pa. 2013) (finding

Brady claim to be waived when the appellant failed to raise the issue at trial or on direct

appeal and failed to argue why his prior counsel could not have uncovered the alleged

Brady violations with reasonable diligence). However, the Commonwealth does not

assert waiver; thus, we will consider the claim on the merits.

The PCRA court concluded that no agreement existed between the

Commonwealth and O’Donald, and, thus, that the Commonwealth did not violate Brady

for failing to disclose it, noting that, although O’Donald testified during the PCRA hearing

regarding the existence of an agreement, his testimony lacked credibility. PCRA Court

Opinion, 9/4/12, at 49-51, 55. Specifically, the PCRA court pointed out that O’Donald

[J-46-2013] - 12

entered a plea agreement with federal prosecutors in February 1997 — prior to his

cooperation in Appellant’s case — in which he agreed to provide investigators with

information concerning 12 unsolved bank robberies. In exchange for his guilty plea,

prosecutors agreed to inform the sentencing court of his cooperation in the other cases

and to encourage the court, at its discretion, to impose a sentence below the applicable

mandatory minimum. The PCRA court opined that O’Donald initiated discussions with

authorities in Appellant’s case because he hoped that cooperating with local authorities in

that investigation would result in an additional sentence reduction pursuant to his earlier

plea agreement. However, the court noted that, during O’Donald’s July 2, 1997 meeting

with local prosecutors concerning his cooperation in this matter, prosecutors informed

O’Donald that they were not affiliated with the United States Attorneys’ Office and

expressly stated they lacked authority to make formal recommendations regarding his

federal sentence. See PCRA Exhibit 79. While prosecutors informed O’Donald during

the meeting that they could potentially advise the United States Attorneys’ Office of his

cooperation in the matter, and although the federal district court judge ultimately

considered O’Donald’s cooperation in Appellant’s case in conjunction with his

cooperation in the bank robbery cases when it granted the motion to reduce O’Donald’s

sentence, the PCRA court found that “no prosecutor, local or federal, promised O’Donald

that a motion seeking a further reduction would be filed on his behalf if he testified at trial,”

PCRA Court Opinion, 9/4/12, at 49, and that O’Donald’s “subjective belief does not

support the conclusion that promises of this nature were made.” Id. at 51.

The PCRA court further determined that, even assuming arguendo that such an

agreement existed, its alleged concealment did not impact the verdict, as O’Donald’s

credibility was challenged extensively during cross-examination; the trial court issued a

cautionary instruction to the jury regarding its consideration of O’Donald’s testimony; and

[J-46-2013] - 13

substantial other physical and circumstantial evidence of Appellant’s guilt independent of

O’Donald’s testimony was offered at trial.

As the PCRA court highlighted in its opinion, the “Points to Cover Re: Prison

Informant” document reflects that prosecutors specifically told O’Donald that they lacked

authority to make a recommendation on O’Donald’s behalf at sentencing, and that any

benefit O’Donald might receive from sentencing was not dependent on any information

he provided to them. PCRA Exhibit 79. Additionally, the federal prosecutor noted

during O’Donald’s resentencing hearing that “there were no deals between [O’Donald

and] . . . the D.A.’s office in Delaware County,” N.T., 1/7/1999, at 21-22, and the Assistant

District Attorney similarly expressed during Appellant’s PCRA hearing that prosecutors

“weren’t offering [O’Donald] any consideration.” N.T., 1/15/2009, at 131.

While, as the PCRA court found, one could construe the above as evidencing that

there was no agreement between O’Donald and prosecutors for a reduced sentence,

other evidence strongly suggests the existence of such an agreement. Indeed, although

the “Points to Cover” document stated that prosecutors lacked the authority to make a

sentencing recommendation on O’Donald’s behalf, the document also discussed the

prosecutor’s ability to provide information to the United States Attorney’s Office regarding

O’Donald’s cooperation, noted that any potential benefit to O’Donald would flow from his

willingness to serve as a listening post, and characterized O’Donald’s relationship with

prosecutors as an “understanding.” PCRA Exhibit 79. Further, at O’Donald’s

resentencing hearing, the federal prosecutor confirmed that O’Donald had a “deal . . . with

the federal government to cooperate in any and all investigations as . . . requested of

[O’Donald],” N.T., 1/7/1999, at 22, and the Assistant District Attorney testified at

Appellant’s PCRA hearing that, following O’Donald’s cooperation in Appellant’s case, he

“fully expected [O’Donald] to . . . return to Federal Court and ask the Judge to reduce his

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sentence from the 17 years.” N.T., 1/15/2009, at 139. Indeed, as noted above, shortly

after Appellant’s trial had concluded, federal prosecutors filed a Fed.R.Crim.P. 35(b)

Motion for Reduction of Sentence, and O’Donald’s prison sentence was reduced from 17

to 14 years.

Nevertheless, we need not reach a definitive conclusion as to whether or not an

agreement existed between O’Donald and prosecutors because, even if such an

agreement did exist, any Brady violation in this regard did not prejudice Appellant in light

of the extensive DNA and circumstantial evidence against him, including, inter alia, sperm

recovered from the victim’s vagina which matched Appellant’s DNA profile; DNA from the

victim found on the right door panel of Appellant’s vehicle; tire patterns at the murder

scene which matched tire patterns from Appellant’s vehicle; and testimony from

Appellant’s ex-girlfriend revealing that Appellant confessed to raping and murdering the

victim, and described specific details surrounding the incident. Moreover, O’Donald

admitted during direct examination that he had a plea agreement with federal

prosecutors, that his cooperation in Appellant’s case was brought to the federal judge’s

attention during his October 1997 sentencing hearing, that he was dissatisfied with his

current sentence, and that a motion for further reduction of his sentence was pending,

N.T., 9/28/98, at 273, 285-87, prompting the trial court to instruct the jury to consider

O’Donald’s testimony with caution because O’Donald “believed the level of his

cooperation with law enforcement authorities in this case would have a positive impact on

the sentence he would receive in federal court.” PCRA Opinion, 9/4/12, at 44 (quoting

N.T., 9/30/98, at 160). Thus, in light of the substantial evidence against Appellant and

the fact that the trial court highlighted possible bias in O’Donald’s testimony and directed

the jury to view the testimony with caution, we find that it is not probable that the result of

[J-46-2013] - 15

Appellant’s trial would have been different if the alleged Brady material had been

disclosed to him.

2. Quincy Jamal Williams

Appellant similarly argues that an agreement existed between prosecutors and

Williams, claiming Williams was facing first-degree murder charges, but was permitted to

plead guilty to voluntary manslaughter in exchange for his testimony in Appellant’s case.

As proof of this alleged agreement, Appellant references Williams’ testimony from the

PCRA hearing stating that he testified in Appellant’s case because the prosecutor

promised him that he would be released on parole, and that his testimony was false and

based on information fed to him by the prosecutor and detectives. Appellant also refers

to a letter First Assistant District Attorney (“ADA”) Daniel J. McDevitt wrote to the

Pennsylvania Board of Probation and Parole two years after Appellant’s trial

acknowledging Williams’ cooperation in the case and a letter Williams wrote to ADA

McDevitt in 2003 inquiring into their “deal” regarding his parole.

In addressing Appellant’s Brady claim, the PCRA court concluded that no credible

evidence established that prosecutors promised Williams parole in exchange for his

testimony in Appellant’s case. PCRA Court Opinion, 9/4/12, at 58. Specifically, the

PCRA court observed that, while Williams testified during the PCRA hearing regarding an

alleged agreement he had with prosecutors in exchange for his testimony, credible

evidence proved otherwise, as ADA McDevitt testified during the PCRA hearing that

Williams’ cooperation in Appellant’s case had no influence on his office’s decision to allow

Williams to plead guilty to involuntary manslaughter, and that prosecutors made no

specific sentencing recommendations and did not ask for leniency on Williams’ behalf.

The PCRA court further noted that ADA McDevitt explicitly stated in a 2003 letter to

[J-46-2013] - 16

Williams that no deal existed between them, and that, although ADA McDevitt did, in fact,

write a letter to the Pennsylvania Board of Probation and Parole advising the Board of

Williams’ cooperation in Appellant’s case, he did so at the request of Williams’ mother,

and the letter did not represent that an agreement existed between Williams and law

enforcement. Based on the foregoing, the PCRA court concluded that, “[w]hile Williams

may have harbored the subjective hope that at some point his testimony would garner a

benefit, there is no credible evidence supporting the conclusion that Mr. McDevitt, or

anyone in law reinforcement [sic], promised him parole upon the service of his minimum

sentence.” Id. at 59 (footnote omitted).

We agree. While Appellant bases his claim on Williams’ testimony, the PCRA

court specifically found the testimony was incredible. Appellant’s reliance on his earlier

plea agreement and ADA McDevitt’s letter to the Parole Board is similarly unavailing.

Indeed, Williams entered his open guilty plea and was sentenced in July 1998, months

before Appellant’s trial began, and ADA McDevitt’s parole letter makes no reference to an

agreement with Williams and, in fact, states that Williams’ cooperation with law

enforcement was entirely voluntary. Further, although, as noted above, Williams

referenced a deal in his letter to ADA McDevitt, ADA McDevitt’s letter in response

explicitly rejected the existence of an agreement between Williams and the

Commonwealth. Accordingly, because Appellant has failed to establish with credible

evidence that an agreement existed between Williams and the Commonwealth, his claim

fails.

