# Commonwealth v. Johnson, H., Aplt.

> Supreme Court of Pennsylvania · February 22, 2023

URL: https://www.frixlaw.com/law-library/cases/9374300

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 22, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Justice Kevin Dougherty
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[J-40-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 792 CAP
Appellee :
: Appeal from the Order entered on
: March 31, 2021 in the Court of
v. : Common Pleas, York County,
: Criminal Division, at No. CP-67-CR-
: 0004854-2008.
HARVE LAMAR JOHNSON, :
: SUBMITTED: May 16, 2022
Appellant :

OPINION

JUSTICE DOUGHERTY DECIDED: February 22, 2023
In this capital case, Harve Lamar Johnson (appellant) appeals from the order of

the York County Court of Common Pleas denying his first, timely petition for post-

conviction relief pursuant to the Post Conviction Relief Act (PCRA). 1 Appellant raises

twenty-two claims. For the reasons set forth below, we affirm.

I. BACKGROUND

This case arises from the April 2008 murder of D.B., a two-year-old child living with

her mother and appellant, mother’s boyfriend. We previously recounted the facts

underlying appellant’s conviction in our opinion affirming his sentence of death on direct

appeal:

On April 6, 2008, police were called to [appellant and appellant’s girlfriend’s]
residence, where they found appellant outside. Victim was on the kitchen
floor, unresponsive, and had both old and new bruises all over her body.
Police attempted to revive victim, and paramedics transported her to York

142 Pa.C.S. §§9541-9546. This Court has exclusive jurisdiction over appeals from the
denial of post-conviction relief in death penalty cases. See 42 Pa.C.S. §9546(d).
Hospital. Victim was then transferred to Hershey Medical Center, where
she died the next day.
Mother[, Neida Baez,] initially told police her daughter fell into the bathtub;
she later told police she fell down a flight of stairs. At trial, mother testified
otherwise. Before April 6, 2008, victim had bruises on her fingers and legs
and bald spots on her head. On that morning, victim upset appellant by
coming into mother and appellant’s bedroom. Appellant hit victim and told
her to stand in the corner. At about 12:20 p.m., mother heard appellant
yelling and victim crying, and saw appellant spanking the child at the top of
the stairs. The spanking caused the child’s diaper to explode, which
angered appellant further; he began beating her again and threatened to
beat mother. Mother, who was in a separate room during most of this
incident, indicated appellant beat victim for 20 to 30 minutes, although she
repeatedly asked him to stop. Eventually, mother could no longer hear
victim scream or appellant yell. She then heard water running in the bathtub
for approximately 10 minutes. Appellant returned, carrying victim’s limp
body. Appellant and mother attempted to resuscitate victim and, on
mother’s prodding, appellant called 911.
At trial, Police Sergeant Roy Kohler testified that when he responded to the
911 call, he noticed appellant near the residence, breathing rapidly and
appearing distraught. Kohler asked appellant if he was okay; appellant
replied, “No, I don’t feel well.” N.T. Trial, 11/9/09, at 111. Kohler asked
appellant to come to his police cruiser to be medically examined, and
appellant agreed. While they were walking to the cruiser, appellant said, “I
know I’m in trouble because of all the bruises all over her body. I beat her
yesterday pretty bad with a belt.” Id., at 113.
Emergency Medical Technician (EMT) Supervisor Donald Sanders testified
he medically examined appellant in the back of the cruiser. During the
examination, appellant asked how victim was doing. Sanders said they
were doing everything possible for the child, and asked what happened to
her. Appellant replied, “I’ve been beating her.” Id., at 148. Sanders
inquired, “What do you mean?,” and appellant stated, “I’m sorry, I did it.” Id.
Sanders asked again, “What do you mean you did it?” Id. Appellant
elaborated, “I have been hitting the child for the last two or three days.” Id.
Sanders then asked, “Well, what did you use on the child?” Appellant
responded, “A belt.” Id., at 149. Kohler subsequently drove appellant to the
York City Police Department. During the drive, appellant said, “That girl and
her mother bruise when I touch them at all. If I bite her mother or hit [victim]
at all, they bruise right up.” Id., at 117.
At the police department, appellant admitted to detectives that, on multiple
prior occasions, he beat victim as a form of discipline. He said victim came
into his bedroom between 5:30 a.m. and 6:00 a.m. the day before her death,
waking him up. He told victim to stay in a corner of the bedroom until he
and mother awoke. He later woke up, left the residence, and returned to

[J-40-2022] - 2
find mother upset. He assumed mother was upset because of victim, so
between 12:30 p.m. and 1:00 p.m. he struck victim on her arms and
buttocks approximately seven times with the cord from an Xbox controller.
He noted these blows could have injured victim’s chest and back because
the cord wrapped around her body. Victim then moved her bowels, so he
took her to a running bathtub of hot water. Appellant claimed he left the
child in the bathtub to bring her clean clothes and, when he returned, he
found her drowning and noticed a lump on her head. Appellant summoned
mother, argued with her about what happened, and sought to revive victim.
He admitted he did not call 911 immediately because victim was breathing
and he did not want police to see the injuries on her arms.
The Commonwealth also introduced evidence showing blood spatter on a
bedroom wall matched victim’s DNA. Blood found on the top of the Xbox
controller, a child’s boot, appellant’s clothes, and hairs found in a bedroom
also matched victim’s DNA. Blood and blood spatter, consistent with impact
spatter and matching victim’s DNA, were found on victim’s clothes.
While victim was being treated at York Hospital, a nurse trained in forensic
examination documented and photographed victim’s injuries. Eighteen of
those photographs were admitted at trial, and the nurse explained the
injuries she photographed.
The morning after victim died, a forensic pathologist[, Dr. Wayne Ross,]
conducted an autopsy on victim’s body and determined she died of multiple
traumatic injuries. [Dr. Ross] found approximately 220 external injuries on
victim, 150 of which were “fresh,” meaning they had occurred within 24
hours of victim’s admission to the hospital. He noted victim’s right ear had
fresh trauma, and the center of her right ear had an abrasion consistent with
someone scraping a fingernail in her ear. Victim’s hair on the right side of
her head was pulled out by its roots. Injuries on her left shoulder were
caused by the cord of the Xbox controller, and her entire left arm was
swollen. [Dr. Ross] determined bruises on the back of victim’s forearm and
contusions, bruises, and abrasions to her feet and lower legs were caused
by blunt force trauma. [Dr. Ross] discovered numerous fresh internal
injuries to victim’s head, including swelling and bleeding in her brain, as well
as retinal hemorrhages and damage to her spinal cord. He noted victim
suffered trauma to her heart, right lung, liver, pancreas, and right adrenal
gland, which were caused by multiple high-velocity impacts to the chest and
belly. There were also hemorrhages to her neck caused by compression or
strangulation. He opined victim was repeatedly struck at a speed of
approximately 20 miles per hour. He concluded, at the rate of an injury
every 20 seconds, it would take 45 to 60 minutes to inflict all of victim’s fresh
injuries.

[J-40-2022] - 3
Commonwealth v. Johnson, 42 A.3d 1017, 1023-24 (Pa. 2012), cert. denied, 569 U.S.

922 (2013) (internal citations and footnotes omitted).

II. PROCEDURAL HISTORY

Appellant was tried in the York County Court of Common Pleas. Voir dire was

conducted on November 2-6, 2009, and trial began on November 9, 2009. At trial,

appellant was represented by Richard Robinson, Esq., and Ari Weitzman, Esq. On

November 13, 2009, the jury convicted appellant of first-degree murder. The penalty

phase was held on November 16, 2009, and the jury found two aggravating factors: (1)

the offense was committed by means of torture; and (2) the victim was younger than

twelve years old. See 42 Pa.C.S. §§9711(d)(8) and (16). The jury found one mitigating

circumstance — that, as stipulated by the parties, appellant had no significant history of

prior criminal convictions, id. at §9711(e)(1) — but determined the two aggravating

circumstances outweighed it and sentenced appellant to death pursuant to 42 Pa.C.S.

§9711(c)(1)(iv).

On February 3, 2010, appellant filed a nunc pro tunc direct appeal in this Court.

We affirmed his judgment of sentence on April 26, 2012, 2 and the United States Supreme

Court denied certiorari on April 15, 2013. Johnson v. Pennsylvania, 569 U.S. 922 (2013).

Appellant filed a timely first pro se PCRA petition and emergency motion for stay

of execution on July 23, 2013. His petition was assigned to the trial judge, the Honorable

Michael E. Bortner, who granted the stay of execution on August 15, 2013. Counsel was

2 Relevant to the issues raised in the present post-conviction appeal, on direct appeal we
rejected appellant’s substantive claims alleging the trial court erred in: admitting prior bad
act evidence regarding the victim’s injuries prior to the incident, appellant’s statements to
Sergeant Kohler, EMT Supervisor Sanders, and police en route to and at the police
department, and photographs of the victim’s injuries; failing to instruct the jury on
voluntary manslaughter; allowing Dr. Ross to testify at the penalty phase; limiting the
direct examination of appellant’s mother; allowing the jurors to use their guilt phase notes
during the penalty phase; and limiting appellant’s description of life in prison during his
penalty phase argument. See Johnson, 42 A.3d at 1026-38.

[J-40-2022] - 4
appointed and, following a series of extensions, filed an amended petition on December

11, 2014. The Commonwealth filed its answer on July 14, 2015 and, on June 1, 2016,

appellant filed a second amended petition. On August 16, 2016, the PCRA court granted

the Commonwealth’s request for appellant to undergo a psychiatric evaluation. The

Commonwealth subsequently filed an answer to appellant’s second amended petition on

September 9, 2016. Following extensions to accommodate witness scheduling, Judge

Bortner conducted evidentiary hearings on February 27, 2017, March 31, 2017, April 26,

2017, June 4-6, 2018, July 30, 2018, August 20-22, 2018, and February 8, 2019. 3

The PCRA court reserved decision and set a post-hearing briefing schedule. The

parties filed briefs, which included proposed findings of fact and conclusions of law, but

due to the Covid-19 pandemic, court operations were delayed for over a year. On January

4, 2021, Judge Bortner retired before issuing an opinion and the case was reassigned to

President Judge Maria Musti-Cook. Judge Musti-Cook issued a 105-page opinion and

order denying relief on March 31, 2021. Appellant timely filed a notice of appeal and

concise statement of errors complained of on appeal. In his Pa.R.A.P. 1925(b) statement,

appellant raised each claim he presented to the PCRA court, as well as an additional

claim challenging the disposition of his petition by a substitute judge. The PCRA court

filed its Pa.R.A.P. 1925(a) opinion on June 16, 2021, wherein it adopted its March 31,

2021 order and opinion denying PCRA relief and also addressed appellant’s additional

3 Witnesses who testified at the hearings included appellant’s trial counsel, Attorneys
Robinson and Weitzman, as well as the following individuals listed alphabetically: Dr. Neil
Hoffman, Dr. Joette James, Dr. Victoria Reynolds, Dr. Kevin Riley, Dr. Wayne Ross, Dr.
Lawrence Rotenberg, Dr. Stanley Schneider, Mr. Robert Tressel, Dr. Chris Van Ee, and
Dr. Charles Wetli. In addition, the PCRA court received stipulated testimony from fifteen
layperson witnesses in connection with appellant’s mitigation claims.

[J-40-2022] - 5
claim. The issues raised in appellant’s brief to this Court correspond with the claims he

raised in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal. 4

III. STANDARDS OF REVIEW

4 Appellant’s issues on appeal are ordered as follows: (1) the PCRA court erred, abused
its discretion, and violated due process when it issued a dispositive order and opinion in
this case when it did not hear the evidence, judge credibility, or obtain the consent of the
parties; (2) trial and appellate counsel were ineffective for failing to raise and preserve a
violation of appellant’s rights under Pa.R.Crim.P. 600, state and federal constitutional
speedy trial rights, and the right to due process of law; (3) trial counsel were ineffective
for failing to develop and present evidence supporting the chosen guilt phase defenses
and failing to dispute the prosecution’s case; (4) the jury improperly considered
appellant’s involuntary statements to the police in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments; (5) trial counsel were ineffective for failing to request
instructions on voluntary manslaughter and third-degree murder; (6) trial and appellate
counsel were ineffective for failing to object to or otherwise litigate the court’s opening
instructions which erroneously assumed the case would advance to the penalty stage; (7)
appellant was denied his rights under the Sixth, Eighth, and Fourteenth Amendments
when the court conducted numerous unrecorded portions of the trial proceedings; (8)
appellant’s rights under the Sixth, Eighth, and Fourteenth Amendments were violated
during the guilt phase due to prosecutorial misconduct, court error, and ineffective
assistance of counsel; (9) trial counsel were ineffective for failing to investigate, develop,
and present mitigating evidence as required by the Sixth, Eighth, and Fourteenth
Amendments; (10) the jury found the torture aggravating factor in violation of the Sixth,
Eighth, and Fourteenth Amendments as a result of counsel’s ineffectiveness; (11) the
penalty phase jury instructions violated the Sixth, Eighth, and Fourteenth Amendments in
multiple respects; (12) trial counsel were ineffective for failing to present evidence in
support of the “age” mitigation factor; (13) trial counsel were ineffective for failing to object
to jury instructions related to the possibility of release if appellant were sentenced to life
imprisonment; (14) the jury was prevented from considering mitigating evidence as a
result of prosecutorial misconduct, court error, and ineffective assistance; (15) appellant
was denied his right to an impartial jury; (16) prosecutorial misconduct, ineffective
assistance of counsel, and court error caused the jury to consider non-statutory
aggravating circumstances and evidence in violation of the Sixth, Eighth, and Fourteenth
Amendments; (17) appellant was denied due process when the trial court permitted the
jury to consider cumulative and inflammatory photographs and counsel ineffectively failed
to prevent such considerations; (18) pervasive prosecutorial misconduct during the
penalty phase violated appellant’s rights under the Sixth, Eighth, and Fourteenth
Amendments; (19) appellant was tried while incompetent; (20) trial counsel were
ineffective for failing to request a change of venue in violation of the Sixth, Eighth, and
Fourteenth Amendments; (21) appellant’s rights under the Sixth, Eighth, and Fourteenth
Amendments were violated because Justices Eakin and McCaffery participated in his
direct appeal, and were each party to religiously, racially, and sexually offensive emails,
which created the appearance of bias, or actual bias; and (22) cumulative prejudice.

