Opinion · Supreme Court of Pennsylvania
Commonwealth v. Treiber, S., Aplt
632 Pa. 449
- Type
- Opinion
- Court
- Supreme Court of Pennsylvania
- Jurisdiction
- Pennsylvania
- Date
- 2015-08-17
- Topic
- employee-benefits-and-executive-compensation
concluding that 42 Pa.C.S. § 9712.1, regarding the distance between drugs and guns, is unconstitutional in light of Alleyne, as its subsections are not severable | concluding that defense counsel’s failure to challenge DNA evidence was not prejudicial given the overwhelming circumstantial evidence of the defendant’s guilt | holding that a PCRA petitioner must - 11 - J-S02041-20 demonstrate that the claim underlying an ineffective assistance of counsel claim is of arguable merit | holding that cursory allegations of counsel’s 1 Miranda v. Arizona, 384 U.S. 436 (1966). -5- J-S42011-16 ineffectiveness were waived as a result of appellant’s failure to develop those claims. | recognizing that “[a] PCRA court’s credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court.” (citation omitted) | concluding that petitioner’s failure to identify potential witnesses is grounds for denial of relief | concluding that 42 Pa.C.S. § 9712.1, regarding the distance between drugs and guns, must be struck down in its entirety as unconstitutional in light of Alleyne, as its subsections are not severable | concluding that 42 Pa.C.S.A. § 9712.1, regarding the distance between drugs and guns, must be struck down in its entirety as unconstitutional in light of Alleyne, as its subsections are not severable | concluding that 42 Pa.C.S.A. § 9712.1, regarding the distance between drugs and guns, must be struck down in its entirety as unconstitutional in light of Alleyne, as its subsections -2- J. S44008/16 are not severable | stating that an ineffectiveness claim will fail if the petitioner does not establish all three prongs of the ineffectiveness test | holding mandatory minimum sentencing statute relating to drug trafficking unconstitutional in light of Alleyne v. United States, 133 S.Ct. 2151 (2013) | stating that if an ineffectiveness claim fails under any required element, we may dismiss the claim on that basis | holding mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508, which concern weight of narcotics possessed by drug dealer, unconstitutional | explaining that in the PCRA context, prejudice is defined as a “reasonable probability the result of the proceeding would have been different” | stating that “counsel cannot be deemed ineffective for failing to raise a meritless claim.” (citation omitted) | holding appellant waived PCRA Brady claim where he did not show why the claim could not have been raised earlier | holding mandatory minimum sentences pursuant to 18 Pa.C.S.A. § 7508, which concern weight of narcotics possessed by drug dealer, unconstitutional | holding 42 Pa.C.S.A. § 9712.1, which imposes mandatory minimum sentencing for possessing firearm in close proximity to narcotics unconstitutional | explaining that a character witness may be cross-examined regarding his or her knowledge of particular acts of the defendant’s misconduct to test the accuracy of the witness’s testimony | explaining that counsel cannot be deemed ineffective for failing to raise a meritless claim | stating that "counsel cannot be deemed ineffective for failing to raise a meritless claim" | reasoning that stipulation to facts needed for - 12 - J-S01023-16 mandatory minimum sentence does not satisfy Alleyne; no functional difference exists between submission of fact to jury or accepting stipulation | holding issues waived when not raised with specificity in Rule 1925(b) statement | stating that ineffectiveness claims that are not properly developed are waived | employing ineffective assistance of counsel test from Commonwealth v. Pierce, 27 A.2d 973, 975-76 (1987) | finding a Brady claim waived because it could have been raised in an earlier proceeding | declining to deem counsel’s performance constitutionally deficient where PCRA petitioner failed to explain how he was prejudiced specifically by counsel’s failure to cross-examine witness regarding crimen falsi | applying Alle
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OPINION
Justice EAKIN.Appellant, Stephen Treiber, appeals from the order denying him collateral relief from his criminal convictions and death sentence pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On the night of March 9, 2001, appellant set fire to his home while his girlfriend, Denise Riddle, and his two-year-old daughter, Jessica, slept inside. As the home burned, appellant and Ms. Riddle escaped, but Jessica remained in her crib until firefighters removed her; however, they were unable to revive her. Appellant was charged with criminal homicide, reckless endangerment, and multiple counts of arson; the Commonwealth gave notice of its intent to pursue the death penalty.
Appellant’s neighbor, who went to help after seeing smoke emanating from the home, testified at trial that appellant and Ms. Riddle were standing on a second-story deck, and Ms. Riddle screamed for help while appellant calmly stood by with his arms folded. Appellant asked about the well-being of his dogs but, when referring to Jessica, said, “[T]he firemen will
At trial, Ms. Riddle described appellant as very controlling, stating he implemented and enforced rules that shoes not be worn in the home, and that bedroom doors be closed and locked. Ms. Riddle also mentioned appellant had previously forbidden her from going to a local bar, once even threatening to burn it down if she went there again. She testified that, during the fire, appellant escorted her and two of their dogs onto the deck, but told her he could not rescue Jessica because “the smoke was too bad[.]” N.T. Trial, 10/2/02, at 124-25. Yet, Ms. Riddle recalled she did not observe much smoke at that time. She also testified that after Jessica was pronounced dead, appellant instructed her not to talk to police, and when she expressed her sorrow of Jessica’s death to appellant, he replied they “could always make another little Jessica[.]” Id., at 136.
The Commonwealth introduced extensive evidence of appellant’s preparatory activities and behavioral changes. Weeks before the fire, appellant beeame obsessed with fire safety, making Ms. Riddle and her 22-year old son, Erik Keith, practice fire-evacuation routes. One month before the fire, appellant purchased straw on four separate occasions, along with two five-gallon gas cans, and he bought gasoline on two separate occasions the day of the fire. The week before the fire, appellant affixed a chain ladder to the residence as a
Evidence of appellant’s motive and intent was also introduced at trial. Appellant’s unwillingness to pay child support was established by testimony from Jodie Treiber, Jessica’s mother. Ms. Treiber stated appellant had a visitation weekend with Jessica scheduled for March 9—the weekend of the fire—but appellant insisted he take Jessica early, ie., the previous Tuesday of that week. When appellant picked up Jessica, Ms. Treiber informed him she intended to increase his child-support payments. Jamie Pianta,1 who accompanied appellant and Mr. Keith on the trip to pick up Jessica, testified appellant discussed his plans to kill Jessica to avoid paying child support, stating he would use rope, gasoline, straw, and candles to start a fire in the home. Mr. Pianta said appellant expressed the same plans to him and Mr. Keith about one month earlier, during another trip to pick up Jessica. Other witnesses testified about appellant’s financial motives for the murder. For instance, one month before the fire, appellant tried to increase the limits on his credit card and his homeowner’s insurance, and sought to purchase life insurance on Jessica, naming himself as beneficiary. He also changed his automobile comprehensive deductible but did not alter his collision insurance.
The Commonwealth established appellant took steps to make it appear that someone else started the fire. Specifically, it asserted appellant, about six weeks before the fire, contrived a threatening note and surreptitiously attached it to his own mailbox, arranging for Ms. Riddle to find it and report
A jury convicted appellant of first degree murder, 18 Pa. C.S. § 2502(a), arson endangering persons, id., § 3301(a), arson endangering property, id., § 3301(c), and recklessly endangering another person, id., § 2705. At the penalty phase, the jury found three aggravating circumstances and two mitigators. The aggravating circumstances were: (1) appellant committed a killing while in the perpetration of a felony (arson), 42 Pa.C.S. § 9711(d)(6); (2) appellant knowingly created a grave risk of death to another person other than the victim of the murder, id., § 9711(d)(7); and (3) the victim was a child under 12 years of age, id., § 9711(d)(16). As for the mitigating circumstances, the jury found appellant had no significant history of prior criminal convictions, id., § 9711(e)(1), and a positive work history, falling within § 9711(e)(8)’s catch-all provision. However, the jury determined the aggravating circumstances outweighed the mitigating circumstances and sentenced appellant to death. This Court affirmed appellant’s convictions and death sentence, Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26, 33 (2005), and the United States Supreme Court denied certiorari, Treiber v. Pennsylvania, 547 U.S. 1076, 126 S.Ct. 1783, 164
Appellant filed a pro se PCRA petition, and counsel from the Federal Community Defender Office (FCDO) entered their appearance on appellant’s behalf3 and filed an amended petition. The PCRA court held evidentiary hearings on ten separate dates and denied relief. Appellant presents 14 issues for review:
I. Was trial counsel ineffective for failing to challenge the Commonwealth’s dog DNA evidence?
II. Was the Commonwealth’s dog DNA evidence false and unreliable in violation of [ajppellant’s rights to due process and a fair trial?
III. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present evidence in the guilt phase undermining the Commonwealth’s motive theories and supporting the defense?
IV. Did trial counsel ineffectively fail to impeach Jamie Pianta and ineffectively fail to request a corrupt source instruction with regard to Pianta’s testimony?
V. Was [a]ppellant convicted on the basis of inaccurate and unreliable testimony, in violation of his 8th and 14th Amendment rights?
VI. Did the Commonwealth violate its Brady[4] obligations?
VII. Did the trial court abuse its discretion when it failed to voir dire the remaining jurors after dismissing [a] juror[]?
*465 VIII. Was trial counsel ineffective for failing to present good character evidence at [the] guilt phase?
IX. Was [a]ppellant erroneously denied his constitutional right to represent himself at trial?
X. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present expert evidence at [the] guilt phase?
XI. Is [a]ppellant entitled to relief from his death sentence because counsel was ineffective for failing to investigate, developt,] and adequately present substantial mitigating evidence?
XII. Is [a]ppellant entitled to a new sentencing hearing where errors in the trial court’s penalty phase instructions, both individually and cumulatively, denied appellant a fair and reliable sentencing hearing, and was counsel ineffective for failing to object or request proper instructions?
XIII. Was the aggravating circumstance of grave risk of death improperly applied and submitted to the jury in violation of [a]ppellant’s rights to a fair trial and reliable sentencing, and was counsel ineffective for failing to object and raise this claim?
XIV. Was [a]ppellant denied full and fair review in the PCRA [c]ourt?
Appellant’s Brief, at 1-2.
