# Commonwealth v. Treiber, S., Aplt

> Supreme Court of Pennsylvania · August 17, 2015 · 632 Pa. 449

URL: https://www.frixlaw.com/law-library/cases/2827857

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Stephen TREIBER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 17, 2015
- **Citations:** 632 Pa. 449; 121 A.3d 435; 2015 Pa. LEXIS 1775
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Eakin, J. Michael
- **Cited by:** 633 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2827857

## How later opinions describe it (automated extraction)

- holding that cursory allegations of counsel’s ____________________________________________ 1 Miranda v. Arizona, 384 U.S. 436 (1966). -5- J-S42011-16 ineffectiveness were waived as a result of appellant’s failure to develop those claims.
- concluding that 42 Pa.C.S.A. § 9712.1, regarding the distance between drugs and guns, must be struck down in its entirety as unconstitutional in light of Alleyne, as its subsections -2- J. S44008/16 are not severable
- reasoning that stipulation to facts needed for - 12 - J-S01023-16 mandatory minimum sentence does not satisfy Alleyne; no functional difference exists between submission of fact to jury or accepting stipulation
- recognizing that “[a] PCRA court’s credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court.” (citation omitted)
- concluding that 42 Pa.C.S. § 9712.1, regarding the distance between drugs and guns, must be struck down in its entirety as unconstitutional in light of Alleyne, as its subsections are not severable

## Opinion text

[J-49-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

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

COMMONWEALTH OF PENNSYLVANIA, : No. 656 CAP
:
Appellee : Appeal from the Order entered on
: 03/27/2012 in the Court of Common Pleas,
: Criminal Division of Erie County at No.
v. : CP-25-CR-0000842-2001
:
: SUBMITTED: May 30, 2013
STEPHEN TREIBER, :
:
Appellant :

OPINION

MR. JUSTICE EAKIN DECIDED: August 17, 2015
Appellant, Stephen Treiber, appeals from the order denying him collateral relief

from his criminal convictions and death sentence pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On the night of March 9, 2001, appellant set fire to his home while his girlfriend,

Denise Riddle, and his two-year-old daughter, Jessica, slept inside. As the home

burned, appellant and Ms. Riddle escaped, but Jessica remained in her crib until

firefighters removed her; however, they were unable to revive her. Appellant was

charged with criminal homicide, reckless endangerment, and multiple counts of arson;

the Commonwealth gave notice of its intent to pursue the death penalty.

Appellant’s neighbor, who went to help after seeing smoke emanating from the

home, testified at trial that appellant and Ms. Riddle were standing on a second-story

deck, and Ms. Riddle screamed for help while appellant calmly stood by with his arms
folded. Appellant asked about the well-being of his dogs but, when referring to Jessica,

said, “[T]he firemen will get her. She’s probably dead anyway.” N.T. Trial, 9/30/02, at

97. A fire marshal who investigated the scene testified the fire had been started at two

points of origin — one in the basement and the other in the garage — using gasoline,

clothing, straw, and candles. He noted the home’s security system had been disabled

and one wire had been cut. The marshal also observed a chain ladder affixed to the

residence, which, he reasoned, had been recently tethered to the home because it had no

signs of rust. Members of the fire and police departments also testified Jessica’s

bedroom door was open, and stated appellant was unusually calm and inquired only

about his dogs. At the scene, police told appellant they were searching for Jessica, to

which he responded, “[W]ell, it’s probably too late anyway.” Id., at 242.

At trial, Ms. Riddle described appellant as very controlling, stating he implemented

and enforced rules that shoes not be worn in the home, and that bedroom doors be

closed and locked. Ms. Riddle also mentioned appellant had previously forbidden her

from going to a local bar, once even threatening to burn it down if she went there again.

She testified that, during the fire, appellant escorted her and two of their dogs onto the

deck, but told her he could not rescue Jessica because “the smoke was too bad[.]” N.T.

Trial, 10/2/02, at 124-25. Yet, Ms. Riddle recalled she did not observe much smoke at

that time. She also testified that after Jessica was pronounced dead, appellant

instructed her not to talk to police, and when she expressed her sorrow of Jessica’s death

to appellant, he replied they “could always make another little Jessica[.]” Id., at 136.

The Commonwealth introduced extensive evidence of appellant’s preparatory

activities and behavioral changes. Weeks before the fire, appellant became obsessed

with fire safety, making Ms. Riddle and her 22-year old son, Erik Keith, practice

fire-evacuation routes. One month before the fire, appellant purchased straw on four

[J-49-2013] - 2
separate occasions, along with two five-gallon gas cans, and he bought gasoline on two

separate occasions the day of the fire. The week before the fire, appellant affixed a

chain ladder to the residence as a means of escape. Four days before the fire, appellant

called an ADT Security Services employee to his home to update his security system.

He disclosed to her he knew how to disable the security system and said a fire might start

in his home in a few days. A funeral director testified that during meetings with appellant

for Jessica’s funeral arrangements, he did not show emotion and repeatedly referred to

Jessica as “it.” N.T. Trial, 10/3/02, at 161.

Evidence of appellant’s motive and intent was also introduced at trial. Appellant’s

unwillingness to pay child support was established by testimony from Jodie Treiber,

Jessica’s mother. Ms. Treiber stated appellant had a visitation weekend with Jessica

scheduled for March 9 — the weekend of the fire — but appellant insisted he take Jessica

early, i.e., the previous Tuesday of that week. When appellant picked up Jessica, Ms.

Treiber informed him she intended to increase his child-support payments. Jamie

Pianta,1 who accompanied appellant and Mr. Keith on the trip to pick up Jessica, testified

appellant discussed his plans to kill Jessica to avoid paying child support, stating he

would use rope, gasoline, straw, and candles to start a fire in the home. Mr. Pianta said

appellant expressed the same plans to him and Mr. Keith about one month earlier, during

another trip to pick up Jessica. Other witnesses testified about appellant’s financial

motives for the murder. For instance, one month before the fire, appellant tried to

increase the limits on his credit card and his homeowner’s insurance, and sought to

purchase life insurance on Jessica, naming himself as beneficiary. He also changed his

automobile comprehensive deductible but did not alter his collision insurance.

1 As discussed infra, Mr. Pianta was Mr. Keith’s friend and lived with Mr. Keith at one of
appellant’s rental properties. Both Mr. Pianta and Mr. Keith worked for appellant in lieu
of rent.

[J-49-2013] - 3
The Commonwealth established appellant took steps to make it appear that

someone else started the fire. Specifically, it asserted appellant, about six weeks before

the fire, contrived a threatening note and surreptitiously attached it to his own mailbox,

arranging for Ms. Riddle to find it and report it to police. The Commonwealth contended

the note was appellant’s effort to cast suspicion away from himself and onto an unknown

intruder. The note, which was comprised of letters cut from printed materials glued onto

the paper, was addressed to “Steve,” and said, “[G]et rid of dogs or I kill them and burn

you out again.” N.T. Trial, 10/2/02, at 88-89. Earlier that day, appellant called Ms.

Riddle and told her someone was lurking around their home. When police arrived to

investigate, appellant told them the doorbell rang earlier in the night but no one was there,

and he saw the note affixed to the mailbox at that time. Police discovered hairs stuck to

glue in the envelope and subsequently retained the services of DNA experts Dr. Joy

Halverson and Dr. Christopher Basten. They determined one of the hairs was a canine

hair, compared it to the hair of appellant’s dog, and concluded the hair was 1,000 times

more likely to have come from appellant’s dog than any other dog.

A jury convicted appellant of first degree murder, 18 Pa.C.S. § 2502(a), arson

endangering persons, id., § 3301(a), arson endangering property, id., § 3301(c), and

recklessly endangering another person, id., § 2705. At the penalty phase, the jury found

three aggravating circumstances and two mitigators. The aggravating circumstances

were: (1) appellant committed a killing while in the perpetration of a felony (arson), 42

Pa.C.S. § 9711(d)(6); (2) appellant knowingly created a grave risk of death to another

person other than the victim of the murder, id., § 9711(d)(7); and (3) the victim was a child

under 12 years of age, id., § 9711(d)(16). As for the mitigating circumstances, the jury

found appellant had no significant history of prior criminal convictions, id., § 9711(e)(1),

and a positive work history, falling within § 9711(e)(8)’s catch-all provision. However, the

[J-49-2013] - 4
jury determined the aggravating circumstances outweighed the mitigating circumstances

and sentenced appellant to death. This Court affirmed appellant’s convictions and death

sentence, Commonwealth v. Treiber, 874 A.2d 26, 33 (Pa. 2005), and the United States

Supreme Court denied certiorari, Treiber v. Pennsylvania, 547 U.S. 1076 (2006). The

same counsel represented appellant at trial and on direct appeal.2

Appellant filed a pro se PCRA petition, and counsel from the Federal Community

Defender Office (FCDO) entered their appearance on appellant’s behalf3 and filed an

amended petition. The PCRA court held evidentiary hearings on ten separate dates and

denied relief. Appellant presents 14 issues for review:

I. Was trial counsel ineffective for failing to challenge the
Commonwealth’s dog DNA evidence?

II. Was the Commonwealth’s dog DNA evidence false and unreliable in
violation of [a]ppellant’s rights to due process and a fair trial?

III. Was trial counsel ineffective for failing to reasonably investigate,
develop[,] and present evidence in the guilt phase undermining the
Commonwealth’s motive theories and supporting the defense?

IV. Did trial counsel ineffectively fail to impeach Jamie Pianta and
ineffectively fail to request a corrupt source instruction with regard to
Pianta’s testimony?

V. Was [a]ppellant convicted on the basis of inaccurate and unreliable
testimony, in violation of his 8th and 14th Amendment rights?

2 Appellant was represented at trial by both Timothy Lucas and Timothy George.
Attorney Lucas was primarily responsible for the guilt phase, and represented appellant in
post-sentence proceedings and on direct appeal. Attorney Lucas hired Attorney George
solely to handle the penalty phase. For clarity purposes, we will simply refer to either
attorney as appellant’s trial counsel.

3 On February 8, 2013, this Court ordered the FCDO to produce a copy of any federal
appointment order it may have secured in this matter authorizing it to pursue a PCRA
petition in Pennsylvania. The FCDO replied it was not appointed but that appellant
requested the FCDO’s representation.

[J-49-2013] - 5
VI. Did the Commonwealth violate its Brady[4] obligations?

VII. Did the trial court abuse its discretion when it failed to voir dire the
remaining jurors after dismissing [a] juror[]?

VIII. Was trial counsel ineffective for failing to present good character
evidence at [the] guilt phase?

IX. Was [a]ppellant erroneously denied his constitutional right to
represent himself at trial?

X. Was trial counsel ineffective for failing to reasonably investigate,
develop[,] and present expert evidence at [the] guilt phase?

XI. Is [a]ppellant entitled to relief from his death sentence because
counsel was ineffective for failing to investigate, develop[,] and adequately
present substantial mitigating evidence?

XII. Is [a]ppellant entitled to a new sentencing hearing where errors in the
trial court’s penalty phase instructions, both individually and cumulatively,
denied appellant a fair and reliable sentencing hearing, and was counsel
ineffective for failing to object or request proper instructions?

XIII. Was the aggravating circumstance of grave risk of death improperly
applied and submitted to the jury in violation of [a]ppellant’s rights to a fair
trial and reliable sentencing, and was counsel ineffective for failing to object
and raise this claim?

XIV. Was [a]ppellant denied full and fair review in the PCRA [c]ourt?
Appellant’s Brief, at 1-2.

“[A]s a general proposition, we review a denial of PCRA relief to determine whether

the findings of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA

court’s credibility findings are to be accorded great deference, and where supported by

the record, such determinations are binding on a reviewing court. Id., at 305 (citations

omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of

the evidence: (1) his conviction or sentence resulted from one or more of the errors

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

[J-49-2013] - 6
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not been previously litigated

or waived, id., § 9543(a)(3); and (3) “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)(4). An issue is previously litigated if “the highest

appellate court in which [appellant] could have had review as a matter of right has ruled

on the merits of the issue[.]” Id., § 9544(a)(2). “[A]n issue is waived if [appellant] could

have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state

postconviction proceeding.” Id., § 9544(b).

To be entitled to relief on an ineffectiveness claim, a PCRA petitioner must

establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for

counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability the result of

the proceeding would have been different. Commonwealth v. Chmiel, 30 A.3d 1111,

1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v.

Pierce, 527 A.2d 973, 975-76 (Pa. 1987)).5 Counsel is presumed to have rendered

effective assistance. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). Additionally,

counsel cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006). Finally, because a PCRA

petitioner must establish all the Pierce prongs to be entitled to relief, we are not required

to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim

fails under any required element, we may dismiss the claim on that basis. Ali, at 291.

5 Pierce reiterates the preexisting three-prong test for ineffective assistance of counsel in
Pennsylvania and holds it to be consistent with the two-prong performance and prejudice
test in Strickland v. Washington, 466 U.S. 668 (1984). Pierce, at 976-77.