3. PCRA Court Error

Appellant additionally argues that, in rejecting his claims, the PCRA court

misapplied the materiality standard for relief pursuant to Brady and Napue, improperly

[J-46-2013] - 17

assessing materiality in terms of whether “after discounting items of evidence tainted by

non-disclosure, the remaining evidence is sufficient to support a verdict of guilt,” rather

than evaluating whether a reasonable likelihood exists that the non-disclosure would

have affected the judgment of the jury, as he contends is required by Napue. Appellant’s

Brief at 23. According to Appellant, if the PCRA court had properly applied the

materiality standard, it would have found the non-disclosure of the agreements between

the prosecution and the Commonwealth witnesses and the motivation for the witnesses’

testimony affected the judgment of the jury, as, according to Appellant, the testimony was

damaging in nature and the jury would not have believed it if it knew the witnesses were

testifying pursuant to agreements for reduced sentences.

Appellant’s argument is largely beside the point. The PCRA court rejected

Appellant’s Brady claims based upon its finding that no agreements existed between the

Commonwealth and its witnesses, and, thus, that the Commonwealth did not conceal any

evidence. Moreover, as we discussed in detail above, even if an agreement existed

between prosecutors and O’Donald, its nondisclosure did not affect the judgment of the

jury in light of the wealth of significant other evidence implicating Appellant in the murder.

Appellant is, thus, not entitled to relief on this claim.

B. Competency

Appellant next argues that his due process rights were violated because he was

incompetent at the time of his trial and, therefore, unable to rationally assist counsel.

Initially, we note that Appellant did not challenge his competency to stand trial on direct

appeal. While an Appellant’s failure to raise a claim on direct appeal generally results in

waiver of that claim under the PCRA, “[a] failure to raise on direct appeal a claim that the

appellant was incompetent at the time of trial does not constitute a waiver of that claim for

[J-46-2013] - 18

purposes of the PCRA.” Commonwealth v. Brown, 872 A.2d 1139, 1153 (Pa. 2005)

(plurality); 14 see also Commonwealth v. Spotz, 18 A.3d 244, 262 n.10 (Pa. 2011)

(reaffirming Brown holding that competency is an exception to the waiver rule under the

PCRA). Accordingly, we will proceed to entertain Appellant’s claim.

In January 1998, prior to Appellant’s preliminary hearing, Appellant’s trial counsel

petitioned the court to appoint a psychiatrist to determine his competency, noting that

Appellant had twice attempted suicide during his pre-trial incarceration, that counsel’s

communication with Appellant had “broken down,” and that Appellant had recently

accused him of being a district attorney and raping his wife. The trial court appointed Dr.

Robert Sadoff to conduct a competency evaluation, which occurred on January 10, 1998.

At the time of the evaluation, Dr. Sadoff was not provided with Appellant’s prison records;

however, counsel advised him of Appellant’s suicide attempts, Appellant’s accusations

against him, and his disruptive behavior in prison. Ultimately, Dr. Sadoff found that

Appellant exhibited symptoms of a paranoid personality disorder, but concluded that

Appellant was nevertheless competent to stand trial, as his personality disorder did not

impact his ability to understand the nature of the proceedings against him or to participate

in his defense. The trial court conducted a competency hearing on January 16, 1998,15

14 While Brown was a plurality opinion, Justice Nigro stated in his concurring and

dissenting opinion that he “note[d] [his] specific agreement with the majority's treatment of

[the] [a]ppellant's claim that he was not competent to stand trial, including its holding that

a post-conviction petitioner's failure to raise a claim on direct appeal that he was

incompetent at the time of trial does not constitute a waiver of that claim for purposes of

the PCRA.” Brown, 872 A.2d at 1170 (Nigro, J., concurring and dissenting). As a

result, a majority of this Court held that competency to stand trial is an exception to the

waiver rule under the PCRA.

15 In his brief, Appellant claims there was “no actual competency hearing.” Appellant’s

Brief at 27. The PCRA court explicitly rejected this assertion in its opinion, and, based

upon the record, we agree with the PCRA court that a competency hearing was, indeed,

conducted. See PCRA Court Opinion, 9/4/12, at 25.

[J-46-2013] - 19

during which Appellant’s trial counsel stated that he did not object to Dr. Sadoff’s

conclusions and that he did not wish to obtain his own expert. The court, based upon Dr.

Sadoff’s findings, concluded Appellant was competent to stand trial.

Appellant’s PCRA counsel later retained Dr. Richard Dudley to examine and

evaluate Appellant’s competency in 2004 and 2006. Dr. Dudley testified at Appellant’s

PCRA hearing that Appellant suffered from an anti-social personality disorder and

borderline personality disorder, and opined that the disorders had rendered him

incompetent to stand trial.16 The Commonwealth countered Dr. Dudley’s testimony at

the PCRA hearing with testimony from Dr. Sadoff, as well as testimony from Dr. Gerald

Cooke, who examined Appellant in April 1998 and September 1998, both of whom opined

that Appellant was competent at the time of trial.17 Based upon the foregoing, the PCRA

court rejected Dr. Dudley’s testimony in favor of the Commonwealth’s experts, and

concluded Appellant was indeed competent to stand trial. PCRA Court Opinion, 9/4/12,

at 31-32.

Presently, Appellant argues that, because Dr. Sadoff’s competency evaluation

took place in January 1998, over eight months before trial began, the evaluation did not

accurately reflect Appellant’s competency at the time of his trial, as, according to

Appellant, his mental condition deteriorated shortly after the evaluation had been

completed. Specifically, Appellant references prison records from January 1998 through

16 Dr. Dudley further opined that Appellant was incompetent at the time of the PCRA

hearings; however, the issue of Appellant’s competence at the PCRA hearings is not

presently before this Court.

17 The Commonwealth also presented testimony from psychologist Edward Dougherty,

who examined Appellant in August 1998 in anticipation of the penalty phase of

Appellant’s trial, but was unable to complete his evaluation because Appellant had been

unwilling to complete psychological testing and unwilling to provide information about his

background. As a result, Dr. Dougherty would not opine as to Appellant’s competency to

stand trial.

[J-46-2013] - 20

August 1998, which he claims reflect that he was delusional, rambled incoherently, and

was “suffering from psychosis and uncontrollable rages.” Appellant’s Brief at 25.

Appellant notes that Dr. Sadoff did not receive these prison records prior to his

evaluation, and suggests that, if Dr. Sadoff had received them, he would have found

Appellant incompetent. Rather than crediting the testimony of Dr. Sadoff, Appellant

maintains that the PCRA court should have credited the testimony of Dr. Dudley, who,

upon examination of Appellant after trial, found that “Appellant was undergoing psychotic

breaks during his pre-trial incarceration and that, as a result, he was unable to rationally

assist counsel and was incompetent.” Appellant’s Brief at 27.

In response, the Commonwealth points out that Appellant’s allegations of

incompetency are based primarily on a psychiatric examination that was performed six

years after his trial. Citing to our decision in Brown, supra, wherein we concluded that a

competency assessment from eight years after trial does not establish incompetency at

the time of trial, the Commonwealth maintains that this Court rejects such “after-the-fact”

competency claims. The Commonwealth further observes that the PCRA court’s factual

findings and credibility determinations are supported by the record, and, thus, argues

they should not be disturbed on appeal.

A defendant is presumed to be competent to stand trial and bears the burden of

proving otherwise. Commonwealth v. Smith, 17 A.3d 873, 899 (Pa. 2011). To establish

that he was incompetent, Appellant must prove, by a preponderance of the evidence,

“that he was either unable to understand the nature of the proceedings against him or to

participate in his own defense.” Rainey, 928 A.2d at 236. Here, Appellant has failed to

meet this burden. In arguing he was incompetent to stand trial, Appellant relies primarily

upon Dr. Dudley’s competency evaluations which took place six years after Appellant’s

trial. As the Commonwealth observes, however, a defendant’s competency to stand trial

[J-46-2013] - 21

must be evaluated at the time of trial. Commonwealth v. Bracey, 795 A.2d 935, 945-46.

(Pa. 2001) (rejecting competency evaluation from five years after trial). In providing Dr.

Dudley’s hindsight assessment of Appellant’s competency to stand trial, Appellant plainly

overlooks this requirement. See id.; Brown, 872 A.2d at 1156 (rejecting competency

assessment from eight years after trial).

To the extent Appellant argues that Dr. Sadoff’s competency evaluation from eight

months before trial similarly failed to establish Appellant’s competency at the time of trial,

and to the extent that he asserts the evaluation was inadequate because his prison

records were not made available to Dr. Sadoff, we note that Appellant failed to object to

Dr. Sadoff’s evaluation and testimony at the pre-trial competency hearing and, thus, he

has waived these arguments.18 See Pa.R.A.P. 302(a). Moreover, as noted above, the

burden is on Appellant to establish his incompetency, rather than on the Commonwealth

to establish Appellant’s competency. See Smith, 17 A.3d at 899. In any event, as the

PCRA court observed below, additional competency evaluations were conducted in April

1998 and September 1998, closer in proximity to Appellant’s trial, which confirmed

Appellant’s competence, and Dr. Sadoff testified during the PCRA hearing that he was

informed of the events contained in the prison records prior to conducting his examination

of Appellant, and that they did not impact his conclusion. Accordingly, we decline to find

that the PCRA court erred in rejecting Appellant’s incompetency claim.

C. Denial of Effective Counsel at Penalty Phase

Appellant next contends that penalty phase counsel was ineffective for failing to

“properly present and explain the significance of Appellant’s traumatic childhood,

18 Appellant concedes counsel’s failure to object, but nonetheless raises no claim of

ineffectiveness herein.

[J-46-2013] - 22

dysfunction, and serious mental illness” to the jury, arguing that, although penalty phase

counsel presented some mitigating evidence to the jury, she failed to explain the

significance of that evidence and how it affected Appellant, and failed to present

additional mitigating evidence that was available regarding his troubled upbringing and

mental health. Appellant’s Brief at 41. Appellant further avers that appellate counsel

was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal.

Initially, we note that Appellant failed to raise this claim of trial counsel

ineffectiveness in post-sentence motions or on direct appeal; thus, it is waived. See

Bomar I, 826 A.2d at 853-54; Hubbard, 372 A.2d at 697 n.9. Nevertheless, as Appellant

also alleges ineffectiveness of appellate counsel, we will proceed to evaluate his layered

ineffectiveness claim.

