On March 1, 2000, two maintenance men came to replace the door of Ronald Taylor's apartment on Wood Street in Wilkinsburg, just east of Pittsburgh. Taylor, who was Black, decided they were taking too long and called one of them a "racist white pig" and "dirty white trash." He went back inside, put a .22 revolver and a handful of loose rounds in a pouch, set his couch on fire with lighter fluid and went looking for that man. He did not find him. Outside the building he shot the other maintenance worker, John Kroll, fifty-five, in the chest while a coworker pleaded with him to stop. He walked into a Burger King and, without a word, shot Joseph Healy, seventy-one, in the back of the head as he sat in a booth. At a McDonald's nearby he shot two white men who survived with severe injuries, and in its drive-through lane he shot Emil Sanielevici, twenty, through his car window from less than two feet away. On the steps of an apartment building he told a Black tenant that the gun was not for him; it was "for these crackers." The day ended in a standoff with police at a medical building.
Eight weeks later, on the afternoon of April 28, Richard Scott Baumhammers shot his neighbor Anita Gordon, sixty-three, in her home in Mt. Lebanon and set the house on fire with a Molotov cocktail. Over the next two hours he shot at and defaced the Beth El Synagogue, where she had worshipped; killed Anil Thakur at the India Grocery in the Scott Towne Center and left Sandip Patel paralyzed from the neck down; fired into the Ahavath Achim Synagogue in Carnegie; killed Ji-Ye Sun, the manager of the Ya-Fei Chinese Restaurant in the Robinson Towne Center, and Thao Pak Pham, who made its deliveries; and at a karate studio in Center Township pointed the gun first at a white man and then turned it on the friend standing next to him, Garry Lee, who was Black, and shot him twice in the chest. While the reports were still coming in, a Mt. Lebanon officer questioning Gordon's neighbors heard over the radio that the gunman's black Jeep was registered to someone named Baumhammers. The woman she was talking to was his mother, who said the Jeep was hers and that her son had it. Patel died seven years later.
Both men were tried in the Court of Common Pleas of Allegheny County in 2001, both were sentenced to death, and in both cases the argument that followed was about their minds. Baumhammers did not dispute at his trial that April and May that he had done the shooting. He pleaded insanity, the jury rejected it, and the Supreme Court of Pennsylvania affirmed his five death sentences in 2008, turning down his argument that the constitutional bar on executing the intellectually disabled should be extended to the seriously mentally ill. In 2014 it affirmed the denial of his post-conviction petition. Taylor was convicted in November 2001 of three counts of first-degree murder, and when the same court affirmed his death sentences in 2005 it set aside, for later proceedings, his claim that intellectual disability made him ineligible for execution. Taylor died on April 2, 2024. Pennsylvania has carried out no execution since 1999, and Baumhammers was still on its death row in 2020.
Two cases share this page, and nothing in these opinions connects the two men beyond the county, the court, the season and the motive. Each crime was a single rampage lasting a few hours, driven by racial and ethnic hatred, which makes them spree killings rather than serial murder, and they are filed here because hate-motivated multiple killing is a subject this archive covers. Taylor's case comes first because its opinion is the earliest. His is also the shorter record, a single direct appeal, while Baumhammers has both his direct appeal and the ruling on his post-conviction petition, heard by the trial judge, Judge Manning, over three days in September 2011.
The 2008 opinion's statement of facts is the most detailed account of April 28, 2000, in any court record on this site, put together witness by witness from the trial transcript: the worshipper leaving Beth El who saw the Jeep pull in, the man who dropped Anil Thakur at the grocery and told him he would be back in fifteen minutes, the pizza shop owner two doors from the karate studio who wrote down the license plate. It is still the court's summary, not the testimony. The statement that Baumhammers killed Anita Gordon "to make a statement" comes from a fellow inmate, as do the accounts of his wish to start a white supremacist party, and the court reports them as evidence the jury was entitled to believe. The diagnoses discussed in the later pages, paranoid schizophrenia among them, are expert opinions offered at trial and on appeal, and the jury was not persuaded they amounted to insanity.
Seven living people have been reduced to their initials: the maintenance man Taylor was hunting and the coworker who was with John Kroll when he was shot, the two men shot at the McDonald's, the tenant on the apartment steps, the friend standing next to Garry Lee, and the lone diner in the Ya-Fei restaurant. None of them chose to be part of this, and a name tells a reader nothing the initials do not. We have also removed the house numbers from three street addresses, one of them Anita Gordon's. The dead, Sandip Patel, the families who testified at sentencing, the other witnesses, the doctors and the lawyers are named as the court named them.
Pennsylvania Supreme Court opinions are public domain. The text is the Caselaw Access Project's digitization of the official Pennsylvania reports, with no spelling repair from us, and its errors are its own. Emil Sanielevici's name appears twice as "Sanieleviei"; the aggravating circumstance cited as (d)(11) prints six times as (d)(ll); Wilkinsburg is broken as "Wilkins-burg," Sandip Patel acquires an accent once as "Sándip," and a stray apostrophe sits in "studio'when." The phrase "mental retardation," which recurs throughout, was the legal term in Pennsylvania and in the United States Supreme Court's decision in Atkins v. Virginia when these opinions were written.
876 A.2d 916
COMMONWEALTH of Pennsylvania, Appellee, v. Ronald TAYLOR, Appellant.
No. 367 CAP.
Supreme Court of Pennsylvania.
Argued March 1, 2004.
Decided June 21, 2005.
John L. Elash, Esq., for Ronald Taylor.
Michael Wayne Streily, Esq., Robert A. Willig, Amy Zapp, Esq., Pittsburgh, for Commonwealth of Pennsylvania.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
[OPINION BY Justice CASTILLE. type=majority]
OPINION
Justice CASTILLE.
This is a direct appeal from the sentence of death imposed by the Court of Common Pleas of Allegheny County. Appellant’s convictions in the instant case stem from his rampage on March 1, 2000, which began with the arson of his apartment building; resulted in the killing of three people and the maiming of two others; and culminated in a standoff with police at a medical care facility.
Appellant was arrested and charged in connection with his crimes, and he was initially adjudicated incompetent to stand trial by order of the Honorable Jeffrey A. Manning, Jr., dated April 25, 2000. The order directed that appellant be committed to Mayview State Hospital for treatment and evaluation and that he be appropriately medicated until becoming competent.
On June 28, 2000, the Commonwealth petitioned the court to permit its psychiatric expert, Dr. Michael Weiner, to have access to appellant’s Mayview medical records and also to have access and opportunity to interview appellant and any Mayview professional or para-professional staff. The trial court granted that motion on June 30, 2000, and in the following days, Dr. Weiner interviewed a variety of medical personnel from both Mayview Hospital and St. Francis Hospital, where appellant had received medical treatment from 1990 to 1999. In addition, Dr. Weiner reviewed appellant’s medical records from Mayview Hospital and interviewed appellant on July 4, 2000. In a letter to the trial court dated July 6, 2000, Dr. Weiner informed the court, in detail, that in his opinion appellant was competent to stand to trial. On July 28, 2000, the trial court issued an order directing the Department of Corrections and Mayview Hospital to produce appellant for trial.
The matter was transferred to the Honorable Lawrence J. O’Toole, and present counsel, John Elash, Esq., was appointed in November of 2000 to represent appellant at trial. Public Defender Lisa Middleman, Esq., assisted in appellant’s representation. On April 19, 2001, counsel filed a Notice of Intent to Pursue an Insanity Defense. On May 7, 2001, the trial court granted the Commonwealth’s petition to allow Dr. Weiner access to appellant in order to conduct a psychiatric evaluation regarding appellant’s state of mind at the time of the crime.
Dr. Weiner attempted to interview appellant on May 19 and 20, 2001, but appellant refused to cooperate. Consequently, on May 21, 2001, the Commonwealth filed a motion with the trial court ordering appellant to cooperate with the interviewing process, in which the Commonwealth requested that the court “conduct a colloquy with [appellant] to advise him to cooperate and participate in the interviewing process in a meaningful manner,” and that the court “advise [appellant] that his failure to cooperate in a meaningful manner will result in excluding evidence of any mental infirmity defense or mitigation at any stage of these proceedings.” Commonwealth Motion, 5/21/01, at ¶¶ 6-7. The trial court held a hearing on that same date, at which the court heard testimony from Dr. Weiner, who stated that although appellant’s medical history records were available for review, it was necessary for him to interview appellant in order to form an opinion on his mental status at the time of the crime. Following the testimony, the court issued an order directing that appellant cooperate with the interview process.
On the morning of May 22, 2001, Dr. Weiner interviewed appellant for several hours, but appellant refused to continue the interview session in the afternoon. At a hearing held that afternoon, Dr. Weiner testified that he needed approximately 15 hours of total interview time and still needed a “considerable amount of time” with appellant. N.T., 5/22/01, at 5, 8. The court directed the interview process to continue that evening and the next day if necessary.
During the afternoon of the next day, May 23, the court held yet another hearing, at which the Commonwealth complained that appellant had refused to cooperate on the evening prior and had been only “superficially cooperative” that morning, providing answers such as “[n]o comment,” and “[t]hat’s a stupid question.” N.T., 5/23/01, at 20. Defense counsel countered that appellant, in fact, had been complying with the court’s order. After hearing testimony from Dr. Weiner in support of the Commonwealth’s position, the court conducted a record colloquy of appellant to ensure that he understood his duty to comply in order to be able to pursue an insanity defense. Appellant evidenced his understanding, and the court thereafter permitted Dr. Weiner to continue the interview process.
On May 24, 2001, the court held another hearing, making record note of the fact that Dr. Weiner had ceased the interview process at around 5 p.m. on May 23, and that the Commonwealth sought additional interview time for May 25. The court again agreed to oversee the interview process, but defense counsel informed the court that he would instruct appellant not to answer any further questions. At a hearing on the following morning, May 25, 2001, defense counsel reiterated his position that appellant had been cooperative up to that point and that he would instruct appellant not to answer any further questions. Later that same day, the court issued an order, in which it noted that it had compelled appellant to participate in a psychiatric examination; that Dr. Weiner had, in fact, examined appellant for a total of six to eight hours; and that appellant had substantially complied with the examination process. Thus, the order denied the Commonwealth’s request to bar appellant from raising the defense of insanity.
On May 31, 2001, the court issued an order directing that all proceedings in the matter be stayed pending disposition of the Commonwealth’s request for permission to appeal the trial court’s order. Thereafter, the Superior Court denied the Commonwealth’s Petition for Permission to Appeal on August 8, 2001, and this Court denied a Petition for Permission to Appeal on October 4, 2001.
Appellant’s trial commenced on November 1, 2001 and the jury convicted appellant of, inter alia, three counts of first-degree murder, 18 Pa.C.S. § 2502(a). On November 11, 2001, after a penalty phase hearing at which appellant continued to be represented by Attorneys Elash and Middleman, the jury found one aggravating circumstance as to each murder, and one or more jurors found the existence of one mitigating circumstance as to each murder. The jury unanimously concluded that the aggravating factors outweighed the mitigating factors, and accordingly, returned three sentences of death. On January 11, 2002, the trial court formally imposed the sentences of death and also imposed an aggregate, consecutive sentence of 115 to 230 years of imprisonment on the remaining convictions. Notice of automatic appeal was filed on February 8, 2002.
Pursuant to the trial court’s order, appellant filed a Statement of Matters Complained of on Appeal. On January 23, 2003, the trial court filed an opinion addressing the claims raised by appellant on appeal.
I. Sufficiency of the Evidence
We turn first, as we do in all capital direct appeals, to our review of the evidence to ensure that it is sufficient to support appellant’s convictions for first-degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We do so notwithstanding that appellant does not challenge the sufficiency of the evidence. Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003). When reviewing the sufficiency of the evidence, this Court must determine whether the evidence at trial, and all reasonable inferences drawn therefrom when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish each element of the offense beyond a reasonable doubt. Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 864 (2000). A person is guilty of first-degree murder where the Commonwealth proves that (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. 18 Pa.C.S. § 2502(d); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1283 (2000). An intentional killing is a “ [killing by means of poison, or by lying in wait, or any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). Specific intent to kill can be inferred from the use of a deadly weapon upon a vital part of the victim’s body. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 267 (2000).