[J-49-2013] - 7
I. GUILT PHASE CLAIMS

Issues I & II: The Commonwealth’s Canine DNA Evidence

As previously noted, the Commonwealth’s theory at trial was that appellant

attempted to make it appear that someone else started the fire by creating a threatening

note and attaching it to his mailbox. See N.T. Trial, 10/2/02, at 85-92; N.T. Trial, 10/7/02

at 95-98. While initial testing of the note produced no forensic evidence, a scientist

ultimately found two hairs embedded in the dried glue on the paper and concluded one of

the hairs was canine. See N.T. Trial, 10/3/02, at 14-17. Police sought to ascertain

whether the hair originated from appellant’s dogs, as this would implicate appellant as the

note’s author. Accordingly, they sent the hair samples to Joy Halverson, DVM — a

California veterinarian and epidemiologist, who also had practical experience in

molecular biology and held herself out as a forensic canine DNA analyst. See id., at

109-12. Police also provided blood and saliva reference samples from appellant’s dogs.

The district attorney notified appellant’s counsel of the scheduled testing.

In response, appellant’s counsel telephoned several individuals knowledgeable in

animal DNA analysis, including Marcia Eggleston, Ph.D, who oversaw the genetic testing

of animals at the University of California, Davis, to determine whether a defense expert

should be present during the testing. See N.T. PCRA Hearing, 8/10/09, at 32-34. Dr.

Eggleston informed counsel she was familiar with Dr. Halverson’s work, Dr. Halverson

was qualified to process canine DNA samples using standard protocols, and the

procedures were straightforward and generally accepted within the scientific community.

See id., at 39-40, 151. Dr. Eggleston offered to review the results of Dr. Halverson’s test,

but she did not tell counsel: (1) canine DNA evidence was novel; (2) Dr. Halverson was

not qualified; (3) the genetic DNA markers used by Dr. Halverson were invalid; or (4) her

methodology was flawed. See id., at 219. Based on those conversations — but prior to

[J-49-2013] - 8
actual testing or preparation of any report — counsel abandoned further inquiry into the

scientific validity of canine DNA evidence and ceased efforts to obtain a defense expert;

instead, he chose a strategy of advancing the notion that the hairs were merely

contaminants, which came in contact with the note after it was prepared. See id., at

40-41.

In pre-trial discovery, the Commonwealth produced reports by Dr. Halverson and

statistician Christopher Basten, Ph.D concerning the hair sample. Dr. Halverson’s

reports declared a match between the hair sample found on the note and the reference

blood sample taken from appellant’s dog, even though the report admitted the sample

was “suboptimal” and produced “low template quantity or quality” DNA. Reports of Joy

Halverson, DVM, 10/2/01, at 4, & 8/26/02, at 1, available at Petitioner’s Evidentiary

Hearing Exhibits, Vol. IX, tab 2 & 3. Dr. Halverson initially opined:

Assuming that [the utilized] data group is representative of the general dog
population and is the correct data set for comparison in this case, the
product rule shows that the likelihood that the evidence sample [] and
reference blood sample are from different dogs and match by random
chance exceeds 1 in 1.6 million.
Report of Joy Halverson, DVM, 10/2/01, at 5, available at Petitioner’s Evidentiary Hearing

Exhibits, Vol. IX, tab 2. Yet, in a supplemental report, she indicated that since her last

report she “completed coursework on forensic DNA analysis and ha[d] a greater

understanding of the use of the likelihood ratio for estimating the significance” of a match

between the hair and reference samples. Report of Joy Halverson, DVM, 8/26/02, at 1,

available at Petitioner’s Evidentiary Hearing Exhibits, Vol. IX, tab 3. She explained she

had come to appreciate the necessity of abandoning a straightforward application of the

product rule, in favor of applying a likelihood ratio which could correct for “population

substructure found in dog breeds and for the data missing from profiles of suboptimal

DNA samples, such as the hair in this case.” Id. By applying this ratio and

[J-49-2013] - 9
cross-referencing Dr. Basten’s supportive report, Dr. Halverson adjusted her previous

probability estimate and concluded it was 1,000 times more likely the hair came from

appellant’s dog than any other dog.

After reviewing these reports, appellant’s counsel did not consult with a DNA

expert or file a pre-trial motion challenging the admissibility of the experts’ testimony;

rather, he maintained the “contamination” strategy. At trial, Dr. Halverson testified —

consistent with her report — that her testing revealed a match between the hair sample

and the reference blood sample from appellant’s dog. She concluded it was “a thousand

times more likely that they match because they came from the same dog than because

they came from two dogs by coincidence.” N.T. Trial, 10/3/02, at 129. This calculation

was supported through Dr. Basten’s testimony. See id., 139-41. On

cross-examination, trial counsel did not question Dr. Halverson regarding her

qualifications and did not object when she was proffered as an expert in canine DNA

analysis and comparison. See id., at 116. Instead, trial counsel told Dr. Halverson, “I’m

certainly not going to quibble with you about your findings.” Id., at 132. Trial counsel

made no inquiries about her protocols, the actual testing, or the ensuing analysis; he

merely confirmed Dr. Halverson was unfamiliar with the source of the hair samples tested

and asked her a few questions about the second hair found on the note, which had

yielded no DNA profile. See id., at 132-34. He did not cross-examine Dr. Basten at all.

See id., at 143.

Appellant testified at trial and denied creating the threatening note or committing

arson or murder. See N.T. Trial, 10/5/02, at 36-37, 61-62. Consistent with trial

counsel’s strategy, a DNA expert was not presented in the defense’s case. During

closing arguments, trial counsel did not dispute Dr. Halverson’s DNA match, instead

advancing the contamination proposition. See N.T. Trial, 10/7/02, at 75-77. In its

[J-49-2013] - 10
closing, the Commonwealth stressed the canine DNA evidence connected appellant to

the note, demonstrating his preparation and intent to carry out the arson and murder.

The Commonwealth also emphasized the fact the hairs were embedded in dried glue,

arguing this proved the hairs became attached to the note while the glue was still wet, i.e.,

during the note’s preparation. See id., at 96-97.

At the PCRA evidentiary hearings, appellant offered expert testimony from Dr.

Eggleston, who, like Dr. Halverson, is a member of the International Society for Animal

Genetics (ISAG), a scientific organization established to transfer information among

animal-genetics labs worldwide. N.T. PCRA Hearing, 8/10/09, at 138. Dr. Eggleston

was the chairperson for the canine-genetics workshop at the ISAG and the executive

director of Veterinary Genetics Lab (VGL), a reference lab for the ISAG. Id., at 140. Dr.

Eggleston disclosed Dr. Halverson’s “ten marker” methodology was known to her and

ISAG as early as 1996, id., at 214-16, 222, and both she and VGL analyzed those ten

markers from 2000-2002, id., at 143-45, 147, 163. She also stated any worldwide lab

interested in analyzing and testing Dr. Halverson’s markers was able to do so at that time.

Id., at 145. Although Dr. Eggleston conceded canine DNA testing was generally

accepted within the scientific community, id., at 205, she testified Dr. Halverson’s

particular methodologies and practices used in appellant’s case were not, id., at 161, 163,

166-202. She stated only four of Dr. Halverson’s ten markers were considered

adequate. Id., at 165. Based on her own analysis, Dr. Eggleston concluded there was

no scientifically reliable way to determine whether the hair sample came from appellant’s

dog; thus, she opined the results of the testing were inconclusive. Id., at 202.6 In

6 Appellant also offered expert testimony from Dr. Randall Libby and Dr. Laurence
Mueller, who, like Dr. Eggleston, indicated the genetic and statistical methods underlying
the trial testimony of Dr. Halverson and Dr. Basten were not generally accepted in the
(continued…)

[J-49-2013] - 11
response, the Commonwealth presented testimony from Dr. Halverson and Dr. Basten to

the effect that their methods were generally accepted. See, e.g., N.T. PCRA Hearing,

10/29/09, at 10-11 (Dr. Halverson); id., at 151 (Dr. Basten).

As to her conversation with appellant’s trial counsel, Dr. Eggleston testified

counsel inquired whether an expert should be present to observe the testing of the hair by

the Commonwealth’s experts. N.T. PCRA Hearing, 8/10/09, at 148-49. She told

counsel canine DNA testing was generally accepted in the scientific community and

informed him an expert was not needed because Dr. Halverson had been conducting

canine DNA analysis for many years and, thus, Dr. Halverson likely knew the accepted

protocols for testing and extracting DNA from the hair. Id., at 150, 213-14, 216-17. Yet,

she told counsel an expert should evaluate Dr. Halverson’s interpretation of the testing

and offered to conduct such evaluations. Id., at 150-52. She also stated it was not

possible to analyze Dr. Halverson’s methodologies or conclusions until testing was

completed. Id., at 153-54, 174-75. Dr. Eggleston did not tell counsel that canine DNA

evidence was novel, Dr. Halverson was not qualified, the genetic DNA markers used by

Dr. Halverson were invalid, or her methodology was flawed. See id., at 219. She also

admitted to vouching for Dr. Halverson’s ability to process the samples, which

encompasses the use of DNA markers. Id., at 221. Dr. Eggleston had only one

telephone conversation with counsel, and counsel never indicated he would send her Dr.

Halverson’s reports after testing or retain her to review the reports, nor did he ask her to

refer him to another DNA expert. Id., at 154-55, 203.

Appellant’s trial counsel also testified at the PCRA evidentiary hearings. He

stated Dr. Eggleston notified him that canine DNA testing was straightforward, she knew

(…continued)
relevant scientific communities. See, e.g., N.T. PCRA Hearing, 8/11/09, at 117 (Dr.
Libby); N.T. PCRA Hearing, 8/12/09, at 64 (Dr. Mueller).

[J-49-2013] - 12
Dr. Halverson, and the procedure was generally accepted in the scientific community.

Id., at 39-40. Trial counsel remarked he initially considered a Frye7 challenge; however,

after discussing canine DNA evidence with experts, including Dr. Eggleston, he

concluded a Frye challenge or any other pre-trial motion would be inappropriate. N.T.

PCRA Hearing, 8/10/09, at 34-36, 39-41. He also decided it would be futile to call a

defense DNA expert at trial and cross-examine Dr. Halverson and Dr. Basten on the

validity of their findings. Id., at 40-41. Trial counsel explained the reasons for his

“contamination” strategy, one of which was based on his conversations with canine DNA

experts. He also recalled appellant told him his dogs were outside before the

threatening note was discovered, which, he reasoned, was one explanation for the hair.

Id., at 80-81. Trial counsel felt a contamination theory would be further supported by the

fact the note had been in the Commonwealth’s possession for six months before a hair

had been found and had been transported various times between laboratories and other

locations. Id., at 36, 40-41, 80-81. In addition, he posited because the Commonwealth

never offered an explanation for the second hair found on the note, that hair must have

been the result of contamination. Id.

With this background in mind, we turn to appellant’s allegations of error. Initially,

he contends the Commonwealth’s canine DNA evidence should not have been admitted

at his trial. However, as the Commonwealth points out, appellant did not raise this issue

on direct appeal. By failing to challenge the evidence, appellant waived his underlying

contentions to the admissibility of the Commonwealth’s canine DNA evidence and the

7 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Pennsylvania follows the Frye
test, which provides novel scientific evidence is admissible if the methodology underlying
the evidence has general acceptance in the relevant scientific community. See Grady v.
Frito–Lay, Inc., 839 A.2d 1038, 1044 (Pa. 2003).

[J-49-2013] - 13
manner in which this evidence was admitted at trial. 8 See 42 Pa.C.S. § 9544(b).

Because appellant’s remaining claims are couched in terms of ineffectiveness, we

proceed to those claims.

We address appellant’s ineffectiveness claims collectively and, as permitted under

Strickland, analyze the prejudice prong first. Appellant asserts trial counsel was

ineffective for failing to: (1) file a Frye motion challenging the admissibility of the

Commonwealth’s canine DNA evidence; (2) challenge Dr. Halverson’s qualifications; (3)

cross-examine the Commonwealth’s canine DNA experts; and (4) present a defense

canine DNA expert.9

Appellant claims a Frye motion would have likely been granted because, at the

time of trial, neither forensic canine DNA evidence nor Dr. Halverson’s specific

methodologies10 were generally accepted as reliable within the scientific community.

8 Appellant attempts to surpass waiver by cloaking a standard evidentiary claim with
allegations of constitutional violations as a result of the introduction of “false and
unreliable” canine DNA evidence. Appellant’s Brief, at 20-22; see also Appellant’s Reply
Brief, at 1-2. Yet, appellant’s argument simply challenges the admissibility of the canine
DNA evidence.

9 Appellant also claims the PCRA court improperly conflated human DNA evidence with
canine DNA evidence and erroneously concluded, since human DNA evidence has been
previously accepted by this Court, canine DNA must also be accepted. We find this
contention meritless. While the PCRA court did point out DNA evidence has been
accepted by Pennsylvania courts since 1994, that statement was dictum. See PCRA
Court Opinion, 3/27/12, at 29 (citing Commonwealth v. Crews, 640 A.2d 395, 400-02 (Pa.
1994)). The court did not determine canine DNA evidence was not novel because
human DNA evidence is generally accepted; contrarily, the court independently and
specifically concluded, based on Dr. Halverson’s and Dr. Eggleston’s testimony, canine
DNA evidence was not novel at the time of appellant’s trial. See id., at 29-32.
10 In support, appellant cites State v. Leuluaialii et al., 77 P.3d 1192 (Wash. Ct. App.