During the penalty phase of Appellant’s trial, Appellant’s counsel presented

mitigating testimony from several of his acquaintances, who testified generally regarding

his good character, as well as testimony from Appellant’s younger brother, William

“Sonny” Ganges, his mother, Carrie Ganges, and his half-sister, Joyce Batchelor. While

Sonny and Carrie Ganges gave only brief statements expressing their disagreement with

the guilty verdict, Batchelor testified extensively regarding Appellant’s troubled

upbringing. Specifically, Batchelor described that their childhood was “hell,” marked by

“constant violence all the time” between their mother and Appellant’s father, Arthur Sr.,

claiming they fought every day. N.T., 10/5/98, at 108. Batchelor recounted that, during

several fights between Appellant’s parents, their mother chopped up all the furniture in

the house with an ax, and, on one occasion, poured gasoline inside the house and set it

on fire. Id. at 109-10. Batchelor testified that Arthur Sr. was “a very cruel person,” who

drank every day and failed to exhibit any kind of parenting toward the children; that their

mother was “a crazy person”; and that she did not remember her mother ever holding

[J-46-2013] - 23

Appellant as a child. Id. at 110, 117. Batchelor testified that Appellant lived with his

mother until he was eight or nine years-old, and lived with his father until he was a

teenager.

Penalty phase counsel also elicited testimony from Dr. Gerald Cooke, Appellant’s

mental health expert. Dr. Cooke described that, as a child, Appellant had been classified

as Educably Mentally Retarded (“EMR”), was placed in special education for seven or

eight years, and, later, was significantly behind in achievement levels in high school. Id.

at 47. According to Dr. Cooke, Appellant’s I.Q. was 80, which is in the bottom of the low

average range. Id. at 50. Dr. Cooke opined that his testing of Appellant suggested that

Appellant suffered from organic brain damage; however, he noted that he was unable to

reach a firm conclusion because Appellant frequently exhibited problems with attention

and motivation during testing and only completed four out of seven tests necessary to

reach a firm diagnosis, refusing to complete the rest because he grew frustrated. Id. at

48-50, 58. Dr. Cooke further opined during the penalty hearing that Appellant suffered

from borderline and anti-social personality disorders, causing him to have “confusion

when it comes to love, sex, and aggression,” and “very poor emotional control,” “lead[ing]

him to engage in some of the kind of behaviors that are reflected in his past history.” Id.

at 53.

Notwithstanding the foregoing, Appellant now claims penalty phase counsel

should have presented additional testimony from others close to him concerning his

troubled upbringing and his resulting displays of “bizarre behavior, emotional instability,

learning problems, and dissociative experiences.” Appellant’s Brief at 32. Appellant

also maintains that penalty phase counsel should have hired a mitigation specialist, who

he suggests would have built a rapport with his family members, enabling her to complete

a social history of Appellant for counsel to present to the jury, and should have elicited

[J-46-2013] - 24

testimony from Dr. Cooke regarding the relationship between Appellant’s troubled

childhood and psychological issues, as well as showing the effect his personality

disorders had on his everyday life. In support of this claim, Appellant’s PCRA counsel

introduced affidavits at the PCRA hearing from various family members and

acquaintances, including, inter alia, Batchelor, Lorraine Cotton, Bettie McCullen, and

Anna Sherman Wilson, which provided a more detailed description of the abuse and

neglect that Appellant experienced throughout his childhood. PCRA counsel also

provided an affidavit from Dr. Dudley, who conducted a psychiatric analysis of Appellant

in 2004, as well as testimony from Marissa Browne, a licensed professional counselor

who performed a drug and alcohol evaluation of Appellant in 1990 as a condition of his

parole; and Dr. Dougherty, who had been retained by penalty phase counsel in 1998 to

conduct a neuropsychological examination of Appellant.

Batchelor stated in her affidavit, inter alia, that Appellant’s parents drank heavily,

and that “[t]here would always be a bottle of liquor on the table.” Declaration and

Affidavit of Joyce Batchelor, at 879. Batchelor also detailed various fights that occurred

between Appellant’s parents, describing that “physical, knockdown fights” took place at

their home every day, including times where Appellant’s mother shot, stabbed, and

burned Arthur Sr., and times when she set fires with gasoline and broke windows in the

house. Id. Additionally, Batchelor described an incident wherein Appellant was

arrested in Reno, Nevada and was later gang-raped and beaten at the jail facility. Id. at

882. While Batchelor acknowledged in her affidavit that she did not testify regarding this

additional information during Appellant’s penalty hearing, she claimed she provided it to

Appellant’s penalty phase counsel when she met with her before trial, and stated that she

would have shared the information during trial had she been asked about it.

[J-46-2013] - 25

Lorraine Cotton, Appellant’s half-sister, stated in her affidavit that Appellant began

to develop behavioral problems as early as kindergarten, noting that Appellant stabbed a

classmate in the eye with a pencil and that the school made repeated recommendations

to Appellant’s mother that Appellant receive help. According to Cotton, Appellant’s

mother ignored the school’s recommendations, denying that Appellant had behavioral

issues or that he needed special education. Cotton also described that Appellant’s

mother traveled between relationships in Pennsylvania and Nevada, leaving Appellant

and his brother alone in Reno for months at a time while they were teenagers, and opined

that the lack of guidance and structure in Appellant’s life caused him to continue to get

into trouble. Cotton noted that she was never contacted by Appellant’s counsel to testify,

but stated that she would have testified regarding the aforementioned details had she

been asked to do so.

Bettie McCullen, another of Appellant’s half-sisters, stated in her affidavit that their

mother never showed her children affection, and that, at times, she “was gone from [their]

childhood completely,” sometimes for years at a time. Declaration and Affidavit of Bettie

McCullen, at 892. McCullen also described that their mother was mentally ill and would

often carry on loud conversations with herself. With respect to Appellant, McCullen

stated that Appellant was the only child she thought had a true bond with their mother,

and that she thought that he and their mother were both crazy. McCullen also described

that Appellant “was shuffled around a lot” as a child, and that her father took him in for a

period after he got into trouble in Nevada and their mother was “nowhere to be found.”

Id. at 896. Attached to McCullen’s affidavit was a letter to their mother from their aunt,

notifying her that doctors and psychologists expressed concerns that Appellant might

suffer from psychological problems possibly attributable to birth or early childhood.

McCullen also attached one of Appellant’s report cards, which included comments from

[J-46-2013] - 26

the teacher regarding Appellant’s poor work habits. McCullen stated that she was never

contacted to testify at Appellant’s trial, but would have been willing to do so had she been

subpoenaed.

Anna Sherman Wilson, Appellant’s aunt, recounted in her affidavit that she

remembered Appellant’s mother going to a local tavern while she was pregnant with

Appellant, where she got into a fight with another woman. Wilson expressed that she

“often wondered later if [Appellant’s] problems were because of [his mother’s] fighting and

drinking while she was pregnant with him.” Declaration and Affidavit of Anna Sherman

Wilson, at 910. Wilson explained that Appellant’s mother never gave her children love or

affection, and that she neglected Appellant while he was a toddler. She also noted that

Appellant’s mother and father fought often, describing that, on one occasion, Appellant’s

mother destroyed their furniture, gutted a mattress, and set it and the apartment on fire

while the children were present, and, another time, threw kerosene on Appellant’s father,

lit a newspaper, and chased him around, trying to set him on fire.

Wilson detailed that she and her sisters tried to help raise her sister’s children and

that, when Appellant arrived at her home she “knew he had serious problems.”

Declaration and Affidavit of Anna Sherman Wilson, at 912. Specifically, Wilson noted

that Appellant would often stare into space, had trouble remembering things, and

frequently acted out in school. Wilson stated that Appellant was later diagnosed with

learning disabilities, transferred into a special education program at another school, and

was later transferred to a third school with a more structured special education program

because of his continued behavioral problems. According to Wilson, while Appellant

was at the third school, he was sent home because he threatened a classmate with a

knife. Wilson also related that, when he was in eighth grade, Appellant was sent to live

[J-46-2013] - 27

with his father, who later killed Appellant’s pet pigeon because Appellant refused to have

sex with prostitutes that his father hired for him.

With respect to Appellant’s behavioral and psychological problems, Wilson

described that Appellant’s mother never disciplined Appellant, disputed his special

education label, and resisted any efforts for him to receive professional help. Wilson

noted that Appellant’s brother Charles told her that Appellant was crazy and needed help,

but that Appellant and his mother both threatened to kill Charles in response to the

allegations. Wilson claimed that no one contacted her to testify at Appellant’s trial, but

stated that she would have been willing to testify had she been asked to do so.

Kathleen Kaib, a mitigation specialist employed by the Federal Community

Defender, testified during the PCRA hearing regarding a social history she performed on

Appellant prior to the PCRA hearing. Specifically, Kaib testified that, while researching

Appellant’s social history, she discovered that Appellant witnessed severe domestic

violence between his parents, and suffered abandonment — both emotional and physical

— from his mother, father, stepfathers, and siblings. Kaib described that Appellant lived

with his mother and father in Milwaukee, Wisconsin for several years until his parents

broke up, and, thereafter, lived periodically with an aunt in Reno, Nevada; with his

grandmother in Philadelphia; with his mother in Reno and Philadelphia; with his father in

Wisconsin; and by himself in Reno at the age of 13. Kaib observed that Appellant was

never in the same school for two years consecutively and, as a result, problems reported

in his school records such as psychological and behavioral problems were never

addressed. Kaib also testified that Appellant’s mother drank excessively while she was

pregnant with Appellant, that both of Appellant’s parents were alcoholics, and that

Appellant’s father required him to have sex with prostitutes when he was approximately

11 or 12 years old. Additionally, Kaib noted that one of Appellant’s sisters physically

[J-46-2013] - 28

abused him as a child, that Appellant’s father shook coins in his ear when he was a baby,

and that Appellant had been raped in a juvenile facility when he was 13 or 14 years old.