The evidence adduced at trial established the following. On March 1, 2000, two white maintenance workers, John Kroll and J.D., were replacing the door to appellant’s apartment in a building located at Wood Street, Wilkins-burg, which is in Allegheny County, Pennsylvania. Appellant, who is black, grew angry because he thought that Kroll and J.D. were taking too long. Appellant called J.D. a “racist white pig” and “dirty white trash,” and J.D. replied by stating that people like appellant are the cause of racial tension. N.T., 11/1/01, at 88. As J.D. kneeled, picking up his tools from the floor in the hallway outside appellant’s apartment, appellant stood directly over him. Because appellant looked angry, J.D. rose to his feet with a hammer held at his side. Appellant asked: “You think you’re pretty tough?” Appellant walked away but then returned and stated to J.D., “You’re a dead man ... You have to come back to this building ... You’re a dead man.” N.T., 11/1/01, at 91-92. J.D. and Kroll then went to the apartment building’s basement, at which point J.D. left Kroll to attend to another resident’s maintenance request. Kroll remained in the basement with another maintenance worker, A.W., who is black.
Following the confrontation with J.D., appellant returned to his apartment, where he retrieved a .22 caliber revolver and placed it in a small pouch along with numerous loose rounds of ammunition. Appellant then set his couch on fire with lighter fluid and exited the apartment, leaving the door open. The fire spread to the ceiling and into the hallway, but firefighters were able to subdue the blaze. No one was injured as a result.
Immediately after setting his couch on fire, appellant began to search the apartment building for J.D.. When appellant came upon Kroll and A.W. in the basement, appellant shouted, “Where are you, mother fucker, I’m going to get you. I got something for you.” N.T., 11/1/01, at 112. A.W. noticed the brown pouch in appellant’s hand, and both A.W. and Kroll pleaded with appellant not to do anything rash. Appellant then pulled the pistol from his pouch, repeating the threat, “I got something for you,” and began looking in the boiler room, where he apparently expected to find J.D.. N.T., 11/1/01, at 114. Unsuccessful in locating J.D., appellant exited the building, with Kroll and A.W. following and pleading with appellant not to do anything rash. Appellant stopped, turned, and fired one shot into Kroll’s chest, killing him and leaving A.W. unharmed.
Appellant then walked to a nearby Burger King restaurant. He entered the restaurant, walked past the counter, turned, and walked over to where Joseph Healy, a 71-year-old white male, was sitting in a booth. Without a word, appellant shot Healy at point-blank range in the back of the head, killing him.
Appellant then left the Burger King, and began walking a short distance toward the entrance to a nearby McDonald’s restaurant. R.C., a white male, was sitting in the driver’s seat of his van, which was parked in the McDonald’s lot. Appellant approached the van, pointed his gun through the partially opened driver side window, and shot R.C. in the head. Appellant then entered the McDonald’s and walked behind the counter into the food preparation area. There he found the store manager, S.B., another white male. Appellant placed his revolver to S.B.’s temple and shot him next to his right ear. Both R.C. and S.B. survived but were severely injured as a result of their wounds.
Next, appellant exited the McDonald’s and walked along the line of cars that sat idling in the drive-thru line, peering into some of the cars. Appellant peered into Emil Sanielevici’s car through the passenger side window and then began to walk away. Sanieleviei lowered the window and inquired what appellant wanted. Appellant responded: “What do I want? What do I want?” and then walked to the driver’s side of Sanielevici’s car. N.T., 11/2/01, at 249. From less than two feet away, appellant shot Sanieleviei in his forehead, killing him.
Thereafter, appellant walked to a nearby apartment building located at Ross Street, and began walking up the entrance stairs. While on the stairs, appellant encountered a tenant of the building, R.W., who is black. Appellant instructed R.W. to “come here,” but R.W. refused when he noticed the gun in appellant’s hand. Appellant assured him that, “this isn’t for you ... it was for these crackers.” N.T., 11/5/01, at 379-80. After reloading his gun on the stairs, appellant made his way into the apartment of Christine McCrae, a black woman, who lived on the ground floor and had left her back door open. Appellant instructed McCrae to be quiet and assured her that he would only remain for a few minutes while he collected himself. McCrae later testified that appellant “just said he was just out to get white people.” N.T., 11/2/01, at 287. Appellant asked McCrae if she had any guns or a car, and she replied that she did not. Appellant then asked McCrae if any white people lived in the building, to which McCrae replied that she did not know. Appellant kissed McCrae on the forehead and left the apartment.
In response to a police radio call, Wilkinsburg Police Officers Daniel Ciuffe and Michael Mincin were driving in a marked police cruiser through Wilkinsburg in search of the shooting suspect, when they saw appellant crossing the street. Not yet realizing that appellant was their suspect, the officers stopped the car to let him pass, at which point he turned and fired three shots in the direction of their patrol car. Appellant then fled into the nearby Penn West Building, where he walked into the offices of the Metro Family medical practice.
Appellant encountered Patricia Papenmeir, a white female receptionist, whom he instructed to “shh.” N.T., 11/5/01, at 405. He inquired whether anyone else was in the office, and Papenmeir informed him that another woman was in the file room. Appellant grabbed Papenmeir and led her to the file room, where they found Debbie Nicomede, another white female employee. At some point, Joyce Ambrose, a white nurse at Metro Family, came upon the three and asked if appellant needed help. Looking at Bill Simmington, a black male employee who was nearby, appellant stated, “She doesn’t know what time it is.” N.T., 11/2/01, at 306. Appellant then led Papenmeir, Nicomede, and Ambrose down the hall at gunpoint, leaving behind Simmington and another black employee. Somewhere down the hallway, appellant announced to the three women: “You don’t know how many people I’ve killed. I just killed five people. I have one bullet left and I’m going to use it on one of you. I just don’t know which one it will be.” N.T., 11/2/01, at 308. Appellant then waved the gun from one woman to the next, pointing it at their faces and foreheads. When Barbara Pippins, a black female employee of Metro family, inadvertently walked into the hallway where appellant and the three women stood, appellant told Pippins, “You’re okay sister. Get out of here.” N.T., 11/5/01, at 414. Then, seemingly having decided to shoot Ms. Nicomede, appellant pointed the gun at her head and said, “You look like a smart white bitch.” However, he then lowered the gun, grabbed Nicomede by the arm and said, “No, I think I’ll terrorize you for a while. Come on.” N.T., 11/2/01, at 311. Nicomede pleaded with appellant, who then dropped her arm and walked into an examination room, where appellant aimed his gun at Dr. David Freeman, who retreated to another room. While appellant was looking for Dr. Freeman, everyone in the hallway was able to escape.
Police Officer Paul Tomko, who had responded to the scene from a nearby township, confronted appellant inside the Penn West Building while the officer was attempting to evacuate the building’s occupants. A stand-off ensued, in which appellant pointed his gun at the police and at himself intermittently. Appellant repeatedly inquired how many people had died that day and talked about racism and God. During the following hours, Police Sergeant John Fisher, a negotiations specialist, talked with appellant. When asked about what happened that day, appellant, apparently referring to Mr. J.D., responded: “[T]hat God-damned J.D.....He pushed me too far today. He went ... overboard. I couldn’t take it anymore ... that white mother fucker.” Appellant later admitted to setting his apartment on fire and told Sergeant Fisher: “You tell J.D. that he’s lucky that I didn’t get him today. He’s lucky he got away.” N.T., 11/5/01, at 435, 444.
Appellant eventually surrendered and was immediately transported to the police station, where a large media presence had gathered. Before walking past the media, one officer asked appellant whether he wanted anything to cover his face, to which appellant responded: “I’m proud of what I did. I don’t need anything to cover my face.” N.T., 11/5/01, at 527-28. Appellant also commented that he should have killed himself because he did not want to spend the rest of his life in jail.
The foregoing evidence was amply sufficient to permit the jury to conclude, beyond a reasonable doubt, that appellant intentionally, deliberately, and with premeditation killed Mr. Kroll, Mr. Healy, and Mr. Sanielevici. Each of these victims was unlawfully killed; appellant committed the killings; and the mere fact that appellant shot Kroll in the chest and Healy and Sanielevici in the head was sufficient to permit the jury to find a specific intent to kill. Additional evidence of appellant’s specific intent to kill included the statements he made, indicating, among other things, his dislike for white people, during the course of his rampage.
We now turn to the claims raised by appellant, one of which arises from the guilt phase of the trial and the remaining three of which arise from the penalty phase. We will discuss the claims in order.
II. Guilt Phase
Appellant’s sole guilt-phase claim is that the trial court erred by denying his request to charge the jury on diminished capacity and third-degree murder when, in appellant’s view, the evidence adduced at trial “clearly challenged [appellant’s] capacity to possess the requisite mens rea for first-degree murder.” Appellant urges that although he knew the difference between right and wrong and was competent to stand trial, he had a diminished capacity “to understand and process information, to communicate, to abstract from mistakes, to learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reaction[s].” In support of this argument, appellant cites to his psychiatric expert’s “voluminous psychiatric testimony explaining appellant’s psychoses and mental diseases.” Appellant posits that, had the jury been instructed as to diminished capacity, they would have considered that appellant was “a psychotic man who manifested his paranoid schizophrenia through a lifetime of bizarre rituals and practices that culminated on March 1, 2000.” Appellant concludes that his psychiatric evidence “would have served to negate the element of specific intent and ... resulted in a verdict of Third-Degree Murder.” Appellant’s Brief at 12-13.
The Commonwealth counters that neither instruction was required and that the defense of diminished capacity was unavailable to appellant in light of the evidence, presented by the Commonwealth and confirmed by appellant’s own psychiatric expert, that appellant was capable of forming the specific intent to kill. The trial court, in its Pa.R.A.P.1925(a) opinion, concluded that “Sufficient evidence was not presented at trial that would have provided a rational basis for the Court to instruct the jury on either third-degree murder or diminished capacity.”
It is settled that “a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial.” Commonwealth v. White, 490 Pa. 179, 415 A.2d 399, 400 (1980). Rather, there “must be some relationship between the evidence presented and the law upon which an instruction is requested.” Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 407 (1994). The reason for this rule is that, “instructing the jury on legal principles that cannot rationally be applied to the facts presented at trial may confuse them and place obstacles in the path of a just verdict.” White, 415 A.2d at 400. Accordingly, a criminal defendant must establish that the trial evidence would “reasonably support” a verdict based on the desired charge and may not claim entitlement to an instruction that has no basis in the evidence presented during trial. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328, 1332-33 (1983).
Furthermore, specific intent to kill is what distinguishes first-degree murder from other lesser types of murder. See Commonwealth v. Fletcher, 861 A.2d 898, 907 (Pa. 2004). A non-felony murder committed with malice, but without specific intent, constitutes a third-degree murder. See Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317 (2001).
This Court first recognized the viability of diminished capacity as a defense to first-degree murder in Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). There, the defense conceded that the defendant had committed the killing but attempted to offer into evidence testimony from both the defendant and a psychiatric expert that would tend to show that, due to a previous brain surgery, a frontal lobotomy, the defendant did not possess the mental capacity to form the specific intent to kill at the time of the crime. The trial court refused to permit such testimony, and the defendant was convicted of first-degree murder and sentenced to life imprisonment. On appeal, this Court concluded that the defense of diminished capacity is cognizable in Pennsylvania and reversed the trial court’s decision to exclude the proffered psychiatric evidence. Noting that the Commonwealth must prove each element of a crime beyond a reasonable doubt, including specific intent to kill in the case of first-degree murder, the Court reasoned that expert testimony concerning the defendant’s mental capacity to form specific intent “obviously would have ‘significantly advanced the inquiry’ as to the presence or absence of an essential element of the crime.” Id. at 918 (quoting Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564, 567 (1973)). Moreover, the Court rejected the argument that policy reasons should bar the use of the defense and held accordingly that the psychiatric evidence in question was relevant as it bore upon an element of the offense charged and should have been admitted. Walzack, 360 A.2d at 921.