2003), which held canine DNA evidence was not generally accepted in the scientific
community, id., at 1197-98. Appellant relies on Leuluaialii particularly because Dr.
Halverson testified to a similar effect in that case — based on her methodology, she
(continued…)

[J-49-2013] - 14
He argues he was prejudiced because the canine DNA evidence was crucial to the

Commonwealth’s case, as it was the only forensic evidence admitted at trial and juries

tend to give forensic evidence substantial weight. Had such evidence been excluded,

appellant claims, the Commonwealth’s circumstantial case would have been severely

diluted and the defense’s theory — that an unknown intruder burned the home — would

have been more persuasive and credible.

The Commonwealth responds that the PCRA court’s conclusions were supported

by the record and free of legal error. The Commonwealth argues Dr. Eggleston should

have made counsel aware of any flaws in Dr. Halverson’s methodologies at the time of

their conversation, and “[t]o place an expert’s alleged error at counsel’s feet unmoors the

analysis from Strickland.” Commonwealth’s Brief, at 18 (citing Commonwealth v. Lesko,

15 A.3d 345, 382 n.18 (Pa. 2011)). Regardless, the Commonwealth contends, the court

would have denied the Frye motion, and thus, appellant was not prejudiced by counsel’s

failure to file the motion. Specifically, the Commonwealth notes Dr. Halverson’s testing

was generally accepted in the scientific community at the time of trial, appellant’s own

canine DNA expert testified to the same effect at the PCRA hearings, and a difference of

expert opinion has no bearing on the admissibility of Dr. Halverson’s theories and

methodologies.

Appellant further contends counsel was ineffective for failing to challenge Dr.

Halverson’s qualifications because she did not qualify as an expert at the time of his trial

due to her lack of sufficient experience, knowledge, and education relevant to canine

DNA testing. In support, appellant claims Dr. Halverson’s experience focused on bird

DNA testing and she did not publish materials involving canine DNA identification.

(…continued)
matched blood from the victims’ dog to blood found on the defendants’ clothing. See id.,
at 1195-96.

[J-49-2013] - 15
Noting Dr. Halverson stated her qualifications stemmed from on-the-job training,

appellant asserts she is unqualified because a mere technician lacking educational

credentials cannot serve as an expert in forensic DNA evidence. Appellant claims he

was prejudiced because, had counsel objected to Dr. Halverson’s qualifications, the court

would have disqualified her as an expert and the Commonwealth would not have been

able to find a substitute expert, as she was the only individual in the country willing to

testify about canine DNA testing.

The Commonwealth argues a challenge to Dr. Halverson’s qualifications under

Pa.R.E. 702 would have been meritless given her qualifications and experience. It

claims even if Dr. Halverson lacked the relevant education or degree, she was qualified to

render an expert opinion based on her training and experience. Thus, the

Commonwealth contends, counsel’s decision to forego such a challenge was reasonable

and did not prejudice appellant.

Appellant next submits trial counsel ineffectively challenged Dr. Halverson’s

reliability, particularly her credentials, methodologies, and calculations, and he failed to

question her on the suitability of the labs in which she tested. He further claims proficient

cross-examination would have yielded Dr. Halverson’s and Dr. Basten’s bias. Appellant

opines effective cross-examination would have undermined the Commonwealth’s claim

that the hair found on the threatening note matched his dog, thereby weakening the

Commonwealth’s arguments regarding intent, identity, premeditation, and absence of

mistake. He concludes “empirical evidence confirms the prejudice from trial counsel’s

deficient performance. … Confidence in the outcome of [a]ppellant’s trial is

undermined.” Appellant’s Brief, at 19.

The Commonwealth claims counsel’s cross-examination was proper in light of the

information received from Dr. Eggleston, i.e., her vouching for Dr. Halverson’s

[J-49-2013] - 16
qualifications and abilities, and appellant’s suggestion that trial counsel should have

cross-examined Dr. Halverson in the same manner as PCRA counsel is improperly

retrospective.

Appellant argues counsel’s lack of cross-examination and concession of the

admissibility of the canine DNA evidence made “presentation of expert testimony in the

defense case all the more incumbent.” Id. Based on these alleged errors, he asserts

he was prejudiced by counsel’s failure to call a canine DNA expert11 because such an

expert would have rebutted all aspects of Dr. Halverson’s and Dr. Basten’s testimony.

Appellant contends counsel’s ineffectiveness led the jury to assume the hair sample

found on the note matched appellant’s dog and, thus, but for this ineffectiveness, the

outcome would have been different.

The Commonwealth notes counsel cannot be deemed ineffective merely for not

calling a witness who would offer conflicting expert testimony, and the absence of such

testimony did not prejudice appellant. It further rejects the three experts offered by

appellant, noting the PCRA court found Dr. Libby and Dr. Mueller not credible. As for Dr.

Eggleston, the Commonwealth claims her testimony would not have been credible

because she vouched for Dr. Halverson and thus would not have testified at trial that Dr.

Halverson’s methodologies were flawed or she was not qualified.

The PCRA court denied relief, concluding appellant failed to prove counsel was

ineffective and the outcome would have been different. The court determined Dr.

Halverson was qualified to testify at trial as a canine DNA expert; thus, it rejected

11 We reject appellant’s claims that counsel was ineffective for failing to call Dr. Libby and
Dr. Mueller as expert witnesses. Appellant does not argue — and likewise the PCRA
hearing record does not support the premise — that such witnesses were available or that
counsel was aware of or had a duty to know of the witnesses. See Chmiel, at 1143
(stating to establish ineffectiveness for failing to call expert witness, appellant must
demonstrate expert existed and was available).

[J-49-2013] - 17
appellant’s claim that counsel was ineffective for failing to challenge her qualifications, as

that challenge would have been futile. PCRA Court Opinion, 3/27/12, at 27-28.

Regarding admissibility of the canine DNA evidence, the court held the evidence was

reliable and admissible, noting both Dr. Halverson and Dr. Eggleston testified at the

PCRA hearings that canine DNA evidence was not novel at the time of appellant’s trial.

Id., at 29. The court explained although their testimony demonstrated a difference of

expert opinion, which does not require the exclusion of evidence, it did not prove Dr.

Halverson’s methodology was flawed. Id., at 30, 34 n.21.

Additionally, the court rejected appellant’s claims that counsel was ineffective for

failing to present a defense DNA expert and sufficiently cross-examine Dr. Halverson and

Dr. Basten. Id., at 30-33. After reviewing Dr. Eggleston’s testimony from the PCRA

hearings, the court reasoned that, because she had “vouched for [Dr.] Halverson’s testing

procedure and [Dr.] Halverson’s qualifications to conduct the test[,]” Dr. Eggleston placed

counsel “in the unenviable position of having to virtually concede the strength of the

Commonwealth’s canine DNA evidence.” Id., at 31-33. The court highlighted that Dr.

Eggleston did not refer counsel to any other expert who might assist him. See id., at

32.12 As to counsel’s failure to request a Frye hearing, the court determined the request

would have been futile, for the same reasons explained above. See PCRA Court

Opinion, 3/27/12, at 33.

12 The court did not find Dr. Libby credible because his opinion was predicated on
information that did not exist at the time of trial, he never attempted to validate Dr.
Halverson’s markers, and he had limited knowledge in the canine DNA evidentiary field.
See id., at 32 n.20. The court rejected Dr. Mueller’s testimony for similar reasons. See
id., at 34 n.21. We are bound by the PCRA court’s supported credibility determinations.
See Dennis, at 305 (citations omitted).

[J-49-2013] - 18
“If a [PCRA] petitioner fails to satisfy any prong of the ineffectiveness inquiry, a

claim of ineffective assistance of counsel will be rejected.” Commonwealth v. Eichinger,

108 A.3d 821, 830-31 (Pa. 2014) (citation omitted); see also Commonwealth v. Albrecht,

720 A.2d 693, 701 (Pa. 1998) (“If it is clear that [a]ppellant has not demonstrated that

counsel’s act or omission adversely affected the outcome of the proceedings, the claim

may be dismissed on that basis alone and the court need not first determine whether the

first or second prongs have been met.” (citation omitted)). Thus, even if we assume

there is arguable merit to appellant’s claims and counsel had no reasonable basis for

failing to challenge the Commonwealth’s canine DNA evidence, appellant is not entitled

to relief because he failed to demonstrate the outcome of the guilt phase would have

been different had the canine DNA evidence been excluded from his trial.13

Evidence of appellant’s comprehensive preparatory activities was extensive.

One month before the fire, he purchased straw on four separate occasions, along with

two five-gallon gas cans, and he bought gasoline on two separate occasions the day of

the fire — straw, gasoline, and two five-gallon gas cans were recovered at the fire’s points

of origin. During that month, he also changed his automobile comprehensive deductible

to cover his vehicle if destroyed by fire — notably, he did not alter his collision insurance.

Further, he tried to increase the limits on his homeowner’s insurance and sought to

purchase life insurance on Jessica, naming himself as beneficiary. A few days before

13 Appellant rightly notes the prosecutor made public statements after trial, touting the
significance of canine DNA on national television when appellant’s case was profiled on
the Animal Planet Media Network television show “Animal Witness.” One must surmise
the nature of this evidence was sufficiently novel to warrant the interest of national media;
were the novel evidence deemed less important to the case, it would not make an
important story, and the prosecutor would lose the opportunity to wax eloquent on
national television. In any case, whether the prosecutor’s televised comments comport
with the actual contribution of the evidence does not matter — the remainder of the
evidence is overwhelming to the point that prejudice is not made out.

[J-49-2013] - 19
the fire, he affixed a chain ladder to the residence as a means of escape. The jury heard

testimony that appellant, on two separate occasions, discussed his plans to kill Jessica to

avoid paying child support, stating he would use rope, gasoline, straw, and candles to

start a fire in the home. Evidence established the security system had been disabled

and the fire was started by using clothing, gasoline, straw, and candles.

Four days before the fire, appellant requested a survey of his home from ADT

Security Services, expressing it was urgent. He told the ADT employee he knew how to

disable his home security system and said a fire may start in his home in a few days,

indicating its likely points of origin — the same areas as the origin of the fire four days

later. Because appellant told the employee about the threatening note and that a fire

might soon occur, the employee offered to install camera equipment that day at no

immediate cost, but appellant refused. Even though the employee explained she could

place the cameras in any location appellant wished, he told her he didn’t “think the

camera is going to catch [any potential perpetrators] because they’re going to come

through the front door.” N.T. Trial, 10/4/02, at 70. As the employee was leaving the

home, appellant said to her that “if [she] had noticed that his home had burnt … in the

paper that [she] would know that he wouldn’t be needing [a security] system.” Id., at 67.

Moreover, significant evidence concerning the threatening note itself was

submitted to the jury. Earlier on the day the note was discovered, appellant called Ms.

Riddle at work and told her someone was lurking around their house, yet he did not call

the police at that time. Ms. Riddle did not initially notice the note on the mailbox when

she arrived home; thus, appellant insisted they leave the home and visit his parents.

When they left, Ms. Riddle noticed the note, and appellant made copies of it before calling

police. When police arrived to investigate, appellant told police the doorbell rang earlier

in the night but no one was there when he answered, and he saw the note affixed to the

[J-49-2013] - 20
mailbox at that time. Despite telling police he noticed the note on the mailbox earlier,

appellant did not retrieve it at that time but instead waited until Ms. Riddle came home and

discovered it.

Telling evidence of appellant’s behavioral changes was also introduced at trial.

Appellant implemented and enforced rules that shoes not be worn in the home, and that

bedroom doors be closed and locked. Significantly, on the night of the fire, appellant

kept his shoes in his bedroom and his daughter’s door was open. Appellant had

previously forbidden his girlfriend to go to a local bar, once even threatening to burn it

down if she went there again. On the day of the fire, however, appellant called her at

least ten times, repeatedly urging her to go to the bar. Several witnesses testified

appellant, before and after Jessica’s death, was very calm and showed no emotion.

Other witnesses, including Ms. Riddle and appellant’s neighbor, stated he made no effort

to assist rescuing Jessica, despite the facts that her bedroom was 11 feet away from his

and, regarding Jessica’s fire escape, that he previously told Ms. Riddle he could easily get

to her bedroom by breaking a wall in a bathroom that separated their bedrooms. The

jury also heard testimony that appellant referred to his deceased daughter as “it” during

funeral arrangements and, while she was burning inside the home, stated, “‘[T]he firemen

will get her. She’s probably dead anyway[,]’” and “‘it’s probably too late anyway.’” N.T.

Trial, 9/30/02, at 97, 242.