“[A]s a general proposition, we review a denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 301 (2011) (citation omitted). A PCRA court’s credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court. Id., at 305 (citations omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of the evidence: (1) his conviction or sentence resulted from one or more of the errors enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not been previously litigated or waived, id., § 9543(a)(3); and (3) “the failure to litigate the issue prior to or during trial
To be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) he suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987)).5 Counsel is presumed to have rendered effective assistance. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010). Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (2006). Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis. Ali, at 291.
I. GUILT PHASE CLAIMS
Issues I & II: The Commonwealth’s Canine DNA Evidence
As previously noted, the Commonwealth’s theory at trial was that appellant attempted to make it appear that someone else started the fire by creating a threatening note and
In response, appellant’s counsel telephoned several individuals knowledgeable in animal DNA analysis, including Marcia Eggleston, Ph.D, who oversaw the genetic testing of animals at the University of California, Davis, to determine whether a defense expert should be present during the testing. See N.T. PCRA Hearing, 8/10/09, at 32-34. Dr. Eggleston informed counsel she was familiar with Dr. Halverson’s work, Dr. Halverson was qualified to process canine DNA samples using standard protocols, and the procedures were straightforward and generally accepted within the scientific community. See id,, at 39-40, 151. Dr. Eggleston offered to review the results of Dr. Halverson’s test, but she did not tell counsel: (1) canine DNA evidence was novel; (2) Dr. Halverson was not qualified; (3) the genetic DNA markers used by Dr, Halverson were invalid; or (4) her methodology was flawed. See id., at 219. Based on those conversations—but prior to actual testing or preparation of any report—counsel abandoned further inquiry into the scientific validity of canine DNA evidence and ceased efforts to obtain a defense expert; instead, he chose a strategy of advancing the notion that the hairs were merely contaminants, which came in contact with the note after it was prepared. See id., at 40-41.
In pre-trial discovery, the Commonwealth produced reports by Dr. Halverson and statistician Christopher Basten, Ph.D
Assuming that [the utilized] data group is representative of the general dog population and is the correct data set for comparison in this case, the product rule shows that the likelihood that the evidence sample [ ] and reference blood sample are from different dogs and match by random chance exceeds 1 in 1.6 million.
Report of Joy Halverson, DVM, 10/2/01, at 6, available at Petitioner’s Evidentiary Hearing Exhibits, Vol. IX, tab 2. Yet, in a supplemental report, she indicated that since her last report she “completed coursework on forensic DNA analysis and ha[d] a greater understanding of the use of the likelihood ratio for estimating the significance” of a match between the hair and reference samples. Report of Joy Halverson, DVM, 8/26/02, at 1, available at Petitioner’s Evidentiary Hearing Exhibits, Vol. IX, tab 3. She explained she had come to appreciate the necessity of abandoning a straightforward application of the product rule, in favor of applying a likelihood ratio which could correct for “population substructure found in dog breeds and for the data missing from profiles of suboptimal DNA samples, such as the hair in this case.” Id. By applying this ratio and cross-referencing Dr. Basten’s supportive report, Dr. Halverson adjusted her previous probability estimate and concluded it was 1,000 times more likely the hair came from appellant’s dog than any other dog.
After reviewing these reports, appellant’s counsel did not consult with a DNA expert or file a pre-trial motion challenging the admissibility of the experts’ testimony; rather, he maintained the “contamination” strategy. At trial, Dr. Hal-verson testified—consistent with her report—that her testing revealed a match between the hair sample and the reference
Appellant testified at trial and denied creating the threatening note or committing arson or murder. See N.T. Trial, 10/5/02, at 36-37, 61-62. Consistent with trial counsel’s strategy, a DNA expert was not presented in the defense’s case. During closing arguments, trial counsel did not dispute Dr. Halverson’s DNA match, instead advancing the contamination proposition. See N.T. Trial, 10/7/02, at 75-77. In its closing, the Commonwealth stressed the canine DNA evidence connected appellant to the note, demonstrating his preparation and intent to carry out the arson and murder. The Commonwealth also emphasized the fact the hairs were embedded in dried glue, arguing this proved the hairs became attached to the note while the glue was still wet, i.e., during the note’s preparation. See id., at 96-97.
At the PCRA evidentiary hearings, appellant offered expert testimony from Dr. Eggleston, who, like Dr. Halverson, is a member of the International Society for Animal Genetics (ISAG), a scientific organization established to transfer information among animal-genetics labs worldwide. N.T. PCRA Hearing, 8/10/09, at 138. Dr. Eggleston was the chairperson for the canine-genetics workshop at the ISAG and the execu
As to her conversation with appellant’s trial counsel, Dr, Eggleston testified counsel inquired whether an expert should be present to observe the testing of the hair by the Commonwealth’s experts. N.T. PCRA Hearing, 8/10/09, at 148-49. She told counsel canine DNA testing was generally accepted in the scientific community and informed him an expert was not needed because Dr. Halverson had been conducting canine DNA analysis for many years and, thus, Dr. Halverson likely knew the accepted protocols for testing and extracting DNA from the hair. Id., at 150, 213-14, 216-17. Yet, she told counsel an expert should evaluate Dr. Halverson’s interpretation of the testing and offered to conduct such evaluations.
Appellant’s trial counsel also testified at the PCRA evidentiary hearings. He stated Dr. Eggleston notified him that canine DNA testing was straightforward, she knew Dr. Halverson, and the procedure was generally accepted in the scientific community. Id., at 39-40. Trial counsel remarked he initially considered a Frye7 challenge; however, after discussing canine DNA evidence with experts, including Dr. Eggleston, he concluded a Frye challenge or any other pretrial motion would be inappropriate. N.T. PCRA Hearing, 8/10/09, at 34-36, 39-41. He also decided it would be futile to call a defense DNA expert at trial and cross-examine Dr. Halverson and Dr. Basten on the validity of their findings. Id., at 40-41. Trial counsel explained the reasons for his “contamination” strategy, one of which was based on his conversations with canine DNA experts. He also recalled appellant told him his dogs were outside before the threatening note was discovered, which, he reasoned, was one explanation for the hair. Id., at 80-81. Trial counsel felt a contamination theory would be further supported by the fact the note had been in the Commonwealth’s possession for six months before a hair had been found and had been transported
With this background in mind, we turn to appellant’s allegations of error. Initially, he contends the Commonwealth’s canine DNA evidence should not have been admitted at his trial. However, as the Commonwealth points out, appellant did not raise this issue on direct appeal. By failing to challenge the evidence, appellant waived his underlying contentions to the admissibility of the Commonwealth’s canine DNA evidence and the manner in which this evidence was admitted at trial.8 See 42 Pa.C.S. § 9544(b). Because appellant’s remaining claims are couched in terms of ineffectiveness, we proceed to those claims.
We address appellant’s ineffectiveness claims collectively and, as permitted under Strickland, analyze the prejudice prong first. Appellant asserts trial counsel was ineffective for failing to: (1) file a Frye motion challenging the admissibility of the Commonwealth’s canine DNA evidence; (2) challenge Dr. Halverson’s qualifications; (3) cross-examine the Commonwealth’s canine DNA experts; and (4) present a defense canine DNA expert.9
The Commonwealth responds that the PCRA court’s conclusions were supported by the record and free of legal error. The Commonwealth argues Dr. Eggleston should have made counsel aware of any flaws in Dr. Halverson’s methodologies at the time of their conversation, and “[t]o place an expert’s alleged error at counsel’s feet unmoors the analysis from Strickland.” Commonwealth’s Brief, at 18 (citing Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 382 n. 18 (2011)). Regardless, the Commonwealth contends, the court would have denied the Frye motion, and thus, appellant was not prejudiced by counsel’s failure to file the motion. Specifically, the Commonwealth notes Dr. Halverson’s testing was generally accepted in the scientific community at the time of trial, appellant’s own canine DNA expert testified to the same effect at the PCRA hearings, and a difference of expert opinion has no bearing on the admissibility of Dr. Halverson’s theories and methodologies.
The Commonwealth argues a challenge to Dr. Halverson’s qualifications under Pa.R,E. 702 would have been meritless given her qualifications and experience. It claims even if Dr. Halverson lacked the relevant education or degree, she was qualified to render an expert opinion based on her training and experience. Thus, the Commonwealth contends, counsel’s decision to forego such a challenge was reasonable and did not prejudice appellant.
Appellant next submits trial counsel ineffectively challenged Dr. Halverson’s reliability, particularly her credentials, methodologies, and calculations, and he failed to question her on the suitability of the labs in which she tested. He further claims proficient cross-examination would have yielded Dr. Halverson’s and Dr. Basten’s bias. Appellant opines effective cross-examination would have undermined the Commonwealth’s claim that the hair found on the threatening note matched his dog, thereby weakening the Commonwealth’s arguments regarding intent, identity, premeditation, and absence of mistake. He concludes “empirical evidence confirms the prejudice from trial counsel’s deficient performance. ... Confidence in the outcome of [a]ppellant’s trial is undermined.” Appellant’s Brief, at 19.
Appellant argues counsel’s lack of cross-examination and concession of the admissibility of the canine DNA evidence made “presentation of expert testimony in the defense case all the more incumbent.” Id. Based on these alleged errors, he asserts he was prejudiced by counsel’s failure to call a canine DNA expert11 because such an expert would have rebutted all aspects of Dr. Halverson’s and Dr. Basten’s testimony. Appellant contends counsel’s ineffectiveness led the jury to assume the hair sample found on the note matched appellant’s dog and, thus, but for this ineffectiveness, the outcome would have been different.
The Commonwealth notes counsel cannot be deemed ineffective merely for not calling a witness who would offer conflicting expert testimony, and the absence of such testimony did not prejudice appellant. It further rejects the three experts offered by appellant, noting the PCRA court found Dr. Libby and Dr. Mueller not credible. As for Dr, Eggleston, the Commonwealth claims her testimony would not have been credible because she vouched for Dr. Halverson and thus would not have testified at trial that Dr. Halverson’s methodologies were flawed or she was not qualified.