While the diminished capacity doctrine has not changed significantly since Walzack and is now well-recognized as a permissible defense to first-degree murder in an appropriate case, this Court has admonished that the defense is an extremely limited one. See Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 359 n. 10 (1995). Diminished capacity is directed exclusively at the negation of specific intent, and therefore, to be admissible, evidence of the defense must necessarily put into question the criminal defendant’s very ability to form the intent to kill. See Walzack, 360 A.2d at 916 n. 6 (“the thrust of the doctrine relates to the accused’s ability to perform a specified cognitive process.”). Accordingly, we have repeatedly rejected the contention that evidence of a defendant’s supposed inability to control his actions—by virtue of an “irresistible impulse,” a “compulsion,” or otherwise-is relevant to negate specific intent, and we have consistently held that such evidence may not be admitted in support of a diminished capacity defense. See Travaglia, 661 A.2d at 360 (diminished capacity defense could not be supported by argument that defendant could not control his actions); Zettlemoyer, 454 A.2d at 949 (where entire defense was “infested” with language of “irresistible impulse,” trial court was correct to inform jury that such language did not bear upon diminished capacity defense; and commenting in dicta that trial court would not have been in error to deny charge on diminished capacity altogether); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344, 1350 (1982) (psychiatric testimony indicating that defendant had compulsion or irresistible impulse to kill is irrelevant to question of specific intent to kill and, therefore, inadmissible).
In the instant case, appellant called Dr. Horacio Fabrega to testify in support of his insanity defense. Dr. Fabrega did not specifically testily to appellants alleged diminished capacity, much less did he offer an opinion that appellant lacked the capacity to form the specific intent to kill. However, certain portions of Dr. Fabrega’s testimony are enlightening as to diminished capacity, albeit not in a way that supports appellants argument. For instance, when asked by trial counsel if he had an opinion as to whether appellant was insane at the time of the shootings, Dr. Fabrega launched into an extensive narrative, during which he commented, inter alia, that, “essentially [appellant] was, from my formulation, thrown into a psychotic storm of discontrol where he was intending to— where he intended to shoot Mr. J.D..” When asked later to explain legal insanity, Dr. Fabrega stated, inter alia, that, “[o]bviously [appellant] knew what he was doing. [H]e took a loaded gun. He aimed it. He had conversations with people. Later he selectively shot white people and not black people. So there was a deliberateness about that.” N.T., 11/6/01, at 607, 609. Still later, Dr. Fabrega noted that, “some of [appellants] behavior was deliberate. [I]t was deliberate in the sense that he didn’t shoot women, it was deliberate in the sense that he didn’t shoot black people. So he was obviously aware of what was happening.” N.T., 6/11/01, at 614.
Following the close of evidence, and prior to the trial courts charging of the jury, defense counsel requested that the court instruct the jury on diminished capacity and third-degree murder. The trial prosecutor responded that there was no evidence to support such jury charges, and that, to the contrary, the testimony from appellants own expert confirmed that appellant had the capacity to form a specific intent to kill. The trial court agreed and did not charge the jury on diminished capacity or third degree murder.
On appeal, appellant simply recites the two charges that he alleges should have been read to the jury but offers little persuasive legal analysis to explain why the evidence that was actually introduced warranted the requested instructions. The fact that appellants defense expert testified that appellant was psychotic and suffered from varying degrees of mental illness does not ineluctably suggest that he lacked the capacity to form a specific intent to kill. This Courts independent review reveals that all of the evidence admitted at trial— including evidence proffered by the defense—demonstrated that appellant possessed the capacity to form a specific intent to kill. Moreover, it is worth noting that Dr. Fabrega’s opinion that appellant entered into a “psychotic storm of discontrol” harkens back to irresistible impulse, not diminished capacity; this Court has held that such evidence is irrelevant and inadmissible to prove diminished capacity. See Travaglia, 661 A.2d at 360. Accordingly, as the evidence did not warrant jury charges for third-degree murder and diminished capacity, the trial court did not err in denying trial counsels request for such charges.
III. Penalty Phase
Turning to the penalty phase, appellant first claims that the trial court abused its discretion by permitting the Commonwealth’s psychiatric expert, Dr. Michael Weiner, to testify in rebuttal. Appellant offers two distinct arguments in support of this claim: (1) that Dr. Weiner’s examination of appellant in May of 2001 provided an insufficient and inadequate basis to support his expert testimony; and (2) that Dr. Weiner’s testimony violated appellant’s right to be free from self-incrimination and his right to counsel under both the Pennsylvania and United States Constitutions.
The background for these arguments is as follows. As noted above, after appellant filed his notice of insanity defense, the Commonwealth was granted leave for Dr. Weiner to interview appellant for the purpose of forming an opinion as to appellant’s mental state at the time of the crime. Ultimately, the trial court rejected the Commonwealth’s request that Dr. Weiner be afforded additional visits with appellant before finalizing his opinion, or in the alternative, that appellant should be barred from raising the defense of insanity. Instead, the trial court agreed with the defense that appellant had substantially complied with the court’s previous order to cooperate with the interview process and that he would not be barred from raising an insanity defense. The Commonwealth’s attempt to secure appellate review of that decision was denied.
Accordingly, during the penalty hearing appellant presented evidence in support of the following two mitigating circumstances which he ultimately argued to the jury: (1) that he was under extreme mental or emotional disturbance, 42 Pa. C.S. § 9711(e)(2); and (2) that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, 42 Pa.C.S. § 9711(e)(3). Following the close of appellant’s case, the Commonwealth called Dr. Weiner in rebuttal to challenge the existence of these mitigators. Appellant objected. Before ruling on the objections, the trial court permitted the prosecutor and defense counsel to examine Dr. Weiner outside the presence of the jury in order to ascertain, primarily, whether there was merit to appellant’s constitutional claims.
Defense counsel questioned Dr. Weiner regarding both his July 2000 competency examination and the sufficiency of his interview time with appellant in May 2001. As to the latter issue, the following exchange took place:
[Defense counsel]: When you testified from that very chair that you could not give an opinion as to the mental state of [appellant] without additional time specifically with [appellant], was that not true?
Dr. Weiner: I’d like to see a copy of my testimony so that I could—
[Defense counsel]: Sure.
Dr. Weiner: Thank you.
The Court: Wouldn’t that part of his testimony go to its weight in front of the jury? I thought the concern was that there was a possibility that your client’s Sixth Amendments [sic] rights had been violated.
[Defense counsel]: That’s true.
The Court: The doctor is not—
[Defense counsel]: I’ll withdraw that. The court is absolutely correct.
N.T., 11/10/01, at 1082.
Following Dr. Weiner’s testimony, the trial court overruled defense counsel’s remaining constitutional objection and permitted the rebuttal testimony in the presence of the jury. Dr. Weiner then testified that, in his expert opinion, appellant was not under extreme mental or emotional disturbance at the time of the crime and that appellant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was not substantially impaired.
Presently, appellant reverses his earlier position, arguing that, because of the Commonwealth’s repeated assertions to the trial court that the amount of time Dr. Weiner spent interviewing appellant during the period from May 19 to May 24, 2001 was insufficient to equip the doctor with the information necessary to opine on appellant’s mental state at the time of the crime, his testimony should have been excluded. The Commonwealth counters that appellant should not be granted relief upon a claim that he created by his own recalcitrance— i.e., his refusal to cooperate—and that, in any event, the fact that Dr. Weiner did not secure as much cooperation from appellant as he would have liked did not preclude him from forming and rendering an opinion, the weight of which was for the jury. The Commonwealth submits that Dr. Weiner was able to form a professional diagnosis based upon the amount of time that he actually spent with appellant and the information that was available to him.
We note that, by withdrawing his line of cross-examination—and implicitly, his objection—concerning the amount of time that Dr. Weiner spent with appellant, counsel arguably failed to preserve his present argument. Freeman, 573 Pa. 532, 827 A.2d 385. However, the trial court twice stated that the objection was addressed to the weight of the evidence, rather than its admissibility, and it is at least arguable that those comments constituted an overruling of the objection and/or argument. See N.T., 11/10/01, at 1082, 1090. Moreover, the trial court later stated that counsel’s “objection as to Doctor Weiner’s testifying here as memorialized in [trial counsel’s] written and/or oral comments is clearly protected on the record.” N.T., 11/10/01, at 1092. Accordingly, we deem the argument to be preserved.
The admissibility of evidence, including rebuttal evidence, is a matter primarily falling within the discretionary powers of the trial court. Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530 (2002); Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996). Contrary to appellant’s insistence, the trial court did not abuse its discretion in deeming Dr. Weiner’s testimony to be relevant and admissible rebuttal testimony. Whatever deficiency inhered in the substance of that testimony by virtue of appellant’s non-cooperation, as the trial court aptly noted, was a matter for the jury to consider in weighing the value of the testimony, but it did not affect its admissibility. See N.T., 11/10/01, at 1090; see also Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026, 1035 (2003) (witness’s testimonial inconsistencies created question of weight to be afforded testimony rather than admissibility); Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 277 (2000) (fact that eyewitness was smoking crack when she observed crime created question of weight rather than admissibility). Moreover, appellant cannot profit by his recalcitrance. After his refusal to cooperate further with Dr. Weiner, appellant argued that Dr. Weiner had sufficient access to appellant such as to render an expert opinion. Although the Commonwealth disputed the point, and unsuccessfully sought interlocutory review, the fact of the matter is that the controlling legal finding by the trial court in the case was that the expert received sufficient access to form an expert opinion. That finding binds appellant now no less than it bound the Commonwealth when it was rendered. Accordingly, appellant’s challenge to the admissibility of Dr. Weiner’s testimony based upon the alleged insufficiency of his examination must fail.
In the alternative, appellant argues that the doctor’s testimony was inadmissible because it was based, at least in part, upon information gleaned from appellant during the doctor’s competency evaluation in July of 2000, an evaluation which was not preceded by Miranda warnings and was conducted without affording appellant the benefit of counsel. Relying on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), appellant reasons that the doctor’s testimony violated the Fifth and Sixth Amendments of the United States Constitution. The Commonwealth responds that appellant waived his right to be free from self-incrimination because he raised a mental infirmity defense at trial. Moreover, the Commonwealth argues that the record shows that the entirety of Dr. Weiner’s penalty phase rebuttal testimony was based upon information and sources independent of his competency examination of appellant. The trial court agreed with the Commonwealth that, “[wjhere a defendant has raised a mental-status defense, that defendant does not have a right to raise a Fifth Amendment challenge to an examination by a Commonwealth psychiatrist.” Slip op. at 6 (quoting Commonwealth v. Motley, 681 A.2d 1254, 1256 (1996)).
In Smith, the defendant was indicted for capital murder in Texas for his participation in an armed robbery of a grocery store during which the store clerk was fatally shot by the defendant’s accomplice. Prior to trial, a court-appointed psychiatrist met with the defendant and concluded that he was competent to stand trial, reporting his findings to the court. Thereafter, the defendant was tried and convicted of murder. The case then proceeded to the penalty phase, during which the state called the court-appointed psychiatrist to testify regarding the defendant’s future dangerousness which, at the time, was one of three factors required to be proven beyond a reasonable doubt to permit a sentence of death under the Texas death penalty statute. The expert, whose testimony was based entirely upon his pre-trial competency examination, testified that the defendant was a remorseless sociopath who would only get worse and could not be cured or effectively medicated. Following the hearing, the jury found all necessary factors beyond a reasonable doubt and sentenced the defendant to death. On direct appeal, the Texas courts affirmed and the U.S. Supreme Court denied certiorari.
The defendant thereafter filed a petition for a writ of habeas corpus with the federal district court, alleging that introduction of the state’s psychiatric testimony violated his Fifth and Sixth Amendment rights. The district court agreed and vacated the death sentence. The Fifth Circuit Court of Appeals affirmed. On appeal, the U.S. Supreme Court concluded that the challenged testimony violated the defendant’s Fifth Amendment right against self-incrimination and affirmed, holding that:
A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because [the defendant] did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to [the psychiatric expert] to establish his future dangerousness.
451 U.S. at 468, 101 S.Ct. at 1876. The Court continued, hypothesizing that:
If, upon being adequately warned, [the defendant] had indicated that he would not answer [the expert’s] questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way.
Id. at 468-69, 101 S.Ct. at 1876. The Court emphasized that the Fifth Amendment requires the state to prove its case with evidence other than the results of a court-ordered competency examination where, prior to the examination, the defendant is either uninformed of his Fifth Amendment rights or where he is informed and does not waive them. Id. The Court further held that the challenged testimony violated the defendant’s Sixth Amendment right to counsel, reasoning that the defendant’s choice of whether or not to comply with the competency examination was one that he should not have been forced to make without the “guiding hand of counsel.” Id. at 471, 101 S.Ct. at 1877 (citation omitted).