Given the overwhelming circumstantial evidence of appellant’s guilt, it is difficult to

believe the outcome of the proceedings would have been different but for counsel’s

failure to challenge the canine DNA evidence.14 See Commonwealth v. Philistin, 53

14 Parenthetically, the canine DNA evidence appears to be of unnecessary evidentiary
value at best; while it is easy to second-guess the prosecutor’s decision to pursue this
evidence after the verdict is in, it could fairly be described as excess. This is so because
there was an abundance of other unimpeachably incriminating evidence presented at
(continued…)

[J-49-2013] - 21
A.3d 1, 10 (Pa. 2012) (stating counsel presumed effective, and appellant must overcome

such presumption by proving prejudice, i.e., reasonable likelihood outcome would have

been different but for counsel’s alleged ineffectiveness (citations omitted)). Accordingly,

we conclude appellant’s claims regarding counsel’s ineffectiveness for not challenging

the Commonwealth’s canine DNA evidence fail for lack of prejudice.

Issue III: Counsel’s Failure to Investigate and Present Evidence to Contradict the
Commonwealth’s Theory
Appellant claims trial counsel was ineffective for failing to investigate and present

evidence contradicting the Commonwealth’s theory of the case, i.e., that appellant

committed the arson and murder because: (1) he was in financial distress; (2) he would

profit by collecting insurance money and rebuilding the home himself;15 and (3) he was

unwilling to pay child support.

A. Counsel’s failure to present financial expert

Appellant asserts trial counsel was ineffective for failing to consult with a financial

expert and call such an expert at trial to rebut the Commonwealth’s evidence of his

financial status and theories of appellant’s motives. The Commonwealth asserts

counsel had a reasonable basis for not consulting with or calling a financial expert to

(…continued)
trial, such that the absence of canine DNA evidence would not have led to a different
verdict — hence, appellant cannot establish the third prong necessary for relief.

15As to the Commonwealth’s claim appellant could have benefitted from the fire by
pocketing the insurance proceeds and rebuilding his home himself, appellant argues
counsel should have presented evidence he was physically incapable of rebuilding the
home. The PCRA court determined appellant’s claim was speculative, underdeveloped,
and contrary to the evidence presented, noting appellant, around the time of the fire,
maintained his rental properties and competed in competitive powerlifting. The court
concluded counsel was not ineffective in failing to portray appellant as feeble, as such a
decision would have been futile. PCRA Court Opinion, 3/27/12, at 71 n.32. We agree
and thus find appellant’s contention meritless.

[J-49-2013] - 22
testify, noting he testified at the PCRA hearing: (1) appellant was the best source to

assess his own finances; (2) he felt making a common-sense argument at trial that

appellant would not have benefitted financially from the fire was sufficient and the

evidence would have established the same; and (3) because the Commonwealth had a

rebuttal financial expert prepared to testify, he thought it would have been futile to create

a battle between experts.

At trial, the Commonwealth established appellant unsuccessfully attempted to

borrow money and kept poor financial records, implying he set fire to his home to relieve

himself from financial hardship. At the PCRA evidentiary hearings, appellant presented

testimony from Kenneth McCrory, a forensic accountant, who opined appellant was

financially sound, making financial gain an unlikely motive for arson. N.T. PCRA

Hearing, 8/12/09, at 178. Specifically, Mr. McCrory stated appellant had personal equity

of approximately $250,000, and his child-support payments of $3,000 per year were not a

significant strain on his income. Id., at 189, 212. On cross-examination, he noted

appellant’s expenses and bills included: $90,000 per year on his mortgages; 16 a

credit-card balance of approximately $30,000; utility bills of approximately $20,000;

$1,000 per month to his ex-wife as part of their divorce settlement (which included child

support); and approximately $13,000 in miscellaneous expenses. Id., at 215-23.

The PCRA court mentioned appellant’s personal equity involved no liquid assets

and concluded, “Had Mr. McCrory testified at trial, he would not have refuted the evidence

that showed that [appellant] had significant expenses and little in the way of liquid assets.”

PCRA Court Opinion, 3/27/12, at 69-70. It also found credible the Commonwealth’s

PCRA expert who testified appellant’s bank-account balances had significantly

decreased weeks before the fire, his debt-to-income ratio supported banks denying him

16 As previously noted, appellant owned and maintained various rental properties.

[J-49-2013] - 23
loans, and he would have made approximately $140,000 from insurance proceeds as a

result of the fire but only $24,000 in profit if he sold the home. See id., at 70-71. The

court cited counsel’s reason for not presenting a financial expert — he felt the

Commonwealth could not establish a strong financial motive and there was no benefit “to

get into this sort of tit for tat[.]” Id., at 71 (quoting N.T. PCRA Hearing, 8/10/09, at 98).

Determining a “battle of the experts” would not have rebutted the Commonwealth’s

motive theories and instead would have likely elicited more prejudicial evidence against

appellant, the court concluded counsel had a reasonable basis in not presenting a

financial expert and appellant failed to establish prejudice. Id., at 71-72.

In Chmiel, this Court explained:

Where a claim is made of counsel’s ineffectiveness for failing to call
witnesses, it is the appellant’s burden to show that the witness existed and
was available; counsel was aware of, or had a duty to know of the witness;
the witness was willing and able to appear; and the proposed testimony was
necessary in order to avoid prejudice to the appellant. The mere failure to
obtain an expert rebuttal witness is not ineffectiveness. Appellant must
demonstrate that an expert witness was available who would have offered
testimony designed to advance appellant’s cause. Trial counsel need not
introduce expert testimony on his client’s behalf if he is able effectively to
cross-examine prosecution witnesses and elicit helpful testimony.
Additionally, trial counsel will not be deemed ineffective for failing to call a[n]
… expert merely to critically evaluate expert testimony [that] was presented
by the prosecution. Thus, the question becomes whether or not [defense
counsel] effectively cross-examined [the Commonwealth’s expert witness].
Chmiel, at 1143 (internal quotations marks and citations omitted).

We hold the PCRA court’s conclusions are free from legal error and supported by

the record. Apart from the fact that appellant failed to demonstrate Mr. McCrory was

known at the time of trial or should have been known to counsel, it is unlikely the expert

would have established appellant was financially sound, as Mr. McCrory would not have

refuted appellant’s substantial expenses and lack of liquid assets. Further, expert

testimony on appellant’s financial status was unnecessary, particularly where counsel

[J-49-2013] - 24
cross-examined the Commonwealth witnesses in an effective manner. Additionally,

appellant does not explain how he was prejudiced particularly by the failure to present a

financial expert, but instead argues he was collectively prejudiced by counsel’s failure to

call a multitude of experts. See infra, Issue X. Therefore, we reject this claim.

B. Counsel’s failure to question appellant’s family-law attorney
Although appellant acknowledges trial counsel called Attorney Kelly Mroz, his

family-law attorney, as a defense witness at trial, he contends counsel was ineffective in

failing to question Attorney Mroz about his financial status. In particular, he asserts

Attorney Mroz analyzed his finances and, if properly questioned by counsel, would have

testified appellant did not desire to reduce his child-support payments and had a

considerable monthly income.

The Commonwealth, on the other hand, asserts Attorney Mroz had limited

knowledge regarding appellant’s mortgages and bills; thus, it contends, counsel elicited

as much beneficial testimony from Attorney Mroz as she had to offer.

Attorney Mroz testified she was retained by appellant to represent him in a custody

matter regarding Jessica. N.T. Trial, 10/4/02, at 209-10. Attorney Mroz stated that a

few months before the fire, appellant sought a custody modification to increase his

visitation time with Jessica. Id., at 210-13. At the PCRA hearings, Attorney Mroz knew

minimal information concerning appellant’s financial status. She had appellant’s

bank-account statements and information on occupancy and monthly rent for his

apartments, but she was unaware of appellant’s overall financial status, the mortgages on

his properties, and his monthly bills and expenses. N.T. PCRA Hearing, 7/7/09, at

87-88.

The PCRA court concluded appellant’s contention lacked arguable merit, as

Attorney Mroz would not have supported appellant’s claim that he was financially sound.

[J-49-2013] - 25
PCRA Court Opinion, 3/27/12, at 72. We agree and find appellant’s claim meritless.

His family-law attorney, who he retained solely to handle a petition to modify his custody

and visitation of Jessica, had limited knowledge about his finances. Accordingly,

appellant is not entitled to relief on this claim.

C. Counsel’s failure to impeach tax preparer with crimen falsi

Appellant claims trial counsel unreasonably failed to investigate and impeach Ella

Alloway, appellant’s tax preparer, based on her crimen falsi and bias in favor of the

prosecution. He argues a proper investigation of Ms. Alloway would have uncovered her

legal and financial obligations to the Commonwealth as a result of her forgery conviction,

and counsel was ineffective in failing to uncover this crimen falsi conviction and use it to

impeach her.

The Commonwealth responds appellant did not suffer prejudice by any lack of

impeachment, as Ms. Alloway’s testimony supported the possibility appellant received a

legitimate threat of arson. It notes Ms. Alloway testified the documents appellant

submitted for tax-return preparation lacked sufficient detail, and she did not opine on

appellant’s financial status.

Ms. Alloway testified at trial that she prepared appellant’s tax returns from 1996 to

2000 and he poorly maintained his financial records. N.T. Trial, 10/4/02, at 136, 138-39.

She also testified appellant — one week before the fire — brought her a box of financial

records and asked her to store them, which is something she often did for clients. Id., at

141-44. Appellant asked her for information about his homeowners and auto insurance

the day after the fire. Id., at 142-43. On cross-examination, trial counsel elicited

testimony that appellant gave Ms. Alloway sufficient information to prepare his tax

returns. Id., at 145. Counsel also questioned Ms. Alloway about the box appellant gave

her. Ms. Alloway disclosed appellant told her he was concerned because of a

[J-49-2013] - 26
threatening note he received, which prompted him to bring her the box of records. Id., at

145-46.

The PCRA court rejected appellant’s ineffectiveness claim, determining he would

have lost the benefit of the favorable inferences elicited by counsel on cross-examination

had counsel impeached Ms. Alloway with her crimen falsi. PCRA Court Opinion,

3/27/12, at 73. The court reasoned that using Ms. Alloway’s convictions against her

would have demonstrated appellant’s taxes were prepared by a convicted forger. Id.

Evidence of a witness’s conviction for a crime involving dishonesty or a false

statement is generally admissible. Pa.R.E. 609(a). “A failure to so impeach a key

witness is considered ineffectiveness in the absence of a reasonable strategic basis for

not impeaching.” Commonwealth v. Small, 980 A.2d 549, 565 (Pa. 2009) (citation

omitted). We agree with the PCRA court that counsel acted reasonably in declining to

impeach Ms. Alloway, as impeaching her would have discredited favorable testimony,

i.e., her corroboration of the defense’s theory that someone else committed the arson.

Accordingly, we reject appellant’s claim for his failure to establish the reasonable basis

prong of the ineffectiveness test.

Issue IV: Counsel’s Failure to Impeach Mr. Pianta and Request “Corrupt Source”
Instruction
Appellant contends trial counsel was ineffective for failing to impeach Mr. Pianta,

particularly with evidence of his reputation for dishonesty, crimen falsi juvenile

adjudication, use of aliases, bias, and mental health. He also argues counsel should

have requested a corrupt-source instruction because Mr. Pianta was an accomplice.

A. Counsel’s failure to present evidence of Mr. Pianta’s reputation for
dishonesty

Appellant claims Mr. Pianta had a reputation for being a thief and a liar, and each

of the five character witnesses appellant proffered at the PCRA hearings testified to his

[J-49-2013] - 27
reputation for dishonesty. Appellant asserts trial counsel had no reasonable basis for

failing to call character witnesses and he was prejudiced because Mr. Pianta was a

crucial Commonwealth witness who divulged appellant’s plan to commit the arson and

murder, thereby establishing intent and premeditation. The Commonwealth avers

appellant failed to establish counsel knew or should have known of all the proffered

witnesses except for Sally Owen, an aunt of the mother of Mr. Pianta’s child. As to Ms.

Owen, the Commonwealth posits her testimony would not have been admissible because

she only testified to specific instances of conduct and not reputation.

The PCRA court rejected appellant’s ineffectiveness claims, determining the

witnesses’ declarations related to specific instances of Mr. Pianta’s conduct, which are

inadmissible under Pa.R.E. 608, 17 rather than his reputation for dishonesty. PCRA

Court Opinion, 3/27/12, at 60-62. The court also concluded most of the testimony

appellant presented did not relate to Mr. Pianta’s reputation at the time of trial. Id.

We conclude the PCRA court’s findings are supported by the record and free of

legal error. The testimony appellant presented primarily addressed Mr. Pianta’s specific

instances of conduct, i.e., specific acts of theft and lying, which would have been

inadmissible to attack his credibility under Pa.R.E. 608(b)(1). Further, except for Ms.

Owen — whose declarations only cited Mr. Pianta’s specific instances of conduct —

appellant failed to establish the witnesses were known or should have been known to

counsel. See Chmiel, at 1143 (stating to prevail on ineffectiveness claim for failure to

call witness, appellant must prove: (1) witness existed; (2) witness was available; (3) trial

counsel knew or should have known of witness’s existence; (4) witness was prepared to

17 “[T]he character of a witness for truthfulness may not be attacked or supported by
cross-examination or extrinsic evidence concerning specific instances of the witness’
conduct[.]” Id., 608(b)(1).

[J-49-2013] - 28
cooperate and would have testified on appellant’s behalf; and (5) absence of testimony

prejudiced appellant). Accordingly, this claim fails.