[J-40-2022] - 6
We review the denial of PCRA relief by examining whether the PCRA court’s

conclusions are supported by the record and free from legal error. See Commonwealth

v. Housman, 226 A.3d 1249, 1260 (Pa. 2020). In so doing, we defer to the factual findings

of the post-conviction court, which is tasked with hearing the evidence and assessing

credibility. See id. Our standard of review over a PCRA court’s legal conclusions is de

novo. See Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014).

To be entitled to PCRA relief, a petitioner must establish, by a preponderance of

the evidence, that the conviction or sentence resulted from one or more of the enumerated

errors set forth in 42 Pa.C.S. §9543(a)(2). These include, inter alia, a constitutional

violation or ineffective assistance of counsel, which “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S. §9543(a)(2)(i)-(ii). A petitioner must also show the claim has not been previously

litigated or waived, and that “the failure to litigate the issue prior to or during trial, . . . or

on direct appeal could not have been the result of any rational, strategic[,] or tactical

decision by counsel.” 42 Pa.C.S. §9543(a)(3), (a)(4). An issue is previously litigated if

“the highest appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue[.]” 42 Pa.C.S. §9544(a)(2). An issue is waived

if the petitioner “could have raised it but failed to do so before trial, at trial[,] . . . on appeal[,]

or in a prior state postconviction proceeding.” 42 Pa.C.S. §9544(b).

Here, the bulk of appellant’s claims predominantly allege his trial counsel were

ineffective. When analyzing such claims, we begin, as we must, with the presumption

that counsel acted effectively. See, e.g., Commonwealth v. Robinson, 82 A.3d 998, 1005

(Pa. 2013). To prove otherwise, a petitioner must satisfy the performance and prejudice

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), by a preponderance

of the evidence. This Court has applied the Strickland test by requiring a petitioner to

[J-40-2022] - 7
establish three elements: (1) the underlying claim has arguable merit; (2) no reasonable

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

because of counsel’s error, with prejudice measured by whether there is a reasonable

probability the result of the proceeding would have been different absent the error. See

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

With respect to the reasonable basis prong, we have explained that courts should

not inquire as to whether there were other, more logical courses of action counsel could

have pursued; rather, the appropriate question is whether counsel’s decision had any

reasonable basis. See, e.g., Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)

(“[W]here matters of strategy and tactics are concerned, counsel’s assistance is deemed

constitutionally effective if he chose a particular course that had some reasonable basis

designed to effectuate his client’s interests.”); see also Commonwealth v. Reed, 42 A.3d

314, 324 (Pa. Super. 2012) (“If a reasonable basis exists for the particular course, the

inquiry ends and counsel’s performance is deemed constitutionally effective.”). Indeed,

a claim of ineffectiveness ordinarily will not “succeed through comparing, by hindsight,

the trial strategy employed with alternatives not pursued.” Id.

If a petitioner’s claim fails under any required element of the Strickland test, the

claim may be dismissed on that basis. Housman, 226 A.3d at 1260-61. A court is not

required to analyze the elements of an ineffectiveness claim in any order of priority; if a

claim fails under any necessary element, the court may proceed to that element first. See

Robinson, 82 A.3d at 1005; see also Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.

1998). In addition, for purposes of efficiency, we may begin by assessing the merits of a

defaulted underlying claim because, if we deem the underlying claim meritless, neither

trial nor appellate counsel could be found ineffective.

IV. ANALYSIS

[J-40-2022] - 8
With these standards in mind, we turn to appellant’s claims. As noted, he presents

twenty-two issues for our consideration. Following a comprehensive review, we conclude

none entitle him to relief.

A. Substitute Jurist
Appellant begins by arguing Judge Musti-Cook erred in deciding his petition as a

substitute jurist following Judge Bortner’s retirement without alerting counsel she would

do so, and by supposedly making credibility determinations based on a cold record. In

support, appellant relies on Commonwealth ex rel. Davis v. Davis, 408 A.2d 849 (Pa.

Super. 1979), wherein the Superior Court held a judge who did not preside over a custody

hearing should not have rendered a decision in the case since the “facts and inferences

that can be drawn from” witness testimony “can only be determined by the judge before

whom the[ ] witnesses appear[ed].” Davis, 408 A.2d at 849-50. Appellant explains the

intermediate appellate courts have held that, absent the consent of the parties, a court

may not substitute a new judge to render an opinion where the original judge earlier heard

testimony. See Appellant’s Brief at 6-7, citing, e.g. Hyman v. Borock, 235 A.2d 621 (Pa.

Super. 1967). Although appellant acknowledges this Court has not “pass[ed] on the

propriety” of whether a substitute judge may render an opinion, he notes we have

emphasized the importance of the hearing judge making credibility determinations. Id. at

7, citing Commonwealth v. Small, 189 A.3d 961, 978 (Pa. 2018) and Commonwealth v.

D’Amato, 856 A.2d 806, 825-26 (Pa. 2004).

Appellant believes Judge Musti-Cook made at least four fact-based assessments.

They include her: (1) agreement with the Commonwealth that appellant’s “experts did not

‘disprove Dr. Ross’s conclusions’ with respect to biomechanics[,]” Appellant’s Reply Brief

at 2, citing PCRA Court Op. at 16; (2) crediting the Commonwealth’s trial expert over

appellant’s expert “with respect [to] the impact of CPR as [a] potential cause of death[,]”

[J-40-2022] - 9
id., citing PCRA Court Op. at 22-24; (3) crediting the Commonwealth’s trial expert over “a

number of postconviction defense experts related to [the] cause of [the victim’s] head

injury,” id., citing PCRA Court Op. at 24-28; and (4) dismissal of appellant’s claims alleging

counsel were ineffective for “failing to contest [the] torture aggravating circumstance

because testimony of postconviction experts were not credible[,]” id., citing PCRA Court

Op. at 75-76. Appellant argues this Court’s “duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case,” and his case should

be remanded with direction for the PCRA court to conduct a hearing on “issues requir[ing]

live testimony for resolution.” Id. at 2-3, quoting Kyles v. Whitely, 514 U.S. 419, 422

(1995).

The Commonwealth advances several arguments in response. First, it notes a

court may dispose of a PCRA petition without conducting an evidentiary hearing pursuant

to Pa.R.Crim.P. 909(B)(1) and 909(B)(2), while here, extensive hearings were held.

Second, the Commonwealth explains that before issuing her opinion, Judge Musti-Cook

reviewed thousands of pages of pleadings, transcripts, exhibits, and briefing. Third, the

Commonwealth asserts appellant failed to demonstrate Judge Musti-Cook actually made

any credibility findings, rendering his reliance on Davis and similar cases irrelevant. On

this point, the Commonwealth explains those cases apply only where a court “must make

determinations of credibility regarding conflicting testifying witnesses[,]” as a court may

not do so on a cold record. Commonwealth’s Brief at 38-39 (emphasis in original). In

contrast here, the Commonwealth argues, no credibility determinations were necessary

because appellant presented nearly all of his lay witnesses by written stipulation and did

not take the stand to contradict his counsel’s testimony. As for appellant’s experts’

testimony, the Commonwealth argues those witnesses “did not contest the

Commonwealth experts’ credibility, but rather merely presented evidence that an

[J-40-2022] - 10
alternative strategy of argument was available for trial counsel based on alternative

interpretations of the data.” Id. at 39. Accordingly, the Commonwealth asserts appellant’s

witnesses’ testimony was essentially uncontradicted and no credibility determinations

were required.

Moreover, Judge Musti-Cook filed a supplemental opinion in which she explains

how she thoroughly reviewed the extensive record and did not make credibility findings.

In her view, it was unnecessary “to delay the very protracted PCRA proceedings to re-

litigate that which was already of record.” Supplemental PCRA Court Op. at 3.

After a complete review of the record, the PCRA court’s opinions, and the parties’

briefs, we find no error. We disagree with appellant that Judge Musti-Cook made

credibility determinations in the instances he identifies, or in resolving any of his claims.

Rather, our review reveals the PCRA court merely examined, without making

assessments as to veracity, the testimony of appellant’s experts to evaluate its potential

impact when viewed in relation to the evidence of record. Through this examination the

PCRA court found, for the reasons explored more fully in connection with appellant’s

corresponding claims below, that his experts’ testimony — even if accepted as true —

failed to counter or disprove the Commonwealth’s evidence and, in some cases,

undermined his defense. Thus, we hold Judge Musti-Cook did not err in disposing of

appellant’s PCRA petition after the original PCRA jurist retired.

B. Ineffective Assistance for Failure to File a Rule 600 Motion

Appellant next contends trial counsel were ineffective for failing to file a Rule 600

motion to protect his right to a speedy trial. Rule 600 provides, in relevant part, that “[t]rial

in a court case in which a written complaint is filed against the defendant shall commence

within 365 days from the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a).

To determine whether Rule 600 has been violated, a “court must first calculate the

[J-40-2022] - 11
‘mechanical run date,’ which is 365 days after the complaint was filed,” and then must

“account for any ‘excludable time’ and ‘excusable delay.’” Commonwealth v. Goldman,

70 A.3d 874, 879 (Pa. Super. 2013). “For purposes of paragraph (A), periods of delay at

any stage of the proceedings caused by the Commonwealth when the Commonwealth

has failed to exercise due diligence shall be included in the computation of the time within

which trial must commence. Any other periods of delay shall be excluded from the

computation.” Pa.R.Crim.P. 600(C)(1).

To this end, Rule 600 establishes two requirements that must be met for delay to

count toward the 365-day deadline: (1) the delay must be caused by the Commonwealth;

and (2) the Commonwealth must have failed to exercise due diligence. Otherwise, the

delay is excluded from the calculation of the run date. Put differently, where delay is not

caused by the Commonwealth or delay caused by the Commonwealth is not the result of

lack of diligence, it must be excluded from the computation of the Rule 600 deadline.

“Due diligence is fact specific, to be determined case-by-case; it does not require perfect

vigilance and punctilious care, but merely a showing the Commonwealth has put forth a

reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010).

Moreover, judicial delay is delay caused by the court, rather than the Commonwealth,

and is likewise excludable if the Commonwealth exercised diligence during that time. See

Commonwealth v. Harth, 252 A.3d 600, 603 (Pa. 2021) (“[A] trial court may invoke ‘judicial

delay’ in order to deny a defendant’s Rule 600 motion to dismiss only after the

Commonwealth has demonstrated that it complied with the due diligence requirements of

Rule 600 at all relevant periods throughout the life of the case.”).

Appellant argues the Commonwealth violated Rule 600 by bringing him to trial 210

days after the run date of April 6, 2009 and the Commonwealth would have been unable

to demonstrate those days were either excludable or excusable. Appellant contends he

[J-40-2022] - 12
suffered prejudice because, had a Rule 600 motion been filed by counsel, it would have

been granted and the charges dismissed.

At bottom, appellant quarrels with the PCRA court’s calculation of the applicable

periods of excludable time. More specifically, he argues the court attributed several

continuance delays to him that should have been charged to the Commonwealth. For

instance, appellant notes the PCRA court attributed to him seventy-six days between April

9, 2008, and June 24, 2008, because he allegedly requested a continuance to obtain

counsel, as well as 270 days between when he filed his Omnibus Pretrial Motion on

January 30, 2009, and the court resolved that motion on October 27, 2009. Appellant

contends the former period is inapplicable to him because the Commonwealth did not

have its pathology report and could not have proceeded to the preliminary hearing.

Similarly, he asserts the excludable time clock should not have started at the time he filed

his pretrial motion since the Commonwealth did not pass complete discovery until March

27, 2009; appellant believes the matter would have been delayed until that date

irrespective of his filing. In this regard, appellant argues the PCRA court misinterpreted

our decision in Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), because even though

the filing of a pretrial motion “may” stop the clock for speedy trial purposes, it does not do

so automatically and should not have done so here, where discovery was incomplete and

the Commonwealth could not establish appellant’s motion alone delayed trial.