PCRA counsel also introduced testimony from Dr. Dougherty concerning

Appellant’s mental health. Dr. Dougherty described that he initially gave counsel a

preliminary diagnosis of intermittent explosive disorder prior to Appellant’s trial, but told

counsel that he would need to see Appellant for a longer period of time and that he “would

have to get every record [he] could get [his] hands on to understand his background and

development to see if [he] could confirm that diagnosis or not.” N.T., 4/28/09, at 151.

According to Dr. Dougherty, Appellant refused to undergo further psychological testing

and, thus, Dr. Dougherty was unable to complete his evaluation.

Dr. Dougherty testified that he had not received Appellant’s Delaware County Jail

Records at the time of his initial evaluation, but that, upon reviewing them in 2008, he

found that the administration of strong psychotropic medications to Appellant in prison

and his acting out and suicide attempts in prison were significant and something that he

would have wished to explore further. Dr. Dougherty also found significant several

details regarding Appellant’s upbringing of which he was not previously apprised,

including that Appellant’s mother ingested alcohol consistently throughout her pregnancy,

possibly leading to fetal alcohol syndrome; that Appellant had psychological and

behavioral problems as a child and switched schools frequently; that Appellant’s mother

was abusive and erratic; that Appellant’s parents engaged in continued and escalating

domestic violence; and that Appellant was abandoned by his mother. Based upon this

information, Dr. Dougherty opined that he would have diagnosed Appellant with an

anti-social personality disorder and borderline personality disorder.

Marissa Browne testified that, in accordance with a condition of Appellant’s parole

for a prior conviction, she met with Appellant on four occasions in 1990 to evaluate him for

[J-46-2013] - 29

possible drug and alcohol abuse. During this time, Browne observed that Appellant was

not forthcoming about his family history and noted that Appellant “[had] some issues with

women” and “seemed rather paranoid.” N.T., 11/7/08, at 38. Browne explained that

she ultimately diagnosed Appellant with “paranoid personality disorder, alcohol and

cannabis abuse and remission,” and recommended that Appellant undergo psychological

testing and drug and alcohol treatment; however, Appellant never went through with such

treatment. Id. at 49-50.

Additionally, PCRA counsel presented an affidavit from Dr. Dudley, who

conducted a psychiatric evaluation of Appellant in 2004. Therein, Dr. Dudley opined

that, based upon Appellant’s behavior and traumatic life history, Appellant suffers from

borderline and paranoid personality disorders. Dr. Dudley further opined that

Appellant’s “extremely savage childhood and adolescence,” including “repeated loss . . .

repeated victimization by caregivers . . . his exposure to repeated extreme violence, and

the absence of parental nurturance, support and direction during critical phases of his

development,” “constitute significant mitigating evidence that should have been

considered by the jury at the penalty phase of his trial.” Declaration/Affidavit of Richard

Dudley, Jr., at 868. Additionally, to the extent that others have evaluated Appellant, Dr.

Dudley suggests that their evaluations were “flawed and unreliable for purposes of

assessing the existence of mental health mitigating evidence” because the evaluators

were not privy to Appellant’s life history and had not completed neuropsychological

testing or neuroimaging. Id. at 869-70.

Appellant contends that, given the abundance of highly compelling evidence that

was available to penalty phase counsel, her failure to present and explain the foregoing

evidence was unreasonable, and he claims that, had counsel properly presented and

[J-46-2013] - 30

explained such evidence, “at least one juror would have reached a different conclusion

with regard to sentencing.” Appellant’s Brief at 43.

The Commonwealth argues that, contrary to Appellant’s representations, penalty

phase counsel made an exhaustive attempt to obtain mitigation evidence regarding

Appellant’s mental health and upbringing, and disclosed her findings to defense experts;

however, counsel’s efforts were severely hampered by the lack of cooperation from

Appellant and his family in her investigation. Specifically, the Commonwealth notes that

Appellant refused to cooperate with defense mental health experts, preventing them from

completing mental health testing and giving them an incomplete record of Appellant’s

mental health; that Appellant refused to discuss with counsel the identity and location of

family members, as well as details regarding his troubled upbringing, prior drug use, and

any possible mental health issues that he had; and that Appellant’s family failed to return

counsel’s phone calls and messages, and were evasive regarding Appellant’s family

history and the addresses and phone numbers of other family members.

The PCRA court, in rejecting Appellant’s claim, concluded that penalty counsel’s

mitigating evidence investigation was reasonable in light of Appellant’s lack of

cooperation. PCRA Court Opinion, 9/4/12, at 133. In so holding, the PCRA court

opined that “[t]his is not a case where [Appellant] elected not to offer mitigation evidence

and counsel simply acquiesced [in] [Appellant’s] expressed choice and failed to

investigate. Nor did counsel merely accept [Appellant’s] assertion that his childhood was

‘normal’ and investigate no further.” Id. at 99. Rather, the PCRA court observed that

penalty phase counsel continued to investigate — despite the fact that Appellant and his

family failed to reveal facts to counsel concerning the violence and neglect that plagued

Appellant’s childhood and the fact that Appellant failed to participate in mental health

evaluations and testing — collecting Appellant’s prison, employment, and school records,

[J-46-2013] - 31

personally speaking with members of Appellant’s family on multiple occasions, hiring

investigators, and attempting to convince Appellant to submit to mental testing numerous

times, all to little or no avail.

Pursuant to the Sixth Amendment of the United States Constitution, capital

counsel is obligated “to conduct a reasonably thorough investigation for mitigating

evidence or to make reasonable decisions that make further investigation unnecessary.”

Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). In determining whether counsel

was constitutionally deficient in investigating and presenting mitigation evidence, “we

consider a number of factors, including the reasonableness of counsel’s investigation, the

mitigation evidence that was actually presented, and the additional or different mitigation

evidence that could have been presented.” Id. We note that “[n]one of these factors is,

by itself, dispositive, because even if the investigation conducted by counsel was

unreasonable, this fact alone will not result in relief if the defendant cannot demonstrate

that he was prejudiced by counsel’s conduct.” Id.

We agree with the PCRA court’s conclusion that penalty phase counsel was not

ineffective in her investigation and presentation of mitigation evidence. While Appellant

suggests that penalty phase counsel should have presented additional testimony

regarding his childhood from other witnesses and should have elicited testimony from Dr.

Cooke regarding the effect his childhood had on his mental health, Appellant ignores that

he and his family directly contributed to counsel’s inability to discover and present such

information. Indeed, during the PCRA hearing, penalty phase counsel testified that

Appellant would not provide her with background information about his childhood,

describing that Appellant “was not interested in presenting a mitigation case at all,” and

that “he didn’t want to participate in assisting [her]. N.T., 11/6/08, at 51-53. Appellant

similarly refused to cooperate fully with Dr. Cooke, failing to complete all of the

[J-46-2013] - 32

psychological examinations necessary for Dr. Cooke to conduct a full psychological

evaluation, N.T., 10/5/98, at 13, and refusing to provide him with information concerning

his childhood. N.T., 11/6/08, at 178-80.

Appellant’s relatives were similarly evasive when penalty phase counsel

attempted to speak with them. Several of Appellant’s family members declined to speak

with investigators; Appellant’s mother refused to provide information concerning

Appellant’s childhood and told counsel that Appellant’s relatives “don’t want to talk to

[her]”; and Appellant’s cousin, Mabel Sherman, falsely represented to counsel that

Appellant’s family was “well adjusted” and had “no problems.” Id. at 78-83.

Additionally, Appellant’s guilt phase counsel, Mark Much, Esq., testified that he was

aware that Appellant’s mother was instructing family members not to cooperate in the

investigation, and stated that, when he spoke with Appellant about the matter, Appellant

told him that he directed his “people” not to discuss his childhood with anyone, further

evidencing Appellant’s intent to hinder counsel’s investigation. N.T., 11/5/08, at 156-57.

It is well settled that the reasonableness of counsel’s investigation and preparation

of mitigating evidence is largely dependent upon the information supplied by the

defendant; thus, “[c]ounsel cannot be found ineffective for failing to introduce information

uniquely within the knowledge of the defendant and his family which is not provided to

counsel.” Commonwealth v. Bond, 819 A.2d 33, 45-46 (Pa. 2002) (holding counsel was

not ineffective for failing to present evidence of defendant’s traumatic childhood when

defendant and his family failed to disclose such information to counsel); see also

Commonwealth v. Bracey, 795 A.2d 935, 944 (Pa. 2001) (finding counsel was not

ineffective for failing to discover evidence of abuse from family members when defendant

and his family did not reveal such evidence to counsel). Accordingly, under the

circumstances of the case sub judice, where Appellant’s counsel attempted to conduct a

[J-46-2013] - 33

thorough investigation into potential mitigating evidence over the course of several

months, hired investigators to assist her with this task, and, ultimately, presented

mitigating testimony during the penalty phase from several of Appellant’s acquaintances

and family members — all with little to no cooperation from Appellant throughout the

entirety of counsel’s investigation and the course of the trial — we decline to find that

penalty phase counsel’s failure to uncover additional mitigating evidence was

unreasonable. Likewise, as Appellant refused to discuss his childhood with Dr. Cooke,

we decline to find that penalty phase counsel was unreasonable in failing to elicit

testimony from Dr. Cooke concerning the significance of Appellant’s childhood on his

mental health.