B. Counsel’s failure to cross-examine Mr. Pianta with crimen falsi

Appellant claims trial counsel was ineffective for failing to cross-examine Mr.

Pianta concerning his crimen falsi juvenile adjudication. The Commonwealth asserts

counsel had a reasonable basis for believing Mr. Pianta’s juvenile adjudication would not

have been helpful, appellant failed to establish he was prejudiced by counsel’s lack of

cross-examination, and the PCRA court’s decision was supported by the record and

legally correct.

Mr. Pianta, who was 23 years old when he testified at trial, was adjudicated

delinquent for theft, unauthorized use of a motor vehicle, criminal mischief, and driving

without a license when he was 17. Counsel stated at the PCRA hearings that he did not

use Mr. Pianta’s crimen falsi adjudication because he felt it involved minor offenses and

thus was insignificant. N.T. PCRA Hearing, 8/10/09, at 23. The PCRA court held,

regardless of the minor nature of the offenses, counsel lacked a reasonable basis not to

cross-examine Mr. Pianta based on his crimen falsi adjudication. PCRA Court Opinion,

3/27/12, at 63. However, the court determined appellant was not prejudiced because

there was no way to demonstrate what impact this adjudication would have on the jury or

that the outcome of the trial would have been different. Id.

We agree that appellant has failed to establish the prejudice prong of the

ineffectiveness test. Appellant only argues he was cumulatively prejudiced by counsel’s

failure to impeach Mr. Pianta with evidence of his reputation for dishonesty, crimen falsi,

use of aliases, bias, and mental-health records. He asserts Mr. Pianta’s credibility could

have been significantly undermined had counsel not committed the combined errors in

cross-examining him. Yet, because he does not explain how he was prejudiced

[J-49-2013] - 29
specifically by counsel’s failure to utilize Mr. Pianta’s juvenile adjudication, we decline to

deem counsel’s performance constitutionally deficient.

C. Counsel’s failure to present evidence of Mr. Pianta’s use of aliases

Next, appellant submits trial counsel was ineffective for not cross-examining Mr.

Pianta as to his use of aliases. Appellant asserts Mr. Pianta’s use of deception was

relevant to his reliability and counsel had no reasonable basis for failing to cross-examine

him on this basis. The Commonwealth offers no argument on this particular issue, only

reiterating appellant failed to demonstrate prejudice and the PCRA court did not err.

The PCRA court concluded Mr. Pianta’s use of aliases would not have been

admissible at trial. Id. We conclude appellant has failed to establish entitlement to relief

on this claim. His scant argument lacks arguable merit, contains a bald allegation that

counsel was unreasonable, and offers no explanation as to how he was prejudiced. See

Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding claims waived for failure

to develop them).

D. Counsel’s failure to elicit evidence of Mr. Pianta’s bias

Appellant avers trial counsel failed to cross-examine Mr. Pianta on alleged

favorable treatment he received from the Commonwealth because he, at one point, had

been investigated by police for the arson. He also asserts Mr. Pianta had outstanding

charges at the time of trial. Moreover, appellant argues Mr. Pianta’s bias by testifying for

and currying favor with the Commonwealth was sufficient grounds to cross-examine him,

and counsel had no reasonable basis for failing to do so.

The Commonwealth replies there was no evidence of favorable treatment and thus

counsel’s reasons for not cross-examining Mr. Pianta were legitimate. As to Mr. Pianta’s

outstanding charges, the Commonwealth asserts they would have been inadmissible

under Pa.R.E. 609 because they are not convictions.

[J-49-2013] - 30
The PCRA court held this claim lacked merit because appellant failed to introduce

any evidence of Mr. Pianta’s favorable treatment by the Commonwealth. PCRA Court

Opinion, 3/27/12, at 63. We likewise find appellant’s ineffectiveness contention

meritless, as he fails to provide any support for Mr. Pianta’s alleged favorable treatment in

the police’s arson investigation. As to appellant’s claim that Mr. Pianta had outstanding

charges at the time of trial, the charges would have been inadmissible because they were

not actual convictions. See Pa.R.E. 609. Because appellant fails to demonstrate

arguable merit, we reject his ineffectiveness claims as to counsel’s failure to challenge

Mr. Pianta’s alleged bias.

E. Counsel’s failure to cross-examine Mr. Pianta regarding his juvenile file

Appellant contends trial counsel was ineffective for failing to review and present

evidence of Mr. Pianta’s juvenile file, which the PCRA court sealed because it contained

mental-health records. The Commonwealth makes no contention regarding this

particular matter.

The PCRA court found nothing in the file would have been admissible for Mr.

Pianta’s competency or for any other reason. PCRA Court Opinion, 3/27/12, at 64.

Thus, it concluded appellant’s claim lacked arguable merit. Id. The PCRA court’s

findings are supported by the record and free of legal error. Our review of the record

demonstrates any evidence in Mr. Pianta’s juvenile file relevant to his credibility would be

inadmissible as specific instances of conduct, see Pa.R.E. 608(b)(1), and none of the

information involved Mr. Pianta’s credibility at the time of trial. Hence, appellant’s

ineffectiveness claim fails.

F. Counsel’s failure to request a corrupt-source instruction

Appellant argues trial counsel was ineffective for failing to request a corrupt-source

instruction in connection with Mr. Pianta’s testimony. He maintains he was entitled to a

[J-49-2013] - 31
corrupt-source charge because there was sufficient evidence to present a question to the

jury concerning whether Mr. Pianta was an accomplice. He asserts counsel’s belief the

request would have been futile is insufficient and unreasonable. As to prejudice, he only

claims “there is a reasonably [sic] likelihood th[e] jurors would have accorded less weight

to Pianta’s testimony over-all. Confidence in the outcome is undermined.” Appellant’s

Brief, at 31.

In response, the Commonwealth argues there was no evidence presented at trial

from which the jury could have reasonably inferred Mr. Pianta was appellant’s

accomplice. It claims the fact Mr. Pianta had been investigated by police at one point is

not dispositive of whether he was an accomplice. The Commonwealth asserts, in light of

the lack of evidence, counsel’s decision to forego a corrupt-source instruction was

reasonable.

The PCRA court held a corrupt-source instruction was not supported by the

evidence admitted at trial. PCRA Court Opinion, 3/27/12, at 66. Further, the court

noted, painting Mr. Pianta as an accomplice would have contradicted appellant’s defense

theory that the arson was committed by some unknown intruder. Id., at 66-67.

“[I]t ‘is well established that, in any case in which an accomplice implicates the

defendant, the [judge] should instruct the jury that the accomplice is a corrupt and

polluted source whose testimony should be considered with caution.’” Commonwealth

v. Hanible, 30 A.3d 426, 462 (Pa. 2011) (citation omitted). A corrupt-source instruction is

warranted where sufficient evidence is presented as to whether the witness is an

accomplice. Commonwealth v. Williams, 732 A.2d 1167, 1181 (Pa. 1999). An

individual is an accomplice if, with intent to promote or facilitate the commission of the

offense, he solicits, aids, agrees, or attempts to aid another person in planning or

committing the offense. 18 Pa.C.S. § 306(c)(1).

[J-49-2013] - 32
The record supports the PCRA court’s finding appellant failed to demonstrate

entitlement to relief. There was no evidence Mr. Pianta was an accomplice to the arson

or the murder. Mr. Pianta lived in one of appellant’s apartments and would work for him

in lieu of rent. He had been to appellant’s home a few times to retrieve tools or help with

work, but he never stayed overnight or had been there for more than a few hours. Mr.

Pianta stated he accompanied appellant twice on trips to pick up Jessica from her

mother’s home, and on both occasions, appellant discussed his intent to commit the

murder. These trips took place the week of the fire and about one month before the fire.

Appellant told Mr. Pianta he wanted to avoid paying child support and wished to kill his

other daughter as well. According to Mr. Pianta, appellant did not ask for his help, and

he did not offer assistance. Mr. Pianta mentioned he had spread straw around

appellant’s backyard because it was muddy. He also testified that, a few days before the

fire, he affixed the chain ladder to appellant’s home per appellant’s request. Mr. Pianta

said he was not at appellant’s home on the day of the fire.

Mr. Pianta’s prior knowledge of appellant’s possession of straw and the fact Mr.

Pianta attached the chain ladder to appellant’s home is insufficient to support an

accomplice instruction. Mr. Pianta’s testimony was not contradicted, and there was no

evidence he took part in appellant’s crimes. Because appellant was not entitled to a

corrupt-source instruction, his ineffectiveness claim fails for lack of arguable merit.

Moreover, as the PCRA court pointed out, we see no reason why counsel would have

requested an instruction that Mr. Pianta is a corrupt and polluted source — whose

testimony should not be believed because he helped appellant plan and commit the arson

and murder — because counsel’s defense strategy was to blame the arson on an

unknown intruder.

[J-49-2013] - 33
Issue V: Inaccurate and Unreliable Testimony
Appellant claims his conviction violated due process because Mr. Pianta’s

testimony was inaccurate and unreliable. Appellant bases his claim on an opinion

expressed by a prosecutor who handled Mr. Keith’s guilty plea. Specifically, appellant

claims the prosecutor for Mr. Keith’s plea made statements to the media and at Mr.

Keith’s plea hearing that established the inaccuracy and unreliability of Mr. Pianta’s

testimony.

The Commonwealth argues appellant’s claim is waived because he did not raise it

on direct appeal. Even had appellant not waived his contention, the Commonwealth

continues, the prosecutor’s personal opinion was inadmissible and did not constitute

Brady material, especially due to the fact the prosecutor was not involved in appellant’s

case, as the prosecutor was a local assistant district attorney and appellant’s trial was

handled by the Pennsylvania Attorney General.

As the PCRA court properly held, appellant’s allegation of trial court error is waived

for failure to raise it on direct appeal. See 42 Pa.C.S. § 9544(b). Furthermore, the

PCRA court determined, despite waiver, appellant’s contention lacked merit. After

appellant was sentenced, Mr. Keith pled guilty to hindering apprehension or prosecution,

and charges for conspiracy to commit arson and murder were dropped. The prosecutor

— an Erie County Assistant District Attorney18 — was quoted in a newspaper article

explaining one reason for agreeing to Mr. Keith’s guilty plea was due to “what happened

in [appellant’s] case and the problems we know to exist with the testimony of [] Pianta[.]”

18 This is significant because appellant was prosecuted by the Pennsylvania Attorney
General. The prosecutor in Mr. Keith’s case was not involved in appellant’s case.
Notably, the prosecutor also was not involved in negotiating Mr. Keith’s plea; the plea was
already agreed to, and his assignment was to take the plea and give reasons for the plea
to the court, which were conveyed to him by the District Attorney at that time. See N.T.
PCRA Hearing, 8/4/11, at 6-7.

[J-49-2013] - 34
Id., at 18. He made a similar statement to the court during Mr. Keith’s guilty-plea

hearing. The prosecutor explained conspiracy charges against Mr. Keith were not

pursued because the conspiracy charges were withdrawn against appellant. Id., at 11.

He also explained he knew nothing about appellant’s trial or whether Mr. Pianta even

testified at appellant’s trial; rather, he merely relayed to the court during Mr. Keith’s guilty

plea the reasons conveyed to him by the District Attorney. See, e.g., id., at 11, 13.

Even if appellant preserved his claim — which he did not — we hold he fails to

demonstrate arguable merit and prejudice, as Mr. Keith’s plea took place after appellant

was sentenced and the jury at his trial was free to reject Mr. Pianta’s testimony if he was

found to be unreliable.

Issue VI: Brady Claims
Appellant claims the Commonwealth violated Brady by precluding him from

presenting testimony from Mr. Keith and withholding evidence that police provided

housing to Mr. Pianta. To establish a Brady violation, appellant must demonstrate: (1)

the prosecution concealed evidence; (2) the evidence was either exculpatory or

impeachment evidence favorable to him; and (3) he was prejudiced. Chmiel, at 1130

(quoting Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011)). To establish prejudice,

appellant must demonstrate 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). “‘Impeachment 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.’” Chmiel, at 1131 (quoting

Commonwealth v. Strong, 761 A.2d 1167, 1175 (Pa. 2000)). “However, mere conjecture

as to an understanding is not sufficient to establish a Brady violation.” Id. (citation

[J-49-2013] - 35
omitted). Finally, we note “[t]here is no Brady violation when the appellant knew or, with

reasonable diligence, could have uncovered the evidence in question[.]” Paddy, at 451.

A. Mr. Keith’s testimony

Appellant argues Mr. Keith was a critical defense witness and the Commonwealth

influenced Mr. Keith to invoke his Fifth Amendment rights on the stand at appellant’s trial,

which was evinced from the fact — as explained above — Mr. Keith was permitted to

plead guilty to hindering apprehension in exchange for withdrawal of conspiracy charges.

Appellant alleges the Commonwealth had a quid pro quo deal with Mr. Keith that if he

invoked his Fifth Amendment rights at appellant’s trial, he would receive the

aforementioned plea deal. The Commonwealth contends there was no evidence of any

discussion of a deal. The Commonwealth explains it in no way deprived appellant of Mr.

Keith’s testimony; rather, Mr. Keith invoked his rights at appellant’s trial solely on the

advice of counsel.