The PCRA court denied relief, concluding appellant failed to prove counsel was ineffective and the outcome would have been different. The court determined Dr. Halverson was qualified to testify at trial as a canine DNA expert; thus, it rejected appellant’s claim that counsel was ineffective for
Additionally, the court rejected appellant’s claims that counsel was ineffective for failing to present a defense DNA expert and sufficiently cross-examine Dr. Halverson and Dr. Basten. Id., at 30-33. After reviewing Dr. Eggleston’s testimony from the PCRA hearings, the court reasoned that, because she had “vouched for [Dr.] Halverson’s testing procedure and [Dr.] Halverson’s qualifications to conduct the test[,]” Dr. Eggleston placed counsel “in the unenviable position of having to virtually concede the strength of the Commonwealth’s canine DNA evidence.” Id., at 31-33. The court highlighted that Dr. Eggleston did not refer counsel to any other expert who might assist him. See id., at 32.12 As to counsel’s failure to request a Frye hearing, the court determined the request would have been futile, for the same reasons explained above. See PCRA Court Opinion, 3/27/12, at 33.
“If a [PCRA] petitioner fails to satisfy any prong of the ineffectiveness inquiry, a claim of ineffective assistance of counsel will be rejected.” Commonwealth v. Eichinger, 631 Pa. 138, 108 A.3d 821, 830-31 (2014) (citation omitted); see also Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998) (“If it is clear that [ajppellant has not demonstrated
Evidence of appellant’s comprehensive preparatory activities was extensive. One month before the fire, he purchased straw on four separate occasions, along with two five-gallon gas cans, and he bought gasoline on two separate occasions the day of the fire—straw, gasoline, and two five-gallon gas cans were recovered at the fire’s points of origin. During that month, he also changed his automobile comprehensive deductible to cover his vehicle if destroyed by fire—notably, he did not alter his collision insurance. Further, he tried to increase the limits on his homeowner’s insurance and sought to purchase life insurance on Jessica, naming himself as beneficiary. A few days before the fire, he affixed a chain ladder to the residence as a means of escape. The jury heard testimony that appellant, on two separate occasions, discussed his plans to kill Jessica to avoid paying child support, stating he would use rope, gasoline, straw, and candles to start a fire in the home. Evidence established the security system had been disabled and the fire was started by using clothing, gasoline, straw, and candles.
Moreover, significant evidence concerning the threatening note itself was submitted to the jury. Earlier on the day the note was discovered, appellant called Ms. Riddle at work and told her someone was lurking around their house, yet he did not call the police at that time. Ms. Riddle did not initially notice the note on the mailbox when she arrived home; thus, appellant insisted they leave the home and visit his parents. When they left, Ms. Riddle noticed the note, and appellant made copies of it before calling police. When police arrived to investigate, appellant told police the doorbell rang earlier in the night but no one was there when he answered, and he saw the note affixed to the mailbox at that time. Despite telling police he noticed the note on the mailbox earlier, appellant did not retrieve it at that time but instead waited until Ms. Riddle came home and discovered it.
Telling evidence of appellant’s behavioral changes was also introduced at trial. Appellant implemented and enforced rules that shoes not be worn in the home, and that bedroom doors be closed and locked. Significantly, on the night of the fire, appellant kept his shoes in his bedroom and his daugh
Given the overwhelming circumstantial evidence of appellant’s guilt, it is difficult to believe the outcome of the proceedings would have been different but for counsel’s failure to challenge the canine DNA evidence.14 See Commonwealth v. Philistin, 617 Pa. 358, 53 A.3d 1, 10 (2012) (stating counsel presumed effective, and appellant must overcome such presumption by proving prejudice, ie., reasonable likelihood outcome would have been different but for counsel’s alleged ineffectiveness (citations omitted)). Accordingly, we conclude appellant’s claims regarding counsel’s ineffectiveness for not challenging the Commonwealth’s canine DNA evidence fail for lack of prejudice.
Appellant claims trial counsel was ineffective for failing to investigate and present evidence contradicting the Commonwealth’s theory of the case, ie., that appellant committed the arson and murder because: (1) he was in financial distress; (2) he would profit by collecting insurance money and rebuilding the home himself;15 and (3) he was unwilling to pay child support.
A Counsel’s failure to present fínancial expert
Appellant asserts trial counsel was ineffective for failing to consult with a financial expert and call such an expert at trial to rebut the Commonwealth’s evidence of his financial status and theories of appellant’s motives. The Commonwealth asserts counsel had a reasonable basis for not consulting with or calling a financial expert to testify, noting he testified at the PCRA hearing: (1) appellant was the best source to assess his own finances; (2) he felt making a common-sense argument at trial that appellant would not have benefitted financially from the fire was sufficient and the evidence would have established the same; and (3) because the Commonwealth had a rebuttal financial expert prepared to testify, he thought it would have been futile to create a battle between experts.
At trial, the Commonwealth established appellant unsuccessfully attempted to borrow money and kept poor financial
The PCRA court mentioned appellant’s personal equity involved no liquid assets and concluded, “Had Mr. McCrory testified at trial, he would not have refuted the evidence that showed that [appellant] had significant expenses and little in the way of liquid assets.” PCRA Court Opinion, 3/27/12, at 69-70. It also found credible the Commonwealth’s PCRA expert who testified appellant’s bank-account balances had significantly decreased weeks before the fire, his debt-to-income ratio supported banks denying him loans, and he would have made approximately $140,000 from insurance proceeds as a result of the fire but only $24,000 in profit if he sold the home. See id., at 70-71. The court cited counsel’s reason for not presenting a financial expert—he felt the Commonwealth could not establish a strong financial motive and there was no benefit “to get into this sort of tit for tat[.]” Id., at 71 (quoting N.T. PCRA Hearing, 8/10/09, at 98). Determining a “battle of the experts” would not have rebutted the Commonwealth’s motive theories and instead would have likely elicited more prejudicial evidence against appellant, the court concluded counsel had a reasonable basis in not presenting a financial
In Chmiel, this Court explained:
Where a claim is made of counsel’s ineffectiveness for failing to call witnesses, it is the appellant’s burden to show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice to the appellant. The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant’s cause. Trial counsel need not introduce expert testimony on his client’s behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a[n] ... expert merely to critically evaluate expert testimony [that] was presented by the prosecution. Thus, the question becomes whether or not [defense counsel] effectively cross-examined [the Commonwealth’s expert witness].
Chmiel, at 1143 (internal quotations marks and citations omitted).
We hold the PCRA court’s conclusions are free from legal error and supported by the record. Apart from the fact that appellant failed to demonstrate Mr. McCrory was known at the time of trial or should have been known to counsel, it is unlikely the expert would have established appellant was financially sound, as Mr. McCrory would not have refuted appellant’s substantial expenses and lack of liquid assets. Further, expert testimony on appellant’s financial status was unnecessary, particularly where counsel cross-examined the Commonwealth witnesses in an effective manner. Additionally, appellant does not explain how he was prejudiced particularly by the failure to present a financial expert, but instead argues he was collectively prejudiced by counsel’s failure to
B. Counsel’s failure to question appellant’s family-law attorney
Although appellant acknowledges trial counsel called Attorney Kelly Mroz, his family-law attorney, as a defense witness at trial, he contends counsel was ineffective in failing to question Attorney Mroz about his financial status. In particular, he asserts Attorney Mroz analyzed his finances and, if properly questioned by counsel, would have testified appellant did not desire to reduce his child-support payments and had a considerable monthly income.
The Commonwealth, on the other hand, asserts Attorney Mroz had limited knowledge regarding appellant’s mortgages and bills; thus, it contends, counsel elicited as much beneficial testimony from Attorney Mroz as she had to offer.
Attorney Mroz testified she was retained by appellant to represent him in a custody matter regarding Jessica. N.T. Trial, 10/4/02, at 209-10. Attorney Mroz stated that a few months before the fire, appellant sought a custody modification to increase his visitation time with Jessica. Id., at 210-13. At the PCRA hearings, Attorney Mroz knew minimal information concerning appellant’s financial status. She had appellant’s bank-account statements and information on occupancy and monthly rent for his apartments, but she was unaware of appellant’s overall financial status, the mortgages on his properties, and his monthly bills and expenses. N.T. PCRA Hearing, 7/7/09, at 87-88.
The PCRA court concluded appellant’s contention lacked arguable merit, as Attorney Mroz would not have supported appellant’s claim that he was financially sound. PCRA Court Opinion, 3/27/12, at 72. We agree and find appellant’s claim meritless. His family-law attorney, who he retained solely to handle a petition to modify his custody and visitation of Jessica, had limited knowledge about his finances. Accordingly, appellant is not entitled to relief on this claim.
Appellant claims trial counsel unreasonably failed to investigate and impeach Ella Alloway, appellant’s tax preparer, based on her crimen falsi and bias in favor of the prosecution. He argues a proper investigation of Ms. Alloway would have uncovered her legal and financial obligations to the Commonwealth as a result of her forgery conviction, and counsel was ineffective in failing to uncover this crimen falsi conviction and use it to impeach her.
The Commonwealth responds appellant did not suffer prejudice by any lack of impeachment, as Ms. Alloway’s testimony supported the possibility appellant received a legitimate threat of arson. It notes Ms. Alloway testified the documents appellant submitted for tax-return preparation lacked sufficient detail, and she did not opine on appellant’s financial status.
Ms. Alloway testified at trial that she prepared appellant’s tax returns from 1996 to 2000 and he poorly maintained his financial records. N.T. Trial, 10/4/02, at 136, 138-39. She also testified appellant—one week before the fire—brought her a box of financial records and asked her to store them, which is something she often did for clients. Id., at 141-44. Appellant asked her for information about his homeowners and auto insurance the day after the fire. Id., at 142-43. On cross-examination, trial counsel elicited testimony that appellant gave Ms. Alloway sufficient information to prepare his tax returns. Id., at 145. Counsel also questioned Ms. Alloway about the box appellant gave her. Ms. Alloway disclosed appellant told her he was concerned because of a threatening note he received, which prompted him to bring her the box of records. Id., at 145-46.
The PCRA court rejected appellant’s ineffectiveness claim, determining he would have lost the benefit of the favorable inferences elicited by counsel on cross-examination had counsel impeached Ms. Alloway with her crimen falsi. PCRA Court Opinion, 3/27/12, at 73. The court reasoned that using
Evidence of a witness’s conviction for a crime involving dishonesty or a false statement is generally admissible. Pa.R.E. 609(a). “A failure to so impeach a key witness is considered ineffectiveness in the absence of a reasonable strategic basis for not impeaching.” Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 565 (2009) (citation omitted). We agree with the PCRA court that counsel acted reasonably in declining to impeach Ms. Alloway, as impeaching her would have discredited favorable testimony, i.e., her corroboration of the defense’s theory that someone else committed the arson. Accordingly, we reject appellant’s claim for his failure to establish the reasonable basis prong of the ineffectiveness test.