The Commonwealth counters that appellant’s trial counsel were not ineffective,

arguing a Rule 600 motion would have been dismissed for lack of merit because appellant

significantly contributed to the delay. For example, the Commonwealth notes appellant

sought a continuance: of his preliminary hearing to obtain counsel; following his August

22, 2008, arraignment to file a pretrial motion; and in October of 2008 and January of

2009 to file pretrial motions. It also observes that, following the motion hearings on March

[J-40-2022] - 13
27 and April 2, 2009, the parties filed memoranda in support and, on June 2, 2009, the

court scheduled trial for November 2, 2009, so it could resolve the motions in advance.

The court ruled on appellant’s motions on October 27, 2009, and voir dire commenced

November 2, 2009.

According to the Commonwealth, between the time appellant filed his motion on

January 30, 2009, and the court resolved it on October 27, 2009, the Commonwealth

could not bring appellant to trial because his motion rendered him unavailable. The

Commonwealth further maintains it did not request a continuance during that period and

exercised due diligence by litigating and responding to appellant’s motion. As such, in

the Commonwealth’s view, the 270-day period between the filing and resolution of

appellant’s motion is excludable time, meaning the proper adjusted run date should be

March 17, 2010.

The PCRA court concluded appellant failed to demonstrate his claim has arguable

merit, stating “there was no chance of a Rule 600 challenge succeeding.” PCRA Court

Op. at 10 (emphasis in original). In support, the court found the following time attributable

to appellant: seventy-six days, accounting for the period from April 8, 2008, until June 24,

2008, because he requested a continuance to obtain counsel; and the 270 days between

the filing of appellant’s pretrial motion and the trial court’s resolution of the same. The

court determined the Commonwealth was diligent at each stage, noting it did not request

continuances and actively litigated the motions. The court then conducted a second

calculation, in which it assumed the period attributable to appellant’s pretrial motion

started March 27, 2009 — the date the Commonwealth passed complete discovery. It

found that, even under that calculation, the Commonwealth still brought appellant to trial

within the Rule 600 period. Thus, the court concluded appellant’s claim lacked arguable

merit and there was “not a substantially greater chance of success” or a reasonable

[J-40-2022] - 14
probability of a different outcome had the motion been filed. Id. at 10 (emphasis in

original).

Upon review, we find no error. Even assuming appellant is correct that the delay

from April 8 until June 24, 2008, is attributable to the Commonwealth, 5 the

Commonwealth still brought him to trial within 365 days. In particular, we agree with the

Commonwealth and the PCRA court that during the period between the filing and

resolution of appellant’s motion, he was unavailable such that the delay is not attributable

to the Commonwealth, so long as the Commonwealth exercised due diligence. Assuming

once more that appellant is correct, and that the Commonwealth failed to exercise

diligence between January 30 and March 27, 2009, the date it provided complete

discovery, there remains a period of 214 days between that date and October 27, 2009,

when the motion was resolved. We find the Commonwealth was diligent during this

period, as it did not request continuances and actively litigated appellant’s motion. See

Selenski, 994 A.2d at 1089. Therefore, Rule 600 was not violated because, although the

Commonwealth brought appellant to trial 575 days after April 6, 2008, at least 214 days

were attributable to appellant, such that he was brought to trial 361 days from the filing of

the complaint. See Hill, 736 A.2d at 587. Because a Rule 600 motion would have failed,

appellant cannot demonstrate his trial counsel were ineffective for not filing one. See

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).

C. Ineffectiveness For Failing to Develop and Present Evidence
Supporting Appellant’s Defenses

5 As noted, the Commonwealth asserts (and the PCRA court agreed) that appellant
requested a continuance to obtain counsel on April 8, 2008. Appellant is correct the
docket does not reflect this request, and it is unclear whether the Commonwealth makes
this representation from its own notes, file markings, or other material. However, it is
unnecessary to address these arguments as we conclude the Commonwealth tried
appellant within the required period even if that time were attributable to it.

[J-40-2022] - 15
Appellant asserts trial counsel were ineffective for failing to develop and present

evidence to challenge the Commonwealth’s theory he had specific intent to kill the minor

victim. He claims his counsel should have presented: (1) expert testimony to refute the

findings of Dr. Ross, a Commonwealth expert who opined as to the number and type of

injuries the victim suffered, the velocity of the blows that caused her injuries, and the

amount of time it would have taken for the injuries to be inflicted; and (2) mental health

evidence that would have served to lessen his degree of guilt. Appellant contends these

failures impacted both the guilt and penalty phases and that, contrary to the PCRA court’s

findings, relief in the form of a new trial is warranted.

After a thorough review of the record, we conclude the PCRA court did not err in

dismissing appellant’s claims, as he failed to demonstrate his counsel were ineffective in

their development and presentation of his defenses. We address appellant’s arguments

with respect to each of his subclaims separately below.

1. Counsel’s Failure to Challenge Dr. Ross’s Expert Opinions

Dr. Ross, the forensic pathologist who performed an autopsy on the victim, testified

for the Commonwealth and presented several opinions. As is relevant to the instant claim,

Dr. Ross opined: the victim had 220 identifiable injuries, 150 of which were fresh injuries,

i.e., inflicted in the twenty-four hours preceding her hospital admission; the victim also

suffered numerous fresh internal injuries to her head, including swelling and bleeding in

her brain, as well as retinal hemorrhages and damage to her spinal cord; the victim also

suffered trauma to her heart, right lung, liver, pancreas, and right adrenal gland, which

were caused by high-velocity impacts to her chest and belly, likely resulting from being

struck at a speed of approximately twenty miles per hour; the victim’s internal injuries

were not caused by improperly administered CPR or by attempts to resuscitate her by

shaking; abrasions to her vaginal area were caused by pinching, as evidenced by

[J-40-2022] - 16
fingernail imprints; and it would have taken appellant approximately forty-five minutes to

beat the victim, based on the assumption he inflicted an injury every twenty seconds.

Appellant argues his counsel erred in failing to present experts to rebut Dr. Ross’s

findings and challenge the Commonwealth’s first-degree murder theory. He alleges this

failure amounted to ineffective assistance because his primary defense was to advance

a “heat of passion” theory to obtain a third-degree verdict and, as demonstrated by the

witnesses he presented during the post-conviction hearings, experts were available to

challenge Dr. Ross’s findings at trial. Appellant claims his experts would have established

that Dr. Ross’s opinions were “speculative, unreliable, and without scientific basis[.]”

Appellant’s Brief at 17. Appellant highlights the hearing testimony of his four witnesses:

forensic pathologists, Dr. Neil Hoffman and Dr. Charles Wetli; mechanical engineer and

biomedical engineering Ph.D., Chris Van Ee; and former police officer and medico-legal

death investigations expert, Robert Tressel.

Dr. Hoffman is a forensic pathologist his counsel retained approximately six weeks

in advance of trial, who reviewed Dr. Ross’s reports and drew several conclusions based

on those materials and his review of other evidence. Dr. Hoffman ultimately disagreed

with several of Dr. Ross’s conclusions and advanced his own opinions, including that: the

duration of the beating was likely ten minutes; the injuries to the victim’s vaginal area

were likely the result of the whipping motion of the controller cord or the actions of medical

personnel treating her; the victim had “considerably less” injury than Dr. Ross opined,

because Dr. Ross conflated blows/strikes with injuries even though multiple injuries could

be caused by one blow/strike and some injuries attributed to the fatal beating were

actually “days-and-perhaps-longer old[,]” N.T. 6/4/18 at 47-48; Dr. Ross’s biomechanics-

related opinions were unreliable, as he lacked formal training in that area, and his velocity-

related opinions were flawed because he did not explain whether he was referring to the

[J-40-2022] - 17
victim’s body moving at twenty miles per hour and suddenly halting, or another

phenomenon such as the victim impacting another object, see id. at 51; the injuries to the

victim’s mouth and head evidenced significant healing, indicating she suffered a blow

about one week prior, see id. at 54; one cannot determine to a reasonable degree of

medical certainty that, absent prior head trauma, the new injuries would have resulted in

death, see id. at 34-37; the internal organ injuries were consistent with improperly

administered CPR, see id. at 65, 126-27; and there was no evidence of strangulation, see

id. at 37, 142-43.

Significantly, appellant’s trial counsel disagreed about whether to call Dr. Hoffman

to refute Dr. Ross’s findings. While Attorney Weitzman believed Dr. Hoffman’s opinions

would have accomplished this task and was adamant about calling him, see N.T. 8/21/18

at 141, Attorney Robinson did not think it would benefit appellant, see N.T. 8/22/18 at

228-29. In fact, Mr. Robinson testified that once the trial court allowed evidence about

the pinching of the victim’s vaginal area, it was bad for appellant and he was concerned

presenting Dr. Hoffman could result in a lengthy cross-examination about the vaginal

injuries and introduction of the vaginal photographs they had successfully precluded from

trial. See N.T. 8/22/18 at 271-273. Still, Attorney Robinson asserted Dr. Hoffman’s

explanation of those injuries would have been better for the jury to hear than appellant

sexually assaulted the victim. See id. at 237-40, 271.

Appellant also offered the testimony of Dr. Wetli, who concluded: there was no

scientific basis for Dr. Ross’s findings as to the duration of the beating, or for his injury

count, which did not reflect the fact multiple injuries could have resulted from each swing

of the controller cord, see N.T. 6/5/18 at 20, 61; Dr. Ross’s use of biomechanics in

equating the victim’s injuries to those sustained in a twenty-mile-per-hour crash “d[id]n’t

make any sense[,]” id. at 20-21; Dr. Ross’s findings with respect to the victim’s vaginal

[J-40-2022] - 18
injuries were unreliable, as he did not reference the abrasions in the autopsy report,

medical personnel at two hospitals did not mention them, and, in any event, these injuries

could have resulted from the insertion of a Foley catheter by medical personnel, see id.

at 24-28, 66; there was no evidence of strangulation, see id. at 37-38; and the injuries to

the victim’s internal organs were likely caused by improper CPR, see id. at 41, 65.

Appellant further relied on the hearing testimony of Dr. Van Ee, who testified: Dr.

Ross’s opinion on biomechanics and the number and velocity of strikes/blows was

unreliable because, to make such determinations, Dr. Ross would have had to delineate

whether the 150 injuries resulted from 150 impacts yet he failed to do so, see N.T. 7/30/18

at 20-22; he only observed fifty separate strikes based on the victim’s injuries and it

“[s]eemed like [Dr. Ross] was just pulling numbers out that . . . did not make sense[,]” id.

at 22; Dr. Ross did not identify any basis for his presumption twenty to thirty seconds

elapsed between strikes and, as a biomechanical engineer himself, did not know of any

literature supporting that conclusion, see id. at 23, 25; to provide an accurate duration

estimate, one would have to conduct testing, which would be difficult as numerous factors

would affect the complexity of the experiment, such as the angle of the blows, whether

the victim was moving, and whether there were multiple mechanisms of injury, see id. at

40-42; Dr. Ross’s velocity opinion was “technical gibberish” from a biomechanics

standpoint, id. at 28; and a fall from 3.5 feet could result in a skull fracture, see id. at 29-

30. Appellant observes Attorney Robinson conceded a biomechanics expert could have

proved helpful in refuting Dr. Ross’s opinion related to the duration of the incident and

amount of force used, as well as his opinion that the victim’s injuries did not result from

falling in the bathtub as appellant told police. See N.T. 8/21/18 at 149-50; N.T. 8/22/18

at 243, 245.

[J-40-2022] - 19
Finally, appellant offered the testimony of Robert Tressel, who testified about the

importance of presenting a medico-legal death investigations expert at trial. Mr. Tressel

portrayed such investigators as the “eyes and ears of the medical examiner on the crime

scene[,]” Appellant’s Brief at 28, quoting N.T. 3/31/17 at 36, and asserted they are relied

upon to “document and identify what could have created injuries, the distribution and

patterns of injuries, and [ ] assist the medical examiner in determining the cause and

manner of death[.]” Id. Mr. Tressel also testified that Dr. Ross’s estimates regarding

duration and injury number were exaggerated as incidents such as this typically do not

take forty-five minutes, see N.T. 3/31/17 at 54, and “wraparound injuries” inflicted by a

cord could cause the appearance of more than one injury from a single strike, id. at 48-

49. To assess duration, Mr. Tressel conducted his own experiment by striking a bed with

a belt and found he could inflict ten blows in seven seconds. See id. at 56. He also

testified medical examiners typically do not opine as to duration, see id. at 111-13, and

the fact the abuse here took place over several days is not uncommon and supports a

lack of intent, as violence was used as a form of discipline, see id. at 61, 70-71, 114.

Generally stated, appellant argues his counsel were ineffective for failing to call

Dr. Hoffman, already retained for trial, or the other experts above who testified at the post-

conviction hearings. He argues their testimony undermined Dr. Ross’s conclusions even

if they did not provide a succinct countervailing opinion, whether individually or combined.