The PCRA court rejected appellant’s Brady claim, finding Mr. Keith invoked his

Fifth Amendment rights at appellant’s trial because he was acting on advice of counsel,

not because the Commonwealth deterred him from testifying. PCRA Court Opinion,

3/27/12, at 56. Thus, because Mr. Keith was an unavailable witness to both appellant

and the Commonwealth, the court held no Brady violation occurred. Id.

Preliminarily, we note appellant fails to indicate when or how he became aware of

the alleged Brady material, i.e., Mr. Keith’s guilty plea, which appears to have been

available at the time of his post-sentence motions or direct appeal. He fails to offer any

explanation as to why this information could not have been obtained earlier with the

exercise of due diligence. See 42 Pa.C.S. § 9545(b)(2). Accordingly, appellant’s Brady

claim is waived because it could have been raised in an earlier proceeding. See id., §

9544(b); see also Chmiel, at 1129-30 (concluding appellant’s Brady claim concerning

[J-49-2013] - 36
alleged deal between prosecutor and two material witnesses was waived for failure to

have raised it in earlier proceeding (citations omitted)); Commonwealth v. Bomar, 104

A.3d 1179, 1190-91 (Pa. 2014) (finding Brady claim waived where appellant did not show

information was not available at trial or counsel could not have uncovered it with

reasonable diligence), petition for cert. filed (U.S. May 6, 2015) (No. 14-9649). However,

because the Commonwealth does not argue waiver, we will address the claim on the

merits.

In October, 2001, Mr. Keith pled guilty to conspiracy to commit murder and arson,

and he was awaiting sentencing. N.T. PCRA Hearing, 7/7/09, at 7. In September,

2002, one month before appellant’s trial commenced, Ms. Riddle called Attorney Charbel

Latouf and requested he represent Mr. Keith for the purpose of withdrawing his guilty

plea. Id., at 5-7. Attorney Latouf entered his appearance and filed a motion to withdraw

Mr. Keith’s guilty plea September 17, 2002. Id., at 9. Attorney Latouf testified he

advised Mr. Keith to invoke his Fifth Amendment rights at appellant’s trial and not testify.

Id., at 11. As Mr. Keith invoked his rights at appellant’s trial, he was unavailable as a

witness. Minutes before the hearing on Mr. Keith’s motion to withdraw his guilty plea —

which occurred after appellant was convicted and sentenced — the prosecution offered to

withdraw all remaining charges in exchange for Mr. Keith’s guilty plea to hindering

apprehension of a witness, to which he agreed. Id., at 16-18.

The record supports the PCRA court’s finding that Mr. Keith invoked his Fifth

Amendment rights at appellant’s trial based solely on counsel’s advice. Attorney Latouf

testified, once the guilty-plea-withdrawal motion was filed, neither he nor Mr. Keith

cooperated with the Commonwealth or the defense, and the only favorable treatment Mr.

Keith received from the Commonwealth came at the hearing on the motion subsequent to

appellant’s trial. See id., at 12-22. As explained above, the Commonwealth offered the

[J-49-2013] - 37
plea to Mr. Keith in light of the evidence elicited at appellant’s trial, not in exchange for Mr.

Keith’s invocation. Because the record supports the factual finding that no agreement

existed, appellant’s claim lacks merit, as he has failed to establish the Commonwealth did

not disclose exculpatory or impeaching evidence.

B. Evidence showing police provided Mr. Pianta witness protection

It is undisputed police housed Mr. Pianta and his girlfriend in a local motel for

approximately one month during March and April, 2001, costing approximately $525.

Appellant claims the Commonwealth violated Brady by failing to disclose this evidence.

He asserts the evidence was material to his defense by undermining Mr. Pianta’s

credibility. The Commonwealth argues this information was immaterial and, had it been

disclosed, would have been harmful and prejudicial to appellant because Mr. Pianta was

housed due to his fear of appellant and because he rented an apartment from appellant.

Therefore, as the evidence would have led the jury to infer appellant would retaliate

against individuals who testified against him, the Commonwealth contends the

information was not favorable to appellant and thus not Brady material.

The PCRA court held appellant’s claim did not amount to a Brady violation

because Mr. Pianta’s living arrangements were not used as inducement or payment in

exchange for his testimony; rather, Mr. Pianta was housed because he feared appellant

and police wished to keep him safe. PCRA Court Opinion, 3/27/12, at 56. We find the

PCRA court’s conclusion is supported by the record and free of legal error. Appellant

fails to acknowledge Mr. Pianta was essentially placed in a witness-protection program

because he feared appellant would retaliate after he implicated him in the arson and

murder, especially due to the fact that, as his landlord, appellant knew where he lived and

had access to his apartment. The challenged evidence was not material or helpful to

appellant, as it would have raised the inference he would retaliate. Thus, we find

[J-49-2013] - 38
appellant’s claim lacks merit, as the evidence would not have changed the result of

appellant’s trial in his favor and thus was not Brady material. See Commonwealth v.

Birdsong, 24 A.3d 319, 327-28 (Pa. 2011) (stating Commonwealth’s failure to disclose it

placed witnesses in protection programs did not constitute material evidence).

Accordingly, appellant’s claim was properly rejected.

Issue VII: Trial Court’s Failure to Voir Dire Jurors
During the guilt phase of appellant’s trial, the court received a letter from a juror

expressing concern about another juror’s inappropriate behavior and comments at a

restaurant. The trial judge, in chambers and in the presence of all counsel, questioned

court staff, the accused juror, and other jurors who interacted with the accused juror at the

restaurant. All parties agreed to dismiss the accused juror, and thus he was dismissed.

The judge then returned to the courtroom and questioned the jury as a whole concerning

its ability to remain fair and impartial; no juror indicated his fairness or impartiality had

been affected. Appellant’s trial counsel did not object to the manner in which the court

handled the issue with the accused juror. See N.T. Trial, 10/4/02, at 3-41, 48-52.

Appellant now contends the court erred in failing to voir dire each juror individually.

The Commonwealth asserts this issue is waived. On the merits, it claims the trial court

acted within its discretion and appellant fails to demonstrate prejudice.

As the PCRA court correctly concluded, appellant’s claim is waived, not only

because counsel failed to timely object but also because the allegation of trial court error

was not raised on direct appeal. See 42 Pa.C.S. § 9544(b).

Issue VIII: Counsel’s Failure to Present Good Character Evidence
Appellant argues trial counsel was ineffective for failing to present evidence of his

good character during the guilt phase of the trial, which could have raised reasonable

doubt in the mind of the jury. Specifically, appellant claims counsel failed to investigate

and present evidence supporting his good reputation for being a peaceful, honest, and

[J-49-2013] - 39
law-abiding citizen. He also asserts counsel’s explanation for not presenting good

character evidence — that it would have evinced instances of appellant’s misconduct

involving prior arsons and theft — was unreasonable because he had no prior

convictions. Thus, he concludes, any evidence of prior misconduct would have been

barred on cross-examination.

The Commonwealth stresses trial counsel had a reasonable strategic basis for

deciding not to call character witnesses, as appellant’s evidence of good character was

minimal and there was a strong likelihood of eliciting substantial evidence of bad

character.

The PCRA court concluded counsel adequately explored the possibility of

presenting character evidence and had a reasonable basis for not calling character

witnesses. PCRA Court Opinion, 3/27/12, at 74. The court determined there was a

substantial risk in presenting character evidence because it would have opened the door

to specific instances of bad acts or criminal conduct, particularly appellant’s involvement

with approximately nine other arsons committed both as a juvenile and adult. Id. Thus,

because counsel had a reasonable basis in deciding not to present good character

evidence, the court held he was not ineffective. Id.

The failure to call character witnesses does not constitute per se ineffectiveness.

Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009) (citation omitted). In establishing

whether defense counsel was ineffective for failing to call witnesses, appellant must

prove:

(1) the witness existed; (2) the witness was available to testify for the
defense; (3) counsel knew of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (citation omitted).

[J-49-2013] - 40
Preliminarily, we note appellant has not identified or presented any potential

character witnesses; this alone is grounds to deny relief. In addition, we conclude, as did

the PCRA court, that after exploring the possibility of presenting good character evidence,

counsel had a reasonable, strategic basis in not calling character witnesses. “While

character witnesses may not be impeached with specific acts of misconduct, a character

witness may be cross-examined regarding his or her knowledge of particular acts of

misconduct to test the accuracy of the testimony.” Id., at 281 (citation omitted).

Counsel testified at the PCRA evidentiary hearings that appellant had minimal evidence

of good character and substantial bad character evidence — specifically, the involvement

in nine other fires, some of which were ruled as arsons — and he did not want to risk

introduction of that evidence. Accordingly, trial counsel was not ineffective for failing to

present good character evidence.

Issue IX: Trial Court’s Denial of Appellant’s Request to Represent Himself
Appellant alleges the trial court erred in denying his request to represent himself at

the remainder of the guilt phase and the penalty phase. The Commonwealth notes the

issue was previously litigated on direct appeal, and argues appellant’s claim is

nonetheless meritless because the right to self-representation is not absolute and the trial

proceedings had nearly concluded at the time appellant made his request. Thus, it

contends the trial court did not err in denying the request.

On the last day of the guilt phase, appellant expressed the desire to represent

himself, and informed the court he was not attempting to delay the proceedings because

he had his closing argument prepared that day and was ready to proceed. The trial court

conducted a colloquy and denied the request, finding that allowing appellant to represent

himself when the guilt phase was nearly complete would have confused the jury and

caused disruption, inconvenience, and delay.

[J-49-2013] - 41
As the PCRA court correctly concluded, this issue has been previously litigated.

See Treiber, at 32 (trial court did not abuse its discretion in denying appellant’s request to

represent himself); see also 42 Pa.C.S. § 9544(a)(2). Insofar as appellant alleges

counsel failed to thoroughly advocate for his right to represent himself, his cursory claim

of ineffectiveness is waived for failure to develop it in any meaningful fashion capable of

review. See Walter, at 566 (holding claims waived for failure to develop them).

Issue X: Counsel’s Failure to Investigate/Present Expert Evidence
Appellant claims trial counsel was ineffective for failing to investigate, develop, and

introduce expert testimony to contradict the Commonwealth’s evidence, particularly

experts regarding: (1) canine DNA evidence; (2) fire investigation; (3) appellant’s

indifferent demeanor; and (4) appellant’s financial status. Because we have addressed

appellant’s issues as to canine DNA evidence and his financial status, see supra, Issues

I-III, we will only address appellant’s claims as to fire investigation and his indifferent

demeanor.

A. Arson Expert

Appellant argues trial counsel was ineffective for failing to call David Redsicker, an

arson expert, at trial to rebut the Commonwealth’s arson testimony from a state fire

marshal. While appellant acknowledges counsel consulted with Mr. Redsicker prior to

trial, he asserts counsel was ineffective for not asking Mr. Redsicker a crucial question,

i.e., whether a delay device was used in the arson. He also claims Mr. Redsicker would

have testified the absence of detectible gasoline on appellant’s clothes the night of the fire

meant he did not pour gasoline that night.

The Commonwealth maintains counsel had a reasonable basis for not calling Mr.

Redsicker, asserting there was no dispute the fire was an arson and Mr. Redsicker

identified a third point of origin near Jessica’s bedroom. It thus argues appellant suffered

[J-49-2013] - 42
no prejudice because Mr. Redsicker would not have offered helpful or additional

information. The Commonwealth notes its theory at trial was that appellant used a delay

device to start the fire to allow him to get away without injury, and Mr. Redsicker testified

at the PCRA hearings that straw, candles, and gasoline could be used to create delay

devices. The Commonwealth contends Mr. Redsicker’s opinion that appellant must not

have poured gasoline because he did not have it on his clothing was highly speculative.

Nonetheless, the Commonwealth submits, the lack of such testimony did not prejudice

appellant because it was undisputed gasoline was not found on his person and his

counsel emphasized this fact during closing argument.

At trial, the Commonwealth offered testimony from the state fire marshal who

examined the scene. He concluded there were two unconnected points of origin — one

in the garage and the other in the basement — and straw, candles, and gasoline were

used as delay devices to start the fire. Appellant’s trial counsel consulted with Mr.

Redsicker prior to trial but did not call him at trial as an expert witness because: (1) there

was no dispute an arson was committed; (2) Mr. Redsicker believed appellant’s

basement window had been opened to provide oxygen and fuel the fire; and (3) there was

a drawback to his testimony because he discovered a third point of origin outside

Jessica’s bedroom. See N.T. PCRA Hearing, 8/10/09, at 51-53. Mr. Redsicker testified

at the PCRA hearings that he agreed with the fire marshal’s conclusions as to the points

of origin. N.T. PCRA Hearing, 8/11/09, at 60-61. Mr. Redsicker also disclosed counsel

gave him the fire marshal’s report to review; the report contained the fire marshal’s

opinion that delay devices were used, and the possibility that straw, gasoline, and

candles were used as delay devices could not be ruled out. Id., at 76, 84.

The PCRA court held counsel made a reasonable, strategic choice not to call Mr.