Later, in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court qualified its holding in Smith. In Buchanan, the prosecution, over the defendant’s Fifth Amendment objection, was permitted to introduce evidence from a pre-trial psychiatric report as it pertained to the defendant’s mental state at the time of the crime. Unlike defense counsel in Smith, however, Buchanan’s attorney had joined in the prosecutor’s pretrial request for the evaluation and also had raised a mental infirmity defense— extreme emotional disturbance—at trial. Following the defendant’s conviction, the Kentucky Supreme Court affirmed, and on further review, the U.S. Supreme Court affirmed as well, rejecting the defendant’s Fifth Amendment claim. The Court noted that where “a defendant requests [a psychiatric] evaluation or presents psychiatric evidence ... at the very least, the prosecution may rebut this presentation with evidence from reports of the examination that the defendant requested.” Buchanan, 483 U.S. at 422-23, 107 S.Ct. at 2917-18. The Court explained the distinction between the circumstances in Buchanan and those in Smith:
This case presents one of the situations that we distinguished from the facts in Smith. Here [the defendant’s] counsel joined in a motion for [the competency psychiatrist’s] examination pursuant to the Kentucky procedure for involuntary hospitalization. Moreover, [the defendant’s] entire defense strategy was to establish the “mental status” defense of extreme emotional disturbance. Indeed, the sole ■witness for [the defendant] was [the defendant’s mental health expert], who was asked by defense counsel to do little more than read to the jury the psychological reports and letter in the custody of Kentucky’s Department of Human Services. In such circumstances, with [the defendant] not taking the stand, the Commonwealth could not respond to this defense unless it presented other psychological evidence. Accordingly, the Commonwealth asked [the defense expert] to read excerpts of [the competency psychiatrist’s] report, in which the psychiatrist had set forth his general observations about the mental state of [the defendant] but had not described any statements by [the defendant] dealing with the crimes for which he was charged. The introduction of such a report for this limited purpose does not constitute a Fifth Amendment violation.
Id. at 423-24, 107 S.Ct. at 2918 (emphases in original). The Court further concluded that the defendant’s Sixth Amendment right to counsel had not been violated, noting that the Sixth Amendment affords criminal defendants the opportunity to consult with counsel, which the defendant undoubtedly had. Recognizing that the effectiveness of such consultation requires that counsel be “informed about the scope and nature of the proceeding,” the Court noted that the defendant’s counsel unquestionably had such information, especially in light of Smith, which put counsel “on notice that if ... he intended to put on a ‘mental status’ defense for [the defendant], he would have to anticipate the use of psychological evidence by the prosecution in rebuttal.” Id. at 425, 107 S.Ct. at 2919.
This Court followed Buchanan in Morley, 545 Pa. 420, 681 A.2d 1254, which is the cornerstone of the Commonwealth’s argument in the instant case. In Morley, the defendant pleaded guilty to a general charge of criminal homicide and asserted a diminished capacity defense at the degree of guilt hearing. At the close of the defendant’s case, defense counsel joined a motion by the prosecutor to permit the Commonwealth’s psychiatric expert to examine the defendant prior to the expert’s testifying as to the issue of specific intent. The trial court appointed the Commonwealth’s expert to conduct the examination and, following the examination, the expert testified that the defendant was capable of forming the specific intent to kill. The defendant was convicted and sentenced to life imprisonment. On appeal, the defendant challenged the expert testimony as having violated her right against self-incrimination. The Superior Court affirmed, and on further appeal to this Court, we affirmed as well. Consistently with Buchanan, we held that “where a defendant ... raises a mental-status defense, ... that defendant does not have a right to raise a Fifth Amendment challenge.” Morley, 681 A.2d at 1257.
Here, appellant’s constitutional objections fail for several reasons. First and foremost, appellant’s insistence that Dr. Weiner’s penalty phase testimony violated his Fifth and Sixth Amendment rights because of what occurred during the competency examination wholly ignores the fact that the record shows that the challenged testimony was not based upon the doctor’s competency examination. Dr. Weiner testified, outside the presence of the jury prior to penalty phase testimony, that all opinions that he would offer would not draw upon any information gleaned in the course of his competency examination. N.T., 11/10/01, at 1074-75. Indeed, when the trial court inquired as to whether Dr. Weiner “would be able to address the two issues without discussing anything” ascertained from the competency hearing, Dr. Weiner responded: “Absolutely.” Id. at 1091. There was no abuse of discretion in the trial court’s crediting this assurance. Accordingly, the factual predicate for appellant’s constitutional claims does not exist.
Furthermore, even accepting appellant’s contention that, contrary to the doctor’s assurance, the testimony could have been based partially upon the competency evaluation, appellant’s constitutional claims would nonetheless fail in light of Buchanan and Morley. As those cases make clear, appellant waived any Fifth Amendment objection to the introduction of the challenged testimony by virtue of his pursuit of both a mental-status defense at trial-ie., insanity—and mental—status mitigators during the penalty phase—i.e., extreme mental or emotional disturbance and the inability to appreciate the criminality of his conduct or conform it to the law.
Similarly, appellant’s Sixth Amendment claim fails because appellant was represented by counsel at the time of Dr. Weiner’s competency examination, and thus he was afforded the opportunity to consult with counsel prior to that examination and had an opportunity to raise any pertinent objection. Indeed, it was defense counsel who initiated the inquiry into competency when he requested a psychological evaluation in March of 2000. See Motion for Psychological Evaluation, 3/7/2000. The Commonwealth’s subsequent motion to permit Dr. Weiner to examine appellant and to evaluate his competency, which was granted on June 30, 2000, was served on his then—counsel. See Certifícate of Service, 6/28/00. Accordingly, notwithstanding appellant’s present insistence to the contrary, counsel was on notice of the examination prior to its occurrence. Thus, similar to the scenario in Buchanan, appellant’s competency stage counsel knew of the scope and nature of the challenged examination and its potential consequences—i.e., that it might yield incriminating evidence which potentially would be admissible against appellant should he raise a mental infirmity defense at trial—yet raised no objection. Thus, the Sixth Amendment claim fails.
Appellant’s second penalty phase claim is that the trial court abused its discretion by permitting excessive and cumulative victim impact evidence, thereby resulting in an unlawful sentence of death based upon passion, emotion, and prejudice, in violation of 42 Pa.C.S. § 9711(h)(3). Citing to a dissenting viewpoint in this Court’s jurisprudence, appellant alleges generally that victim impact testimony amounts to “an impermissible ‘arbitrary tiebreaker’ and ‘super aggravating factor,’ ensuring that the jury would find in favor of death.” Brief at 30 (quoting Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143, 161 (2001) (Zappala, J., dissenting)). More specifically, appellant contends that the Commonwealth’s introduction of the testimony of ten witnesses—five concerning one victim; three concerning another; and two concerning the third—was extensive and repetitive and prevented the jury from conducting a rational penalty phase inquiry.
The Commonwealth counters by noting that the Sentencing Code expressly permits the admission of victim impact testimony and that this Court has held that the admission of such testimony does not violate either the Pennsylvania or the United States Constitution. Furthermore, the Commonwealth notes the inevitability that “[t]he more victims there are the more victim impact testimony there will be,” and submits that there is no rule against the introduction of more than one impact witness per murder victim. Commonwealth’s Brief at 42. Additionally,: the Commonwealth counters appellant’s challenge to the extensiveness of its victim impact testimony by noting that appellant introduced the testimony of six witnesses during his penalty phase case-in-chief. Finally, the Commonwealth notes that the trial judge read the model instruction, proposed by this Court in Means, which advised the jury of how properly to consider victim impact testimony when considering aggravating and mitigating evidence.
In its Rule 1925(a) opinion, the trial court reasoned that “the number of victims in this case necessitated the large number of witnesses” and that, because it read the Means instruction verbatim, there is no merit to appellant’s challenge to the victim impact testimony. We see no error in the court’s ruling.
The Pennsylvania Sentencing Code expressly sets forth that, during the penalty phase of a capital trial, “evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible.” 42 Pa.C.S. § 9711(a)(2). The Code further states, in relevant part, that:
The court shall instruct the jury that if it finds at least one aggravating circumstance and at least one mitigating circumstance, it shall consider, in weighing the aggravating and mitigating circumstances, any evidence presented about the victim and about the impact of the murder on the victim’s family.
42 Pa.C.S. § 9711(c)(2).
In Means, the trial court found that Sections 9711(a)(2) and (c)(2) violated the defendant’s rights under both the United States and Pennsylvania Constitutions. The Commonwealth appealed to this Court, and we reversed in an Opinion Announcing the Judgment of the Court (“OAJC”) authored by Mr. Justice (now Mr. Chief Justice) Cappy. The OAJC began by analyzing the precise nature of the rights involved, noting that although “[t]he basic question concerns the Eighth Amendment and Article 1, Section 13 [of the Pennsylvania Constitution], ... the discrete inquiry at bar infuses elements of due process and equal protection into that broader question.” Means, 773 A.2d at 149. Ultimately, the OAJC found that the statute permitting victim impact testimony did not violate the federal constitution, relying on Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991) (“[I]f the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”); and similarly, that it did not violate the Pennsylvania Constitution. Means, 773 A.2d at 157. Mr. Justice Saylor concurred in the result reached by the OAJC that the Sentencing Code provision permitting victim impact testimony is constitutional, thereby providing the fourth vote upholding the statute, but disagreed with the OAJC’s constitutional analysis. See Means, 773 A.2d at 160. Moreover, in consideration of the concern raised by the trial court regarding the appropriate manner in which to charge a jury on such evidence, the OAJC articulated a suggested “prototype jury instruction” for victim impact testimony. Id. at 158-59.
Although Means did not achieve a majority consensus as to why Section 9711(c)(2) is constitutional, a majority of this Court has since consistently rejected challenges, similar to the general claim raised herein, that the statute is unconstitutional. See Commonwealth v. Williams, 578 Pa. 504, 854 A.2d 440, 446 (2004); Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1052 (2002); Commonwealth v. Rice, 568 Pa. 182, 795 A.2d 340, 352 (2002). Indeed, in Williams, this Court rejected the argument, which is implicit in appellant’s present position, that this Court should abandon Means and adopt a rule disallowing victim impact testimony on the strength of the dissenting opinion in Mea,ns and the concurring and dissenting opinion in Rice, where Justice Zappala employed the same analysis. Williams, 854 A.2d at 446. Similarly, in Hams we reaffirmed that the statute is constitutional, rejecting due process, equal protection, and cruel and unusual punishment challenges. Harris, 817 A.2d at 1053. Moreover, a majority of the Court made clear in Means that trial courts have substantial control over the manner in which victim impact testimony is presented to the jury. See Means, 773 A.2d at 158; id. at 160 (Saylor, J., concurring).
Here, appellant’s general allegation attacking victim impact testimony as a “super aggravator” recites an argument that this Court has repeatedly rejected. Thus, his general attack on Section 9711(a)(2) must fail. As to appellant’s more specific argument that the evidence in this case was so extensive and repetitive as to call the penalty verdicts into question, we note first that the text of Section 9711(a)(2) does not purport to set limits on the amount of allowable victim impact testimony. Furthermore, our decisional law has not purported to fashion a bright-line rule limiting the quantity of victim impact testimony or the number of victim impact witnesses who may testify at a capital sentencing hearing. On the contrary, it is within the sound discretion of the trial court to ascertain the appropriate nature and extent of victim impact evidence which ultimately is placed before a jury. See Williams, 854 A.2d at 447. As the Commonwealth aptly notes, where there are multiple victims in a given case, the amount of available and relevant victim impact testimony will likely be commensurately more extensive. Here, appellant does not argue with any specificity why it was that the sheer number of witnesses called, or the nature of their testimony, or the facts of this case prove an abuse of discretion. Instead, he relies primarily on the sheer number of witnesses and the dissent’s general concerns in Means. We hold that the trial court did not abuse its discretion by permitting the Commonwealth to introduce the challenged testimony, the nature of which was allowed by Section 9711(a)(2) and the extent of which was logically permitted by the circumstances of appellant’s multiple crimes.
Appellant’s final contention is that the trial court’s imposition of the death sentences in this case is in direct contravention of the Supreme Court’s mandate in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that the Eighth Amendment does not permit execution of the mentally retarded. Appellant did not anticipate the Atkins decision, and thus he did not raise or preserve an Atkins claim below. Appellant nevertheless argues that he adequately demonstrated his mental deficiencies throughout the course of the trial, based upon his showing that he satisfied certain criteria which are mentioned in the Atkins opinion as being generally indicative of mental retardation. See Appellant’s Brief at 32-33. The Commonwealth counters that, based upon the same criteria listed by appellant, the record shows that appellant is not mentally retarded, and that the holding in Atkins therefore does not apply to him.