Believing such testimony could have refuted the Commonwealth’s first-degree murder

theory, appellant asserts his claim has arguable merit, counsel lacked a reasonable basis,

and he suffered prejudice.

In response, the Commonwealth argues appellant has not demonstrated his trial

counsel were ineffective. Rather, the Commonwealth asserts appellant’s trial counsel,

having understood the overwhelming evidence against him and the heinous nature of his

[J-40-2022] - 20
crime, sought to avoid the death penalty through a strategy of “minimizing and not drawing

attention to the terrible aspects of the crime and [appellant]’s culpability, leveraging the

cross-examination of the co-defendant to sow doubt, and to give the jury the impression

that this was a one-time event in [appellant]’s life brought about by a life of trauma.”

Commonwealth’s Brief at 43-44. Contrary to appellant’s representation of his experts’

testimony, the Commonwealth maintains the four witnesses he presented largely agreed

with Dr. Ross’s conclusions, contradicted aspects of each other’s opinions and appellant’s

version of events, and would have opened the door to lengthy cross-examination on the

disturbing aspects of the crime, including testimony about and photographic evidence of

the victim’s vaginal injuries. The Commonwealth submits the testimony of appellant’s

counsel confirmed this and demonstrated they had a reasonable basis for deliberately

deciding not to call their retained expert or present other expert testimony.

In the interest of clarity, we evaluate appellant’s arguments with respect to each of

Dr. Ross’s conclusions separately below. 6

a. Dr. Ross’s Calculation of Duration

Appellant contests counsel’s effectiveness for not calling Dr. Hoffman or another

expert to dispute Dr. Ross’s conclusion it took at least forty-five minutes for appellant to

inflict the victim’s injuries. In support, he points to the testimony of each of his four

experts, who, as detailed above, opined Dr. Ross’s calculation was exaggerated and

unreliable. See, e.g., N.T. 6/4/18 at 66, 151. Thus, he asserts his claim has arguable

merit and counsel lacked a reasonable basis for not calling such experts.

The Commonwealth responds that the opinions of his four experts were not

scientifically supported. The Commonwealth explains that Dr. Hoffman’s ten-minute

6 In litigating his claims before the PCRA court, appellant raised an additional subclaim
related to blood spatter evidence that he has abandoned before this Court. Accordingly,
we do not discuss it.

[J-40-2022] - 21
estimate was based solely on his experience as a forensic pathologist and was not

supported by scientific study, comparison of scientific literature, or experimentation. In

addition, while Dr. Hoffman would estimate the beating lasted ten minutes, he conceded

it could have lasted as long as forty-five minutes. Id. at 33. The Commonwealth further

notes Dr. Wetli’s conclusion the beating lasted twenty minutes was based solely on Neida

Baez’s testimony about how long the victim cried. Like Dr. Hoffman, Dr. Wetli admitted

he did not undertake any scientific review or independently attempt to determine the

duration. The Commonwealth also notes Dr. Van Ee did not provide a duration estimate,

conduct any experiments or studies assessing duration, or render a conclusion due to the

issue’s complexity. While Dr. Van Ee did propose a “methodology as to how additional

information could be discovered to better determine the length of time,” he did not employ

that methodology and could not identify what methodology Dr. Hoffman used to arrive at

a ten-minute estimate. Commonwealth’s Brief at 48, citing N.T. 7/30/18 at 40-41. Finally,

the Commonwealth observes Mr. Tressel did not opine on duration but did conduct his

own “experiment” of hitting a bed with a belt, although he admitted he did not use the

same instrument as appellant and recognized weight, length, and speed of the instrument

would impact duration. Id. at 49.

Based on this testimony, the Commonwealth asserts appellant’s counsel were not

ineffective for failing to call experts on this issue because, while the experts disagreed

with Dr. Ross, they also disagreed with each other, did not support their conclusions, and

conceded the assault could have lasted forty-five minutes. In fact, the Commonwealth

notes Dr. Hoffman’s ten-minute estimate conflicted with appellant’s own statements that,

while he did strike the victim approximately seven times with the controller cord on April

6, 2008, his abuse of her occurred in the days preceding the offense. On this point, the

Commonwealth reiterates Attorney Robinson’s belief that he did not think Dr. Hoffman’s

[J-40-2022] - 22
testimony would assist the defense because it conflicted with appellant’s statements and

did not preclude the forty-five-minute estimate. See N.T. 8/22/18 at 272-73. Given this,

the Commonwealth argues appellant’s claim lacks merit and counsel acted reasonably.

The PCRA court ultimately agreed with the Commonwealth, finding appellant’s

experts did “not disprove Dr. Ross’s conclusions; but, rather, merely dispute[d] them with

little to no appeal to science to back their assertions” which is exactly what “they accused

Dr. Ross of doing.” PCRA Court Op. at 16.

We find the PCRA court did not err in dismissing appellant’s claim on this ground.
Dr. Ross provided a duration calculation supported by thirty-four citations from which he
derived his opinion. See N.T. 3/31/17 at 106. Conversely, appellant’s experts’ estimates,
to the extent they were provided, were not scientifically based and, instead, simply
challenged Dr. Ross’s estimate as exaggerated or generally unreliable. Only Dr. Hoffman
provided a precise estimate, but even it was not based on scientific review or
experimentation and, in fact, conflicted with appellant’s version of events. Thus, even if
appellant’s claim had arguable merit, we find he has not established his counsel lacked
a reasonable basis for not calling Dr. Hoffman or a similar expert, as it was entirely
reasonable for Attorney Robinson to conclude “there was a risk of the jury realizing Dr.
Hoffman’s testimony did not jibe with that of [appellant]” and that realization could
detrimentally impact his case. PCRA Court Op. at 17. The PCRA court’s decision was
supported by the record and it did not err in finding appellant failed to prove the
reasonable basis prong. See, e.g., Commonwealth v. Colavita, 993 A.2d 884, 887 (Pa.
2010).

b. Dr. Ross’s Calculation of the Number and Age of
the Victim’s Injuries
Appellant claims counsel were ineffective for failing to call an expert to counter Dr.

Ross’s conclusion as to the number of the victim’s injuries. The Commonwealth, on the

other hand, argues this subclaim fails because appellant’s experts did not meaningfully

[J-40-2022] - 23
challenge Dr. Ross’s opinion on this issue or present a countervailing conclusion. Like

the PCRA court, we agree with the Commonwealth.

Although Dr. Hoffman testified generally that Dr. Ross’s calculation of the victim’s

injuries was high because he “conflated blows/strikes with injuries” and some of the

“fresh” injuries were “actually ‘days-and-perhaps-longer old[,]’” N.T. 6/4/18 at 47-48, the

Commonwealth correctly observes Dr. Hoffman indicated he was unable to distinguish

the total number of external injuries, did not attempt to distinguish new injuries from old

injuries, and did not identify which injuries were attributable to strikes from the controller

cord and would constitute several injuries from a single strike. See id. at 148-50.

Moreover, while Dr. Wetli testified he did not think there were 150 fresh injuries, he could

not say so definitively and did not personally count the injuries or attempt to distinguish

old versus new, or how many strikes would be required to cause the victim’s observable

injuries. See N.T. 6/5/18 at 34-38, 45-46. Finally, Mr. Tressel concluded one could not

determine the number of blows because many created multiple injuries, see N.T. 3/31/17,

at 49, and Dr. Van Ee deferred to forensic pathologist experts to assess the accuracy of

Dr. Ross’s count but believed there were approximately fifty injuries. See N.T. 7/30/18 at

19-22.

Upon reviewing the record, we agree appellant did not demonstrate he suffered

prejudice as a result of his trial counsel’s failure to call witnesses to challenge the number

of injuries, because his experts “fail[ed] to produce a convincing counter that is based

upon the very science they claim Dr. Ross’s opinions lacked.” PCRA Court Op. at 18.

Indeed, none of appellant’s experts rendered an opinion as to the number and age of the

injuries and Dr. Van Ee expressly deferred to forensic pathologists — of which Dr. Ross

is one — to make those determinations.

[J-40-2022] - 24
Moreover, considering this subclaim with the preceding one related to the duration

of the beating, we likewise agree appellant did not establish prejudice because, “[e]ven if

one divines a coherent narrative from the defense experts that the beating occurred over

some ten minutes, rather than forty-five or more, and, per Dr. Van Ee, some fifty injuries

occurred, the result is unlikely to have been different.” Id. at 19. In this regard, the PCRA

court found a jury would “likely still infer a specific intent to kill in this utter mismatch of

force to cause death in such a vulnerable victim.” Id. Considering the record before us,

we agree and are unpersuaded by appellant’s argument he was prejudiced by counsel’s

decision to not introduce his proffered experts.

c. Dr. Ross’s Conclusion on Strike Velocity

Appellant claims trial counsel were ineffective for failing to call experts to challenge

Dr. Ross’s testimony that the injuries to the victim’s liver were caused by strikes with a

twenty miles per hour velocity. Appellant avers that, if his counsel had called Dr. Hoffman

at trial, he would have testified Dr. Ross’s opinion was incorrect and confusing, as Dr.

Ross did not clarify “what” was moving at a velocity of twenty miles per hour. Appellant

highlights Dr. Hoffman’s testimony from the post-conviction hearings:

There’s no essentially scientific information. . . . [H]e’s talking about what it
takes to injure the body. Well, it takes at least 20 miles per hour . . . . It
takes a certain velocity to produce an injury pattern to this liver,
parentheses, over 20 miles per hour. Well, is that velocity of a feather? Is
it the body traveling at 20 miles per hour coming to a sudden halt? He’s
misusing the injury as coming from the force generated by the velocity and
by the energy that is imparted to the victim or that the victim applies to itself
as it hits something.
N.T. 6/4/18 at 51. In reply, the Commonwealth asserts Dr. Hoffman’s testimony on this

issue failed to rebut Dr. Ross’s conclusion. The Commonwealth notes appellant did not

offer additional testimony regarding the victim’s liver injury and that, because appellant

alone has the burden to plead and prove his claims, this subclaim must fail.

[J-40-2022] - 25
The PCRA court agreed, stating that, while appellant may have “raise[d] the

prospect that Dr. Ross’s testimony [wa]s scientifically invalid concerning the specific

point[,]” he did not offer a countervailing opinion or demonstrate a “substantially greater

chance of success” if this testimony were introduced. PCRA Court Op. at 18-19. It further

concluded appellant could not prove prejudice because “there [wa]s no question amongst

the experts that the victim’s liver was injured, and quibbling over the exact velocity and

the object achieving it to impart force does not raise a reasonable probability of a different

outcome save for trial counsel’s supposed error.” Id.

The PCRA court’s conclusions are supported by the record. 7 Notably, appellant’s

experts did not dispute the victim suffered injury to her liver. See N.T. 3/31/17 at 97; N.T.

6/4/18 at 120; N.T. 6/5/18 at 9-10, 40. Although Dr. Hoffman’s testimony may have raised

doubt over the velocity of the strike required to injure the victim’s liver and/or whether that

velocity came in the form of a blow imposed upon her or from her striking another object,

we reject appellant’s position this testimony would have likely resulted in a more favorable

outcome. On the contrary, the testimony presumably would have brought even more

attention to the fact that, regardless of the actual velocity, the two-year-old victim suffered

a blow sufficient to cause internal injury to her liver. The PCRA court did not err in finding

7 With regard to appellant’s assertion the PCRA court assessed credibility in “agreeing
with the Commonwealth that [his] experts did not ‘disprove Dr. Ross’[s] conclusions with
respect to biomechanics[,]” we conclude the lower court made no such finding.
Appellant’s Reply at 2, citing PCRA Court Op. at 16. To the contrary, the PCRA court, in
examining the merit of appellant’s claim, found “the experts proffered by [appellant] do
not disprove Dr. Ross’[s] conclusions; but, rather, merely dispute them with little to no
appeal to science to back their assertions; the very thing they accused Dr. Ross of doing.”
PCRA Court Op. at 16. The PCRA court made no findings with respect to the credibility
of any witness. Instead, it simply concluded the opinions appellant’s experts advanced
were, by the witnesses’ own admissions, based on their individual experience rather than
on scientific studies or literature comparisons, and were offered to question Dr. Ross’s
conclusions rather than provide countervailing opinions. See id. at 14-16, citing N.T.
6/4/18 at 151; N.T. 6/6/18 at 35. The PCRA court found appellant’s claim failed because,
even if the testimony of his witnesses were believed, it did not disprove Dr. Ross’s
opinions. We agree with this assessment.

[J-40-2022] - 26
this testimony would not have weighed so significantly in appellant’s favor as to create a

reasonable probability of a different result.

d. Dr. Ross’s Conclusions on the Victim’s Internal Injuries

Appellant claims his experts would have undermined Dr. Ross’s conclusions that

the victim’s internal injuries were the result of strikes/blows inflicted by appellant, by

opining the injuries were the result of efforts to resuscitate the victim via improperly

administered CPR and shaking. He maintains his experts’ post-conviction hearing

testimony established improperly performed CPR caused or could have caused the

injuries to the victim’s internal organs and, per Dr. Hoffman, shaking the victim was

equally likely to have caused her death as blunt force trauma. Appellant therefore

contends his counsel were ineffective for failing to call such experts because they would

have demonstrated he lacked specific intent to kill.