Redsicker due to the possibility he would indicate a third point of origin — which could

[J-49-2013] - 43
have hurt appellant — and it was reasonable for counsel to assume Mr. Redsicker had no

dispute as to the use of delay devices, or he would have informed him of any

disagreement with the fire marshal’s conclusions. PCRA Court Opinion, 3/27/12, at

52-53. The court also concluded appellant failed to establish prejudice, as Mr.

Redsicker’s testimony at the PCRA hearings did not dispute the fire marshal’s

conclusions at trial. Id. The court discredited Mr. Redsicker’s testimony that appellant

could not have started the fire because there was no gasoline found on his clothing,

finding such opinion purely speculative. Id.

As discussed supra, the mere failure to call an expert rebuttal witness is not per se

ineffectiveness, and counsel need not introduce such expert if he effectively

cross-examines the Commonwealth’s witnesses and elicits helpful testimony. See

Chmiel, at 1143 (citations omitted). Appellant fails to argue counsel’s cross-examination

of the fire marshal was inadequate. Our review of the record demonstrates counsel

effectively cross-examined the fire marshal and elicited helpful testimony in support of the

defense theory that an unknown intruder committed the arson. See N.T. Trial, 10/1/02,

at 134-44 (questioning as to evidence of forced entry in home and possibilities that may

have shown intruder committed arson). Thus, counsel was not ineffective.

We also conclude the PCRA court correctly determined appellant failed to

establish the reasonable basis and prejudice prongs of the ineffectiveness test. As the

court pointed out, Mr. Redsicker indicated a possible third point of origin located outside

Jessica’s bedroom. His testimony, therefore, would have diminished the defense’s

theory that an intruder committed the arson and supported the Commonwealth’s theory

that appellant burned the house to murder Jessica. Thus, counsel had a reasonable

basis for not calling Mr. Redsicker. Moreover, appellant does not explain how counsel’s

failure to call Mr. Redsicker prejudiced him; he focuses only on the cumulative effect of

[J-49-2013] - 44
counsel’s alleged errors, arguing counsel could have significantly weakened the

Commonwealth’s case by calling experts in canine DNA, mental health, arson, and

accounting. Appellant claims, without support, that the outcome of the guilt phase would

have been different had counsel offered this expert testimony and properly impeached

the fire marshal. Accordingly, appellant fails to establish prejudice.

B. Mental-Health Expert

Numerous non-expert Commonwealth witnesses testified appellant lacked

emotion at the time of the fire and after his daughter’s death. Trial counsel attempted to

rebut this testimony by presenting appellant’s mother, who described appellant as

generally unemotional and stated he had acted this way since he was a child, attributing

his indifferent demeanor to a family trait. The PCRA court determined appellant failed to

establish the reasonable basis and prejudice prongs of the ineffectiveness test.

Appellant argues counsel failed to investigate and present mental-health evidence

to rebut the Commonwealth’s non-expert testimony that he showed no emotion and

lacked grief for his daughter’s death. Specifically, appellant asserts he suffered brain

damage from an accident approximately ten years before the fire. He posits that had

counsel presented mental-health evidence, an explanation would have been provided to

the jury that his indifferent demeanor or lack of emotion stemmed from his brain damage

and mental-health issues, not from a desire to murder Jessica.

The Commonwealth argues counsel made a reasonable strategic decision not to

present a mental-health expert in light of the pre-trial examination conducted by Steven

Reilly, see infra, Issue XI, and appellant failed to show he was prejudiced by counsel’s

alleged ineffectiveness.

While appellant offers extensive argument as to counsel’s ineffectiveness for

failing to present mental-health evidence during the penalty phase, he makes only

[J-49-2013] - 45
cursory claims of ineffectiveness regarding the guilt phase, merely incorporating by

reference the entirety of his penalty-phase contentions for support as to why counsel was

ineffective in the guilt phase of his trial. Because he fails to explain why counsel had no

reasonable basis for his guilt-phase decisions or how the outcome would have been

different, his guilt-phase issue is waived as underdeveloped. See Walter, at 566

(holding claims waived for failure to develop them).

II. PENALTY-PHASE CLAIMS

Issue XI: Counsel’s Failure to Investigate/Present Mitigating Evidence

Appellant claims trial counsel was ineffective for failing to investigate and present

penalty-phase mitigating evidence of appellant’s medical, psychological, and sociological

history, and his good behavior in prison. He maintains counsel’s decision to abandon

presenting evidence of his psychological and sociological problems in favor of a “life is

worse than death” argument was an irrational strategy. Appellant argues had counsel

conducted a reasonable investigation, he would have discovered compelling evidence

warranting expert psychiatric and neuropsychological testimony to directly support the

claim of neurological impairment and brain damage, which was submitted to the jury

under the catch-all mitigator but not found. He alleges such expert testimony could have

led to submitting additional mitigating circumstances to the jury under 42 Pa.C.S. §§

9711(e)(2), 9711(e)(3).

Appellant asserts he had a brain injury from an accident in 1991 in which his car

collided with a backhoe loader.19 His medical history since the accident evinces he

suffered from persistent cognitive impairments, and a Magnetic Resonance Imaging

(MRI) test conducted in 1996 established he has brain damage. Appellant contends

19 A backhoe loader is a tractor-like vehicle with a digging bucket on one end and a
loading bucket on the other.

[J-49-2013] - 46
counsel failed to provide Steven Reilly — an expert forensic psychologist who counsel

consulted with before trial to determine whether appellant had cognitive or mental

impairments — with all of his records, including the results of his 1996 MRI. Had counsel

properly provided all relevant background information to Mr. Reilly, appellant claims, Mr.

Reilly would have told counsel appellant suffered from cognitive or mental deficits.

Appellant alleges similar defects in counsel’s pre-trial consultation with another

psychologist, Dr. Michael Schwabenbauer, and argues counsel was ineffective in failing

to seek a referral from Dr. Schwabenbauer. He claims counsel, despite receiving

unfavorable conclusions from Mr. Reilly and Dr. Schwabenbauer, should have continued

to seek additional mental-health experts and obtained a neuropsychological examination

of appellant.

Appellant alleges counsel unreasonably expected Mr. Reilly and Dr.

Schwabenbauer to request additional information if they needed it to render their

opinions; instead, counsel should have sought out and provided the experts additional

information, including a 1980 diagnosis from a childhood psychologist that concluded

appellant had minimal brain dysfunction and a low intelligence quotient (IQ). Appellant

avers that — even though Mr. Reilly and Dr. Schwabenbauer both concluded he did not

suffer from cognitive or mental impairments — counsel was unreasonable for not calling

them as penalty-phase witnesses and further pursuing additional mitigating evidence of

his mental health. He asserts counsel’s basis for not providing extensive mitigating

evidence of his cognitive and mental impairments, i.e., there was no legitimate

mental-health issue, is improper because counsel was never in a position to reasonably

determine whether a bona fide issue existed, as he failed to fully investigate and obtain

critical mental-health records.

[J-49-2013] - 47
Appellant also argues counsel was ineffective for failing to present mitigating

evidence of his good behavior in prison and the likelihood of positive prison conduct in the

future. Although he admits counsel generally submitted to the jury that he adapted well

in prison and cooperates with prison personnel, he claims counsel failed to present

witnesses and other available evidence to support the notion he had behaved himself in

prison and would exhibit the same behavior in the future.

The Commonwealth counters that counsel articulated a reasonable basis for his

decisions, especially considering his limited financial resources and appellant’s refusal to

cooperate with counsel. Noting the PCRA court specifically found counsel credible, the

Commonwealth argues counsel reasonably relied on Mr. Reilly’s and Dr.

Schwabenbauer’s conclusions that appellant had no mental abnormalities and assumed

those experts would have requested additional information if they needed it to render their

opinions. Based on Mr. Reilly’s and Dr. Schwabenbauer’s determinations, the

Commonwealth contends counsel was reasonable in electing not to call them as

witnesses. Also, it offers additional reasons supporting counsel’s decision not to present

mental-health evidence: (1) appellant ran his own real-estate enterprise; (2) he

functioned well in everyday life; (3) his mother testified his “flat affect” or indifferent

demeanor was a family trait that pre-dated his 1991 accident; and (4) the crime of which

he had just been convicted entailed extensive planning and premeditation.

At the PCRA hearings, trial counsel testified he explored presenting mental-health

evidence at the penalty phase and consulted with two experts prior to trial, Dr.

Schwabenbauer and Mr. Reilly. Trial counsel stated Dr. Schwabenbauer treated

appellant after his 1991 vehicle accident, and he met with Dr. Schwabenbauer March 22,

2002, so that he could review appellant’s records. N.T. PCRA Hearing, 10/22/10, at

108-10. According to counsel, Dr. Schwabenbauer told him: (1) appellant made a good

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recovery from the accident, both physically and mentally; (2) there were no signs of

lasting residual cognitive effects from the accident; (3) appellant showed no signs of

losing control of his emotions; (4) the fact appellant did not lose consciousness during the

accident suggested that serious brain injury was unlikely; (5) he did not think appellant’s

head injury was serious but instead would be considered a “mild range” injury; and (6) if

appellant had any personality issue, it pre-dated the accident. Id., at 111-13, 160.

Counsel testified Dr. Schwabenbauer never requested additional information before

rendering his opinion or advised him to consult with a neuropsychologist or psychiatrist.

Id., at 159, 161, 171. He had the impression Dr. Schwabenbauer was hesitant about

being involved in a criminal case and was not interested in helping the defense develop

the penalty phase. Id., at 113-14, 128. In April, 2002, counsel wrote a letter to Dr.

Schwabenbauer requesting he test appellant for neurological defects, to which Dr.

Schwabenbauer responded one month later, indicating he was unwilling to participate

further and offering to refer counsel to other psychologists. See id., at 128-33. Dr.

Schwabenbauer only mentioned a referral to qualified psychologists; he did not suggest a

psychiatric assessment or refer counsel to a neuropsychologist. Id., at 131. Counsel

declined Dr. Schwabenbauer’s referral to other psychologists because he had already

obtained Mr. Reilly. Id., at 132-33.

Regarding Mr. Reilly, counsel testified at the PCRA hearings that he spoke to him

twice over the phone and requested he evaluate appellant’s “flat affect,” i.e., lack of

emotion, and any other potential cognitive or mental defects. Id., at 39-41, 84-85.

Counsel stated he chose Mr. Reilly because he was affordable, had a forensic

background as a clinical psychologist, and was well respected in the professional

community because he gives fair and honest assessments, regardless of whether the

results are favorable to the party seeking the evaluation. Id., at 84-85, 148-49. Counsel

[J-49-2013] - 49
provided Mr. Reilly with all of appellant’s medical records from 1991 to 2002, id., at 91, but

did not give him appellant’s prison,20 grade school, or juvenile records, id., at 101, 117.

Mr. Reilly informed counsel he would review appellant’s records and test appellant’s

intelligence, verbal skills, knowledge, and mechanical reasoning. Id., at 87-88.

According to counsel, Mr. Reilly wanted to first establish whether appellant had any

cognitive defects before comparing his present condition with prior records to determine if

his impairments deteriorated or ameliorated. Id., at 89, 162-63. Mr. Reilly also told

counsel appellant’s “frontal-lobe” brain injury from his 1991 accident would not cause

brain damage, emotional defects, or cognitive impairments, as such deficiencies are

caused by a deep intrusion, not frontal-lobe damage. Id., at 88-90, 165-66. Counsel

informed Mr. Reilly about appellant’s 1996 emergency-room visit and MRI records from

that visit, which Mr. Reilly concluded was an incident too “isolated” to be indicative of

mental impairments. Id., at 93-96. Mr. Reilly examined appellant three separate times

in May, 2002. Id., at 43. He issued a report concluding appellant did not suffer from any

mental abnormalities and had no cognitive or emotional problems. Id., at 56-57, 73-74,

79, 93-94, 97-98. Mr. Reilly never requested additional information from counsel before

rendering his report. Id., at 164.

Counsel described the basis for his penalty-phase decisions at the PCRA

hearings. He decided there was no genuine mental-health issue based on Dr.

Schwabenbauer’s and Mr. Reilly’s conclusions and the fact that appellant successfully

maintained a real-estate career. Id., at 52-54, 59-61, 172-74. He also explained the

Commonwealth at trial set forth substantial evidence of appellant’s controlling

personality, deception, and planning, i.e., efforts requiring mental competence and

20Counsel also explained he did not wish to present expert testimony on appellant’s
positive prison behavior because it would invite the Commonwealth to implicate his future
dangerousness. Id., at 102.

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intelligence. Id. Counsel reasoned because appellant lacked any real mental-health

component, presenting weak mental-health evidence would offend the jury and convey to

it that the defense was appealing to its sympathy. Id. Counsel felt this approach would

backfire and undermine his attempt to save appellant from the death penalty by

convincing the jury it should make appellant serve a life sentence if it truly wanted to

punish him. Id. He did not call Dr. Schwabenbauer as a witness because he was

unwilling to help, id., at 114, 130-31, and he did not call Mr. Reilly because he would have

testified in accordance with his report that appellant was normal, had average

intelligence, and could function regularly at the time of the murder, id., at 168. He also

stated that presenting expert testimony of appellant’s mental-health records would give

rise to cross-examination or conflicting Commonwealth expert testimony demonstrating

appellant made a good recovery from his 1991 injury and thus did not suffer cognitive

deficiencies. Id., at 171-72.