In Atkins, the Supreme Court expressly overruled its prior holding in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Eighth Amendment does not categorically prohibit execution of mentally retarded), and held as follows:
Our independent evaluation of the issue reveals no reason to disagree with the judgment of “the legislatures that have recently addressed the matter” and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our “evolving standards of decency,” we therefore conclude that such punishment is excessive and that the Constitution “places a
as "confusing and inadequate.” The trial court dismissed that argument, noting that it had read verbatim the charge suggested by this Court in Means. Appellant does not pursue this argument on appeal, and therefore, we do not address it further. substantive restriction on the State’s power to take the life” of a mentally retarded offender.
536 U.S. at 321, 122 S.Ct. at 2252 (citation omitted). The Court did not, however, explicitly adopt a standard national definition for mental retardation, leaving that point to be decided by the individual states.
Recently, in Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202, 210 (2003), this Court reviewed an Atkins claim raised under circumstances where, as here, the defendant was tried and convicted prior to the Atkins decision, raised no Aifcms-type claim below, then filed his direct appellate brief with this Court after the Atkins decision and sought its immediate benefit. In Mitchell, we noted that both the defendant and the Commonwealth attempted to “muster persuasive arguments by taking [mental health expert] testimony out of the context in which it was presented and rereading it with the hindsight benefit of the holding of Atkins.” Mitchell, 839 A.2d at 210. Ultimately, this Court decided not to review the Atkins claim and not to remand it for a direct appeal evidentiary hearing, explaining as follows:
The issue of mental retardation was touched upon in passing, but it was not the focal point of the testimony of the [mental health expert], nor was it the central focus of either direct or cross-examination. It would be injudicious to reach a legal conclusion on the question of mental retardation based on the current record. To prejudge the merits of [the defendant’s] Atkins claim based on the limited evidence currently available may create future problems for [the defendant] in raising this issue in the correct forum, as he may then be faced with a determination that the issue was previously litigated.
Nor do we believe that a remand for an evidentiary hearing at this juncture[ ] is the best possible solution for exploring this claim. The claim [the defendant] cannot be executed because after the sentence of death was imposed a constructional ban on the execution of mentally retarded capital defendants was formulated is a claim challenging the authority of the state to carry out the sentence. Direct review from the judgment of a sentence of death is normally directed at the validity of the legal decisions supporting the conviction or the propriety of the process through with the sentence was achieved. Moreover, this claim will not be lost if review is postponed. If [the defendant] is mentally retarded the judgment of sentence cannot be carried out. Thus, considering the current state of the record and the importance of the claim itself, we find that this claim is best suited to full review in the collateral stage.
Mitchell, 839 A.2d at 210-11 (citation omitted).
Mitchell is controlling here. As in Mitchell, appellant’s counsel has diligently attempted to fashion a persuasive Atkins argument by taking mental health testimony out of the non-Atkins context in which it was presented. But the record was not developed in such a way as to make out an Atkins claim. Moreover, the parties’ arguments are similarly deficient, as both are focused solely on the issue of whether appellant satisfied the “definition” of mental retardation, apparently proceeding upon the assumption that the criterion plucked from the definitions cited in the Atkins opinion are controlling as to that question. That presumption is erroneous, as the Atkins Court did not purport to adopt any standard, but rather, as we noted in Mitchell, left to the states the task of implementing the restriction banning the execution of the mentally retarded. See Mitchell, 839 A.2d at 209.
As was the case in Mitchell, it would be injudicious at this juncture for this Court to pass upon the claim, and the more appropriate avenue for review of the claim is upon collateral attack if appellant so desires. Accordingly, this claim is dismissed without prejudice to appellant’s right to raise and pursue it upon collateral review under the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. See Mitchell, 839 A.2d at 211.
IV. Statutory Review
Finally, pursuant to our Sentencing Code, this Court is required to conduct a statutory review of the death sentences and must affirm those sentence unless we determine that:
(i) the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or (ii) the evidence fails to support the findings of at least one aggravating circumstance specified in subsection (d).
42 Pa.C.S. § 9711(h)(3). The jury unanimously found one statutory aggravating circumstance as to each murder conviction—ie., that appellant was convicted of another murder committed before or at the time of the murder at issue, 42 Pa.C.S. § 9711(d)(ll). See Jury Verdict Slip. The evidence amply demonstrated that appellant committed three murders, and he was convicted for each; thus, the evidence clearly was sufficient to support the jury’s finding of that aggravator as to each murder. Furthermore, our independent review of the record demonstrates that the jury’s sentence of death, which followed upon a consideration of appellant’s multiple proffered mitigating circumstances, and then a weighing of the aggravators and mitigators actually found, was not the product of passion, prejudice, or any other arbitrary factor, but rather, resulted from the proper discharge of its sentencing function.
Accordingly, we affirm appellant’s convictions and sentences of death and dismiss appellant’s claim of death penalty ineligibility based upon mental retardation without prejudice to appellant’s right to raise that claim on collateral review under the PCRA.
Chief Justice CAPPY files a concurring opinion in which Messrs. Justice NIGRO and SAYLOR join.
The order also directed that Mayview Hospital submit to the court, every 30 days, a written report "outlining [appellant’s] treatment and evaluating his competency to understand and participate in the legal proceedings.” Order of Court, 4/25/00.
Although the Commonwealth asserts that appellant was adjudicated competent to stand trial on July 28, 2000, the trial court’s order did not include any competency finding. In any event, there is no dispute as to appellant’s ultimate competence to stand trial. See N.T., 5/21/01, at 11.
Appellant was also convicted of the following crimes: eight counts of aggravated assault, 18 Pa.C.S. § 2702; one count of arson, 18 Pa.C.S. § 3301(a)(1); one count each of causing a catastrophe and risking a catastrophe, 18 Pa.C.S. § 3302(a) and (b); one count of ethnic intimidation, 18 Pa.C.S. § 2710; one count of violating the Uniform Firearms Act, 18 Pa.C.S. § 6106; four counts of terroristic threats, 18 Pa.C.S. § 2706; three counts of unlawful restraint, 18 Pa.C.S. § 2902; four counts of simple assault, 18 Pa.C.S. § 2701; and sixteen counts of recklessly endangering another person, 18 Pa.C.S. § 2705.
The aggravating circumstance found by the jury was that appellant was convicted of another murder that was committed before or at the time of the murder in question. 42 Pa.C.S. § 9711 (d)(ll). The mitigating circumstance found by the jury was the "catchall” mitigator. 42 Pa.C.S. § 9711(e)(8) ("Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.”).
The bullet passed through Kroll’s right lung and lodged in his back. The wound bled profusely, causing blood to collect in Kroll's pleural cavity and sending him into a state of shock, which resulted in his death.
The gunshot wound that killed Healy revealed that the tip of appellant's gun was either in contact or nearly in contact with the right side of Healy's head, behind his right ear. The bullet went into Healy’s brain and transected his brain stem, resulting in his death.
Mr. R.C. is now paralyzed on the right side of his body. Mr. S.B. suffered a shattered jaw, a severed vocal cord, and a permanent loss of hearing; and the bullet that struck him remains lodged in the back of his neck.
The bullet passed through Sanielevici’s right cerebral hemisphere and lodged in the back of his head.
Furthermore, the Walzack Court expressly noted at the outset that its holding was not to be read as "inferentially accepting the irresistible impulse test which [the Court had] previously rejected.” Walzack, 360 A.2d at 916 (citing Commonwealth v. Myers, 444 Pa. 465, 282 A.2d 347, 350 (1971)).
No member of the jury found the existence of either of these mental-status mitigators. See Jury Verdict Slip.
Our decision in Freeman announced the abrogation of this Court’s direct capital appeal "relaxed waiver" doctrine, holding that "as a general rule on capital direct appeals, claims that were not properly raised and preserved in the trial court are waived and unreviewable.” Id. at 402. We further held that the new rule would be applied "prospectively, beginning with those capital direct appeals in which the appellant’s brief has not yet been filed in this Court, and is not due for thirty days or more after today’s decision.” Id. at 403. Because Freeman was filed on May 30, 2003, and appellants brief in the instant case was not filed until August 14, 2003, appellant is not entitled to application of the former relaxed waiver rule.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Notably, although appellant alleges the violation of his Pennsylvania constitutional rights in his question presented on appeal, he forwards no argument detailing the nature of his state rights, how they were violated, or whether he believes that they differ from his federal constitutional rights. Accordingly, we will deem the rights involved to be coterminous.
This Court also rejected Morley's argument that Article I, Section 9 of the Pennsylvania Constitution afforded her a broader right against self-incrimination than the Fifth Amendment. Morley, 681 A.2d at 1258.
We are aware that the Buchanan Court highlighted that the evidence at issue there did not contain any incriminating statements made by the defendant, but solely reflected the competency psychiatrist’s opinion. Buchanan, 483 U.S. at 423-24, 107 S.Ct. at 2918. Notably, this Court’s later holding in Morley does not cite that factor as essential to the inquiry of whether testimony gleaned from a pre-trial competency examination is constitutionally permissible. See Morley, 681 A.2d at 1257. In any event, there is no claim here that Dr. Weiner divulged incriminating statements made by appellant.
Appellant asserts that "no one bothered to tell [appellant] or his attorneys about the competency examination at all,” Appellant’s Brief at 22, but points to no evidence supporting that bald allegation, an allegation which is contradicted by the record.
Justice Zappala dissented, joined by Chief Justice Flaherty, and Justice Nigro dissented as well. Means, 773 A.2d at 160, 162.
In his Statement of Matters Complained of on Appeal, appellant also challenged the trial court's jury instruction on victim impact testimony
Appellant categorizes his alleged cognitive and functional limitations according to those criteria listed in the definitions espoused by both the American Association of Mental Retardation (AAMR) and the American Psychiatric Association (APA). See Atkins, 536 U.S. at 309 n. 3, 122 S.Ct at 2245 n. 3.
The Prothonotary of this Court is directed to transmit a complete record of this case to the Governor of Pennsylvania, pursuant to 42 Pa.C.S. § 9711(i). [OPINION BY Chief Justice CAPPY, type=concurrence] Chief Justice CAPPY, concurring. I join the result of the majority opinion. Furthermore, I join the analysis that Justice Castille sets forth except for that part of the opinion addressing the admissibility of Dr. Weiner’s expert testimony. I agree with the majority’s statement of the well-settled principle that the admissibility of evidence, including the admission of rebuttal evidence, is within the sound discretion of the trial court. See Majority opinion at 929; Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958, 967 (2001). I distance myself, however, from the remainder of the majority’s analysis of this issue. As mapped out by the majority opinion, this issue arose because during the pre-trial phase the Commonwealth contended, both before the trial court and on appeal, that Appellant should be precluded from offering any evidence of mental infirmity, including the presentation of the insanity defense, because Appellant impeded the interview process with Dr. Weiner. Due to this pre-trial argument, Appellant extrapolates that Dr. Weiner did not have a sufficient basis for his expert testimony and, thus, argues that the trial court abused its discretion in admitting this testimony at the penalty phase. In essence, Appellant is attacking the sufficiency of the foundation for Dr. Weiner’s expert testimony. The majority opinion disposes of Appellant’s argument regarding the admissibility of Weiner’s testimony, attributing any such deficiency in Dr. Weiner’s testimony as a result of Appellant’s “non-cooperation” or “recalcitrance.” Majority opinion at 929. The majority apparently adopts the Commonwealth’s position that Appellant impeded the interview process concluding that Appellant cannot challenge the admissibility of the evidence. I cannot agree with this reasoning because it contradicts the trial court’s order finding that Appellant “substantially complied” with the interview process. Indeed, the majority uses the trial court’s order to refute Appellant’s argument that Dr. Weiner had an insufficient basis for his testimony. The majority cannot have it both ways. I also am not persuaded by Appellant’s arguments because they do not accurately reflect what occurred during the pretrial litigation of this matter. Contrary to Appellant’s implications, the Commonwealth did not represent that Dr. Weiner could not testify regarding Appellant’s mental state because of the lack of face-to-face interview time, but asserted that Appellant should be precluded from offering any evidence of mental infirmity because he did not cooperate with the interview process. Thus, the parties are talking apples and oranges, and I would not adopt either party’s analysis of this issue. Rather, I join the result of the majority opinion on this issue simply because the Commonwealth laid an adequate foundation for Dr. Weiner’s rebuttal testimony at the penalty phase. Specifically, Dr. Weiner testified before the trial court, without the jury present that he had reviewed “[a]t least 211” sources of information in preparing his report for the penalty phase, N.T., 11/10/2001, at 1074; and that these sources of information included police reports, interviews with medical personnel, and reports from medical personnel, id. at 1081, 1084-85. Furthermore, he stated that he- could render an opinion without the aid of the interviews with Appellant. Id. at 1074-75. Accordingly, the trial court did not abuse its discretion in admitting this testimony and the weight to be accorded such testimony was for the jury. Messrs. Justice NIGRO and SAYLOR joins this concurring opinion.