The Commonwealth disagrees. It argues appellant’s experts did not establish the

victim’s injuries were caused by resuscitation efforts and, in any event, trial counsel were

reasonable in not calling such experts. Regarding appellant’s claim the victim’s injuries

were caused by CPR attempts, the Commonwealth notes: although Dr. Wetli testified the

injuries to the victim’s internal organs were not related to cause of death and were

consistent with incorrect CPR, he conceded he did not know if CPR was performed and

the same injuries could be caused by striking, see N.T. 6/5/18 at 10, 41-42; Dr. Hoffman

testified improperly administered CPR could cause injury, but he did not know if CPR was

improperly performed and, further, abdominal injuries are common in child abuse cases;

and Dr. Hoffman did not offer an opinion about improperly performed CPR, despite being

requested to do so. The Commonwealth posits it was objectively reasonable for counsel

not to call experts, as they would have testified it was equally possible the victim’s injuries

[J-40-2022] - 27
were caused by intentional blows, and because Dr. Hoffman failed to offer a CPR opinion

previously.

Moreover, with respect to appellant’s assertion the victim’s head injuries were

caused by shaking, the Commonwealth argues appellant’s experts did not affirmatively

support this theory. It notes Dr. Van Ee stated “there’s strong reason to be skeptical that

shaking alone can give angular acceleration sufficient to rip bridging veins, which could

give rise to things like subdural hemorrhage[,]” and, while “[t]hat doesn’t mean it can’t

happen” the “current data calls into question whether it’s possible[.]” N.T. 7/30/18 at 36-

38. Mr. Tressel agreed with Dr. Ross’s cause of death determination, see N.T. 3/31/17

at 97-98, and Dr. Hoffman conceded the victim’s head injuries, including evidence of

diffuse brain injuries, retinal, optic nerve, and subarachnoid hemorrhage, could also have

been caused by blunt force trauma, see N.T. 6/4/18 at 100-03, 106-07. Finally, Dr. Wetli

disagreed with Dr. Hoffman as to the victim’s cause of death, opining anoxic brain injury

was not the primary cause. See N.T. 6/5/18 at 39. In sum, the Commonwealth maintains

appellant’s experts did not establish the victim’s head injuries resulted from shaking and

the experts’ testimony, at least in part, actually corroborated Dr. Ross’s testimony.

The Commonwealth also points to trial counsels’ testimony as evidence they had

a reasonable basis for not calling experts to testify on this issue. Attorney Robinson

testified he and Attorney Weitzman had a conference call with Dr. Hoffman during which

they discussed the victim’s head injuries. Attorney Weitzman’s contemporaneous notes

demonstrated they discussed blunt force impact to the victim’s head, torso, chest, and

extremities, as well as a potential bite mark on her left calf, and that Dr. Hoffman believed

the sole of a boot caused the pattern of injuries under the victim’s eye and there was

evidence of blunt force trauma to her head. See N.T. 8/21/18 at 199-201; N.T. 8/22/18

at 269-70. Attorney Robinson testified he decided not to call Dr. Hoffman precisely

[J-40-2022] - 28
because he was concerned Dr. Hoffman would corroborate Dr. Ross’s testimony, which

could prove detrimental to appellant. See id. at 290.

The PCRA court agreed with the Commonwealth on both issues. With regard to

the theory of improperly administered CPR, the court found it lacked merit because the

experts could not say whether or how CPR was performed and conceded the victim’s

injuries were also consistent with forceful grabbing or strikes. Moreover, the jury would

have heard from Dr. Hoffman that he was asked to opine on CPR in his 2009 expert report

but did not do so. For the same reasons, the PCRA court concluded appellant additionally

failed to demonstrate the reasonable basis and prejudice prongs.

As for appellant’s shaking theory, the PCRA court similarly determined appellant’s

experts did not support it. Rather, the court explained, Dr. Van Ee was “skeptical” shaking

alone would cause the injuries the victim sustained, Mr. Tressel did not disagree with Dr.

Ross’s death determination, Dr. Hoffman admitted the victim’s injuries could also be

attributed to blunt force trauma or a combination of that and shaking, and Dr. Wetli

testified anoxic brain injury was not the cause of death but agreed with Dr. Hoffman’s

conclusions. PCRA Court Op. at 26. The PCRA court also concluded appellant failed to

prove the reasonable basis prong because, as noted, his counsel retained Dr. Hoffman

prior to trial and specifically discussed this issue with him but ultimately decided his

testimony would corroborate several of Dr. Ross’s conclusions to appellant’s detriment.

Finally, the PCRA court explained appellant did not prove prejudice since his experts

contradicted each other’s testimony and proved confusing. See id. at 28.

Based on the foregoing, we agree with the PCRA court and reject appellant’s

ineffectiveness claims related to his resuscitation theories. 8 As the PCRA court detailed

8 As stated, appellant argues the PCRA court made credibility findings in rejecting his
subclaims regarding trial counsel’s alleged ineffectiveness for failing to call experts to
opine that the victim’s internal injuries were caused by improperly performed CPR and
(continued…)

[J-40-2022] - 29
in its opinion, even though appellant’s witnesses testified the victim’s injuries could have

resulted from these alternative causes, it was equally if not more possible they were

caused by blows to her head, chest, and torso inflicted by appellant. As this expert

testimony did not definitively support appellant’s theory, we conclude trial counsel had a

reasonable basis for not calling experts who may well have corroborated Dr. Ross and,

in the case of Dr. Van Ee’s testimony, undermined appellant’s shaking argument by

stating it should be viewed skeptically. This conclusion is further supported by the fact

appellant’s counsel retained Dr. Hoffman and discussed his potential testimony before

deciding whether to call him as a witness. Where a reasonable basis exists for a particular

course of action, counsel’s performance is constitutionally effective. See, e.g., Colavita,

993 A.2d at 887.

e. Dr. Ross’s Conclusion Regarding the Victim’s Vaginal Injuries

In his next subclaim, appellant argues trial counsel erred in failing to present expert

testimony opining the injuries to the victim’s vaginal area were not caused by pinching but

were instead caused by blunt force trauma or stretching. Appellant notes trial counsel

retained Dr. Hoffman to address this issue and, in his initial expert report, he determined

the injuries were caused by manual stretching, perhaps by medical personnel. Appellant

also points to Dr. Wetli’s testimony reflecting he did not observe any evidence of pinching

and the abrasions could have resulted from medical personnel inserting a Foley catheter.

her head injuries resulted from shaking. See Appellant’s Reply Brief at 1-2. But, contrary
to appellant’s assertions, and as detailed more fully above, the PCRA court simply found
that, even accepting appellant’s experts’ conclusions as true: (1) the victim’s internal
injuries could have been caused by improperly administered CPR or by blunt force
trauma, but none of appellant’s experts were aware whether or how CPR was performed;
and (2) the victim’s head injuries could have been caused by blunt force trauma, shaking,
or a combination of both, and attributing the head injuries to shaking alone should be
viewed skeptically. Significantly, the PCRA court made no conclusions as to witness
veracity. Instead, it found appellant’s experts’ conclusions either supported Dr. Ross’s
opinions or did not contradict them. There is nothing improper about these conclusions.

[J-40-2022] - 30
See N.T. 6/5/18 at 24-25, 66. Appellant argues trial counsel lacked a reasonable basis

for not calling these experts because, by failing to offer alternative explanations, the jury

could only conclude he sexually assaulted the victim.

Noting appellant’s experts did not provide an alternative explanation for the victim’s

vaginal injuries, the Commonwealth argues appellant’s counsel’s decision not to offer

expert testimony on this issue was entirely reasonable. The Commonwealth notes Dr.

Hoffman seemingly changed his opinion about the cause of the vaginal injuries after

completing his expert report. According to Attorney Weitzman’s November 14, 2009,

memo drafted during trial, Dr. Hoffman informed counsel he could not say for certain that

medical personnel caused the injuries, and that the injuries likely resulted from blunt force

trauma. See N.T. 8/21/18 at 147-48. Regarding blunt force trauma, Dr. Hoffman testified

at the post-conviction hearing that the thin, curved linear abrasions in the victim’s vaginal

area — identified by Dr. Ross as fingernail impressions based on their size and shape —

were oriented toward the front and back of the body, but were also oriented crossways

and occasionally crossed other lines. Dr. Hoffman opined the abrasions resulted from a

forceful blow with a blunt object that caused labial contusion, pre-anal laceration, and pre-

anal laceration by stretch mechanism. See N.T. 6/4/18 at 80-88, 90. Yet, his 2016 report

did not address his original opinion that the abrasions were caused by medical personnel.

The Commonwealth also underscores the testimony of Dr. Wetli, who opined there

were no abrasions and the curved markings were too irregular to be attributable to

fingernail pinching. See N.T. 6/5/18 at 25. Dr. Wetli found the abrasions were due to

“post-mortem settling of blood and a mottled pattern of lividity.” Id. at 25-26. When the

Commonwealth explained during cross-examination that the victim was alive when the

photographs were taken, Dr. Wetli then stated the photographs showed reddish mottling

below the vulva that would not have been caused by blunt force trauma. See id. at 58-

[J-40-2022] - 31
59. In light of this testimony, the Commonwealth asserts appellant’s claim lacks arguable

merit, as Dr. Hoffman’s explanation for the abrasions also involved causing the victim

pain, and Dr. Wetli’s opinion contradicted Dr. Hoffman and was patently not credible.

The PCRA court determined appellant’s claim lacked merit because Dr. Hoffman’s

explanation for the abrasions was they “could” have been caused by blunt force trauma,

but he “could not state with a reasonable degree of medical certainty what the mechanism

of injury was[,]” and Dr. Wetli disputed his conclusion. PCRA Court Op. at 30. The court

further found appellant failed to demonstrate counsel lacked a reasonable basis because

Attorney Robinson testified he sought to avoid cross-examination on the victim’s vaginal

injuries and, had he introduced expert testimony, it would have been necessary to

introduce photographs of the vaginal injuries, thereby “undermin[ing his] strategy to

exclude such inflammatory materials.” Id. Finally, the PCRA court concluded appellant

failed to demonstrate prejudice because “the outcome would not have improved for [him]

where his experts would have contradicted one another, caused the introduction of

inflammatory pictures, and been subjected to cross-examination that might well have

undermined the credibility of the defense.” Id.

The PCRA court’s disposition of this issue is amply supported by the record.

Despite appellant’s assertions to the contrary, the record makes clear his experts did not

affirmatively refute Dr. Ross’s conclusions; Dr. Hoffman offered an explanation that also

involved appellant harming the victim and was not supported by a reasonable degree of

medical certainty, and Dr. Wetli’s opinion was scientifically impossible. For this reason,

the claim lacks arguable merit. 9 Even assuming the claim were arguably meritorious, we

9 To the extent appellant asserts his trial counsel were ineffective for failing to introduce
expert testimony that someone other than appellant caused the victim’s vaginal injuries,
we find this claim lacks merit. While Dr. Wetli testified the abrasions could have been
caused by medical personnel inserting a catheter and Dr. Hoffman originally concluded
the abrasions were caused by stretching by medical personnel, neither could point to any
specific evidence to support their conclusions.

[J-40-2022] - 32
would conclude appellant has not established his counsel lacked a reasonable basis for

their actions. To the contrary, Attorney Robinson testified he and Attorney Weitzman

discussed at length whether to call Dr. Hoffman but ultimately determined doing so would

prove detrimental insofar as it would likely increase focus on the victim’s vaginal injuries,

open the door to cross-examination on the issue, and possibly result in the introduction

of the vaginal injury photographs counsel successfully had excluded. N.T. 8/22/18 at

240-43. Considering this strategic assessment, trial counsel’s actions were eminently

reasonable. See Howard, 719 A.2d at 237.

f. Trial Counsel’s Cross-Examination of Baez

Finally, appellant claims trial counsel were ineffective for failing to effectively cross-

examine Baez about the injuries she inflicted on the victim in the days prior to her death.

Appellant believes that, had counsel elicited such testimony, it would have demonstrated

Baez inflicted injuries that “contributed to, or may have been the primary cause of [the

victim’s] death” such that there is a reasonable probability he would have been convicted

only of third-degree murder. Appellant’s Brief at 35.

The Commonwealth says appellant’s claim fails for several reasons. Initially, it

contends appellant did not establish the reasonable basis prong because he did not ask

trial counsel any questions related to their examination of Baez during the post-conviction

hearings. Since “[c]laims of ineffectiveness assistance of counsel are not self-proving,”

Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002), the Commonwealth asserts

his subclaim fails on this ground alone. However, even assuming appellant demonstrated

this prong, the Commonwealth maintains he has not established prejudice, as Baez:

testified on direct examination she hit the victim, once leading to unconsciousness, and

used excessive force as discipline; pled guilty to third-degree murder and was awaiting

sentencing, hoping to receive a five to ten year sentence following her testimony in

[J-40-2022] - 33
appellant’s case; and was cross-examined about inconsistencies in her statements to

police, her motivation to testify against appellant, and her plea agreement with the

Commonwealth. N.T. 11/10/09 at 504, 618-19, 623-24, 626.