However, even if we were to overlook Appellant’s complete failure to cooperate in

counsel’s investigation and accept his position that counsel’s investigation was

unreasonable and constitutionally deficient, Appellant must still demonstrate that he was

prejudiced by counsel’s conduct. To establish prejudice, Appellant must prove that

“there is a reasonable probability that, but for trial counsel’s errors, the result of the

proceeding would have been different.” Commonwealth v. Koehler, 36 A.3d 121, 150

(Pa. 2012). In other words, “the question is whether there is a reasonable probability

that, had the PCRA evidence been adduced at the penalty phase, Appell[ant] would have

been able to prove at least one additional mitigating circumstance, and at least one juror

would have concluded that the mitigating circumstances collectively outweighed the

aggravating ones.” Commonwealth v. Gibson, 19 A.3d 512, 526 (Pa. 2011). In

evaluating the probability of a different outcome, “we reweigh the evidence in aggravation

against the totality of available mitigating evidence, which includes the evidence

presented at the penalty hearing and the evidence that would have been presented had

counsel conducted a proper investigation.” Id.

[J-46-2013] - 34

Here, assuming, arguendo that the introduction of additional mitigating evidence

concerning Appellant’s abusive childhood and mental health would have caused the jury

to find the additional “extreme mental or emotional disturbance” mitigator and give more

weight to the catchall mitigator that it already found, we cannot say that there is a

reasonable probability that any of the jurors would have concluded the mitigating

circumstances outweighed or were “as weighty as” the patently grave aggravating

circumstances in this case.

Specifically, the Commonwealth proved at trial that Appellant followed his

22-year-old victim, pulled over her vehicle while posing as a police officer, and proceeded

to kidnap, rape, and bludgeon the victim to death, supporting the “killing in perpetration of

a felony” aggravator on two separate grounds. Additionally, during the penalty phase

hearing, the Commonwealth established that Appellant was convicted of second-degree

murder in Washoe County, Nevada on June 18, 1979, after shooting and killing a man

with a rifle; was convicted of battery with a deadly weapon in Washoe County, Nevada on

July 24, 1979, after shooting a woman with a shotgun in her mother’s home; and, on

March 3, 1986, was convicted of battery by a prisoner after he attacked his female visitor

while serving his prison sentences for the aforementioned crimes. N.T., 10/2/98, at

48-51, 55, 61, 65-68. These convictions resulted in the jury additionally finding the

significant history of violent felony convictions aggravator, as well as the multiple murders

aggravator, which is widely considered to be the “most powerful imaginable aggravating

evidence.” Commonwealth v. Simpson, 66 A.3d 253, 278 (Pa. 2013) (quoting Wong v.

Belmontes, 558 U.S. 15 (2009)).

When viewing prejudice in the context of the entire case, as we must, see Lesko,

15 A.3d at 384 (citing Smith v. Spisak, 558 U.S. 139 (2010)), we find that, in light of the

foregoing aggravating circumstances, even if we were to embrace Appellant’s additional

[J-46-2013] - 35

mitigating evidence, it is not reasonably probable that this evidence would have caused

any of the jurors to alter their vote and return a life sentence. See Lesko, 15 A.3d at

384-85 (in light of the patently grave aggravating circumstances, including the multiple

murders aggravator, the appellant was not prejudiced by counsel’s failure to present

additional mitigating evidence); Gibson, 19 A.3d at 526-31 (finding additional mitigating

evidence would not have caused a juror to alter his or her vote where powerful

aggravating evidence was offered); Simpson, 66 A.3d at 277-78 (defendant was not

prejudiced where significant aggravating evidence was offered and facts supporting the

defendant’s conviction were grave). Accordingly, because Appellant has not proven that

he was prejudiced, and, thus, has not proven that his penalty phase counsel was

ineffective in her investigation and presentation of mitigating evidence, we will not deem

appellate counsel ineffective for failing to raise this meritless claim on direct appeal. See

Commonwealth v. Gwynn, 943 A.2d 940, 949 (Pa. 2008) (holding counsel is not

ineffective for failing to pursue meritless claims).

D. Unreliable Forensic Evidence

Appellant next challenges the manner in which the Commonwealth presented

DNA evidence to the jury at his trial and raises a layered ineffectiveness claim with

respect to counsel’s failure to challenge the Commonwealth’s presentation of DNA

evidence.

During trial, the Commonwealth’s DNA expert, Sarah Gotwald, 19 testified

regarding DNA evidence recovered from vaginal swabs taken from the victim’s body.

Specifically, Gotwald explained to the jury that, from these vaginal swabs, she developed

19 Gotwald now goes by the name Sarah Kucherer. To avoid confusion, we will continue

to refer to her as Sarah Gotwald.

[J-46-2013] - 36

a male DNA profile, which she tested using the restriction fragment length polymorphism

(“RFLP”) method on six different regions, and compared to a DNA sample obtained from

Appellant.20 N.T., 9/28/98, at 62. Gotwald described that three of the areas tested

yielded no results because of a low presence of DNA, but that the three remaining regions

matched the DNA profile obtained from Appellant’s DNA sample, noting that the

probability of randomly selecting an unrelated individual matching this DNA profile is 1 in

3 million in the Caucasian population; 1 in 2,300,000 in the African American population,

and 1 in 2,400,000 in the Hispanic population.21 Id. at 62-64. Relevant to the instant

appeal, as Gotwald explained the procedures used to conduct a RFLP analysis, the

Commonwealth placed one of the autorads22 of a sample matching Appellant’s DNA

sample on an overhead projector along with an autorad of Appellant’s actual DNA

sample, and Gotwald opined that they visually matched. Id. at 65-69. The

Commonwealth did not place the other two “matches” on the projector, however.

20 Because the samples that Gotwald received contained low levels of DNA, she initially

tested them using the preliminary chain reaction (“PCR”) method, N.T,. 9/28/98, at 33,

which is designed to “handle forensic samples that are of low quantity and poor quality.”

John M. Butler, Forensic DNA Typing 30 (2d ed. 2005). However, Gotwald later

determined that she could re-extract the DNA from multiple swabs that had been supplied

to her, allowing her to re-test the sample using the RFLP method. The RFLP method

requires a larger sample of DNA than the PCR method and requires the sample to be

intact and well-preserved, but its results are more discriminatory than the PCR method,

meaning the results are better able to discern the difference between individuals. Id. at

4-5, 29 (Table 2.1).

21 The PCR testing in this case reflected that the probability of finding this DNA profile in

an unrelated individual is one in 58,300 in the African American population; one in 5,000

in the Caucasian population; and one in 9,100 in the Hispanic population. N.T., 9/28/98,

at 48-49. Appellant is African American.

22 An “autorad,” short for autoradiogram or autoradiograph, is a piece of X-ray film upon

which the pattern of DNA fragments — similar to a supermarket bar code — collected

from testing is recorded. Norah Rudin & Keith Inman, An Introduction to Forensic DNA

Analysis 74 (2d ed. 2002).

[J-46-2013] - 37

Rather, on redirect examination, the Commonwealth asked whether testing of the other

two “matching” regions of the DNA sample produced “similar results,” and Gotwald

responded:

Yes, they were from the same nylon membrane. They were

just put in different radioactive probe looking for a different

fragment. There were bands from the male fraction of Q-3

which matched the blood labeled as [Appellant’s] on those

two autorads as well. So there were similar results. You’re

looking at the same data, but the bands were in different

locations because you’re looking areas [sic] of the DNA.

Id. at 116.

Appellant’s counsel did not challenge the admission of this DNA evidence at trial,

nor did he object to the manner in which it was presented. Nevertheless, Appellant

presently maintains that the manner in which the Commonwealth presented the DNA

evidence to the jury was false and misleading, claiming the jury should not have been

asked to accept the Commonwealth expert’s opinion that two of the alleged “matching”

DNA samples produced results similar to the autorad that was shown on the overhead

projector without being given a similar opportunity to observe them. Appellant further

asserts that his expert witness, Dr. Paul Goldstein, testified at the PCRA hearing that he

disagreed with Gotwald’s conclusions that the two samples which were not presented to

the jury produced results similar to the match that was presented to the jury, and that he

“disagreed that any of the three ‘matching’ autorads could reliably be called a match to

Appellant’s profile.” Appellant’s Brief at 50. Based on the foregoing, Appellant argues

that his conviction and death sentence were based upon unreliable forensic evidence,

violating his right to due process under the Fourteenth Amendment of the United States

Constitution. Appellant additionally asserts that trial counsel was ineffective for failing to

adequately cross-examine Gotwald and failing to challenge her testimony that the other

[J-46-2013] - 38

two DNA samples produced similar results to the autorad shown on the overhead

projector, and that appellate counsel was ineffective for failing to raise trial counsel’s

ineffectiveness on direct appeal.

The Commonwealth responds that Gotwald’s expert testimony was sound, as she

presented a step-by-step explanation of the processes used in analyzing the DNA

samples and “established proper protocols were followed regarding the [“PSP”] lab’s

handling of the evidence, its analysis of the DNA evidence, and in making a match

declaration.” Commonwealth’s Brief at 48. Moreover, the Commonwealth notes that,

during the PCRA hearing, Lisa Grossweiler, a Cellmark Diagnostics DNA analyst who

reviewed the lab work performed in this case and independently tested the DNA

evidence, confirmed that the lab properly declared a match between Appellant’s DNA and

the DNA evidence recovered from the crime scene. The Commonwealth further

observes that trial counsel did not challenge Gotwald’s conclusions or her methodology in

arriving at these conclusions.

At the outset, the PCRA court found that Appellant waived his underlying

challenge to the reliability of the forensic evidence presented at trial, as he failed to object

to the admission of the evidence at trial or the manner in which the evidence was

presented, and he failed to raise the issue on direct appeal. PCRA Court Opinion,

9/4/12, at 61. The PCRA court also concluded Appellant’s layered ineffectiveness

claims lacked merit. Specifically, the PCRA court noted that, as confirmed by

independent DNA analyst Grossweiler, Gotwald followed generally accepted standards

and protocols developed by the PSP and the Federal Bureau of Investigation regarding

the handling and testing of DNA evidence, and her testing results were accurate. While

Appellant offered testimony from Dr. Goldstein to refute the Commonwealth’s

conclusions that the DNA evidence matched Appellant’s DNA, the court noted that Dr.