960 A.2d 59
COMMONWEALTH of Pennsylvania, Appellee v. Richard Scott BAUMHAMMERS, Appellant.
Supreme Court of Pennsylvania.
Argued March 5, 2008.
Decided Nov. 20, 2008.
Francesco Lino Nepa, Michael Wayne Streily, Pittsburgh, Allegheny County District Attorney’s Office, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.
Thomas Farrell, for Richard Scott Baumhammers.
Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, JJ.
[OPINION BY Justice McCAFFERY. type=majority]
OPINION
Justice McCAFFERY.
This is a capital direct appeal from judgments of sentence imposed by the Court of Common Pleas of Allegheny County on May 12 and September 6, 2001. Because we conclude that the issues raised by Appellant are without merit, we affirm the judgments of sentence.
On April 28, 2000, during a crime spree lasting approximately two hours, Appellant, Richard Baumhammers, shot and killed Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pham, and Garry Lee. He also seriously wounded Sandip Patel, pointed his loaded pistol at G.T., set fire to Mrs. Gordon’s house by using an incendiary device, desecrated one synagogue by defacing it with red spray paint and shooting bullets into it, and desecrated a second synagogue by shooting bullets into it. Appellant was arrested on the day of the crime spree and was found to have in his possession a .357 caliber handgun, spent .357 caliber shell casings, live .357 caliber ammunition, two Molotov cocktails, a can of red spray paint, and a roadmap. Appellant was charged with five counts of homicide, one count of attempted homicide, one count of aggravated assault, one count of simple assault, one count of recklessly endangering another person, eight counts of ethnic intimidation, two counts of institutional vandalism, two counts of criminal mischief, three counts of arson, and one count of carrying a firearm without a license. At the time of the filings of the criminal informations, the Commonwealth gave Appellant notice of its intention to seek the death penalty and of the aggravating circumstances supporting the death penalty on which it intended to rely.
Following a competency hearing held on May 9, 2000, the trial court determined that Appellant was mentally incompetent and ordered his transfer to a state hospital for treatment. Following a subsequent competency hearing held on September 15, 2000, the trial court determined that treatment had rendered Appellant competent to stand trial. A jury trial on the charges was thereafter held from April 27 to May 9, 2001. During trial, Appellant did not dispute that he had shot the victims; rather, he presented evidence that he had done so while suffering from a mental disease. The jury rejected Appellant’s insanity defense and returned a verdict of guilty on the five counts of first-degree murder and on all of the remaining charges.
From May 10 to May 11, 2001, the penalty phase of the trial was held. The Commonwealth presented two aggravating circumstances pursuant to 42 Pa.C.S. § 9711(d)(7) and (ll). Appellant presented five mitigating circumstances pursuant to 42 Pa.C.S. § 9711(e)(1), (2), (3), (5), and (8). The jury found that the Commonwealth had proven the two aggravating circumstances, and that Appellant had proven three of the five mitigating circumstances. However, the jury also determined that the aggravating circumstances outweighed the mitigating circumstances and returned sentences of death as mandated by law. See 42 Pa.C.S. § 9711 (c)(iv) (providing in relevant part that the verdict must be a sentence of death if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances). Sentencing on the non-capital offenses, as well as the formal imposition of the death sentences was deferred pending the preparation of a pre-sentence report. On September 6, 2001, the sentencing court formally imposed the five sentences of death and further imposed a total term of imprisonment on the non-homicide convictions of 112/6 to 225 years. On December 29, 2005, the court denied Appellant’s post-sentence motions, and Appellant filed the instant direct appeal wherein he raises sixteen issues for this Court’s review, which we shall address following our mandatory review of the sufficiency of the evidence for the first-degree murder convictions.
I. Sufficiency of the Evidence
In all death penalty direct appeals, whether or not the appellant specifically raises the issue, this Court reviews the evidence to ensure that it is sufficient to support the conviction or convictions of first-degree murder. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 651 n. 3 (2008).
Evidence presented at trial is sufficient when, viewed in the light most favorable to the Commonwealth as verdict winner, the evidence and all reasonable inferences derived therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt. In the case of first-degree murder, a person is guilty when the Commonwealth proves that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. An intentional killing is a killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing. The Commonwealth may prove that a killing was intentional solely through circumstantial evidence. The finder of fact may infer that the defendant had the specific intent to kill the victim based on the defendant’s use of a deadly weapon upon a vital part of the victim’s body.
Id. at 651-52 (citations and quotation marks omitted).
Further, in reviewing whether the evidence was sufficient to support the first-degree murder conviction or convictions, the entire trial record should be evaluated and all evidence received considered. Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1032-33 (2007), cert. denied, — U.S. —, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008). In addition, we note that “the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence.” Id. at 1033.
Here, Appellant has not raised an issue regarding the sufficiency of the evidence; however, our independent review compels the conclusion that the evidence adduced at trial overwhelmingly supports Appellant’s convictions for first-degree murder. The evidence established that at approximately 1:40 p.m. on April 28, 2000, Mt. Lebanon firefighters responded to an activated fire alarm set off at the Gordon residence at Elm Spring Road, Mt. Lebanon. The responding firefighters, and police officers who later arrived at the scene, discovered at this residence the body of Anita Gordon, an Orthodox Jew, who had been shot multiple times in the chest, abdomen, and both hands, and who exhibited no signs of life. An incendiary device known as a Molotov cocktail was also discovered as having been thrown and ignited in a first-floor bedroom of the Gordon residence. During the discovery of the violence perpetrated at the Gordon residence, police began to receive reports regarding other nearby acts of violence, specifically, shootings occurring at the Beth El Synagogue, 1.3 miles from the Gordon residence, and at the Scott Towne Center, a strip mall less than one mile from the synagogue. These reports identified the shooter as a white male driving a black Jeep.
While these reports were coming in, Officer Mary Susan Joyce was interviewing neighbors of Anita Gordon. Officer Joyce was questioning Inese Baumhammers, Appellant’s mother, when Officer Joyce received a radio dispatch that the vehicle used in the reported shootings was a black Jeep registered to an individual named Baumhammers. Officer Joyce asked Ms. Baumhammers if she owned a black Jeep. Ms. Baumhammers replied that she did and that her son, Appellant herein, was then using the vehicle.
With respect to the first of two synagogue incidents, Susan Finder, a worshipper at Beth El Synagogue, testified that sometime after 1:20 p.m. on April 28, 2000, she was leaving the parking lot of the synagogue when she observed a black Jeep pull into the lot. Finder was able to identify Appellant as the driver of the Jeep. Dennis Wisniewski testified that on the day of the incident he was stopped at a red light three car lengths from the synagogue when he heard a bang and turned to see a man matching Appellant’s description discharging five or six pistol rounds into the synagogue. Wisniewski testified that he then observed the shooter walk casually back to a black Jeep Cherokee. Philip Balk, a member of the synagogue, testified that at approximately 2:00 p.m., he arrived at the scene to observe that windows had been broken out and that a swastika and the word “Jew” had been spray-painted in red paint on the building. Detective Edward Adams of the Allegheny County Police testified that when he arrived at the synagogue at approximately 2:50 p.m., he observed the broken glass and the desecration with the red spray paint. He also observed two bullet holes in some of the glass and bullet fragments in the synagogue’s vestibule.
Regarding the shooting at the Scott Towne Center, Joseph Lanuka testified that at approximately 1:30 p.m. on April 28, 2000, he dropped off Anil Thakur at the India Grocery, an establishment in. the shopping mall. Lanuka told Thakur that he would be back in fifteen minutes to pick him up. When Lanuka returned, he saw police entering the grocery store and Thakur’s grocery bag lying on the ground. Lanuka went into the store and saw Thakur lying on the ground with three or four bullet holes in his chest. He also saw a man lying behind the counter, who was identified at trial as Sándip Patel. Thakur died from his wounds and Patel was paralyzed from his neck down -as a result of the gunshots he had received. Also regarding this incident, John McClusky testified that at approximately 1:45 p.m., he heard a noise, which he ascertained were gunshots, and observed Appellant pointing a gun at an individual who ran past Appellant into the grocery store. Appellant turned and followed the man into the store; McClusky then heard three more gunshots. Appellant left the establishment, made eye contact with McClusky, and then walked slowly, calmly, and collectedly toward a lower area of the mall parking lot. McClusky then observed Appellant drive away in a normal fashion in a black Jeep Cherokee. Jennifer Lynn Fowler also testified that she witnessed the events described by McClusky.
A second synagogue incident occurred that afternoon at the Ahavath Achim Synagogue in Carnegie, approximately 2.1 miles from the Scott Towne Center. Carole Swed testified that at approximately 2:00 p.m. she was stopped at a traffic light across the street from the synagogue. Swed heard two loud pops and turned to observe Appellant, with a calm demeanor, standing outside of the synagogue. She observed him fire several shots into the synagogue, then get into a black Jeep and drive away. Swed was able to record the license plate number of the Jeep, and she promptly provided this information to the police, whom she immediately called. Detective Edward Fisher of the Allegheny County Police testified that when he arrived at the synagogue, he observed five bullet holes in the structure, including one in a flyer advertising a meeting of Holocaust survivors that was scheduled at the synagogue.
D.T. testified that between 2:15 and 2:30 p.m. on April 28, 2000, he was the lone diner at the Ya-Fei Chinese Restaurant in the Robinson Towne Center, a strip mall located approximately ten minutes away by car from the Ahavath Achim Synagogue. In the restaurant at the time was Ji-Ye Sun, the restaurant manager, and Thao Pak Pham, a delivery person. During this period, Appellant walked into the restaurant carrying a briefcase. Appellant and Pham had a verbal exchange, and then D.T. saw Pham begin to run. D.T. testified that Appellant pulled a pistol from his case and shot Pham in the back as he was running past D.T.. Sun was shot in the chest. Although paramedics arrived quickly at the establishment, both Pham and Sun died from their gunshot wounds.
G.T. testified that at approximately 2:40 p.m., he met his best friend, Garry Lee, at the C.S. Kim Karate Studio, located in the Center Stage Shopping Center, which was not a far distance from the Robinson Towne Center. Both men were warming up in the studio when Appellant entered and pointed a handgun at G.T.. Appellant did not shoot but turned the gun in the direction of Lee, who was standing next to G.T.. Appellant shot Lee twice in the chest and then calmly walked away as G.T. ran to the back of the studio in an effort to summon help. However, Lee died from his gunshot wounds. G.T. is white; Lee was black.
Diane Wenzig, the owner of a pizza shop two doors away from the karate studio, testified that she observed Appellant walk into the karate studio with a gun in one hand and a briefcase in the other. After hearing the gunshots, Wenzig instructed her son to call 911. Wenzig observed Appellant get into a black Jeep Cherokee, whose license plate number she recorded and provided to the police.
Following the report of this incident, Officer John Fratangeli of the City of Aliquippa Police Department was instructed to station himself on the Aliquippa-Ambridge Bridge along Route 51 so that he could intercept Appellant. Officer Fratangeli testified that at approximately 3:10 p.m., he observed Appellant’s black Jeep Cherokee turn onto the bridge. Appellant was not driving erratically; in fact, he was driving within the speed limit and using proper turn signals. Officer Fratangeli followed Appellant’s vehicle, and when assisting units arrived, he initiated a traffic stop, two blocks from another synagogue. Appellant was arrested and his .357 caliber pistol was found in a soft-sided briefcase in the Jeep. A criminologist with the Allegheny County Coroner’s Office testified that forensic tests confirmed that the bullets recovered from the bodies of Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee had all been discharged from Appellant’s weapon.
At trial, the Commonwealth also introduced the testimony of Appellant’s cellmates at different correctional facilities. Bobby Jo Eckles testified that Appellant told him that he had “shot a nigger” and that Appellant made other derogatory comments regarding blacks and Jews. David Brazell testified that Appellant told him that he had killed Anita Gordon “to make a statement” and that he had desecrated the Beth El Synagogue because that was where Mrs. Gordon had worshipped. Other fellow inmates testified that Appellant spoke of his anti-immigration and pro-segregation views, his desire to start a white supremacist party, and his hatred for all “ethnic” people.
