concluding that appellate counsel was not ineffective for failing to challenge trial counsel’s effectiveness on the basis that counsel failed to present another forensic witness, because counsel exploited gaps in the testimony of the Commonwealth’s witness, there was no relevant factual dispute, and an additional expert would have provided the same basis for counsel to argue the defense’s position
How later courts described this case
- concluding that appellate counsel was not ineffective for failing to challenge trial counsel’s effectiveness on the basis that counsel failed to present another forensic witness, because counsel exploited gaps in the testimony of the Commonwealth’s witness, there was no relevant factual dispute, and an additional expert would have provided the same basis for counsel to argue the defense’s position
- holding defense expert testimony is unnecessary where effective cross-examination can elicit helpful testimony
- holding that appellate counsel may exercise professional judgment by winnowing issues for appeal
- “failure to object to cumulative evidence - 55 - J-A25042-25 is not ineffective where there is sufficient evidence in the record for conviction and there is no basis upon which to conclude that the outcome of the trial would have been different had counsel objected to the testimony”
Written by the judges who cited it.
The opinion
TAMILIA, J.,
dissenting:
*1023 ¶ 1 The defining issue in this matter is whether the victim, who according to the Commonwealth’s theory unknowingly ingested a toxic substance, Roxanol (liquid morphine), would have or could have done so without any evidence that the drug’s acute bitterness was masked so as to conceal its presence.
¶2 Despite the substantial circumstantial evidence in support of the homicide theory, the crucial issue remains the state of mind of the victim. Unless the victim knew the nature of the substance and was determined to take his own life, would he or could he have ingested the admittedly bitter, unmasked toxic substance without being aware an attempt was being made to poison him? The critical nature of this issue sets up a clear credibility determination for the jury as to whether the deceased knowingly ingested a bitter toxic substance, consistent with the defense’s theory of suicide, or whether in some fashion, consistent with the Commonwealth’s homicide theory, the substance was surreptitiously given to the victim by appellant.
¶3 The Commonwealth argued appellant either (1) forcibly introduced the fatal dose of Roxanol into the victim’s mouth; or (2) disguised the lethal substance so that the unwitting victim ingested the substance voluntarily. In support of the latter theory, the prosecution presented expert testimony by forensic pathologist, Dr. Isidore Mihalakis, who opined the bitter taste of Roxanol could be masked by strong coffee, orange juice or liquor. To contradict this expert testimony, defense counsel relied solely on his cross-examination of Dr. Mihalakis, and the lay testimony of Helen Wolfe, a cancer patient and friend of the decedent for whom Roxanol had been prescribed. Given the substantial circumstantial evidence offered by the prosecution, I believe rebuttal testimony by an independent, credible expert witness was necessary to present to the jury the sharp, crucial contrast between voluntary and involuntary ingestion of a bitter toxic substance, the single most critical element of this case, as well as evidence or lack thereof relating to refluxation. Trial counsel’s failure to locate and develop an expert rebuttal witness constituted ineffectiveness, causing appellant irreparable prejudice. See Commonwealth v. Copenhefer, 553 Pa. 285 , 719 A.2d 242 (1998), cert. denied, 528 U.S. 830 , 120 S.Ct. 86 , 145 L.Ed.2d 73 (1999) (holding to sustain an ineffectiveness claim, a defendant must prove by a preponderance of the evidence (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) counsel’s action or inaction caused his client prejudice).
¶ 4 The testimony which could have been presented in that regard, as illustrated at the PCRA hearing by Dr. Cyril Wecht, a nationally recognized pathologist, indicates there was and is such expert rebuttal testimony available. It is the Commonwealth’s position, however, that counsel’s failure to produce such a witness at the time of trial has resulted in waiver. I disagree.
¶ 5 The waiver rule to which the Commonwealth refers applies to factual and substantive witnesses such as those at the scene of the crime, alibi witnesses or character witnesses, all of whom would be within the personal knowledge of appellant. Counsel cannot be found ineffective for failing to call witnesses of whose existence defendant failed to inform him. See Commonwealth v. McSloy, 751 A.2d 666 (Pa.Super.2000), appeal denied, 564 Pa. 728 , 766 A.2d 1246 , 2000 Pa. LEXIS 2352 (2000) (holding to find ineffectiveness for failure to call a witness, the defendant must demonstrate (1) the existence and availability of the witness; (2) counsel’s *1024 knowledge of the witness; (3) the witness’s willingness to testify; and (4) how defendant was prejudiced by the absence of that testimony). In this situation, however, while appellant may not have been personally aware of experts such as Dr. Wecht, it was trial counsel’s duty, in his role as a zealous advocate, to produce an expert rebuttal witness to counter the expert testimony of the Commonwealth’s witness. Trial counsel’s failure to secure such expert testimony denied appellant the opportunity to have an independent expert whose unbiased, knowledgeable testimony undoubtedly would have been far more convincing to the jury than that of a lay witness Mend. Such inaction by counsel caused appellant irreparable harm, exemplifies ineffectiveness and cannot be excused.
¶ 6 The trial attorneys for appellant were highly experienced, with numerous jury trials to their credit. Such highly seasoned and well regarded criminal trial lawyers unquestionably should have and could have secured a reputable pathologist or toxicologist to rebut the testimony of the prosecution’s expert. In fact, at the PCRA hearing, two experts testified with regard to the need for expert rebuttal testimony, necessary to counter the damning testimony of Dr. Mihalakis. Dr. Wecht opined there was no evidence of forced administration of the Roxanol, and the decedent voluntarily ingested the fatal dose of morphine. He also testified Roxa-nol was an extremely bitter liquid, could not have been administered surreptitiously without a huge amount of disguising substance, and the autopsy revealed no evidence of a diluting or masking agent. Dr. Wecht testified that had he been called as an expert witness, such would have been his testimony.
¶ 7 Dr. Harry Doyle, a defense witness at trial, also testified at the PCRA hearing and swore he advised trial counsel to secure an expert to address the virtual impossibility of disguising Roxanol’s bitter taste. Dr. Doyle testified he had provided trial counsel with the names of three possible experts qualified to address the undeniably bitter taste of Roxanol, and it was his understanding counsel was going to call an expert on that subject.
¶ 8 This particular ineffectiveness claim turns on trial counsel’s failure to actively enlist the aid of an expert to rebut the testimony of the Commonwealth’s expert, and the record is devoid of any serious attempt by trial counsel to locate an expert witness in time for trial. The somewhat lurid and sensational nature of this case required the best scientific, medical and psychological presentation of evidence of state of mind and intent. Defense counsel’s failure to zealously defend his client mandates reversal.
¶ 9 I would grant a new trial.