[J-46-2013] - 39

Goldstein conceded that proper protocols and instructions were followed during testing,

and it ultimately found his testimony regarding the inaccuracy of the results to be

incredible.

Additionally, the PCRA court rejected Appellant’s claim concerning the

Commonwealth’s use of the projector at trial, finding nothing false or misleading about the

presentation of the DNA evidence or Gotwald’s testimony. In reaching this conclusion,

the court noted the Commonwealth never asked the jury to determine whether the DNA

bands on the autorads matched the bands developed from Appellant’s DNA sample.

Rather, the Commonwealth placed the DNA samples on the projector to help illustrate

Gotwald’s testimony. The court opined that, while an expert may find the use of an

overhead projector to be “a substandard and inappropriate means of analyzing RFLP

autorads,” that “does not preclude its use as a visual aid.” PCRA Court Opinion, 9/4/12,

at 73-74. Accordingly, as Appellant’s underlying challenges lacked merit, the PCRA

court concluded counsel was not ineffective for failing to raise them at the time of trial.

We agree that, by failing to lodge an objection at trial, Appellant waived his

underlying challenges to the validity of the Commonwealth’s DNA evidence and the

manner in which this evidence was presented. See Pa.R.A.P. 302(a). We also note

that Appellant waived his trial counsel ineffectiveness claim because he failed to raise it

on direct appeal. However, because Appellant also alleges ineffectiveness of appellate

counsel, we will proceed to evaluate his layered ineffectiveness claim.

As discussed above, the PCRA court found Dr. Goldstein’s testimony to be

incredible, noting that, although Dr. Goldstein disagreed with the results of Gotwald’s

testing, when he analyzed the results, he failed to view the autorads using a light box, the

standard means utilized to illuminate autorads, and he did not dispute the PSP protocols

[J-46-2013] - 40

utilized during testing.23 Accordingly, because the PCRA court rejected Dr. Goldstein’s

testimony, there is no merit to Appellant’s claim — based upon Dr. Goldstein’s expert

opinion — that counsel was ineffective for failing to challenge the results of Gotwald’s

DNA testing and analysis. As a result, appellate counsel was not ineffective for failing to

raise this meritless claim on direct appeal. See Gwynn, 943 A.2d at 949.

E. Ineffectiveness of Counsel for Failing To Raise Due Process Violation

Appellant next raises a layered ineffectiveness claim that both trial counsel and

appellate counsel were ineffective for failing to challenge on due process grounds an

erroneous court order that was used to secure his temporary release from prison into the

custody of detectives for questioning.

On October 14, 1997, before Appellant was charged in the instant case, a

Delaware County Common Pleas Court judge ordered Appellant’s temporary release

from SCI-Camp Hill into the custody of detectives the next day for a “hearing.” No

hearing was scheduled, however. Rather, Delaware County Criminal Investigation

Division (“CID”) Detectives John Easton and Joseph O’Berg, along with Trooper

Tedescung Bandy, arrived at SCI-Camp Hill the next day and informed Appellant that he

was being transported to Delaware County to be questioned regarding the victim’s

murder. Appellant agreed to accompany the police, was advised of his Miranda rights

upon his arrival at the CID headquarters, and stated that he understood his rights and that

23 Appellant also argues the PCRA court erred in rejecting Dr. Goldstein’s testimony,

claiming the PCRA court’s credibility determination was “vague, and not supported by the

record.” Appellant’s Brief, at 51. Contrary to Appellant’s assertions, however, the

PCRA court provided ample record support for its credibility determination, citing, inter

alia, Dr. Goldstein’s failure to examine the DNA autorads under standard forensic

laboratory conditions and Dr. Goldstein’s failure to find fault with the PSP protocols

utilized in conducting the testing in this case. PCRA Court Opinion, 9/4/12, at 71-73.

[J-46-2013] - 41

he was willing to discuss what he knew about the murder, indicating he wished to “clear

his name.” Bomar I, 826 A.2d at 846. Initially, Appellant cooperated and answered the

investigators’ questions; however, he grew upset when asked whether he had sexual

intercourse with the victim and stated that he was not going to answer the question,

choosing to invoke his Miranda rights at that time.

At trial, the court suppressed Appellant’s response and all of his statements made

following the invocation of his Miranda rights, but admitted all other statements made prior

to the invocation. On direct appeal to this Court, Appellant challenged the admission of

the statements he made prior to invoking his Miranda rights on the grounds that the

“bring-down” order used to secure his transfer to the CID headquarters violated his rights

under the Fourth Amendment to the United States Constitution. Specifically, Appellant

asserted the Commonwealth falsely represented to the trial court that his presence was

required at a hearing in order to secure his release into the detectives’ custody for

questioning. We rejected Appellant’s claim on direct appeal, stating “the notion of

offensive or outrageous governmental conduct, not involving a seizure, sounds under due

process, not the Fourth Amendment.” Bomar I, 826 A.2d at 846.

Apparently taking heed of our prior statement, Appellant presently argues, for the

same reasons offered in his Fourth Amendment claim on direct appeal, that the

Commonwealth violated his due process rights, claiming the CID investigators

intentionally misrepresented the language in the “bring-down” order to “trick Appellant

into ‘voluntarily’ going to Delaware County” for questioning. Appellant’s Brief at 56.

Appellant further argues that both his trial counsel and direct appeal counsel were

ineffective for raising a claim under the Fourth Amendment, rather than a due process

challenge.

[J-46-2013] - 42

In response, the Commonwealth notes that, in rejecting Appellant’s Fourth

Amendment claim on direct appeal, we also opined that Appellant would not prevail on a

due process claim, stating that “[A]ppellant was not misled regarding the true purpose of

his transfer. The police specifically informed [A]ppellant that they would be transporting

him to the CID offices to discuss the Willard murder and [A]ppellant expressly agreed to

go with them.” Commonwealth’s Brief at 53 (quoting Bomar I, 826 A.2d at 846.) In light

of the foregoing, the Commonwealth argues that Appellant cannot prove that he was

intentionally misled regarding the “bring-down” order and, thus, cannot establish a viable

due process claim. Further, as Appellant’s due process claim lacks merit, the

Commonwealth contends trial counsel and direct appeal counsel cannot be deemed

ineffective for failing to raise it.

Agreeing with the Commonwealth, the PCRA court concluded Appellant’s claim

lacked merit, noting “there is no record evidence supporting the allegation that the error in

the ‘bring down’ order was the result of ‘false representations or other intentional

wrongdoing on the part of the Commonwealth.’” PCRA Court Opinion, 9/4/12, at 183

(quoting Bomar I, 826 A.2d at 845). As such, the PCRA court found trial counsel and

direct appeal counsel were not ineffective for failing to raise the claim.

Preliminarily, we note that Appellant has waived his underlying due process

challenge because it was not raised by trial counsel, and he waived his trial counsel

ineffectiveness claim because appellate counsel did not raise the claim on direct appeal.

Accordingly, we evaluate only Appellant’s claim of appellate counsel ineffectiveness.

Due process, in the most general sense, protects individuals from oppressive or

arbitrary governmental conduct. See Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa.

2001) (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due

process is protection of the individual against arbitrary action of government”)). When

[J-46-2013] - 43

evaluating whether an appellant’s due process rights have been violated, we consider

“whether the challenged proceeding or conduct ‘offends some principal of justice so

rooted in the traditions and conscience of our people as to be ranked as fundamental,’”

Kratsas, 764 A.2d at 27 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)), and

that “defines the community’s sense of fair play and decency.” Kratsas, 764 A.2d at 27

(quoting Dowling v. United States, 493 U.S. 342, 353 (1990)).

One specific subset of due process claims, raised in the instant case, concerns

“outrageous government misconduct.” Kratsas, 764 A.2d at 27. To establish such a

due process violation, an Appellant must prove that such conduct was “so grossly

shocking and so outrageous as to violate the universal sense of justice.”

Commonwealth v. Mance, 619 A.2d 1378, 1381 (Pa. Super. 1993) (quoting

Commonwealth v. Benchino, 582 A.2d 1067 (Pa. Super. 1990) (quoting United States v.

Ramirez, 710 F.2d 535, 539 (9th Cir. 1983))), aff’d, 652 A.2d 299 (Pa. 1995).

Appellant has failed to meet this burden. Although Appellant maintains he was

“tricked” into going to CID headquarters, as we stated on direct appeal, Appellant failed to

prove “the order was the result of false representations or other intentional wrongdoing on

the part of the Commonwealth.” Bomar I, 826 A.2d at 845. We stated further that

“[A]ppellant was not misled regarding the true purpose of his transfer. The police

specifically informed [A]ppellant that they would be transporting him to the CID offices to

discuss the Willard murder and [A]ppellant expressly agreed to go with them.” Id. at 846.

Moreover, upon his arrival at CID headquarters, Appellant was advised of his Miranda

rights and agreed to speak to investigators. Accordingly, while we do not suggest that

the misuse of a court order could never violate an inmate’s due process rights, we find

nothing from the circumstances in the case sub judice that would indicate the

Commonwealth acted offensively or outrageously so as to deny Appellant due process in

[J-46-2013] - 44

this instance. Because Appellant’s underlying due process claim lacks merit, Appellant’s

claim that appellate counsel was ineffective for failing to raise the issue on appeal also

fails.