Issue IV: Counsel’s Failure to Impeach Mr. Pianta and Request “Corrupt Source” Instruction
Appellant contends trial counsel was ineffective for failing to impeach Mr. Pianta, particularly with evidence of his reputation for dishonesty, crimen falsi juvenile adjudication, use of abases, bias, and mental health. He also argues counsel should have requested a corrupt-source instruction because Mr. Pianta was an accomplice.
A Counsel’s failure to present evidence of Mr. Pianta’s reputation for dishonesty
Appellant claims Mr. Pianta had a reputation for being a thief and a liar, and each of the five character witnesses appellant proffered at the PCRA hearings testified to his reputation for dishonesty. Appellant asserts trial counsel had no reasonable basis for failing to call character witnesses and he was prejudiced because Mr. Pianta was a crucial Commonwealth witness who divulged appellant’s plan to commit the arson and murder, thereby establishing intent and premeditation. The Commonwealth avers appellant failed to establish counsel knew or should have known of all the proffered witnesses except for Sally Owen, an aunt of the
The PCRA court rejected appellant’s ineffectiveness claims, determining the witnesses’ declarations related to specific instances of Mr. Pianta’s conduct, which are inadmissible under Pa.R.E. 608,17 rather than his reputation for dishonesty. PCRA Court Opinion, 3/27/12, at 60-62. The court also concluded most of the testimony appellant presented did not relate to Mr. Pianta’s reputation at the time of trial. Id.
We conclude the PCRA court’s findings are supported by the record and free of legal error. The testimony appellant presented primarily addressed Mr. Pianta’s specific instances of conduct, ie., specific acts of theft and lying, which would have been inadmissible to attack his credibility under Pa.R.E. 608(b)(1). Further, except for Ms. Owen—whose declarations only cited Mr. Pianta’s specific instances of conduct—appellant failed to establish the witnesses were known or should have been known to counsel. See Chmiel, at 1143 (stating to prevail on ineffectiveness claim for failure to call witness, appellant must prove: (1) witness existed; (2) witness was available; (3) trial counsel knew or should have known of witness’s existence; (4) witness was prepared to cooperate and would have testified on appellant’s behalf; and (5) absence of testimony prejudiced appellant). Accordingly, this claim fails.
B. Counsel’s failure to cross-examine Mr. Pianta with crimen falsi
Appellant claims trial counsel was ineffective for failing to cross-examine Mr. Pianta concerning his crimen falsi juvenile adjudication. The Commonwealth asserts counsel had a reasonable basis for believing Mr. Pianta’s juvenile adjudication would not have been helpful, appellant failed to establish he was prejudiced by counsel’s lack of eross-examina
Mr. Pianta, who was 28 years old when he testified at trial, was adjudicated delinquent for theft, unauthorized use of a motor vehicle, criminal mischief, and driving without a license when he was 17. Counsel stated at the PCRA hearings that he did not use Mr. Pianta’s crimen falsi adjudication because he felt it involved minor offenses and thus was insignificant. N.T. PCRA Hearing, 8/10/09, at 23. The PCRA court held, regardless of the minor nature of the offenses, counsel lacked a reasonable basis not to cross-examine Mr. Pianta based on his crimen falsi adjudication, PCRA Court Opinion, 3/27/12, at 63. However, the court determined appellant was not prejudiced because there was no way to demonstrate what impact this adjudication would have on the jury or that the outcome of the trial would have been different. Id.
We agree that appellant has failed to establish the prejudice prong of the ineffectiveness test. Appellant only argues he was cumulatively prejudiced by counsel’s failure to impeach Mr. Pianta with evidence of his reputation for dishonesty, crimen falsi, use of aliases, bias, and mental-health records. He asserts Mr. Pianta’s credibility could have been significantly undermined had counsel not committed the combined errors in cross-examining him. Yet, because he does not explain how he was prejudiced specifically by counsel’s failure to utilize Mr. Pianta’s juvenile adjudication, we decline to deem counsel’s performance constitutionally deficient.
C, Counsel’s failure to present evidence of Mr. Pianta’s use of aliases
Next, appellant submits trial counsel was ineffective for not cross-examining Mr. Pianta as to his use of aliases. Appellant asserts Mr. Pianta’s use of deception was relevant to his reliability and counsel had no reasonable basis for failing to cross-examine him on this basis. The Commonwealth offers no argument on this particular issue, only reiterating appellant failed to demonstrate prejudice and the PCRA court did not err.
D. Counsel’s failure to elicit evidence of Mr. Pianta’s bias
Appellant avers trial counsel failed to cross-examine Mr. Pianta on alleged favorable treatment he received from the Commonwealth because he, at one point, had been investigated by police for the arson. He also asserts Mr. Pianta had outstanding charges at the time of trial. Moreover, appellant argues Mr. Pianta’s bias by testifying for and currying favor with the Commonwealth was sufficient grounds to cross-examine him, and counsel had no reasonable basis for failing to do so.
The Commonwealth replies there was no evidence of favorable treatment and thus counsel’s reasons for not cross-examining Mr. Pianta were legitimate. As to Mr. Pianta’s outstanding charges, the Commonwealth asserts they would have been inadmissible under Pa.R.E. 609 because they are not convictions.
The PCRA court held this claim lacked merit because appellant failed to introduce any evidence of Mr. Pianta’s favorable treatment by the Commonwealth, PCRA Court Opinion, 3/27/12, at 63. We likewise find appellant’s ineffectiveness contention meritless, as he fails to provide any support for Mr. Pianta’s alleged favorable treatment in the police’s arson investigation. As to appellant’s claim that Mr. Pianta had outstanding charges at the time of trial, the charges would have been inadmissible because they were not actual convictions. See Pa.R.E. 609. Because appellant fails to demonstrate arguable merit, we reject his ineffectiveness
E. Counsel’s failure to cross-examine Mr. Pianta regarding his juvenile file
Appellant contends trial counsel was ineffective for failing to review and present evidence of Mr. Pianta’s juvenile file, which the PCRA court sealed because it contained mental-health records. The Commonwealth makes no contention regarding this particular matter.
The PCRA court found nothing in the file would have been admissible for Mr. Pianta’s competency or for any other reason. PCRA Court Opinion, 3/27/12, at 64. Thus, it concluded appellant’s claim lacked arguable merit. Id. The PCRA court’s findings are supported by the record and free of legal error. Our review of the record demonstrates any evidence in Mr. Pianta’s juvenile file relevant to his credibility would be inadmissible as specific instances of conduct, see Pa.R.E. 608(b)(1), and none of the information involved Mr. Pianta’s credibility at the time of trial. Hence, appellant’s ineffectiveness claim fails.
F. Counsel’s failure to request a corrupt-source instruction
Appellant argues trial counsel was ineffective for failing to request a corrupt-source instruction in connection with Mr. Pianta’s testimony. He maintains he was entitled to a corrupt-source charge because there was sufficient evidence to present a question to the jury concerning whether Mr. Pianta was an accomplice. He asserts counsel’s belief the request would have been futile is insufficient and unreasonable. As to prejudice, he only claims “there is a reasonably [sic] likelihood th[e] jurors would have accorded less weight to Pianta’s testimony over-all. Confidence in the outcome is undermined.” Appellant’s Brief, at 31.
In response, the Commonwealth argues there was no evidence presented at trial from which the jury could have
The PCRA court held a corrupt-source instruction was not supported by the evidence admitted at trial. PCRA Court Opinion, 3/27/12, at 66. Further, the court noted, painting Mr. Pianta as an accomplice would have contradicted appellant’s defense theory that the arson was committed by some unknown intruder. Id., at 66-67.
“[I]t ‘is well established that, in any case in which an accomplice implicates the defendant, the [judge] should instruct the jury that the accomplice is a corrupt and polluted source whose testimony should be considered with caution.’ ” Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426, 462 (2011) (citation omitted). A corrupt-source instruction is warranted where sufficient evidence is presented as to whether the witness is an accomplice. Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1181 (1999). An individual is an accomplice if, with intent to promote or facilitate the commission of the offense, he solicits, aids, agrees, or attempts to aid another person in planning or committing the offense. 18 Pa.C.S. § 306(c)(1).
The record supports the PCRA court’s finding appellant failed to demonstrate entitlement to relief. There was no evidence Mr. Pianta was an accomplice to the arson or the murder. Mr. Pianta lived in one of appellant’s apartments and would work for him in lieu of rent. He had been to appellant’s home a few times to retrieve tools or help with work, but he never stayed overnight or had been there for more than a few hours. Mr. Pianta stated he accompanied appellant twice on trips to pick up Jessica from her mother’s home, and on both occasions, appellant discussed his intent to commit the murder. These trips took place the week of the fire and about one month before the fire. Appellant told Mr.
Mr. Pianta’s prior knowledge of appellant’s possession of straw and the fact Mr. Pianta attached the chain ladder to appellant’s home is insufficient to support an accomplice instruction. Mr. Pianta’s testimony was not contradicted, and there was no evidence he took part in appellant’s crimes. Because appellant was not entitled to a corrupt-source instruction, his ineffectiveness claim fails for lack of arguable merit. Moreover, as the PCRA court pointed out, we see no reason why counsel would have requested an instruction that Mr. Pianta is a corrupt and polluted source—whose testimony should not be believed because he helped appellant plan and commit the arson and murder—because counsel’s defense strategy was to blame the arson on an unknown intruder.
Issue V: Inaccurate and Unreliable Testimony
Appellant claims his conviction violated due process because Mr. Pianta’s testimony was inaccurate and unreliable. Appellant bases his claim on an opinion expressed by a prosecutor who handled Mr. Keith’s guilty plea. Specifically, appellant claims the prosecutor for Mr. Keith’s plea made statements to the media and at Mr. Keith’s plea hearing that established the inaccuracy and unreliability of Mr. Pianta’s testimony.