The foregoing evidence was amply sufficient to permit the jury to conclude, beyond a reasonable doubt, that Appellant intentionally, deliberately, and with premeditation killed Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee. Each of these victims was unlawfully killed; Appellant committed the killings; and the mere fact that Appellant shot four of the victims in the chest, sometimes several times, was sufficient to permit the jury to find a specific intent to kill. Additional evidence of Appellant’s specific intent to kill included (1) the statements he later made indicating his desire to “make a statement” by his shooting of Mrs. Gordon; (2) his disparagement of the ethnicities of the victims; and (3) his violent desecration of synagogues.
Having determined that the evidence overwhelmingly supports his first-degree murder convictions, we now turn to Appellant’s claims.
II. Relaxed Waiver Rule
Although Appellant does not concede that any issue in this appeal was not timely raised and preserved below, he has anticipated, correctly, that the Commonwealth argues that many of his issues were not preserved and are thus waived. In anticipation of the Commonwealth’s argument that certain of his issues are waived, Appellant contends that we should address the merits of such issues under the “relaxed waiver rule.” Appellant acknowledges that we abrogated the relaxed waiver rule in Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), well prior to his 2006 appeal. However, because his case was tried before Freeman’s effective date, Appellant contends that it “makes sense” that he should reap the advantages of the rule because his trial counsel might have anticipated its application on appeal. Appellant’s Brief at 20. Further, Appellant contends that all of his issues, save one, were “raised below” in his post-sentence motions, even if not during trial or on pre-trial motions. Finally, Appellant asks that we invoke our discretion to review waived claims and, in particular, consider that his claims rise to the level of “primary constitutional magnitude.” Id. at 21.
Prior to Freeman, this Court would address, in its discretion, issues in capital appeals not preserved below pursuant to a practice we referred to as the relaxed waiver rule. See, e.g., Freeman, supra at 400 (citing to several capital cases where we reviewed otherwise waived issues under the relaxed waiver rule). However, in Freeman, we abolished this rule, holding
that, as a general rule on capital direct appeals, claims that were not properly raised and preserved in the trial court are waived and unreviewable. Such claims may be pursued under the [Post Conviction Relief Act (PCRA)], as claims sounding in trial counsel’s ineffectiveness or, if applicable, a statutory exception to the PCRA’s waiver provision. This general rule ... reaffirms this Court’s general approach to the requirements of issue preservation.... [A]n assumption has arisen that all waived claims are available for review in the first instance on direct appeal. The general rule shall now be that they are not. In adopting the new rule, we do not foreclose the possibility that a capital appellant may be able to describe why a particular waived claim is of such primary constitutional magnitude that it should be reached • on appeal. Indeed, nothing ... shall ... call[ ] into question the bedrock principles ... concerning the necessity of reaching fundamental and plainly meritorious constitutional issues irrespective, even, of the litigation preferences of the parties. Consistently with our [practice], however, we leave the specific articulation of any future exception to the actual case or controversy in which that “rare” claim arises.
Id. at 402.
Further, we made our new “rule” prospective, holding that the relaxed waiver rule would continue to apply only to those capital cases then briefed or in the process of being briefed. Id. at 403. Because we held that our new rule would apply to those cases in which the appellant’s brief had not yet been filed in this Court and was not due for thirty days or more after the May 30, 2003 filing date of Freeman, all cases where the appellant’s brief was due to be filed after June 28, 2003, or had not been filed by that date, were subject to our new rule. Id.; see also Cousar, supra at 1043.
In the instant case, Appellant was tried for capital murder prior to the effective date of the new rule set forth in Freeman. However, Appellant filed his notice of appeal on February 28, 2006, well after the effective date of the new rule established in Freeman. Therefore, the relaxed waiver rule clearly does not apply to Appellant’s issues, even though Appellant’s trial occurred prior to the effective date of the new rule. See Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1066 (2007) (holding that Freeman barred application of the relaxed waiver rule where the appellant was convicted in 1999, prior to Freeman, but the appeal was filed after the effective date of the new rule set forth in Freeman), and Cousar, supra at 1043 (holding that Freeman barred application of the relaxed waiver rule where the appellant was convicted in 2001, prior to Freeman, but the appeal was filed after the effective date of the new rule set forth in Freeman). Therefore, Appellant’s “waived claims may be considered, if at all, only as components of a challenge to trial counsel’s stewardship.” Moore, supra at 1066.
Moreover, the specific reasons asserted by Appellant for applying the relaxed waiver rule here are easily rejected. Appellant first argues that the relaxed waiver rule should be applied because trial counsel would have anticipated its application on appeal. However, “this Court has long emphasized that the relaxed waiver rule did not exist to permit capital defendants and their counsel to deliberately avoid raising contemporaneous objections.” Freeman, supra at 403.
Appellant next argues that those objections not contemporaneously raised below were nevertheless “raised in the lower court” by virtue of having been set forth in post-sentence motions. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Appellant has failed to show that Rule 302(a) has ever been interpreted as meaning that issues may be raised at any time during the lower court proceedings in order to preserve them. Rather, it is axiomatic that issues are preserved when objections are made timely to the error or offense. See Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 761 (2005) (holding that an “absence of contemporaneous objections renders” an appellant’s claims waived); and Commonwealth v. Bruce, 207 Pa.Super. 4, 916 A.2d 657, 671 (2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007) (holding that a “failure to offer a timely and specific objection results in waiver of” the claim). Therefore, we shall consider any issue waived where Appellant failed to assert a timely objection.
Finally, Appellant argues that we should review even waived claims if they rise to the level of “primary constitutional magnitude.” Indeed, in Freeman, we specifically reserved the practice of “reaching fundamental and plainly meritorious constitutional issues irrespective, even, of the litigation preferences of the parties.” Freeman, supra at 402. However, with respect to what are his “fundamental and plainly meritorious constitutional issues,” Appellant references only his arguments concerning whether sentencing a mentally ill person to death and whether lethal injection constitutes cruel and unusual punishment. Appellant’s Brief at 21-22; see discussion infra with respect to these issues. As shall be discussed infra, we do not agree that Appellant has raised any “fundamental and plainly meritorious constitutional issues.” We therefore proceed to address Appellant’s properly preserved substantive issues from both the guilt phase and sentencing phase of trial.
III. Change of Venue or Venire
Appellant argues that the trial court erred by not sua sponte ordering either a change of venue or an out-of-county venire panel despite the fact that trial counsel specifically-opposed a change of venue or a change of the venire panel to persons outside of the county. Moreover, Appellant makes this argument despite the additional fact that the trial court, after conducting an evidentiary hearing on the issue of pretrial publicity that included testimony given by an investigator hired by the court, granted Appellant’s specific request to have the matter tried within Allegheny County with an Allegheny County jury.
As the facts make plain, this case was one of the most notorious in the history of Allegheny County, and was extensively covered by the media. Not only was there significant pre-trial local news coverage of the events of April 28, 2000, but there was also coverage concerning the impact the crimes had on Sandip Patel, who was paralyzed, and on the survivors of those who had been killed. Many news stories also concerned the state of Appellant’s mental health.
Anticipating that there could be difficulties in selecting an impartial jury in such an atmosphere, the trial court conducted a “testing of the venire” healing on February 21, 2001. That hearing established that 102 of 107 potential jurors responded that they had read about, heard and seen on TV, or otherwise had personal knowledge of the events of April 28, 2000. Seventy-five of the 102 knowledgeable potential jurors indicated that they could not be fair and impartial if selected to serve on Appellant’s jury. On March 15, 2001, the court conducted a second testing of the venire hearing at which a private investigator, hired by the court to examine local news coverage of the case, testified in detail as to the extent of local news coverage of the case. This second potential jury pool reflected knowledge and attitudes similar in proportion to that of the potential jury pool of the first hearing.
The evidence set forth at the hearings gave the trial court misgivings about selecting a jury panel from Allegheny County. Trial Court Opinion, dated March 26, 2001, at 21. However, at the March 15, 2001 hearing, Appellant specifically objected to a change in venire and specifically requested that the jury be selected from the citizens of Allegheny County, explaining that his trial strategy would be best served by having a local jury. Despite its concerns, the trial court acceded to Appellant’s request, noting that not to do so would simply provide Appellant with an appeal issue for which a new trial would be requested. Id. Nevertheless, the trial court held another pre-trial hearing on April 11, 2001, at which the trial judge conducted a colloquy with Appellant, who unequivocally stated to the court that he understood the ramifications of selecting a jury from Allegheny County, but supported his counsel’s decision to oppose a change of venire. It should be noted that Appellant is a former, non-practicing attorney.
Appellant now argues, as he did in post-trial motions, that the trial court erred by (1) failing to sua sponte deny Appellant’s objection to a change in venire; and (2) denying Appellant’s post-trial request to hold an evidentiary hearing to consider the fairness of the trial as viewed through the testimony of Appellant’s proffered expert witness. Dr. Edward Bronstein, a professor of political science, would have purportedly testified on behalf of Appellant that it was the professor’s “strong opinion that the media coverage of the case raised the most serious concerns about the fair trial rights of [Appellant].” Appellant’s Brief at 26.
However, Appellant is now arguing that the trial court erred by granting Appellant’s direct objection to any change in venue or the venire panel, an objection lodged in pursuit of a particular trial strategy devised by Appellant. At the very least, Appellant must be considered to have waived his argument, as he clearly did not raise a timely objection to the trial court’s refusal to order a change in venire. Thus, despite Appellant’s argument that the trial court should have sua sponte ordered a change in venire, Appellant is- essentially arguing that the court erred by sustaining Appellant’s own objection. Thus, his argument must be deemed waived. Because Appellant’s primary argument is waived, his subsidiary argument that the trial court erred by refusing to conduct a post-sentence motion to take testimony from Dr. Bronstein is without merit.
We note further that in rejecting Appellant’s post-sentence argument on this issue, the trial court specifically determined “that the record of the jury selection process established that it was possible to select a jury untainted by prejudicial pre-trial publicity. Such a jury was, in fact, selected in this matter.” Trial Court Opinion, dated December 29, 2005, at 5. Here, Appellant utterly fails to dispute this determination by identifying any evidence in the record establishing or indicating that the jury actually selected in this case was biased or tainted by pre-trial publicity. Therefore,' even if Appellant had not waived his argument, we would find no basis for relief.
In a similar vein, it is significant to note, as our now-Chief Justice has observed, that “[t]he trial judge is not an advocate, but a neutral arbiter interposed between the parties and their advocates.... With certain rare exceptions ... the trial judge is not duty-bound to raise additional arguments on behalf of one party or another such that, if and when the judge fails to do so, he has ‘erred.’ ” Commonwealth v. Overby, 570 Pa. 328, 809 A.2d 295, 316 (2002) (Castille, J., dissenting); see also Commonwealth v. Pachipko, 450 Pa.Super. 677, 677 A.2d 1247, 1249 (1996) (noting that it is “clearly inappropriate” for a trial judge to raise an issue on behalf of a party and act as an advocate for that party). This observation simply mirrors that made by the United States Supreme Court, which determined:
In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.
Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (quoted with approval in Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259, 261 (1993)). Indeed, in Edwards, we announced that it would be in the future per se reversible error if a judge instructs the jury concerning a defendant’s right not to testify when the defendant has requested that no such instruction be given. Edwards, supra at 261. Similarly, it was not the place of the trial judge here to direct Appellant to pursue a different trial strategy when Appellant’s chosen trial strategy was not violative of the law or our rules of procedure. In light of the above, we cannot determine that the trial court erred by sustaining Appellant’s objection to a change in venue or venire.
IV. Striking of Three Jurors from the Venire Panel
Appellant argues that he is entitled to a new capital sentencing hearing because the Commonwealth’s pre-trial striking from the jury panel of three “otherwise qualified jurors,” who had expressed their opposition to the death penalty, allegedly resulted in the empanelling of a jury partial to the Commonwealth’s request for the death sentence. Appellant’s Brief at 28. Appellant notes that the United States Supreme Court has held that “a challenge for cause cannot be sustained based merely upon a venire person’s voicing of general objections to the death penalty or expression of conscientious or religious scruples against its imposition.” Witherspoon v. Illinois, 391 U.S. 510, 521-22, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); see also Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 81 (2004) (quoting Witherspoon).