F. Denial of Impartial Jury

In an apparent claim of after-discovered evidence, Appellant next argues that

jurors in his trial were tainted by a sheriff’s deputy’s statement concerning a threat that

had been made to the jury, thus denying his constitutional right to a trial before a fair and

impartial jury, seemingly invoking 42 Pa.C.S.A. § 9543(A)(2)(i). To support his claim,

Appellant points to the following testimony from juror William Mertz introduced during the

PCRA hearing:

Q. At the time of the trial do you recall if the jury was being

guarded by any law enforcement personnel?

A. Yes.

Q. Did you ever have a conversation with any of those law

enforcement personnel regarding the amount of security

around the jury?

A. Yes.

Q. And what were you told by that law enforcement officer

during that conversation?

A. During one conversation there was a mention of threats

towards the jury.

Q. Do you remember what that threat was?

A. It has been awhile, I don’t remember the specifics of that

conversation at this point in time. I do remember there was

[sic] threats.

N.T., 10/20/09, at 8-9. To refresh Mertz’s recollection, Appellant’s counsel showed

Mertz a declaration that he previously signed regarding the threats. Counsel then asked:

[J-46-2013] - 45

Q: When I asked you earlier about the nature of the threat

and you said you didn’t recall. After reading this declaration

is your recollection refreshed as to the threat?

A: In this declaration I state there were death threats

towards the jury.

Id. at 10.

Appellant maintains that, because he did not know about the jury threat until “well

after the trial,” he had no opportunity to confront the information to which the jurors were

exposed, and, thus, his rights under the Sixth and Fourteenth Amendments to the United

States Constitution to a fair trial and due process were violated. Appellant’s Brief at 61.

Appellant further avers that the PCRA court misapplied the standard for evaluating

whether an extraneous influence prejudiced the jury, claiming the PCRA court

subjectively analyzed whether Appellant’s jury was influenced by the statements, rather

than evaluating whether an objective, typical juror would be affected by such an influence.

The Commonwealth retorts that the statement made by the sheriff’s deputy

concerned a security matter that had nothing to do with the issues at trial, and claims that

“the information was neither inflammatory nor emotional in nature.” Commonwealth’s

Brief at 57. The Commonwealth further maintains that Appellant’s claim that the PCRA

court applied a subjective standard, rather than an objective one, in assessing the impact

of the deputy’s statements is incorrect, as, according to the Commonwealth, the PCRA

court noted both that the juror in question was not negatively impacted by the deputy’s

comments, and that “there was no reasonable likelihood of prejudice from the purported

extraneous influence as a result of the conversation between a juror and deputy sheriff

regarding security.” Commonwealth’s Brief at 57.

The PCRA court, in rejecting Appellant’s claim, noted that the alleged extraneous

influence occurred on only one occasion during the two and a half week trial, and opined

that, “[t]here is no evidence indicating either that Mr. Mertz was led to believe that

[J-46-2013] - 46

[A]ppellant or anyone associated with him was the source of a threat.” PCRA Court

Opinion, 9/4/12, at 81. As such, the PCRA court concluded that Appellant could not

prove the sheriff deputy’s statement caused prejudice.

Initially, we note that Appellant does not state when he first learned of the alleged

extraneous influence aside from baldly asserting that he learned of it “well after trial.”

Nor does he explain with any specificity why he waited until he filed his PCRA petition to

raise the issue, rather than raising it at trial, in post-sentence motions, or on direct appeal.

Thus, it appears Appellant waived this claim. Nevertheless, because the

Commonwealth has not asserted waiver, we will proceed to consider the claim on the

merits.

To prevail on a claim that an extraneous influence compromised the impartiality

and integrity of the jury, Appellant must prove the extraneous influence caused a

“reasonable likelihood of prejudice.” Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa.

2012) (internal quotations omitted). In determining whether there was a “reasonable

likelihood of prejudice,” we consider: “(1) whether the extraneous influence relates to a

central issue in the case or merely involves a collateral issue; (2) whether the extraneous

influence provided the jury with information they did not have before them at trial; and (3)

whether the extraneous influence was emotional or inflammatory in nature.” Id. (quoting

Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010, 1016-17 (Pa. 1992) (plurality)). In

employing this test, the reviewing court “is precluded from considering evidence

concerning the subjective impact of an extraneous influence on any juror.” Carter by

Carter, 604 A.2d at 1016. Rather, the reviewing court “must determine how an objective,

typical juror would be affected by such an influence.” Id.

Here, Appellant has not met his burden of proving the sheriff deputy’s statement

caused a reasonable likelihood of prejudice. Appellant claims the threat was related to a

[J-46-2013] - 47

central issue in the case because his “character, dangerousness, and propensity for

violence were all central issues of the Commonwealth’s case,” and the threat “would

certainly be accepted by an objective juror that Appellant or his people could harm the

jury.” Appellant’s Brief at 63. Initially, only in the broadest terms does the threat relate

to a central issue in the case. However, even assuming, arguendo, a connection

between the threat and a central issue in his case, Appellant’s argument fails because he

has not provided any proof that it was suggested that he or “his people” were the source

of the threat. Rather, the record discloses only a report of a generic threat. Secondly,

while the sheriff deputy’s statement certainly provided Mertz with information that he did

not have before him at trial, the statement was isolated, appears to have been directed

only to Mertz, and constituted only the reference to a vague threat without any specifics.

Further, Appellant does not provide any indication that the sheriff’s deputy or Mertz

relayed the information concerning the general threat to other members of the jury; thus,

we cannot accept Appellant’s claim that the entire jury was provided with information that

they did not have before trial. Finally, while we agree with Appellant that a reference to a

death threat may be intrinsically inflammatory, here, the threat was vague, its origins

unknown, and it was conveyed by a sheriff’s deputy to a single juror, rather than

communicated to the jury directly from the source of the threat, thus minimizing its

inflammatory nature.

Appellant is correct that, when conducting its analysis, at times, the PCRA court

may have placed too much emphasis on the statement’s effect on Mr. Mertz, rather than

the effect it would have had on an objective juror. In light of the foregoing, however,

including a report of an isolated, vague, and general threat conveyed by a neutral law

enforcement officer to a single juror, we find there was no reasonable likelihood that an

objective, typical juror would have been influenced by the threat; thus, regardless of the

[J-46-2013] - 48

PCRA court’s consideration of subjective factors, the court ultimately reached the

appropriate result. Accordingly, no relief is due on this claim.

G. Improper Excusing of Prospective Jurors

Appellant contends the trial court improperly excused for cause seven potential

jurors who stated they were philosophically opposed to the death penalty or expressed

doubt regarding whether they could impose it, depriving him of the right to an impartial

capital sentencing jury under the Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution. Appellant also raises a layered ineffectiveness claim arguing

that trial counsel was ineffective for failing to object to the trial court’s alleged improper

death qualification process, and that appellate counsel was ineffective for failing to raise

trial counsel’s ineffectiveness on direct appeal.

The voir dire process at issue began with the trial court conducting a general voir

dire of the entire pool of prospective jurors, followed by an individual voir dire. During the

individual voir dire, the trial court, inter alia, explained the law regarding the imposition of

the death penalty and asked each of the prospective jurors a series of questions related

to his or her personal beliefs and ability to impose the death penalty. Specifically, the

trial court asked each potential juror whether they had personal, religious, moral, ethical,

or conscientious beliefs that would prevent them from voting to impose the death penalty

under any circumstances, regardless of the facts or the law. Six of the seven veniremen

at issue indicated they held such a belief. The trial court then asked whether the

potential jurors were able to set aside these personal beliefs, and whether they would be

able to vote to impose the death penalty if they believed the evidence warranted it and the

law permitted it. After each of the six potential jurors indicated that they could not do so,

the Commonwealth challenged the juror for cause — without objection from Appellant’s

[J-46-2013] - 49

counsel — and the trial court granted the motion to strike them. N.T., 9/14/98, at 192-94;

N.T., 9/15/98, at 471-73, 536-40, 607-10; N.T., 9/16/98, at 689-99, 761-63.

The seventh potential juror, I.H., was excused under circumstances that differed

slightly from the others. During voir dire, the trial court asked I.H. the same question

regarding whether she held beliefs that would prevent her from voting to impose the death

penalty under any circumstances. I.H. responded that she was “for the death penalty,”

prompting the trial court to engage in the following exchange:

Q. I mentioned a minute ago, I told you just because the

Defendant’s convicted of First Degree Murder, that doesn’t

mean that the jury may vote to impose the death penalty.

They can’t. They have to consider these aggravating and

mitigating circumstances. So I’m asking you, essentially,

would you follow the law and only impose the death penalty

under those circumstances, if you believed --

A. Yes.

Q. -- that the evidence was there? Is that a yes?

A. Yes.

N.T., 9/16/98, at 738. Thereafter, Appellant’s counsel questioned I.H. further regarding

the following:

Q. Ma’am, as you sit here today, have you formed some

opinion as to the guilt or innocence of Mr. Bomar?

A. No, but what I say now might not fit him.

Q. Okay.

A. After watching that other case, O.J. Simpson’s case, --

Q. Yes ma’am.

A. -- a couple of years ago, I really feel I would not like to be

involved in a case like this.

[J-46-2013] - 50

Q. You would not like to be involved?

A. I would not like to be.

Q. Okay. We just want your honest opinion.

A. My honest opinion is to watch this circus of O.J. Simpson,

the whole thing, and I watched afterwards, you know, all them

comments like different TV people, like Larry King had certain

people on and et cetera, et cetera. I wish not to be a juror in

a murder case.

Q. Okay. Do you think that because Mr. Bomar has been

arrested and charged with the crime of Murder that he’s

probably guilty of something?

A. I don’t even look at this. I just would not wish to do this,

the whole, to do that. I wish not to do this. It would be, I

don’t even look at Mr. Bomar or, everybody’s going to be

disappointed in the way I feel but I wish not to do it.

Q. Okay. Your personal feelings about not wanting to

participate in the process, --

A. Yes.

Q. -- would that affect your ability to sit as a fair and impartial

juror in the case?