The Commonwealth argues appellant’s claim is waived because he did not raise it on direct appeal. Even had appellant not waived his contention, the Commonwealth continues, the prosecutor’s personal opinion was inadmissible and did not constitute Brady material, especially due to the fact the prosecutor was not involved in appellant’s ease, as the prose
As the PCRA court properly held, appellant’s allegation of trial court error is waived for failure to raise it on direct appeal. See 42 Pa.C.S. § 9544(b). Furthermore, the PCRA court determined, despite waiver, appellant’s contention lacked merit. After appellant was sentenced, Mr. Keith pled guilty to hindering apprehension or prosecution, and charges for conspiracy to commit arson and murder were dropped. The prosecutor—an Erie County Assistant District Attorney18— was quoted in a newspaper article explaining one reason for agreeing to Mr. Keith’s guilty plea was due to “what happened in [appellant’s] case and the problems we know to exist with the testimony of [ ] Pianta[.]” Id., at 18. He made a similar statement to the court during Mr. Keith’s guilty-plea hearing. The prosecutor explained conspiracy charges against Mr. Keith were not pursued because the conspiracy charges were withdrawn against appellant. Id., at 11. He also explained he knew nothing about appellant’s trial or whether Mr. Pianta even testified at appellant’s trial; rather, he merely relayed to the court during Mr. Keith’s guilty plea the reasons conveyed to him by the District Attorney. See, e.g., id., at 11, 13.
Even if appellant preserved his claim—which he did not— we hold he fails to demonstrate arguable merit and prejudice, as Mr. Keith’s plea took place after appellant was sentenced and the jury at his trial was free to reject Mr. Pianta’s testimony if he was found to be unreliable.
Issue VI: Brady Claims
Appellant claims the Commonwealth violated Brady by precluding him from presenting testimony from Mr. Keith and withholding evidence that police provided housing
A Mr. Keith’s testimony
Appellant argues Mr. Keith was a critical defense witness and the Commonwealth influenced Mr. Keith to invoke his Fifth Amendment rights on the stand at appellant’s trial, which was evinced from the fact—as explained above—Mr. Keith was permitted to plead guilty to hindering apprehension in exchange for withdrawal of conspiracy charges. Appellant alleges the Commonwealth had a quid pro quo deal with Mr. Keith that if he invoked his Fifth Amendment rights at appellant’s trial, he would receive the aforementioned plea deal. The Commonwealth contends there was no evidence of any discussion of a deal. The Commonwealth explains it in no way deprived appellant of Mr. Keith’s testimony; rather, Mr. Keith invoked his rights at appellant’s trial solely on the advice of counsel.
Preliminarily, we note appellant fails to indicate when or how he became aware of the alleged Brady material, ie., Mr. Keith’s guilty plea, which appears to have been available at the time of his post-sentence motions or direct appeal. He fails to offer any explanation as to why this information could not have been obtained earlier with the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(2). Accordingly, appellant’s Brady claim is waived because it could have been raised in an earlier proceeding. See id., § 9544(b); see also Chmiel, at 1129-30 (concluding appellant’s Brady claim concerning alleged deal between prosecutor and two material witnesses was waived for failure to have raised it in earlier proceeding (citations omitted)); Commonwealth v. Bomar, 629 Pa. 136, 104 A.3d 1179, 1190-91 (2014) (finding Brady claim waived where appellant did not show information was not available at trial or counsel could not have uncovered it with reasonable diligence), ‘petition for cert. filed (U.S. May 6, 2015) (No. 14-9649). However, because the Commonwealth does not argue waiver, we will address the claim on the merits.
In October, 2001, Mr. Keith pled guilty to conspiracy to commit murder and arson, and he was awaiting sentencing. N.T. PCRA Hearing, 7/7/09, at 7. In September, 2002, one month before appellant’s trial commenced, Ms. Riddle called Attorney Charbel Latouf and requested he represent Mr. Keith for the purpose of withdrawing his guilty plea. Id., at 5-7. Attorney Latouf entered his appearance and filed a motion to withdraw Mr. Keith’s guilty plea September 17, 2002. Id., at 9. Attorney Latouf testified he advised Mr. Keith to invoke his Fifth Amendment rights at appellant’s trial and not testify. Id., at 11. As Mr. Keith invoked his rights at appellant’s trial, he was unavailable as a witness. Minutes
The record supports the PCRA court’s finding that Mr. Keith invoked his Fifth Amendment rights at appellant’s trial based solely on counsel’s advice. Attorney Latouf testified, once the guilty-plea-withdrawal motion was filed, neither he nor Mr. Keith cooperated with the Commonwealth or the defense, and the only favorable treatment Mr. Keith received from the Commonwealth came at the hearing on the motion subsequent to appellant’s trial. See id., at 12-22. As explained above, the Commonwealth offered the plea to Mr. Keith in light of the evidence elicited at appellant’s trial, not in exchange for Mr. Keith’s invocation. Because the record supports the factual finding that no agreement existed, appellant’s claim lacks merit, as he has failed to establish the Commonwealth did not disclose exculpatory or impeaching evidence.
B. Evidence showing police provided Mr. Pianta witness protection
It is undisputed police housed Mr. Pianta and his girlfriend in a local motel for approximately one month during March and April, 2001, costing approximately $525. Appellant claims the Commonwealth violated Brady by failing to disclose this evidence. He asserts the evidence was material to his defense by undermining Mr. Pianta’s credibility. The Commonwealth argues this information was immaterial and, had it been disclosed, would have been harmful and prejudicial to appellant because Mr. Pianta was housed due to his fear of appellant and because he rented an apartment from appellant. Therefore, as the evidence would have led the jury to infer appellant would retaliate against individuals who testified against him, the Commonwealth contends the information was not favorable to appellant and thus not Brady material.
Issue VII: Trial Court’s Failure to Voir Dire Jurors
During the guilt phase of appellant’s trial, the court received a letter from a juror expressing concern about another juror’s inappropriate behavior and comments at a restaurant. The trial judge, in chambers and in the presence of all counsel, questioned court staff, the accused juror, and other jurors who interacted with the accused juror at the restaurant. All parties agreed to dismiss the accused juror, and thus he was dismissed. The judge then returned to the courtroom and questioned the jury as a whole concerning its ability to remain fair and impartial; no juror indicated his fairness or impartiality had been affected. Appellant’s trial counsel did not object to the manner in which the court handled the issue with the accused juror. See N.T. Trial, 10/4/02, at 3-^41, 48-52.
Appellant now contends the court erred in failing to voir dire each juror individually. The Commonwealth asserts this
As the PCRA court correctly concluded, appellant’s claim is waived, not only because counsel failed to timely object but also because the allegation of trial court error was not raised on direct appeal. See 42 Pa.C.S. § 9544(b).
Issue VIII: Counsel’s Failure to Present Good Character Evidence
Appellant argues trial counsel was ineffective for failing to present evidence of his good character during the guilt phase of the trial, which could have raised reasonable doubt in the mind of the jury. Specifically, appellant claims counsel failed to investigate and present evidence supporting his good reputation for being a peaceful, honest, and law-abiding citizen. He also asserts counsel’s explanation for not presenting good character evidence—that it would have evinced instances of appellant’s misconduct involving prior arsons and theft— was unreasonable because he had no prior convictions. Thus, he concludes, any evidence of prior misconduct would have been barred on cross-examination.
The Commonwealth stresses trial counsel had a reasonable strategic basis for deciding not to call character witnesses, as appellant’s evidence of good character was minimal and there was a strong likelihood of eliciting substantial evidence of bad character.
The PCRA court concluded counsel adequately explored the possibility of presenting character evidence and had a reasonable basis for not calling character witnesses. PCRA Court Opinion, 3/27/12, at 74. The court determined there was a substantial risk in presenting character evidence because it would have opened the door to specific instances of bad acts or criminal conduct, particularly appellant’s involvement with approximately nine other arsons committed both as a juvenile and adult. Id. Thus, because counsel had a reasonable basis
The failure to call character witnesses does not constitute per se ineffectiveness. Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 693 (2009) (citation omitted). In establishing whether defense counsel was ineffective for failing to call witnesses, appellant must prove:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008) (citation omitted).
Preliminarily, we note appellant has not identified or presented any potential character witnesses; this alone is grounds to deny relief. In addition, we conclude, as did the PCRA court, that after exploring the possibility of presenting good character evidence, counsel had a reasonable, strategic basis in not calling character witnesses. “While character witnesses may not be impeached with specific acts of misconduct, a character witness may be cross-examined regarding his or her knowledge of particular acts of misconduct to test the accuracy of the testimony.” Id., at 281 (citation omitted). Counsel testified at the PCRA evidentiary hearings that appellant had minimal evidence of good character and substantial bad character evidence—specifically, the involvement in nine other fires, some of which were ruled as arsons—and he did not want to risk introduction of that evidence. Accordingly, trial counsel was not ineffective for failing to present good character evidence.
Issue IX: Trial Court’s Denial of Appellant’s Request to Represent Himself
Appellant alleges the trial court erred in denying his request to represent himself at the remainder of the guilt
On the last day of the guilt phase, appellant expressed the desire to represent himself, and informed the court he was not attempting to delay the proceedings because he had his closing argument prepared that day and was ready to proceed. The trial court conducted a colloquy and denied the request, finding that allowing appellant to represent himself when the guilt phase was nearly complete would have confused the jury and caused disruption, inconvenience, and delay.
As the PCRA court correctly concluded, this issue has been previously litigated. See Treiber, at 32 (trial court did not abuse its discretion in denying appellant’s request to represent himself); see also 42 Pa.C.S. § 9544(a)(2). Insofar as appellant alleges counsel failed to thoroughly advocate for his right to represent himself, his cursory claim of ineffectiveness is waived for failure to develop it in any meaningful fashion capable of review. See Walter, at 566 (holding claims waived for failure to develop them).
Issue X: Counsel’s Failure to Investigate/Present Expert Evidence
Appellant claims trial counsel was ineffective for failing to investigate, develop, and introduce expert testimony to contradict the Commonwealth’s evidence, particularly experts regarding: (1) canine DNA evidence; (2) fire investigation; (3) appellant’s indifferent demeanor; and (4) appellant’s financial status. Because we have addressed appellant’s issues as to canine DNA evidence and his financial status, see supra, Issues I—III, we will only address appellant’s claims as to fire investigation and his indifferent demeanor.
Appellant argues trial counsel was ineffective for failing to call David Redsicker, an arson expert, at trial to rebut the Commonwealth’s arson testimony from a state fire marshal. While appellant acknowledges counsel consulted with Mr. Redsicker prior to trial, he asserts counsel was ineffective for not asking Mr. Redsicker a crucial question, ie., whether a delay device was used in the arson. He also claims Mr. Redsicker would have testified the absence of defectible gasoline on appellant’s clothes the night of the fire meant he did not pour gasoline that night.