The PCRA court ultimately agreed with the Commonwealth, finding appellant failed

to establish the reasonable basis prong by not addressing this issue with counsel; it also

found he did not demonstrate he suffered prejudice as a result of counsel’s actions. On

this latter point, the PCRA court concluded that, even if counsel presented Dr. Hoffman

to testify prior injuries could have contributed to the victim’s death, his testimony would

not have changed the outcome as appellant “inflicted too many fresh injuries and the jury

saw an abundance of evidence to support this fact.” PCRA Court Op. at 69. Indeed, the

court noted the victim suffered “as ‘few’ as fifty whipping injuries” and, had the jury heard

that “older brain bleeds, perhaps inflicted by Ms. Baez[,]” contributed to her death, it “still

would have found guilt . . . in light of the overwhelming amount of injuries that the record

supports [appellant] inflicted.” Id.

The record supports the PCRA court’s conclusions. Appellant’s counsel did cross-

examine Baez extensively as to her abuse of the victim, inconsistencies in her police

statements, and her plea agreement with the Commonwealth. Although counsel did not

present Dr. Hoffman to opine that previously inflicted injuries could have contributed to

the victim’s death, we have already found counsel had a reasonable basis for not

introducing Dr. Hoffman. Regarding prejudice, we agree with the PCRA court there was

significant evidence establishing appellant beat the two-year-old victim — including by

appellant’s own experts’ accounts — for at least ten minutes and inflicted at least fifty

injuries. On this record, we reject appellant’s position that additional cross-examination

of Baez or the introduction of Dr. Hoffman’s contributing injury testimony, would have so

[J-40-2022] - 34
undermined the Commonwealth’s specific intent evidence as to create a reasonable

probability the result would have been different.

2. Counsel’s Failure to Present Mental Health Evidence to Support the
Defense
Appellant next claims trial counsel were ineffective for failing to present mental

health experts to prove he lacked specific intent to kill the victim and, accordingly, was

guilty of a lesser degree of homicide. He notes Attorneys Robinson and Weitzman both

testified they pursued a lesser-degree conviction and the guilt-phase strategy was to

present a “heat of passion” defense. N.T. 8/21/18 at 172; N.T. 8/22/18 at 228-29.

Appellant further emphasizes the fact Attorney Robinson, who primarily handled the guilt

phase, testified if they had an opinion at the time of trial indicating appellant did not have

the mental capability to form specific intent, they would have used it. N.T. 8/22/18 at 230.

Appellant maintains such expert witnesses were available and, in support, relies on the

testimony of four experts he presented during the post-conviction hearings — Dr. Stanley

Schneider, Dr. Joette James, Dr. Richard Dudley, and Dr. Victoria Reynolds.

Concerning Dr. Schneider, appellant explains he evaluated appellant in January

and October of 2009. During his post-conviction testimony, Dr. Schneider stated he had

limited communication with trial counsel in advance of trial, including a ten-minute call

with Attorney Weitzman following the January 2009 evaluation, a second ten-minute

phone conversation three weeks later, and then no communication for the next eight

months (aside from receiving records to review). N.T. 6/6/18 at 14-17. Appellant notes

Attorney Weitzman’s billing records reflect this limited interaction and the fact Attorney

Weitzman had no in-person discussions with Dr. Schneider, spent just over one hour

communicating with him during the time he was retained, and failed to ask for an expert

report until just before trial. Id. at 25; N.T. 8/21/18 at 118-19, 121-23.

[J-40-2022] - 35
Appellant contends Dr. Schneider’s hearing testimony demonstrates his counsel

were ineffective in failing to call this expert as a trial witness, as he would have opined

appellant did not have the specific intent to kill the victim and, instead, reacted due to

“cumulative stressors on the day of the offense, including the [victim]’s behavior[,] the

explosion of the feces-filled diaper[,] having to pay child support for his three children but

not being able to see them[,] caring for his younger brother[,] and disbelief about Neida

Baez’s pregnancy and the added responsibilities associated with that.” Appellant’s Brief

at 38-39, citing N.T. 6/6/18 at 96-97. Appellant states this testimony would have

undermined the Commonwealth’s case for first-degree murder and would have proved

useful during the penalty phase in supporting the statutory mental health mitigators.

Appellant also presented the testimony of Dr. James, who conducted a

neuropsychological evaluation of appellant in 2013. In appellant’s view, trial counsel

erred in failing to have him submit to another neuropsychological evaluation at the time

of trial, because, based on Dr. James’s earlier conclusions, it would have supported a

lesser degree of guilt. Specifically, Dr. James testified appellant: had deficits in executive

functioning, which impacted efficient learning and planning, controlling emotions and

behavior, modulating reactions, being able to quickly adapt to changes, and make sound

judgments; exhibited weaknesses in deductive reasoning and information processing,

which made sound decision-making difficult in stressful situations; and, when combined,

such deficits impeded his daily activities lending to easy frustration. Appellant’s Brief at

39-40.

A third expert, Dr. Dudley, evaluated appellant and the findings of his other experts.

Based on that review he concluded: appellant’s cognitive deficits, as described by Dr.

James, combined with the stressors in his life at the time of the incident, exacerbated his

“underlying psychiatric problems, rendering him unable to form specific intent to kill[,]” id.

[J-40-2022] - 36
at 40, citing N.T. Evidentiary Hearing, 2/27/17 at 49-51; see also N.T. 2/27/17 at 55-57;

and appellant’s parenting of the victim resulted from his “reflexive response” of being

abused as a child, Appellant’s Brief at 40, citing N.T. 2/27/17 at 55-56.

Finally, appellant relies on the testimony of Dr. Reynolds, his fourth expert, who

specializes in trauma and its effects on development. Dr. Reynolds explained appellant’s

behavior, including his use of physical violence, was “modeled” off the abusive and

neglectful environment he experienced or witnessed as a child. N.T. Evidentiary Hearing,

4/26/17 at 65. Dr. Reynolds likewise agreed with Dr. Schneider that appellant exhibited

impulse-control and anger issues. Id.

Appellant claims trial counsel were ineffective in failing to introduce the mental

health evidence elucidated above at trial, because the presentation would have informed

the jury of his psychological, cognitive, and emotional deficits; the stressors in his life at

the time of the incident; and how his impairments combined with stress prevented him

from forming the specific intent to kill the victim. Appellant asserts counsel had no

reasonable basis for neglecting to present such testimony, particularly when it directly

supported the guilt phase objective of obtaining a lesser-degree homicide conviction.

The Commonwealth responds by arguing appellant’s subclaim is expressly waived

because his PCRA counsel specifically stated, in an objection during Dr. James’s cross-

examination, that Dr. James and his other experts were not being offered to prove

appellant’s mental state as to causation or intent and, instead, were introduced to opine

regarding general mitigation. Commonwealth’s Brief at 70, citing N.T. 8/20/18 at 65-66.

Even if this subclaim is not waived, the Commonwealth further argues appellant cannot

establish ineffective assistance since his counsel had a reasonable basis for not calling

mental health experts. The Commonwealth directs us to the testimony of Attorneys

Robinson and Weitzman, who both stated they decided not to call Dr. Schneider or

[J-40-2022] - 37
present similar experts because doing so would have opened the door to testimony from

the Commonwealth’s expert, Dr. Rotenberg, who evaluated appellant in November of

2009 and would have introduced evidence unfavorable to him. Dr. Rotenberg, in the

Commonwealth’s telling, would have testified to appellant’s juvenile record and his history

of torturing animals and participating in dog fighting. From the Commonwealth’s point of

view, counsel’s strategy was thus objectively reasonable.

The PCRA court agreed with the Commonwealth. It concluded appellant expressly

waived this subclaim because he “took the tact, during PCRA proceedings, that the

experts submitted were done so in order to address mitigation and not the guilt-phase of

his trial, which waives this claim.” PCRA Court Op. at 46. In any event, the court

explained, appellant’s claim also fails on the reasonable basis prong because trial counsel

testified they “feared pitting Dr. Schneider against Dr. Rotenberg and, as such, made

calculated decisions about keeping Dr. Schneider off of the stand in order to keep the

Commonwealth’s expert off of the stand.” Id. at 47. Given this reasoning, the PCRA court

concluded it could not find a “substantially greater chance of success where [it] agree[d]

with trial counsel that calling Dr. Schneider, who could not even recall his own reasoning

for failing to administer his usual battery of tests[,] . . . was a risk in light of opening the

door to Dr. Rotenberg and his blistering assessment of [appellant].” Id. (emphasis in

original). Indeed, the court continued, if Dr. Rotenberg introduced testimony related to

appellant’s criminal history and animal abuse, he was “unlikely to have achieved a

substantially greater chance of success[.]” Id. (emphasis in original).

As a threshold matter, we respectfully disagree with the PCRA court’s finding this

subclaim was expressly waived by PCRA counsel during the evidentiary hearing when

he stated these experts were not being asked to draw a nexus between appellant’s

actions on April 6, 2008 and his impairments. N.T. 8/20/18 at 65-66. Having reviewed

[J-40-2022] - 38
the record and the substance of PCRA counsel’s objection, we conclude appellant did not

limit his experts’ testimony to mitigation findings. PCRA counsel stated, as a part of his

objection, “it’s a temporal question or order on the day of the offense did he suffer from

these impairments[,] and would they have impaired his ability to form intent and to

appreciate the criminality of his conduct?” Id. at 66. Moreover, PCRA counsel asked

each expert whether appellant’s impairments impacted his capacity to form specific intent,

and each provided findings. See, e.g., id. at 46; N.T. 2/27/17 at 49-51; N.T. 2/6/18 at 45.

Thus, we find this subclaim is not waived.

But we agree with the PCRA court’s substantive conclusion appellant’s claim fails

because he did not demonstrate his counsel lacked a reasonable basis for not calling

mental health experts. Trial counsel testified they decided against calling Dr. Schneider

during the guilt phase (as well as during the penalty phase), because if they presented

such testimony it would have opened the door to Dr. Rotenberg’s testimony, who would

have detailed appellant’s juvenile criminal record and information related to his history of

torturing animals and engaging in a dog fighting business. His report noted appellant

killed at least ten dogs via electrocution and spoke of breaking pigeons’ wings before

throwing them off of buildings and setting his grandmother’s cat on fire before beating it

to death. See N.T. Evidentiary Hearing, 2/8/19 at 23-24, 26; see also N.T. 8/20/18 at 88-

89. Despite all this, Dr. Rotenberg testified appellant exhibited no neurological disorder,

extreme mental or emotional disturbance, or substantial neurological impairments in

2009. N.T. 2/8/19 at 41-43.

We conclude it was reasonable for trial counsel here to determine the presentation

of mental health experts might have opened the door to even more damaging evidence.

In fact, counsel made this determination after retaining Dr. Schneider in advance of trial,

permitting him to evaluate appellant on two occasions, and reviewing his report and

[J-40-2022] - 39
assessment. The record supports the PCRA court’s finding that trial counsels’ decision

not to call mental health experts had a “reasonable basis designed to effectuate [their]

client’s interests.” See Colavita, 993 A.2d at 887. We agree appellant has not

demonstrated trial counsel’s ineffectiveness in this regard.

D. Admissibility of Appellant’s Statements

For his next claim, appellant contends trial counsel were ineffective in litigating the

admissibility of his statements to Sergeant Kohler and EMT Supervisor Sanders, wherein

he acknowledged “beat[ing]” the victim over “the last two to three days” and stated he “did

it.” N.T. Jury Trial, 11/9/09 at 113, 148. He argues counsel “failed to investigate or

develop any witnesses or evidence to present in support” of his motion to suppress, erred

in not consulting with Dr. Schneider “regarding the voluntariness of [his] statements[,]”

and did not “develop[] or attempt[] to develop any other facts which could support

suppression[.]” Appellant’s Brief at 44. Appellant suggests these instances of pretrial

ineffectiveness were compounded by counsel’s failure to investigate, develop, or present

evidence that would undermine the prosecution’s use of the statements at trial.

The Commonwealth challenges appellant’s claim on multiple grounds. First, it

argues his claim is directed toward the admissibility of his statements, which was

previously litigated on direct appeal and deemed meritless. The Commonwealth further

contends that, to the extent appellant is attempting to again raise this substantive issue

as an ineffectiveness claim, this Court made clear in Commonwealth v. Reyes, 870 A.2d

888 (Pa. 2005), that “a petitioner cannot obtain post-conviction review of claims that were

previously litigated on appeal by alleging ineffective assistance of prior counsel and

presenting new theories of relief.” Reyes, 870 A.2d at 895-96.