A. I just have this block. I do not want to do it.

Id. at 741-42. The Commonwealth requested that I.H. be excused for cause.

Appellant’s counsel did not object, and the trial court granted the Commonwealth’s

motion.

Although Appellant’s counsel did not object to the Commonwealth’s motions to

excuse any of the seven veniremen, Appellant nevertheless maintains the trial court

improperly struck the potential jurors based upon their initial feeling that they could not

impose the death penalty, and thereby failed to conduct the required inquiry into whether

their views would “prevent or substantially impair the performance of [their] duties as . . .

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juror[s] in accordance with [their] instructions and [their] oath.” Appellant’s Brief at 65

(quoting Morgan v. Illinois, 504 U.S. 719, 728 (1992)). As a result, Appellant claims that

prospective jurors who may have been opposed to the death penalty, but were qualified

to sit as jurors, were excluded, resulting in the selection of a jury that was “uncommonly

willing to condemn a man to die,” and undermining confidence in his death sentence,

necessitating a new sentencing hearing. Appellant’s Brief at 66 (quoting Witherspoon v.

Illinois, 391 U.S. 510, 521 (1968)). Appellant also contends trial counsel was ineffective

for failing to object to the Commonwealth’s motions to strike each of the seven jurors and

for failing to rehabilitate each of the seven jurors, and he argues that appellate counsel

was ineffective for failing to raise this claim on direct appeal.

The PCRA court wholly rejected Appellant’s claim, noting that, contrary to

Appellant’s assertions, the trial court thoroughly determined whether each prospective

juror had the ability to perform his duties in accordance with his or her oath. PCRA Court

Opinion, 9/4/12, at 192. The court noted that, in so doing, it explained to each potential

juror the process of considering and weighing the aggravating and mitigating

circumstances in deciding whether to impose a sentence of death and specifically

questioned each potential juror whether his or her beliefs would prevent or substantially

impair the juror in the performance of his or her duties in accordance with his instructions

and their oath. The court found that it did not abuse its discretion in using this method to

exclude potential jurors, and, therefore, concluded that neither trial counsel nor appellate

counsel were ineffective for failing to pursue this claim.

Because Appellant’s counsel failed to object to the Commonwealth’s motions to

strike each of the seven potential jurors, this claim is waived. We also find that Appellant

waived his trial counsel ineffectiveness claim because appellate counsel failed to raise

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the issue on direct appeal. We, thus, proceed to evaluate only Appellant’s claim of

appellate counsel ineffectiveness.

In determining whether a prospective juror should be disqualified for cause, a trial

court must consider “whether he or she is willing and able to eliminate the influence of any

scruples and render a verdict according to the evidence.” Commonwealth v. Robinson,

864 A.2d 460, 489 (Pa. 2004). While “a sentence of death cannot be carried out if the

jury that imposed or recommended it was chosen by excluding veniremen for cause

simply because they voiced general objections to the death penalty or expressed

conscientious or religious scruples against its infliction,” Commonwealth v. Gibson, 951

A.2d 1110, 1129 (Pa. 2008) (quoting Witherspoon, 391 U.S. at 522), it is well settled that

a trial court may disqualify a potential juror for cause if his 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.” Chmiel, 30 A.3d at 1176. However,

“[t]he decision whether to disqualify a juror is within the sound discretion of the trial court

and will not be reversed in the absence of a palpable abuse of discretion.”

Commonwealth v. Stevens, 739 A.2d 507, 521 (Pa. 1999).

Here, Appellant fails to establish the trial court abused its discretion. Appellant

baldly asserts the trial court failed to determine whether the potential jurors could set

aside their beliefs and follow the law, but he fails to cite to anywhere in the record where

this occurred, fails to explain why, specifically, the trial court’s voir dire was inadequate,

and fails to discuss the voir dire of each of the jurors individually. Moreover, Appellant

ignores that the trial court asked each of the excused jurors whether they held beliefs that

would prevent them from imposing the death penalty under any circumstances;

specifically asked each of them whether they could set aside their personal beliefs and

impose the death penalty if the facts and law counseled toward it; and excused the jurors

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only after they indicated they could not. We find that this inquiry sufficiently established

that the six excused jurors who expressed that they could not vote to impose the death

penalty lacked the ability to perform their duties in accordance with the judge’s

instructions and their oath, and, thus, that the trial court properly exercised its wide

discretion in excusing these jurors for cause.

Similarly, we decline to find the trial court abused its discretion in excusing I.H. for

cause. As stated above, “[j]urors should be disqualified for cause when they do not have

the ability or willingness to eliminate the influences under which they are operating and

therefore cannot render a verdict according to the evidence.” Robinson, 864 A.2d at

489. Even assuming arguendo that I.H. had the ability to render a verdict according to

the evidence, based upon I.H.’s repeated comments regarding her passionate desire not

to participate in a murder case; her statement that she “ha[d] this block” and did “not want

to do it,” in response to the trial court’s question regarding whether her personal feelings

would affect her ability to sit as a fair and impartial juror; and her reference to the jurors in

the O.J. Simpson trial, it was reasonable for the trial court to conclude that I.H. was simply

unwilling to set her feelings aside and render a verdict according to the evidence in this

case.

Accordingly, in light of the foregoing, we conclude the trial court did not abuse its

discretion in excusing the jurors for case. Further, because this claim lacks merit, we

also find that appellate counsel was not ineffective for failing to raise a claim of trial

counsel’s ineffectiveness on direct appeal. We further note that trial counsel “has no

constitutional obligation to attempt to change the jurors’ views”; thus, to the extent that

Appellant argues trial counsel was ineffective for failing to rehabilitate the jurors, this claim

also lacks merit. Chmiel, 30 A.3d at 1176.

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H. Violation of Sixth Amendment Right to Counsel

Appellant maintains the Commonwealth’s placement of O’Donald on his cellblock

to serve as a listening post for statements regarding Appellant’s involvement in the

victim’s murder violated his Sixth Amendment right to counsel. While Appellant

concedes that formal judicial proceedings had not been initiated against him at the time

O’Donald overheard the incriminating statements, and, thus, that, pursuant to Massiah v.

United States, 377 U.S. 201 (1964), his Sixth Amendment right to counsel had not yet

attached, he suggests the Commonwealth’s actions of planting O’Donald to elicit

statements from him prior to being formally charged violated the “spirit” of the Massiah

doctrine, and urges this Court to “revisit and reject the established legal doctrine” in order

to prevent such conduct by the Commonwealth in the future. Appellant’s Brief at 67.

In response, the Commonwealth highlights that Appellant has no right to federal

constitutional relief, as judicial proceedings had not been initiated against him at the time

he made the incriminating statements and, thus, his Sixth Amendment rights were not

implicated. The Commonwealth further observes that Appellant conceded that fact on

direct appeal when he raised this claim pursuant to Article I, Section 9 of the Pennsylvania

Constitution, rather than pursuing a claim on federal constitutional grounds.

Appellant did not raise this issue on direct appeal, and, thus, we find it to be

waived. Moreover, even if Appellant had raised this issue, as the PCRA court noted, this

Court in addressing — and rejecting — Appellant’s related claim under Article I, Section 9

of the Pennsylvania Constitution on direct appeal opined that Appellant also had no

federal right to relief. Specifically, we noted that the “right to counsel under Article I,

Section 9 of the Pennsylvania Constitution . . . is coterminous with the Sixth Amendment

right to counsel” for purposes of determining when the right to counsel attaches. Bomar

I, 826 A.2d at 844. We then reasoned that because “[A]ppellant had no Sixth

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Amendment right to counsel at the time he made his incriminating statements to O’Donald

concerning the Willard murder, he also necessarily had no Article I, Section 9 right to

counsel at this point.” Id.

As we did on direct appeal, we again emphasize that Appellant was not charged in

the instant murder at the time he implicated himself to O’Donald, and, thus, his right to

counsel under the Sixth Amendment had not attached at that time. See Massiah, 377

U.S. at 205. To the extent Appellant now suggests that we should “reject” the Massiah

doctrine, we must decline his invitation to do so, as this Court obviously lacks the authority

to overrule decisions of the United States Supreme Court premised on federal law.

Appellant is, thus, entitled to no relief on this claim.

I. Cumulative Effect of Errors

Lastly, Appellant argues that, even if he is not entitled to relief on any of his

individual claims, he is entitled to relief based on the cumulative effect of the allegations of

error and counsel ineffectiveness raised in his brief, which he claims denied him a fair trial

and reliable capital sentencing. It is well settled that “no number of failed claims may

collectively warrant relief if they fail to do so individually.” Commonwealth v.

Washington, 927 A.2d 586, 617 (Pa. 2007). Accordingly, where claims are rejected for

lack of arguable merit, there is no basis for an accumulation claim. Commonwealth v.

Sattazahn, 952 A.2d 640, 671 (Pa. 2008). However, when the failure of individual claims

is grounded in lack of prejudice, the cumulative prejudice from those individual claims

may properly be assessed. Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012)

(citations omitted).

In the instant case, we have denied all of Appellant’s claims on the grounds that

they are waived, lack merit, or both; thus, there is no basis for a claim of cumulative error.

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Moreover, even if Appellant did not waive his claims, we rejected only two of his claims —

his Brady claim and his claim that penalty phase counsel was ineffective for failing to

present additional mitigating evidence — on the alternative ground of lack of prejudice.

Upon review, we are confident in light of the overwhelming DNA and circumstantial

evidence implicating Appellant in this murder outlined above that there is no cumulative

error warranting relief.

III. Conclusion

In conclusion, for the reasons stated herein, we affirm the order of the PCRA court

dismissing all of Appellant’s claims.

Messrs. Justice Saylor, Eakin, Baer and Stevens join the opinion.

Mr. Chief Justice Castille files a concurring opinion.

Mr. Justice Saylor files a concurring opinion.

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