The Commonwealth maintains counsel had a reasonable basis for not calling Mr. Redsicker, asserting there was no dispute the fire was an arson and Mr. Redsicker identified a third point of origin near Jessica’s bedroom. It thus argues appellant suffered no prejudice because Mr. Redsicker would not have offered helpful or additional information. The Commonwealth notes its theory at trial was that appellant used a delay device to start the fire to allow him to get away without injury, and Mr. Redsicker testified at the PCRA hearings that straw, candles, and gasoline could be used to create delay devices. The Commonwealth contends Mr. Redsicker’s opinion that appellant must not have poured gasoline because he did not have it on his clothing was highly speculative. Nonetheless, the Commonwealth submits, the lack of such testimony did not prejudice appellant because it was undisputed gasoline was not found on his person and his counsel emphasized this fact during closing argument.
At trial, the Commonwealth offered testimony from the state fire marshal who examined the scene. He concluded there were two unconnected points of origin—one in the garage and the other in the basement—and straw, candles, and gasoline were used as delay devices to start the fire. Appellant’s trial counsel consulted with Mr. Redsicker prior to trial but did not call him at trial as an expert witness because: (1) there was no dispute an arson was committed; (2) Mr. Redsicker believed appellant’s basement window had been opened to provide oxygen and fuel the fire; and (3) there was
The PCRA court held counsel made a reasonable, strategic choice not to call Mr. Redsicker due to the possibility he would indicate a third point of origin—which could have hurt appellant—and it was reasonable for counsel to assume Mr. Red-sicker had no dispute as to the use of delay devices, or he would have informed him of any disagreement with the fire marshal’s conclusions. PCRA Court Opinion, 3/27/12, at 52-53. The court also concluded appellant failed to establish prejudice, as Mr. Redsicker’s testimony at the PCRA hearings did not dispute the fire marshal’s conclusions at trial. Id. The court discredited Mr. Redsicker’s testimony that appellant could not have started the fire because there was no gasoline found on his clothing, finding such opinion purely speculative. Id.
As discussed swpra, the mere failure to call an expert rebuttal witness is not per se ineffectiveness, and counsel need not introduce such expert if he effectively cross-examines the Commonwealth’s witnesses and elicits helpful testimony. See Chmiel, at 1143 (citations omitted). Appellant fails to argue counsel’s cross-examination of the fire marshal was inadequate. Our review of the record demonstrates counsel effectively cross-examined the fire marshal and elicited helpful testimony in support of the defense theory that an unknown intruder committed the arson. See N.T. Trial, 10/1/02, at 134-44 (questioning as to evidence of forced entry in home and possibilities that may have shown intruder committed arson). Thus, counsel was not ineffective.
B. Mental-Health Expert
Numerous non-expert Commonwealth witnesses testified appellant lacked emotion at the time of the fire and after his daughter’s death. Trial counsel attempted to rebut this testimony by presenting appellant’s mother, who described appellant as generally unemotional and stated he had acted this way since he was a child, attributing his indifferent demeanor to a family trait. The PCRA court determined appellant failed to establish the reasonable basis and prejudice prongs of the ineffectiveness test.
Appellant argues counsel failed to investigate and present mental-health evidence to rebut the Commonwealth’s non-expert testimony that he showed no emotion and lacked grief for his daughter’s death. Specifically, appellant asserts he suffered brain damage from an accident approximately ten years before the fire. He posits that had counsel presented mental-health evidence, an explanation would have been provided to the jury that his indifferent demeanor or lack of
The Commonwealth argues counsel made a reasonable strategic decision not to present a mental-health expert in light of the pre-trial examination conducted by Steven Reilly, see infra, Issue XI, and appellant failed to show he was prejudiced by counsel’s alleged ineffectiveness.
While appellant offers extensive argument as to counsel’s ineffectiveness for failing to present mental-health evidence during the penalty phase, he makes only cursory claims of ineffectiveness regarding the guilt phase, merely incorporating by reference the entirety of his penalty-phase contentions for support as to why counsel was ineffective in the guilt phase of his trial. Because he fails to explain why counsel had no reasonable basis for his guilt-phase decisions or how the outcome would have been different, his guilt-phase issue is waived as underdeveloped. See Walter, at 566 (holding claims waived for failure to develop them).
II. PENALTY-PHASE CLAIMS
Issue XI: Counsel’s Failure to Investigate/Present Mitigating Evidence
Appellant claims trial counsel was ineffective for failing to investigate and present penalty-phase mitigating evidence of appellant’s medical, psychological, and sociological history, and his good behavior in prison. He maintains counsel’s decision to abandon presenting evidence of his psychological and sociological problems in favor of a “life is worse than death” argument was an irrational strategy. Appellant argues had counsel conducted a reasonable investigation, he would have discovered compelling evidence warranting expert psychiatric and neuropsychological testimony to directly support the claim of neurological impairment and brain damage, which was submitted to the jury under the catch-all mitigator but not found. He alleges such expert testimony could have led to submitting additional mitigating circumstances to the jury under 42 Pa.C.S. §§ 9711(e)(2), 9711(e)(3).
Appellant alleges similar defects in counsel’s pre-trial consultation with another psychologist, Dr. Michael Schwaben-bauer, and argues counsel was ineffective in failing to seek a referral from Dr. Schwabenbauer. He claims counsel, despite receiving unfavorable conclusions from Mr. Reilly and Dr. Schwabenbauer, should have continued to seek additional mental-health experts and obtained a neuropsychological examination of appellant.
Appellant alleges counsel unreasonably expected Mr. Reilly and Dr. Schwabenbauer to request additional information if they needed it to render their opinions; instead, counsel should have sought out and provided the experts additional information, including a 1980 diagnosis from a childhood psychologist that concluded appellant had minimal brain dysfunction and a low intelligence quotient (IQ). Appellant avers that—even though Mr. Reilly and Dr. Schwabenbauer both concluded he did not suffer from cognitive or mental impairments—counsel was unreasonable for not calling them as penalty-phase witnesses and further pursuing additional mitigating evidence of his mental health. He asserts counsel’s basis for not providing extensive mitigating evidence of his cognitive and mental impairments, ie., there was no legitimate mental-health issue, is improper because counsel was never in
Appellant also argues counsel was ineffective for failing to present mitigating evidence of his good behavior in prison and the likelihood of positive prison conduct in the future. Although he admits counsel generally submitted to the jury that he adapted well in prison and cooperates with prison personnel, he claims counsel failed to present witnesses and other available evidence to support the notion he had behaved himself in prison and would exhibit the same behavior in the future.
The Commonwealth counters that counsel articulated a reasonable basis for his decisions, especially considering his limited financial resources and appellant’s refusal to cooperate with counsel. Noting the PCRA court specifically found counsel credible, the Commonwealth argues counsel reasonably relied on Mr. Reilly’s and Dr. Schwabenbauer’s conclusions that appellant had no mental abnormalities and assumed those experts would have requested additional information if they needed it to render their opinions. Based on Mr. Reilly’s and Dr. Schwabenbauer’s determinations, the Commonwealth contends counsel was reasonable in electing not to call them as witnesses. Also, it offers additional reasons supporting counsel’s decision not to present mental-health evidence: (1) appellant ran his own real-estate enterprise; (2) he functioned well in everyday life; (3) his mother testified his “flat affect” or indifferent demeanor was a family trait that pre-dated his 1991 accident; and (4) the crime of which he had just been convicted entailed extensive planning and premeditation.
At the PCRA hearings, trial counsel testified he explored presenting mental-health evidence at the penalty phase and consulted with two experts prior to trial, Dr. Schwabenbauer and Mr. Reilly. Trial counsel stated Dr. Schwabenbauer treated appellant after his 1991 vehicle accident, and he met with Dr. Schwabenbauer March 22, 2002, so that he could review appellant’s records. N.T. PCRA Hearing, 10/22/10, at 108-10. According to counsel, Dr. Schwabenbauer told him:
Regarding Mr. Reilly, counsel testified at the PCRA hearings that he spoke to him twice over the phone and requested he evaluate appellant’s “flat affect,” ie., lack of emotion, and any other potential cognitive or mental defects. Id., at 39-41, 84-85. Counsel stated he chose Mr. Reilly because he was affordable, had a forensic background as a clinical psychologist, and was well respected in the professional community because he gives fair and honest assessments, regardless of whether the results are favorable to the party seeking the evaluation. Id., at 84-85, 148-49. Counsel provided Mr. Reilly with all of appellant’s medical records from 1991 to
Counsel described the basis for his penalty-phase decisions at the PCRA hearings. He decided there was no genuine mental-health issue based on Dr. Schwabenbauer’s and Mr. Reilly’s conclusions and the fact that appellant successfully maintained a real-estate career. Id., at 52-54, 59-61, 172-74. He also explained the Commonwealth at trial set forth substantial evidence of appellant’s controlling personality, deception, and planning, ie., efforts requiring mental competence and intelligence. Id. Counsel reasoned because appellant lacked any real mental-health component, presenting weak mental-health evidence would offend the jury and convey to it that the defense was appealing to its sympathy. Id. Counsel
Dr. Schwabenbauer and Mr. Reilly both testified at the PCRA hearings. Dr. Schwabenbauer agreed counsel consulted with him and requested he perform neuropsychological testing on appellant, but he claimed counsel never provided him with appellant’s 1996 MRI records, which indicated appellant’s brain damage. N.T. PCRA Hearing, 6/1/11, at 43, 57-58. Dr. Schwabenbauer also stated he told counsel appellant should be examined by a neuropsychologist. Id., at 47. Mr. Reilly testified counsel never provided him with appellant’s 1996 MRI records, juvenile records, or the 1980 diagnosis from his childhood psychologist. N.T. PCRA Hearing, 8/10/09, at 114-15. Mr. Reilly asserted, had counsel given him these records, he would have recommended appellant undergo neuropsychological testing. Id., at 116-18.