Second, with respect to appellant’s assertion counsel were ineffective for failing to

investigate and develop evidence demonstrating appellant’s waiver of his Miranda rights

[J-40-2022] - 40
and his statements were involuntary, the Commonwealth stresses this Court has held

“[t]here is no per se rule that there can be no voluntary waiver when a person is mentally

ill.” Commonwealth’s Brief at 74, quoting Commonwealth v. Mitchell, 105 A.3d 1257,

1268 (Pa. 2014). Rather, the Commonwealth explains, Miranda’s voluntariness standard

asks whether a waiver of rights is “an intentional choice made without any undue

governmental pressure” and “with a full comprehension of both the nature of the right

being abandoned and the consequences of that choice.” Id., quoting Mitchell, 105 A.3d

at 1268. The Commonwealth submits appellant’s statements were not involuntary, as he

was reminded of his Miranda rights three times, expressed he understood those rights,

and indicated he wanted to speak with detectives. See Johnson, 42 A.3d at 1029.

Third, the Commonwealth argues counsel were not ineffective for failing to raise

questions as to the voluntariness of appellant’s Miranda waiver and/or statements once

they were admitted. It observes counsel were aware of appellant’s mental state before

and throughout trial, retained and consulted with Dr. Schneider following his evaluations

of appellant, and made the reasonable decision to not call Dr. Schneider where doing so

would open the door to rebuttal testimony from Dr. Rotenberg.

In assessing this claim, the PCRA court found appellant failed to demonstrate each

prong of the Strickland analysis. Regarding arguable merit, the court concluded that, with

respect to appellant’s argument his counsel ineffectively litigated the motion to suppress,

this issue was previously litigated on appeal and found meritless at that stage. Thus, it

held “there can be no substantially greater chance of success or prejudice where the

Supreme Court has already ruled upon the matter.” PCRA Court Op. at 48 (emphasis in

original).

As for appellant’s claim trial counsel failed to challenge the voluntariness of his

statements, the PCRA court found it also lacked merit. The court explained “mental

[J-40-2022] - 41
illness, even where present, does not automatically vitiate voluntary waiver[,]” and, here,

the jury heard testimony that appellant “voluntarily waived his Miranda warnings” and had

“calmed down and was no longer in the ‘hyperventilated state’” when he made his

statements. Id. at 48-49. Counsel also consulted with Dr. Schneider but were

disappointed with his “performance,” as he failed to “produce anything useful at the time

of trial[.]” Id. at 49. The PCRA court further found appellant failed to show counsel lacked

a reasonable basis for their decisions; in fact, appellant did not address this claim with

counsel during the post-conviction hearings. Finally, the court found no prejudice where

the jury heard appellant’s demeanor had calmed by the time of the Miranda warnings.

See id.

The record supports the PCRA court’s conclusions. First, to the extent appellant

argues counsel were ineffective in litigating the motion to suppress, this Court addressed

the merits of the substantive claim on direct appeal and found it lacked merit. Thus, that

issue was previously litigated and is not cognizable on postconviction review. See 42

Pa.C.S. §9544(a)(2) (“an issue has been previously litigated if . . . the highest appellate

court in which the petitioner could have had review as a matter of right has ruled on the

merits of the issue”). Second, with respect to appellant’s argument trial counsel were

ineffective because they did not investigate, develop, or challenge the voluntariness of

his Miranda waiver and statements, he has likewise failed to demonstrate arguable merit

by the required standard. Although he declares counsel should have taken such actions,

appellant does not point to any specific evidence counsel could have introduced in

support. Such a broad assertion cannot satisfy the arguable merit prong.

Even if appellant had demonstrated arguable merit, his claim still fails on the

reasonable basis prong. While the PCRA court is correct appellant’s questioning of trial

counsel in connection with this claim was sparse, counsel nevertheless testified that they

[J-40-2022] - 42
did not call Dr. Schneider to address appellant’s mental health because he failed to

provide useful information and presenting his testimony would enable the Commonwealth

to call Dr. Rotenberg in rebuttal. See N.T. 8/21/18 at 210-11. It is certainly reasonable

for counsel to make the informed decision to decline to call a retained witness whose

report proved unhelpful and who would open the door to damaging rebuttal. Because

appellant’s claim lacks arguable merit and he has failed to demonstrate counsel lacked a

reasonable basis for their action, it is not necessary to address the prejudice prong, as

the PCRA court did not err in dismissing this claim.

E. Appellant’s Entitlement to a Voluntary Manslaughter Instruction

Appellant contends counsel were ineffective for failing to present evidence to

support a voluntary manslaughter instruction. 10 He asserts counsel should have

introduced evidence demonstrating how the “stressors in [his] life at the time of the

incident, combined with his psychological, cognitive, and emotional deficits and the other

provocative factors that day, including the rupturing of [the victim]’s feces-filled diaper,

combined with his own horrific past caused [him] to become so impassioned and

provoked that he lost control and began hitting the [victim].” Appellant’s Brief at 45-46.

Appellant argues that due to the “wealth of available evidence[,]” including information his

counsel learned about his upbringing from his mother and sister, as well as testimony

related to his “distraught and emotional” state immediately after the incident, counsel

could not have a reasonable basis for failing to introduce evidence in support of a

voluntary manslaughter instruction. Id. at 47.

The Commonwealth responds this claim was previously litigated on direct appeal,

where this Court, after fully considering the facts of the case, determined “there [was] no

10Trial counsel requested a voluntary manslaughter instruction but the trial court denied
the request, finding no evidence in the record to support the charge. See Johnson, 42
A.3d at 1036.

[J-40-2022] - 43
evidence showing appellant was still acting under a serious and intense passion” at the

time of the assault. Johnson, 42 A.3d at 1036. The PCRA court agreed:

None of the expert testimony provided by [appellant] during his PCRA
proceedings seems to have touched upon the attenuated timeline of the
supposed complex situation of a dirty diaper and an assault some seven
hours later. There is simply no evidence upon which this [c]ourt can
conclude that [appellant] was still acting under a serious and intense
passion some seven hours afterwards. Any thrust made towards an
argument that this ignores the totality of stressors in [his] life is parried by
the conclusions of [appellant]’s own experts. . . . [who] did not provide
evidence upon which this [c]ourt can find counsel to have been ineffective.
PCRA Court Op. at 50-51. Indeed, the PCRA court found that, while appellant presented

experts who opined he was under stress and “lacked the ability to appropriately respond

to complex situations,” there “was a temporal break” between the early morning wake up,

the diaper issue, and when the assault occurred. Id. at 50.

The PCRA court did not err in dismissing this claim. As we noted on appellant’s

direct appeal, a voluntary manslaughter instruction is warranted where “the evidence

would . . . demonstrate that, at the time of the killing, [a]ppellant acted under a sudden

and intense passion resulting from serious provocation by the victim.” Johnson, 42 A.3d

at 1036, quoting Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa. 2009). Whether the

alleged provocation is “sufficient” to warrant a manslaughter instruction is assessed

objectively and, “if there be provocation without passion, or passion without a sufficient

cause of provocation, or there be time to cool, and reason has resumed its sway,” the

instruction is not appropriate and “the killing will be murder.” Commonwealth v.

Hutchinson, 25 A.3d 277, 315 (Pa. 2011), quoting Commonwealth v. Miller, 987 A.2d.

638, 651 (Pa. 2009).

After reviewing the record, the parties’ arguments, and the relevant law, we

conclude appellant has failed to demonstrate arguable merit because the substantive

claim was previously litigated and his own experts failed to present evidence warranting

[J-40-2022] - 44
a voluntary manslaughter instruction. Even accepting as true that appellant suffered from

stressors and lacked the capacity to properly respond to complex situations, viewing the

facts objectively, as required, we reiterate again that “[w]hile an early wake-up and dirty

diaper may be unpleasant,” there is “no evidence [the] victim sufficiently provoked

appellant to create a sudden and intense passion in him, or that any such provocation

caused him to kill [the] victim.”11 Johnson, 42 A.3d at 1036. Because appellant’s claim

lacks arguable merit, his counsel were not ineffective. See Commonwealth v. Pursell,

724 A.2d 293, 304 (Pa. 1999). Further, to the extent appellant argues counsel should

have introduced mitigating mental health experts in connection with this claim, we again

find it was not objectively unreasonable to decide against calling Dr. Schneider to avoid

the introduction of damaging rebuttal evidence from Dr. Rotenberg. The PCRA court did

not err in dismissing this claim.

F. The Trial Court’s Instruction Regarding the Penalty Phase

Appellant argues trial counsel were ineffective for not objecting to the trial court’s

opening instruction to the jury, during which it stated: “Once the closing arguments are

presented by counsel, and we’re talking, again I remind [you], about the guilt phase, I will

11 In reaching this conclusion we note the PCRA court, in its recitation of the facts and
application of those facts to this claim, stated the situation with the victim’s diaper
coincided with the 5:00 a.m. wakeup, such that seven hours elapsed between the alleged
“provocation” and appellant’s brutal assault. PCRA Court Op. at 50-51. The court’s
recitation parallels our discussion of the facts and the voluntary manslaughter instruction
on direct appeal, where we stated “[t]he alleged provocation occurred at 5:30 a.m., but
appellant assaulted [the] victim around 12:30 p.m.; there is no evidence showing
appellant was still acting under a serious and intense passion at this time.” Johnson, 42
A.3d at 1036. However, based on the record presently before us, it appears the victim
woke appellant between 5:00 a.m. and 6:00 a.m. but appellant did not start to strike her
until around 12:30 p.m., at which time her diaper “exploded,” and his assault continued.
While we note this distinction to clarify the record, it does not change our analysis of this
claim. Even if the diaper incident occurred when he was hitting the victim at approximately
12:30 p.m., this “unpleasant” event, whether by itself or combined with the early morning
wake up, does not rise to the level of objective provocation that would warrant a voluntary
manslaughter instruction. Id.

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then instruct you on the law that you will apply and you will then retire to engage your

deliberations regarding the penalty phase of the case.” N.T. Jury Trial, 11/9/09 at 16-17.

Appellant asserts the court’s reference to the “penalty phase” on the first day of trial

violated the presumption of innocence guaranteed by the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, and that counsel did not have a

reasonable basis for failing to object to it. See Appellant’s Brief at 48-49. In support,

appellant cites our decision in Commonwealth v. Montalvo, 244 A.3d 359 (Pa. 2021),

wherein we held a trial judge’s incorrect instruction on reasonable doubt warranted a new

trial. Appellant also points to counsel’s evidentiary hearing testimony stating he did not

have a tactical or strategic reason for not objecting to the error. See N.T. 8/22/18 at 248.

Finally, appellant challenges the PCRA court’s characterization of the trial court’s error as

“innocuous” or simple “misspeaking”; in his view, the error “implicat[ed] a bedrock

principle” regarding the presumption of innocence. Appellant’s Brief at 49, quoting PCRA

Court Op. at 54.

The Commonwealth contends the PCRA court did not err in dismissing appellant’s

claim because, when the “entire instruction is viewed in toto, it is clear that [he] did not

suffer prejudice from the instruction or from trial counsel’s failure to object.”

Commonwealth’s Brief at 77. The Commonwealth argues the entirety of the instruction

did not direct the jury to find appellant guilty of first-degree murder or imply he should be

convicted, because the “single word ‘penalty’ did not affect the jury’s understanding of the

Commonwealth’s burden or impermissibly indicate [appellant]’s guilt.” Id. at 79.

The PCRA court reasoned appellant failed to prove his ineffectiveness claim on

the basis that this case is distinguishable from Montalvo. Whereas the instruction in

Montalvo read like a directed verdict —i.e., “if the Commonwealth has not sustained it’s

[sic] burden to that level, the burden of proving the Defendant guilty beyond a reasonable

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doubt, then your verdict must be guilty” — here, the trial court’s reference to the penalty

phase was “innocuous[,]” “less-akin to the excerpt from Montalvo,” and is best construed

as the trial judge “misspeaking momentarily[.]” PCRA Court Op. at 53-54, quoting

Montalvo, 244 A.3d at 369.

It is well established that, in reviewing a challenge to jury instructions, an appellate

court must consider the charge in its entirety, rather than discrete portions of the

instruction. See, e.g., Commonwealth v. Frein, 206 A.3d 1049, 1077 (Pa. 2019). In

conducting this examination, we do “not rigidly inspect a jury charge, finding reversible

error for every technical inaccuracy, but rather evaluate whether the charge sufficiently

and accurately apprises a lay jury of the law it must consider in rendering its decision.”

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1276 (Pa. 1990). Moreover, a court may

use its own expressions of the law, so long as the concepts at issue are accurately

presented. See Frein, 206 A.3d at 1077.

Here, we agree with appellant that the trial court erred in referring to the penalty

phase in its opening instructions, in that the statement seemingly implied the jury would

find appellant guilty. However, as noted, jury instructions are not to be read in isolation.

Having considered the trial court’s instruction on this point in conjunction with the other

instructions the jury received, we find the court’s brief misstatement did not sufficiently

taint the charge as a whole, because the jury was repeatedly instructed the finding of guilt

was exclusively within its province and appellant was presumed innocent. Notably, the

trial court instructed the jury as follows:

[T]he mere fact that the [d]efendant has been charged and accused of this
crime carries no suggestion of guilt or evidentiary value. Rather, under our
system a person accused of a crime is presumed to be innocent, is cloaked
with the presumption of innocence, and that remains with him throughout
the trial and unless and until during your deliberation phase you should
conclude that the Commonwealth has indeed carried its burden of
convincing you unanimously of his guilt beyond a reasonable doubt.