Dr. Schwabenbauer and Mr. Reilly both testified at the PCRA hearings. Dr.

Schwabenbauer agreed counsel consulted with him and requested he perform

neuropsychological testing on appellant, but he claimed counsel never provided him with

appellant’s 1996 MRI records, which indicated appellant’s brain damage. N.T. PCRA

Hearing, 6/1/11, at 43, 57-58. Dr. Schwabenbauer also stated he told counsel appellant

should be examined by a neuropsychologist. Id., at 47. Mr. Reilly testified counsel

never provided him with appellant’s 1996 MRI records, juvenile records, or the 1980

diagnosis from his childhood psychologist. N.T. PCRA Hearing, 8/10/09, at 114-15.

Mr. Reilly asserted, had counsel given him these records, he would have recommended

appellant undergo neuropsychological testing. Id., at 116-18.

The PCRA court held counsel had a reasonable basis for not presenting

mental-health testimony at the penalty phase, especially when considering Dr.

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Schwabenbauer’s and Mr. Reilly’s conclusions and the fact appellant did not cooperate

with counsel regarding the penalty phase. PCRA Court Opinion, 3/27/12, at 46. The

court explained appellant repeatedly advised counsel not to pursue penalty-phase

evidence and refused to meet with a mental-health expert. It noted appellant instructed

counsel on several occasions to focus on the guilt phase and refused to spend time and

money purely on the penalty phase. Id., at 37. Specifically, the court highlighted a letter

appellant wrote to counsel January 14, 2002, stating: (1) he would commit suicide if he

lost the guilt phase; (2) he wanted counsel to focus only on the guilt phase; (3) he did not

wish to defend or spend funds on the penalty phase; (4) the only defense he wanted to

present at the penalty phase was a brief argument, and his parents could speak if they

wished; (5) not to bother his acquaintances about the penalty phase; and (6) he was of

sound mind and would not change his view on the penalty phase. See id., at 38 (quoting

appellant’s letter to counsel in full). Appellant expressed the same views on three

separate occasions from February to March, 2002, refusing to meet with a “head doctor”

unless it helped the guilt phase and reiterating he would not participate in the penalty

phase. Id., at 39. Appellant never abandoned his position regarding the penalty phase;

counsel convinced appellant to allow Mr. Reilly to test him only because he told him it

would help in the guilt phase. See id., at 37-40; see also N.T. PCRA Hearing, 10/22/10,

at 24, 122, 145, 157. After a meeting with Mr. Reilly, appellant wrote counsel and told

him Mr. Reilly was not helpful or worthwhile. PCRA Court Opinion, 3/27/12, at 43-44.

The court also concluded appellant failed to establish prejudice. Id., at 51. It

credited the Commonwealth’s PCRA mental-health experts over appellant’s, finding

appellant’s expert neuropsychologist’s conclusions were “convincingly contradicted.”

[J-49-2013] - 52
Id., at 48-50.21 The Commonwealth’s PCRA experts evaluated appellant and concluded

he was not suffering from a mental disorder at the time of the offense, he was able to

understand the criminality of his conduct and could conform to the law, and his flat affect

was not related to his 1991 injury but was a characteristic since childhood and stemmed

from his narcissistic and antisocial traits. See id., at 49-50.

“The inquiry of whether trial counsel failed to investigate and present mitigating

evidence turns upon various factors, including the reasonableness of counsel’s

investigation, the mitigation evidence that was actually presented, and the mitigation

evidence that could have been presented.” Commonwealth v. Simpson, 66 A.3d 253,

277 (Pa. 2013) (citation omitted). The reasonable basis prong of an ineffectiveness

claim does “‘not question whether there were other more logical courses of action which

counsel could have pursued; rather, we must examine whether counsel’s decisions had

any reasonable basis.’” Chmiel, at 1127 (citation omitted).

First, we note the PCRA court found counsel’s testimony credible over Dr.

Schwabenbauer’s and Mr. Reilly’s, and such credibility findings, if supported by the

record, are binding on this Court. PCRA Court Opinion, 3/27/12, at 40-42; see also

Dennis, at 305 (PCRA court’s credibility findings, where supported by record, are binding

on reviewing court). Accordingly, we are bound by the supported determination that

21 Appellant offered Dr. Jonathan Mack as his expert neuropsychologist. Dr. Mack
reviewed appellant’s medical records and concluded appellant suffered from cognitive
defects and brain damage as a result of the 1991 accident. See id., at 48. The court
noted Dr. Mack relied on a juvenile record, which contained a 1980 diagnosis from a
childhood psychologist that appellant had minimal brain dysfunction and a low IQ. Id., at
48 n.27. It found telling, and not helpful to appellant’s case, the fact he saw the
psychologist for setting fires and other behavioral problems. Id. The court explained,
had appellant’s PCRA expert testified at the penalty phase, that evidence would have
been admissible and thus the jury would have learned that committing arson was nothing
new to appellant. Id.

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appellant’s counsel provided all medical records from 1991 to 2002, including the 1996

MRI records, to Dr. Schwabenbauer and Mr. Reilly. See N.T. PCRA Hearing, 10/22/10,

at 91-100, 106, 170. Thus, appellant’s argument that Dr. Schwabenbauer and Mr. Reilly

would have concluded he suffered cognitive and mental impairments had they been given

his 1996 MRI records lacks arguable merit.

We agree with the PCRA court that counsel was reasonable in conducting his

investigation by relying upon the experts’ determinations and putting forth a mitigation

defense.22 Counsel’s investigation included compiling a social history from appellant

and his family, interviewing potential lay witnesses, and reviewing medical, juvenile,

prison, and employment records. As recognized by the PCRA court, counsel retained

two mental-health experts to evaluate appellant’s medical records — one of which

examined appellant in person on three separate occasions.23 We cautioned in Lesko,

that in applying Strickland to mental-health mitigation cases, “courts must be careful not

to conflate the roles and professional obligations of experts and lawyers.” Lesko, at 382.

Here, counsel consulted with those experts so that, as he hoped, he would be able to

present evidence of mental impairment. Counsel met with Mr. Reilly because he would

give him an accurate explanation as to whether appellant indeed suffered mental defects,

22 Debatably, counsel had no duty to pursue mental-health experts because appellant
repeatedly refused to see a “head doctor” or help him prepare for the penalty phase, and
specifically instructed counsel not to present any mitigating evidence except for brief
argument and his parents’ testimony. See, e.g., Commonwealth v. Reid, 811 A.2d 530,
553 (Pa. 2002) (counsel has no duty to undertake reasonable investigation where
defendant specifically advised him not to present evidence of mitigating circumstances
(citations omitted)).
23 Notably, counsel needed to convince appellant these mental-health experts would aid

in the guilt phase to gain his approval in retaining them. Had counsel continued to
search for a mental-health expert willing to testify appellant suffered from brain damage
and cognitive impairments — as appellant now suggests he should have done —
appellant likely would have forbidden counsel from offering this testimony, considering he
maintained his intransigence regarding the penalty phase.

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which would save counsel from expending his limited financial resources on fruitless

mental-impairment claims. Counsel provided the experts with all of appellant’s medical

records, and they did not request additional information to render their opinions. The

experts concluded appellant did not suffer mental or cognitive defects and his 1991 injury

could not have been the cause of his flat affect or indifferent demeanor. Appellant’s

PCRA experts, who now dispute Dr. Schwabenbauer’s and Mr. Reilly’s conclusions,

might call into question their professional opinions; however, “that is not the same thing as

providing a basis to fault [] counsel’s legal performance.” Id. Thus, based on the

experts’ conclusions, it was reasonable for counsel to decide that presenting

unsupported, weak mental-health evidence would be unsuccessful and could backfire

and offend the jury by appearing to appeal to sympathy.

Alternatively, we see no error in the PCRA court’s conclusion that appellant has

not established prejudice. At sentencing, counsel presented testimony from five lay

witnesses and submitted four mitigating circumstances to the jury: (1) a positive work

history; (2) successful adaptation to prison and cooperation with prison personnel; (3) a

history of showing compassion and mercy to others; and (4) a history of neurological

impairment and brain damage — all evidence that would fall within 42 Pa.C.S. §

9711(e)(8), the catch-all mitigator.24 Notably, although counsel did not present expert

testimony, he still attempted to submit evidence to the jury of appellant’s brain injury and

cognitive impairments, i.e., his mother’s testimony that he suffered a severe accident,

which caused brain injury and long-term memory loss, impaired his cognitive abilities,

changed his emotions, and flattened out his personality. PCRA Court Opinion, 3/27/12,

24 As previously noted, counsel also submitted as a mitigating circumstance that
appellant had no significant history of prior criminal convictions, id., § 9711(e)(1), which
the jury was required to find because of a stipulation between appellant and the
Commonwealth.

[J-49-2013] - 55
at 85-87, 89. The jury found only appellant’s positive work history as a mitigating

circumstance under the catch-all mitigator.

To establish prejudice, appellant must prove:

“[T]here is a reasonable probability that, absent counsel’s failure to present
the mitigation evidence he currently proffers, [appellant] would have been
able to prove at least one [more] mitigating circumstance by a
preponderance of the evidence and that at least one jury member would
have concluded that the mitigating circumstance(s) outweighed the
aggravating circumstance(s).”

Philistin, at 28 (quoting Lesko, at 383). A majority of this Court in Commonwealth v.

Tharp, 101 A.3d 736 (Pa. 2014), reasoned that the weighing of mitigating circumstances

is qualitative, not quantitative, and thus a finding by the jury of the catch-all mitigator does

not per se preclude this Court from deeming counsel ineffective because the jury may

have given that factor more weight had counsel proffered additional mitigation evidence.

See id., at 775-77 (Castille, J., concurring); id., at 777 (Saylor, J., concurring); id., at 778

(Eakin, J., concurring); see also Commonwealth v. Rivera, 108 A.3d 779, 807 n.18 (Pa.

2014) (noting majority of this Court determined weighing of mitigating circumstances is

qualitative, not quantitative).

Yet, not only does appellant fail to acknowledge the jury found the catch-all

mitigating circumstance, he also does not argue the evidence counsel failed to present

would have caused at least one juror to add more weight to the catch-all mitigator. He

only asserts a proper mental-health investigation “would have directly supported the

neurological impairment and brain damage mitigating factor … which w[as] submitted to

the jury under [] § 9711(e)(8), but not found[.] Such expert testimony also could have

supplied the basis for submitting additional mitigating circumstances to the jury[.]”

Appellant’s Brief, at 65. Specifically as to prejudice, appellant merely claims that, based

on the testimony offered by his PCRA experts, “confidence in the outcome of the penalty

[J-49-2013] - 56
phase is undermined.” Id., at 69. We note the PCRA court did not find appellant’s

PCRA experts credible, and such credibility findings, which are supported by the record,

are binding on this Court. See PCRA Court Opinion, 3/27/12, at 47-51. Accordingly,

appellant has failed to demonstrate the requisite prejudice for relief on his mental-health

mitigating evidence claim.

We also agree with the PCRA court’s conclusion that appellant failed to establish

counsel was ineffective for failing to offer mitigating testimony supporting appellant’s

good prison behavior. At the penalty phase, counsel submitted to the jury a

prison-adjustment summary, which evinced appellant’s good prison behavior, and asked

the jury to find appellant’s successful adaptation to prison as a mitigating circumstance

under the catch-all mitigator. Counsel did not present testimony on this point because

the court ruled if he made future dangerousness an issue, or argued that “life means life”

or that appellant would not be paroled, it would instruct the jury on the concepts of

pardons and executive clemency. See N.T. Trial, 10/8/02, at 106-10; N.T. PCRA

Hearing, 10/22/10, at 102-03; PCRA Court Opinion, 3/27/12, at 44, 89.

Appellant asserts only that counsel was ineffective in failing to present testimony of

his good prison behavior. He fails to allege how such testimony would not merely be

cumulative of the admitted prison-adjustment summary — evidence that established his

good prison behavior. He also does not argue counsel lacked a reasonable basis for not

presenting testimony or making future dangerousness an issue. And he does not

explain how he was prejudiced by counsel’s alleged ineffectiveness, but merely contends

counsel’s ineffectiveness in presenting testimony of good prison behavior, coupled with

his deficiencies in investigating mental health, undermined confidence in the penalty

phase’s outcome. See Appellant’s Brief, at 69. Accordingly, we conclude appellant has

failed to demonstrate he is entitled to relief.

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Issue XII: The Trial Court’s Alleged Errors in Penalty-Phase Instructions

Appellant asserts the trial court’s penalty-phase instructions were erroneous and

violated the Eighth and Fourteenth Amendments of the United States Constitution.

Particularly, appellant claims the court (1) erred in giving a “more terrible less terrible”

instruction because it narrowed the jury’s consideration of mitigating circumstances, and

(2) improperly limited mitigating evidence by stating, if counsel argued appellant posed no

risk of future danger to others, it would instruct the jury on the commutation process in

Pennsylvania.

The Commonwealth counters that appellant’s claims are waived and alleges he

“attempts to superficially couch this claim as one of ineffective assistance,” which fails

because he makes no effo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2827857. Public record. Not legal advice.