The PCRA court held counsel had a reasonable basis for not presenting mental-health testimony at the penalty phase, especially when considering Dr. Schwabenbauer’s and Mr. Reilly’s conclusions and the fact appellant did not cooperate with counsel regarding the penalty phase. PCRA Court Opinion, 3/27/12, at 46. The court explained appellant repeatedly advised counsel not to pursue penalty-phase evidence and refused to meet with a mental-health expert. It noted appellant instructed counsel on several occasions to focus on the guilt phase and refused to spend time and money purely on the
The court also concluded appellant failed to establish prejudice. Id., at 51. It credited the Commonwealth’s PCRA mental-health experts over appellant’s, finding appellant’s expert neuropsychologist’s conclusions were “convincingly contradicted.” Id., at 48-50.21 The Commonwealth’s PCRA experts evaluated appellant and concluded he was not suffering from a mental disorder at the time of the offense, he was able
“The inquiry of whether trial counsel failed to investigate and present mitigating evidence turns upon various factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented.” Commonwealth v. Simpson, 620 Pa. 60, 66 A.3d 253, 277 (2013) (citation omitted). The reasonable basis prong of an ineffectiveness claim does “ ‘not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.’ ” Chmiel, at 1127 (citation omitted).
First, we note the PCRA court found counsel’s testimony credible over Dr. Schwabenbauer’s and Mr. Reilly’s, and such credibility findings, if supported by the record, are binding on this Court. PCRA Court Opinion, 3/27/12, at 40-42; see also Dennis, at 305 (PCRA court’s credibility findings, where supported by record, are binding on reviewing court). Accordingly, we are bound by the supported determination that appellant’s counsel provided all medical records from 1991 to 2002, including the 1996 MRI records, to Dr. Schwabenbauer and Mr. Reilly. See N.T. PCRA Hearing, 10/22/10, at 91-100, 106, 170. Thus, appellant’s argument that Dr. Schwa-benbauer and Mr. Reilly would have concluded he suffered cognitive and mental impairments had they been given his 1996 MRI records lacks arguable merit.
We agree with the PCRA court that counsel was reasonable in conducting his investigation by relying upon the experts’ determinations and putting forth a mitigation defense.22 Counsel’s investigation included compiling a social
To establish prejudice, appellant must prove:
“[T]here is a reasonable probability that, absent counsel’s failure to present the mitigation evidence he currently proffers, [appellant] would have been able to prove at least one [more] mitigating circumstance by a preponderance of the evidence and that at least one jury member would have concluded that the mitigating circumstance(s) outweighed the aggravating circumstance(s).”
Philistin, at 28 (quoting Lesko, at 383). A majority of this Court in Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736 (2014), reasoned that the weighing of mitigating circumstances is qualitative, not quantitative, and thus a finding by the jury of the catch-all mitigator does not per se preclude this Court from deeming counsel ineffective because the jury may have given that factor more weight had counsel proffered additional mitigation evidence. See id., at 775-77 (Castille, J., concur
Yet, not only does appellant fail to acknowledge the jury found the catch-all mitigating circumstance, he also does not argue the evidence counsel failed to present would have caused at least one juror to add more weight to the catch-all mitigator. He only asserts a proper mental-health investigation “would have directly supported the neurological impairment and brain damage mitigating factor ... which w[as] submitted to the jury under [ ] § 9711(e)(8), but not found[.] Such expert testimony also could have supplied the basis for submitting additional mitigating circumstances to the jury[.]” Appellant’s Brief, at 65. Specifically as to prejudice, appellant merely claims that, based on the testimony offered by his PCRA experts, “confidence in the outcome of the penalty phase is undermined.” Id., at 69. We note the PCRA court did not find appellant’s PCRA experts credible, and such credibility findings, which are supported by the record, are binding on this Court. See PCRA Court Opinion, 3/27/12, at 47-51. Accordingly, appellant has failed to demonstrate the requisite prejudice for relief on his mental-health mitigating evidence claim.
We also agree with the PCRA court’s conclusion that appellant failed to establish counsel was ineffective for failing to offer mitigating testimony supporting appellant’s good prison behavior. At the penalty phase, counsel submitted to the jury a prison-adjustment summary, which evinced appellant’s good prison behavior, and asked the jury to find appellant’s successful adaptation to prison as a mitigating circumstance under the catch-all mitigator. Counsel did not present testimony on this point because the court ruled if he made future dangerousness an issue, or argued that “life means life” or that appellant would not be paroled, it would instruct the jury on the concepts of pardons and executive clemency. See N.T.
Appellant asserts only that counsel was ineffective in failing to present testimony of his good prison behavior. He fails to allege how such testimony would not merely be cumulative of the admitted prison-adjustment summary—evidence that established his good prison behavior. He also does not argue counsel lacked a reasonable basis for not presenting testimony or making future dangerousness an issue. And he does not explain how he was prejudiced by counsel’s alleged ineffectiveness, but merely contends counsel’s ineffectiveness in presenting testimony of good prison behavior, coupled with his deficiencies in investigating mental health, undermined confidence in the penalty phase’s outcome. See Appellant’s Brief, at 69. Accordingly, we conclude appellant has failed to demonstrate he is entitled to relief.
Issue XII: The Trial Court’s Alleged Errors in Penalty-Phase Instructions
Appellant asserts the trial court’s penalty-phase instructions were erroneous and violated the Eighth and Fourteenth Amendments of the United States Constitution. Particularly, appellant claims the court (1) erred in giving a “more terrible less terrible” instruction because it narrowed the jury’s consideration of mitigating circumstances, and (2) improperly limited mitigating evidence by stating, if counsel argued appellant posed no risk of future danger to others, it would instruct the jury on the commutation process in Pennsylvania.
The Commonwealth counters that appellant’s claims are waived and alleges he “attempts to superficially couch this claim as one of ineffective assistance,” which fails because he makes no effort to develop the claim. Commonwealth’s Brief, at 55. Addressing the merits, it asserts the court acted within its discretion, and did not limit mitigating evidence but instead accurately stated the law when instructing the jury on the commutation process.
Issue XIII: The “Grave-Risk” Aggravator was Unconstitutionally Vague and Counsel Failed to Object
Appellant claims Pennsylvania’s “grave-risk-of-death” aggravating circumstance, 42 Pa.C.S. § 9711(d)(7),25 is unconstitutionally vague and susceptibly overbroad. He asserts because the Commonwealth identified Ms. Riddle, firefighters, police, and neighbors as the potential “another person” under subsection (d)(7), and the jury did not identify which individual constituted that person, the aggravating factor was not found beyond a reasonable doubt. Further, based on that analysis, appellant contends the court should have provided a limiting instruction to the jury requiring it to identify the person it found to have been endangered.
In response, the Commonwealth notes this Court has previously addressed and rejected vagueness challenges to the “grave-risk” aggravator, the applicable definition of the aggra-vator is easily understood by juries, and ample evidence supported the jury’s finding of the § 9711(d)(7) aggravator.
Because counsel did not object at the penalty phase, appellant’s allegation of trial court error is waived for failure to raise it below. Id., § 9544(b); see also Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 881 (2008) (appellant waived claim of trial court error regarding jury charge because counsel did not raise any contemporaneous objection). Insofar as appellant asserts counsel was ineffective for failing to object, we conclude his cursory claim is waived for failure to develop the issue. See Walter, at 566 (holding claims waived
Issue XIV: Denial of Full and Fair Review
Appellant argues he was denied a full, fair, and meaningful review because of numerous procedural errors by the PCRA court. Therefore, he requests a remand to correct the deficiencies. Such relief is not warranted.
A The PCRA Court’s Denial of Discovery
Appellant’s first complaint concerning the PCRA proceedings is the denial of discovery pertaining to the Commonwealth’s canine DNA evidence, particularly denying discovery of Dr. Halverson’s database used in appellant’s case and a request for on-sight inspection of Dr. Halverson’s lab. The Commonwealth contends appellant was permitted sufficient latitude in cross-examining Dr. Halverson and that inspecting her lab ten years after trial would have no probative value.
“On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2). This Court reviews the denial of a post-conviction discovery request for an abuse of discretion. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 353 (2013). “ ‘A showing of good cause requires more than just a generic demand for potentially exculpatory evidence.’ ” Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237,
These issues are waived because appellant did not state them with sufficient specificity in his Concise Statement of Matters Complained of on Appeal. See Pa.R.A.P. 1925(b)(4)(vii). In his concise statement, appellant raised the issue: “Whether the PCRA [c]ourt erred in denying Petitioner/Appellant's motions for discovery filed May 2, 2008, June 18, 2009, September 18, 2009 and November 23, 2009[.]” Appellant’s Rule 1925(b) Statement, 5/14/12, at 5. These motions requested discovery of virtually all evidence related to appellant’s case, including wholesale discovery of all evidence pertaining to Dr. Halverson’s canine DNA evidence. Appellant’s brief also fails to address the particular motions and evidence of which the court improperly denied him discovery. Regardless, our review of the record leads us to conclude the PCRA court did not abuse its discretion by denying discovery regarding Dr. Halverson’s database and on-sight inspection of her lab, as those requests amounted to nothing more than a fishing expedition. See PCRA Court Opinion and Order, 9/16/08, at 1-4, 11; 7/10/09, at 1-2; 9/21/09, at 1; 2/17/10, at 1-2; see also Collins, at 272 (discovery request based on mere speculation of potential exculpatory evidence fails to establish good cause discovery requirement).
B. Rulings at the PCRA Court Evidentiary Hearing
Appellant asserts the PCRA court interfered with his right to adequately examine witnesses and present relevant testimony on several issues during the PCRA hearings, which collectively prevented fact development in support of his claims. Initially, we note appellant, in his concise statement, raised the issue:
Whether the PCRA [e]ourt erred in denying Petitioner/Appellant’s other motions, including but not limited to a motion to present a witness in rebuttal to Commonwealth witness Joy Halverson[,] a motion to recall [] Timothy George[,] [sic] and a motion to strike a statement contained in Commonwealth’s Exhibit 20, slide 9[.]
Appellant contends the PCRA court erred in preventing him from presenting rebuttal testimony from DNA expert Dr. Antoinette Marsh. The Commonwealth asserts the court permitted appellant sufficient latitude in cross-examining Dr. Halverson and it soundly exercised its discretion in finding additional rebuttal evidence unnecessary.