[J-40-2022] - 47
N.T. Jury Trial, 11/9/09 at 10. The trial court further instructed:

It’s not the [c]ourt’s duty to decide guilt or innocence or the facts of the case.
I have no opinions in those regards and leave those matters exclusively to
you.
....
Now, a fundamental principle in our system of criminal law is that the
Defendant is presumed to be innocent. The mere fact that he was arrested
and accused of a crime is not to be considered as evidence against him.
Furthermore, the Defendant is presumed innocent throughout the trial and
unless and until you conclude based on your careful and impartial
consideration of the evidence that the Commonwealth has proven him guilty
beyond a reasonable doubt.

It is not the Defendant’s burden to prove that he is not guilty. Rather, it is
the Commonwealth that always has the burden of proving each and every
element of the crime charged[,] and that the Defendant is guilty of that crime
beyond a reasonable doubt.
N.T. Jury Trial, 11/13/09 at 734-35.

In light of these additional instructions, we disagree with appellant that our decision

in Montalvo dictates a different result. In Montalvo, the trial court twice instructed the jury

it should find the defendant guilty if the Commonwealth failed to meet its burden of proof.

Montalvo’s trial counsel did not object to the trial court’s first misstatement of the law

because he “did not recognize the mistake[,]” but he did object to the second. Montalvo,

244 A.3d at 369, 371. In response to counsel’s correction, the court “immediately”

commented, “[n]ow that was a Freudian slip.” Id. at 372 (citation omitted). In concluding

Montalvo met his burden of demonstrating prejudice, we held “the trial court’s second

misstatement of the law, and [the judge’s] reference to a ‘Freudian slip’” — a term

“commonly understood to mean an unintended statement that reveals the true feelings of

the speaker” — “fully support[ed]” the PCRA court’s grant of relief. Id. at 373. This was

so, we explained, because the “judge’s characterization of her misstatement of the law

as a ‘Freudian slip’ unmistakably constituted an expression of her opinion on [defendant]’s

guilt” and “undermined the correction, as it made light of her two prior misstatements of

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the law, and implied that the prior misstatements were not simply innocent slips of the

tongue that the jury should disregard.” Id. (emphasis in original).

We find appellant’s case distinguishable. Although in Montalvo the trial court’s two

misstatements of the law were compounded by the judge’s choice of words in attempting

to correct the error, here the trial court’s single reference to the penalty phase was clarified

by the remaining instructions. The remaining instructions, as quoted above, made clear

the jury needed to assess the evidence to determine if appellant was guilty of the offenses

charged beyond a reasonable doubt and further directed the guilt determination was

exclusively its responsibility. Thus, while the court’s initial statement, viewed in isolation,

could be read to convey a presumption the jury would find appellant guilty, the lengthy

instructions that followed clearly clarified and assigned the jury’s role. Because we find

the court’s instruction “sufficiently and accurately apprise[d]” the jury of the law, we

conclude appellant has failed to demonstrate his claim has arguable merit or that he was

prejudiced by counsels’ failure to object to the instruction. Prosdocimo, 578 A.2d at 1276.

This claim was properly dismissed.

G. Failure to Ensure a Full Trial Record

Appellant next contends counsel were ineffective for failing to ensure a complete

record of the voir dire, jury trial, and penalty phase proceedings. According to appellant,

there were five unrecorded, off-the-record sidebar discussions during the four-day voir

dire, ten off-the-record discussions during trial, and six such discussions during the

penalty phase. He asserts this was constitutionally deficient, particularly in a capital case

since, absent a full transcript, he cannot “evaluate whether significant violations of the

United States and/or Pennsylvania Constitutions have occurred.” Appellant’s Brief at 52.

Appellant urges this Court to grant relief in the form of a new trial so that, in his words, he

[J-40-2022] - 49
may obtain meaningful appellate review and protection under the Eighth Amendment and

Article I, Section 13 of the Pennsylvania Constitution.

In response, the Commonwealth argues that, to the extent appellant claims the

trial court erred in failing to ensure the entire record was transcribed, he waived his claim

by not raising it on direct appeal. See, e.g., Commonwealth v. Marshall, 812 A.2d 539,

551 n.14 (Pa. 2002), citing 42 Pa.C.S. §9544(b), overruled on other grounds by

Commonwealth v. Tharp, 101 A.3d 736 (Pa. 2014). Alternatively, to the extent appellant

is alleging counsel were ineffective for failing to request transcriptions of the off-the-record

discussions, the Commonwealth contends his claim lacks arguable merit. It notes this

Court addressed this issue in Commonwealth v. Sepulveda, 55 A.3d 1108 (Pa. 2012),

where we held that “to ‘establish entitlement to relief based on the incompleteness of the

trial record, [an appellant] must first make some potentially meritorious challenge which

cannot be adequately reviewed due to the deficiency in the transcript.’” Commonwealth’s

Brief at 80-81, quoting Sepulveda, 55 A.3d at 1149. This challenge, the Commonwealth

explains, “goes too far” when appellant “extrapolates that a ‘full and accurate’ record

includes all sidebars, regardless of their substance.” Id. at 81, quoting Sepulveda, 55

A.3d at 1150. The Commonwealth maintains that, because appellant has not raised a

claim that “cannot be adequately reviewed due to the lack of transcription of sidebar

conferences[,]” he has failed to demonstrate this claim has arguable merit. Id.

The PCRA court agreed, finding appellant’s claim “wholly without merit[.]” PCRA

Court Op. at 54. It explained appellant’s claim of trial court error was waived because he

did not raise it on direct appeal; and, in any event, he also failed to demonstrate the

ineffectiveness prongs. Regarding the latter, the court noted Attorney Robinson testified

he “presumed anything that was not informal, such as discussing lunch breaks, was

transcribed[,]” and the record, which includes numerous transcribed sidebar discussions

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on meaningful issues, supports this presumption. Id. at 54-55 (citations omitted).

Moreover, the court found appellant failed to plead or prove prejudice as he did not

meaningfully allege any “potentially meritorious claim evading review” or that the outcome

would have been different if the remaining sidebars had been transcribed. Id. at 55

Again, we do not discern any reversible error. As the PCRA court recognized, the

transcript in this case includes multiple sidebars on meaningful issues, see, e.g., N.T.

Jury Trial, 11/9/09-11/10/09 at 40-41, 168, 319-27, 395-398, and appellant does not

allege there were viable issues discussed during the other non-transcribed sidebars. Trial

counsel’s recollection of the sidebars supports this conclusion and appellant did not testify

to the contrary. We restate what we said in Sepulveda: a “full and accurate” transcript

does not necessarily include “all sidebars, regardless of their substance[,]” nor are courts

required to transcribe all sidebar conferences and “needlessly waste money to transcribe

the inconsequential.” Sepulveda, 55 A.3d at 1150. Because appellant has not identified

any potentially meritorious claim that cannot be reviewed or developed due to the lack of

sidebar transcription, he has not demonstrated his claim has arguable merit or that he

was prejudiced by counsel’s failure to object.

H. Prosecutorial Misconduct During Guilt Phase

Appellant next claims trial counsel were ineffective for failing to object to “repeated

forms of [prosecutorial] misconduct, including injecting improper victim impact argument

in [the Commonwealth’s] opening statement and introducing constitutionally improper and

inadmissible testimony through prosecution witnesses.” Appellant’s Brief at 54. Appellant

specifically raises the following alleged misconduct: (1) the prosecutor’s improper victim

impact argument in his opening, where he stated the victim’s “second birthday was not

filled with balloons and party animals. . . . [W]hat her second birthday got to be filled with

was a brutal vicious beating the day after she turned 2[,]” id. at 54-55, quoting N.T. Jury

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Trial, 11/9/09 at 22; (2) eliciting Dr. Ross’s testimony about the victim’s older injuries,

which was “completely irrelevant[,]” “did not tend towards proving any relevant fact[,]” and

left the jury “with the misleading and unfounded impression” appellant caused the earlier

injuries, id. at 55; (3) allowing Officer Andy Baez to offer his personal opinion about the

victim’s injuries when he responded to the scene, including that he “yelled profanities”

upon observing her condition, id., quoting N.T. Jury Trial, 11/9/09 at 80; and (4) allowing

the victim’s mother to testify regarding “purported prior incidents where [a]ppellant

assaulted the [victim,]” which led the jury to have a “misleading picture” of him as a “serial

child abuser,” id. at 56. As appellant sees it, counsel should have objected and/or

requested limiting instructions with respect to each of these incidents, and their failure to

do so compromised the integrity of the verdict. We address each of appellant’s subclaims

in turn.

1. Use of Victim Impact Argument in Commonwealth’s Opening
First, with respect to appellant’s allegation the prosecutor injected victim impact

argument in his opening, the Commonwealth notes appellant’s counsel did object, thus

preserving the issue, and the trial court overruled the objection. The court’s resolution of

the objection was proper, the Commonwealth explains, because the challenged portion

“was a fair recitation of . . . the evidence” since the victim’s birthday was the day before

her assault and two days before she died as a result of that severe beating.

Commonwealth’s Brief at 83. The Commonwealth argues appellant’s claim is meritless

because “[a] prosecutor’s remarks are fair if they are supported by evidence or contain

inferences reasonably derived from that evidence[,]” and the jury is instructed the

statements of counsel are not evidence. Id., quoting Montalvo, 986 A.2d at 93, quoting

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005). In addition, the

[J-40-2022] - 52
Commonwealth asserts appellant failed to prove the reasonable basis prong because he

did not ask counsel questions related to this claim during the hearing.

The PCRA court agreed with the Commonwealth, finding the trial court properly

overruled counsel’s objection given that the prosecutor’s statements were supported by

the evidence. Indeed, the PCRA court observed the victim’s injuries indicate she was

“beaten in a manner that most would consider brutal and vicious with little or no hint of

hyperbole[,]” and appellant admitted to beating the victim over a period of days. PCRA

Court Op. at 56. The court determined it was clear the victim suffered severe beatings in

the days around her birthday, and found that, even if this claim had arguable merit, which

it concluded it did not, “the requisite facts that the Commonwealth had to impart to the

jury, regarding the victim being beaten and medical experts[’] opinions, utterly

overshadow any intemperance in the challenged [birthday] remark.” Id. at 57 (emphasis

in original).

We agree. As the PCRA court correctly explains, a prosecutor’s remarks are fair

if they are supported by or can be reasonably inferred from the evidence. Montalvo, 986

A.2d at 93. In this vein, we have directed that a prosecutor’s statement will not rise to the

level of misconduct unless the “unavoidable effect of the comments at issue was to

prejudice the jurors by forming in their minds a fixed bias and hostility toward the

defendant, thus impeding their ability to weigh the evidence objectively and render a true

verdict.” Id., quoting Robinson, 877 A.2d at 441. We do not find the prosecutor’s remarks

here rise to the level of creating a “fixed bias” or “hostility” toward appellant. To the

contrary, the opening statement remark was grounded in the evidence, in that it recited

the accurate timing of the victim’s birthday in reference to the date of the beating that led

to her death. Even if the jury formed a “hostility” in their mind directed at appellant, he

has not demonstrated such feeling would have resulted from the prosecutor’s remark,

[J-40-2022] - 53
particularly where the Commonwealth was, as the PCRA court observed, required to

present evidence of the beating and resulting injuries that led to the victim’s death.

Appellant has not meaningfully asserted he was prejudiced by this one comment and, as

a result, we conclude his claim fails.

2. Dr. Ross’s Allegedly Improper Testimony

Appellant advances several arguments challenging Dr. Ross’s testimony as

improper and alleging trial counsel should have objected to it. As a threshold matter, the

Commonwealth again notes appellant failed to ask his counsel any questions related to

this subclaim during the post-conviction proceedings. On this basis alone, i.e., because

appellant has not demonstrated counsel lacked a reasonable basis for their actions, the

Commonwealth urges us to affirm. 12 The Commonwealth further contends that, even

assuming appellant demonstrated no reasonable basis, his subclaim fails for lack of

arguable merit and prejudice.

Regarding appellant’s claim Dr. Ross’s description of the number of the victim’s

injuries was improper because he used the term “overwhelming,” the Commonwealth

disagrees, noting Dr. Ross used that term to describe how he counted the victim’s injuries,

not to editorialize about them. As discussed, Dr. Ross observed over 220 injuries, 150 of

which showed evidence of having been inflicted in the prior twenty-four hours. However,

because there were a significant number of injuries in one location on the victim’s body,

Dr. Ross had to combine some injuries together. In explaining his counting method for

the jury, Dr. Ross described those areas with multiple injuries in one location as having

an overwhelming number. The Commonwealth asserts that, because the term was used

12In litigating his claims before the PCRA court, appellant raised five additional subclaims
relating to Dr. Ross that he no longer pursues before this Court. As previously noted, we
do not address any claims appellant has abandoned. See supra note 6.

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in the context of explaining his med

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9374300. Public record. Not legal advice.