“It is well settled that the admission or rejection of rebuttal evidence is within the sound discretion of the trial court.” Commonwealth v. Bond, 604 Pa. 1, 985 A.2d 810, 829 (2009). Here, the PCRA court precluded the proposed expert rebuttal testimony because it would have been merely cumulative and exceeded the parameters of rebuttal evidence. PCRA Court Opinion, 12/20/10, at 2. The court determined Dr. Marsh’s proffered opinion was premised on various speculative assumptions, which undermined appellant’s request. Id. Further, the court reasoned, appellant had ample opportunity to present evidence on the relevant Frye issues and indeed had done so, as he presented “virtually every aspect of animal DNA testing and [Dr.] Halverson’s methodology.” Id. Accordingly, the court did not abuse its discretion in denying the presentation of rebuttal testimony from Dr. Marsh. Moreover, appellant fails to assert the court abused its discretion; he only argues the court’s ruling was error. See Commonwealth v. Bryant, 620 Pa. 218, 67 A.3d 716, 726 (2013) (abuse of discretion not found based on mere error of judgment, but rather where ruling is manifestly unreasonable or result of partiality, prejudice, bias, or ill-will).
Lucas was charged June 18, 2010, and pled guilty to federal income tax evasion August 4, 2010. Yet, he testified at the PCRA hearings in August, 2009.27 The PCRA court denied appellant’s motion to recall Lucas, concluding his offense did not constitute crimen falsi because he still had not been sentenced as of the date of appellant’s motion and the court’s ruling. PCRA Court Opinion and Order, 12/30/10, at 1-2. The court determined that allowing appellant to recall Lucas would “condone a fishing expedition^]” as it was unreasonable to conclude he would attempt to distort his PCRA testimony to curry favor with the Commonwealth, which is not involved in federal tax investigation. Id., at 2. Further, the court reasoned, appellant submitted Lucas’ plea agreement, which was devoid of evidence he would receive a lesser sentence for cooperation with law enforcement. Id. We conclude the PCRA court did not abuse its discretion in preventing appellant from recalling Lucas.
Appellant alleges the PCRA court erred in failing to strike a “PowerPoint presentation” slide in a Commonwealth exhibit, which referenced a statement made by Ms. Treiber, Jessica’s mother, that she planned to seek child support from appellant. The Commonwealth submits the admission of evidence in PCRA proceedings lies within the sole discretion of the PCRA court, and it acted within that discretion in denying the motion.
The court concluded it was not necessary to strike the statement because Ms. Treiber testified at trial that she told
The order of the PCRA court is hereby affirmed. Jurisdiction relinquished.
Justices BAER, TODD and STEVENS join the opinion.
Chief Justice SAYLOR files a dissenting opinion.
. As discussed infra, Mr, Pianta was Mr. Keith’s friend and lived with Mr. Keith at one of appellant’s rental properties. Both Mr. Pianta and Mr. Keith worked for appellant in lieu of rent.
. Appellant was represented at trial by both Timothy Lucas and Timothy George. Attorney Lucas was primarily responsible for the guilt phase, and represented appellant in post-sentence proceedings and on direct appeal. Attorney Lucas hired Attorney George solely to handle the penalty phase. For clarity purposes, we will simply refer to either attorney as appellant’s trial counsel.
. On February 8, 2013, this Court ordered the FCDO to produce a copy of any federal appointment order it may have secured in this matter authorizing it to pursue a PCRA petition in Pennsylvania. The FCDO replied it was not appointed but that appellant requested the FCDO’s representation.
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. Pierce reiterates the preexisting three-prong test for ineffective assistance of counsel in Pennsylvania and holds it to be consistent with the two-prong performance and prejudice test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pierce, at 976-77.
, Appellant also offered expert testimony from Dr. Randall Libby and Dr. Laurence Mueller, who, like Dr. Eggleston, indicated the genetic and statistical methods underlying the trial testimony of Dr. Halverson and Dr. Basten were not generally accepted in the relevant scientific communities. See, e.g., N.T. PCRA Hearing, 8/11/09, at 117 (Dr. Libby); N.T. PCRA Hearing, 8/12/09, at 64 (Dr. Mueller).
. Frye v. United States, 293 F. 1013 (D,C.Cir.1923). Pennsylvania follows the Frye test, which provides novel scientific evidence is admissible if the methodology underlying the evidence has general acceptance in the relevant scientific community. See Grady v, Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1044 (2003).
. Appellant attempts to surpass waiver by cloaking a standard eviden-tiary claim with allegations of constitutional violations as a result of the introduction of "false and unreliable” canine DNA evidence. Appellant’s Brief, at 20-22; see also Appellant’s Reply Brief, at 1-2. Yet, appellant’s argument simply challenges the admissibility of the canine DNA evidence.
. Appellant also claims the PCRA court improperly conflated human DNA evidence with canine DNA evidence and erroneously concluded, since human DNA evidence has been previously accepted by this Court, canine DNA must also be accepted. We find this contention meritless. While the PCRA court did point out DNA evidence has been accepted by Pennsylvania courts since 1994, that statement was dictum. See PCRA Court Opinion, 3/27/12, at 29 (citing Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 400-02 (1994)). The court did not determine canine DNA evidence was not novel because human DNA evidence is generally accepted; contrarily, the court independently and specifically concluded, based on Dr. Halverson’s and Dr. Eggleston’s
. In support, appellant cites State v. Leuluaialii et al., 118 Wash.App. 780, 77 P.3d 1192 (2003), which held canine DNA evidence was not generally accepted in the scientific community, id., at 1197-98. Appellant relies on Leuluaialii particularly because Dr. Halverson testified to a similar effect in that case—based on her methodology, she matched blood from the victims’ dog to blood found on the defendants’ clothing. See id., at 1195-96.
. We reject appellant's claims that counsel was ineffective for failing to call Dr. Libby and Dr. Mueller as expert witnesses. Appellant does not argue—and likewise the PCRA hearing record does not support the premise—that such witnesses were available or that counsel was aware of or had a duty to know of the witnesses. See Chmiel, at 1143 (stating to establish ineffectiveness for failing to call expert witness, appellant must demonstrate expert existed and was available).
. The court did not find Dr. Libby credible because his opinion was predicated on information that did not exist at the time of trial, he never attempted to validate Dr. Halverson's markers, and he had limited knowledge in the canine DNA evidentiary field. See id., at 32 n. 20. The court rejected Dr. Mueller’s testimony for similar reasons. See id., at 34 n. 21. We are bound by the PCRA court’s supported credibility determinations. See Dennis, at 305 (citations omitted).
. Appellant rightly notes the prosecutor made public statements after trial, touting the significance of canine DNA on national television when appellant's case was profiled on the Animal Planet Media Network television show "Animal Witness.” One must surmise the nature of this evidence was sufficiently novel to warrant the interest of national media; were the novel evidence deemed less important to the case, it would not make an important story, and the prosecutor would lose the opportunity to wax eloquent on national television. In any case, whether the prosecutor's televised comments comport with the actual contribution of the evidence does not matter—the remainder of the evidence is overwhelming to the point that prejudice is not made out.
. Parenthetically, the canine DNA evidence appears to be of unnecessary evidentiary value at best; while it is easy to second-guess the prosecutor’s decision to pursue this evidence after the verdict is in, it could fairly be described as excess. This is so because there was an abundance of other unimpeachably incriminating evidence presented at trial, such that the absence of canine DNA evidence would not have led to a different verdict—hence, appellant cannot establish the third prong necessary for relief.
. As to the Commonwealth’s claim appellant could have benefitted from the fire by pocketing the insurance proceeds and rebuilding his home himself, appellant argues counsel should have presented evidence he was physically incapable of rebuilding the home. The PCRA court determined appellant’s claim was speculative, underdeveloped, and contrary to the evidence presented, noting appellant, around the time of the fire, maintained his rental properties and competed in competitive powerlifting. The court concluded counsel was not ineffective in failing to portray appellant as feeble, as such a decision would have been futile. PCRA Court Opinion, 3/27/12, at 71 n. 32. We agree and thus find appellant’s contention meritless.
. As previously noted, appellant owned and maintained various rental properties.
. "[T]he character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness’ conduct[.]” Id.., 608(b)(1).
. This is significant because appellant was prosecuted by the Pennsylvania Attorney General. The prosecutor in Mr. Keith’s case was not involved in appellant's case. Notably, the prosecutor also was not involved in negotiating Mr. Keith’s plea; the plea was already agreed to, and his assignment was to take the plea and give reasons for the plea to the court, which were conveyed to him by the District Attorney at that time. See N.T. PCRA Hearing, 8/4/11, at 6-7.
. A baekhoe loader is a tractor-like vehicle with a digging bucket on one end and a loading bucket on the other.
. Counsel also explained he did not wish to present expert testimony on appellant’s positive prison behavior because it would invite the Commonwealth to implicate his future dangerousness. Id., at 102.
. Appellant offered Dr. Jonathan Mack as his expert neuropsychologist. Dr. Mack reviewed appellant's medical records and concluded appellant suffered from cognitive defects and brain damage as a result of the 1991 accident. See id., at 48. The court noted Dr. Mack relied on a juvenile record, which contained a 1980 diagnosis from a childhood psychologist that appellant had minimal brain dysfunction and a low IQ. Id., at 48 n. 27. It found telling, and not helpful to appellant's case, the fact he saw the psychologist for setting fires and other behavioral problems. Id. The court explained, had appellant's PCRA expert testified at the penalty phase, that evidence would have been admissible and thus the jury would have learned that committing arson was nothing new to appellant. Id.
, Debatably, counsel had no duty to pursue mental-health experts because appellant repeatedly refused to see a “head doctor" or help him prepare for the penalty phase, and specifically instructed counsel not to present any mitigating evidence except for brief argument and
. Notably, counsel needed to convince appellant these mental-health experts would aid in the guilt phase to gain his approval in retaining them. Had counsel continued to search for a mental-health expert willing to testify appellant suffered from brain damage and cognitive impairments—as appellant now suggests he should have done—appellant likely would have forbidden counsel from offering this testimony, considering he maintained his intransigence regarding the penalty phase.
. As previously noted, counsel also submitted as a mitigating circumstance that appellant had no significant history of prior criminal convictions, id., § 9711(e)(1), which the jury was required to find because of a stipulation between appellant and the Commonwealth.
. "In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.” Id.
. We observe that the court found appellant erroneously referred to Attorney Timothy Lucas as Timothy George. Id.
. As previously noted, the court held ten evidentiary hearings from July 7, 2009, to August 4, 2011.