However, the record plainly shows that Appellant failed to timely object to the Commonwealth’s challenges for cause to the three prospective jurors identified by Appellant as “otherwise qualified.” An appellant waives any issue concerning the striking of a venire person when he or she fails to object to a challenge for cause, even when the issue is “of constitutional dimension.” Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 378 (1986); see also Commonwealth v. Lewis, 523 Pa. 466, 567 A.2d 1376, 1381 (1989) (holding that a failure to preserve an objection to the exclusion of a potential juror for cause results in waiver of the issue, even under the relaxed waiver rule); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365, 1379-80 (1984) (holding that even when prospective jurors are excluded for simply voicing a general opposition to or discomfort with the death penalty, defense counsel’s failure to object to the striking for cause of such prospective jurors results in waiver of the issue). Accordingly, we conclude that this issue is waived.
V. Search of Appellant’s House and Seizure of his Personal Items
Appellant contends that the police violated his rights under the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution by conducting a search of his house and effecting a seizure of personal items. Although the search was made pursuant to a search warrant as well as with the consent of Appellant’s parents, Appellant argues that (1) the warrant allowing for a broad search for material was overbroad and not based on probable cause that such material was contraband or evidence of a crime; and (2) the consent for the search was invalid. Among the items seized from Appellant’s house was his desktop computer. Pursuant to a subsequently issued warrant, the police examined the file contents of the computer, which revealed evidence of Appellant’s racist and anti-immigrant philosophies. That evidence was later used by the Commonwealth at trial.
However, Appellant never filed a motion to suppress the evidence he now claims was impermissibly seized by the police. Pennsylvania Rule of Criminal Procedure 581 addresses the light of a criminal defendant to move to suppress evidence alleged to have been obtained in violation of his or her rights, and sets forth the procedure attendant to the disposition of a suppression motion. Rule 581(D) requires that a suppression motion state with specificity and particularity the evidence sought to be suppressed. Rule 581(B) provides: “If timely motion [for suppression of evidence] is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.”
This Court has consistently affirmed the principle that a defendant waives the ground of suppressibility as a basis for opposition to the Commonwealth’s introduction of evidence when he or she fails to file a suppression motion pursuant to our rules of criminal procedure. See, e.g., Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431, 435 (1978) (holding that the specificity requirement of the suppression rule is mandatory, and therefore the failure to object to specific evidence in a suppression motion results in waiver of any argument that such evidence should have been suppressed); Commonwealth v. Williams, 454 Pa. 261, 311 A.2d 920, 921 (1973) (holding that any objection to the introduction of evidence on constitutional grounds is waived in the absence of the filing of a suppression motion pursuant to the applicable rule of criminal procedure). Accordingly, we determine that Appellant has also waived his claim that the evidence seized from his house should have been suppressed.
VI. Recording of Telephone Conversation
At trial, the Commonwealth introduced into evidence a recording of a telephone conversation made March 2, 2001, at the Allegheny County Jail between Appellant, then an inmate of the jail, and his parents, during which the parents appeared to accuse Appellant of being a racist.' The Commonwealth’s psychiatric expert in some part relied upon this recording in forming his opinion that Appellant had acted from racist motives rather than from a mental illness. Appellant had moved to suppress the evidence of the telephone conversation pre-trial, arguing that it. violated Section 5704(14) of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. § 5704(14), because there had purportedly been no written notification that the conversation would be recorded. Appellant also argued that Section 5704(14) of the Wiretap Act was violated a second time when the contents of the recorded conversation were divulged to a detective and the Commonwealth’s psychiatric expert.
In denying the suppression motion, the court found that the evidence established that inmates generally receive notice in two ways that their outgoing telephone conversations are recorded: (1) through written notice in the prison handbook; and (2) through a computer-generated message on the telephone itself that is audible to both the inmate and the party on the other end of the conversation. Further, the court found that evidence adduced at the hearing established that Appellant and his parents were actually aware that their telephone conversations were being recorded. Indeed, during the March 2, 2001 conversation, Appellant’s father warned Appellant that the conversation was being recorded by prison authorities. Finally, the court determined that the contents of the conversation were properly divulged pursuant to the Wiretap Act’s directive that contents of recorded conversations may be divulged in connection with “the prosecution or investigation of any crime.” 18 Pa.C.S. § 5704(14)(i)(C). Accordingly, the court determined that the Wiretap Act had not been violated because Appellant had received prior written and aural notice—and had actual notice as well—that his telephone conversations were being recorded by prison personnel, and because the contents of the conversation were divulged in conformance with the statute.
Post-trial, Appellant’s new counsel, after reviewing a copy of the prison handbook, determined that the handbook did not actually contain written notice that prison telephone conversations are recorded, as had been found factually by the suppression court. Appellant’s new counsel also obtained an affidavit from the head of operations at the jail when Appellant was incarcerated there, who confirmed that the prison handbook did not contain written notice to inmates regarding the interception and recording of their telephone conversations. Based on this information, Appellant argued in post-trial motions, as he is arguing now before us, that the telephone conversation at issue was made in violation of Section 5704(14)(i)(A) of the Wiretap Act, as that section requires written, not other, notice. The trial court rejected this argument, noting that the fact that Appellant actually knew that his conversation was being recorded controlled the disposition of the issue. Further, the court determined that Section 5704(14)(i)(A) of the Wiretap Act did not require written notice to every inmate individually, but only prior written notice to the existing inmates before a correctional facility could implement a program of intercepting and recording inmate telephone conversations. This determination was based on the court’s reading of the subparagraph relied on by Appellant for his argument, to wit, “Before the implementation of this paragraph, all inmates of the facility shall be notified in writing that, as of the effective date of this paragraph, their telephone conversations may be intercepted, recorded, monitored or divulged.” 18 Pa.C.S. § 5704(14)(i)(A) (emphasis added).
Appellant now renews his arguments to this Court, contending that it was irrelevant that he was under actual notice that his telephone conversation was being intercepted and recorded, when the statute required that he receive prior written notice. In making this argument, Appellant relies upon our case law holding that the requirements of the Wiretap Act must be strictly adhered to and that a defendant need not establish prejudice prior to obtaining relief. See, e.g., Commonwealth v. Hashem, 526 Pa. 199, 584 A.2d 1378, 1381-82 (1991) (applying a completely different section of the Wiretap Act, namely Section 5718, pertaining to disclosure to the defendant of court-authorized intercepts). We cannot agree with the conclusions Appellant reaches.
Appellant is certainly correct that because the Wiretap Act infringes upon the constitutional right to privacy, its provisions are strictly construed. See Kopko v. Miller, 586 Pa. 170, 892 A.2d 766, 772 (2006). However, this principle does not compel a reviewing court to abandon all recognition of the facts before it or to ignore the principle that statutes are not to be construed in a manner that would yield an absurd result. See 1 Pa.C.S. § 1922(1) (providing that in ascertaining the intent of the General Assembly in the enactment of a statute, it is presumed that the General Assembly did not intend a result that is absurd or unreasonable). Simply stated, there is no basis to conclude that the privacy rights of Appellant or his parents were infringed when their March 2, 2001 telephone conversation was recorded. These individuals were actually aware that their telephone conversation was being or could be intercepted and recorded by prison authorities. Written notice to Appellant, assuming he never received any, would not have afforded him any greater protection of his right to privacy or that of his parents than the actual notice they possessed at the time of the conversation. Therefore, on this basis alone, Appellant’s argument is wholly without merit.
Finally, there is no basis for Appellant’s supplemental argument that Section 5704(14)(i)(C) of the Wiretap Act was violated when the contents of the telephone conversation at issue were divulged to an investigating detective and to the Commonwealth’s psychiatric expert. Section 5704(14)(i)(C) provides:
(C) The contents of an intercepted and recorded telephone conversation shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime.
18 Pa.C.S. § 5704(14)(i)(C).
Appellant avers that Section 5704(14)(i)(C) is ambiguously written and should be interpreted in a manner that permits disclosure only “to safeguard the orderly operation of the facility.” However, a plain reading of this section refutes this contention. This section provides that a recording of a telephone conversation involving an inmate may be divulged under any of three instances:. (1) only as is necessary to safeguard the orderly operation of the facility; (2) pursuant to a court order; or (3) in the prosecution or investigation of any crime. The March 2, 2001 conversation was divulged pursuant to the third circumstance. Appellant has failed to cite to any authority that would compel a result where a properly intercepted and recorded conversation is prohibited from being used in the prosecution or investigation of any crime. Therefore, we conclude that the trial court correctly determined that no violation of Section 5704(14)(i)(C) occurred.
VII. Cross-Examination of Dr. Merikangas
Prior to trial, Appellant’s counsel consulted with forensic psychiatrist, Robert Wettstein, M.D., who on several occasions had interviewed Appellant after his crime spree. Appellant ultimately decided not to call Dr. Wettstein to testify, but instead relied principally upon the expert testimony of another psychiatric expert, James R. Merikangas, M.D., in support of his insanity defense. Dr. Merikangas had not consulted with Dr. Wettstein in arriving at his conclusions. At a pre-trial hearing, the trial court ruled that Dr. Wettstein’s notes could not be examined or used by the Commonwealth because they consisted of attorney-client and attorney work-product protected documents. Indeed, it appears that the Commonwealth never obtained Dr. Wettstein’s notes, records, or report. However, at trial and over Appellant’s objection, the trial court permitted the Commonwealth to cross-examine Dr. Merikangas concerning his failure to consult with Dr. Wettstein. Appellant specifically identifies the following testimony as prejudicial:
Q. [Commonwealth]: He [Dr. Wettstein] interviewed [Appellant], didn’t he?
A. [Dr. Merikangas]: If you say so.
Q. Well, what if [Appellant] on that date would have said that he wasn’t hearing voices, I just hate blacks, wouldn’t that be important for you to know?
A. If that were the case. I don’t know what happened.
Q. Well, that’s right, you don’t know because you didn’t talk to Wettstein, isn’t that right?
Notes of Testimony (“N.T.”) Trial, 5/4/01, at 1500. It is important to note that Appellant does not argue that by this questioning, the Commonwealth divulged the contents of Dr. Wettstein’s report or notes. Rather, Appellant argues that the Commonwealth’s questions “suggested that, like the prosecution’s expert, Dr. Weiner, Dr. Wettstein believed that [Appellant] was a malingerer and a racist.” Appellant’s Brief at 48.
In overruling Appellant’s objection to the Commonwealth’s questions pertaining to Dr. Wettstein, the trial court determined that such questioning did not violate the court’s' pretrial ruling prohibiting the Commonwealth’s acquisition and use of Dr. Wettstein’s report or invade the area of confidential exchanges between Appellant and Dr. Wettstein. Rather, the court determined that the questioning was relevant both to the issue of Dr. Merikangas’s possible bias and the foundation for his opinion. The issue of potential bias related to previously disclosed evidence that Appellant had stated to a cellmate that he had two psychiatric experts, and that he had chosen the one that was more favorable to his case while rejecting the other. The issue of the foundation for Dr. Merikangas’s opinions pertained to the degree to which this witness had explored records and psychiatric evaluations of other psychiatric professionals in order to obtain a more complete picture of Appellant’s mental state. The court determined that the Commonwealth could explore these issues without delving into the substance of Dr. Wettstein’s reports and records. N.T. ' Trial, 5/4/01, at 1496.
Appellant now argues that the information the Commonwealth was attempting to elicit from Dr. Merikangas concerned confidential communications that took place between Appellant and Dr. Wettstein, and for this reason is protected by (1) work-product and (2) attorney-client privileges, and (3) the Sixth Amendment right to effective assistance of counsel. We shall examine Appellant’s theories and apply them to the facts seriatim.
(1) The work-product doctrine was adopted by this Court and placed into practical effect in Pa.R.Crim.P. 573(G), which reads as follows:
[Pre-trial disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney for the Commonwealth or the attorney for the defense, or members of their legal staffs.
See Commonwealth v. Kennedy, 583 Pa. 208, 876 A.2d 939, 946 (2005) (explaining that the general work-product doctrine as recognized by United States Supreme Court case law was adopted by this Court in the context of pre-trial discovery in criminal matters and delineated in Pa.R.Crim.P. 573(G)).
Further, the rules of criminal procedure pertaining to pretrial discovery generally protect the work-product of agents hired by defense attorneys. Id. at 946-47. See Pa.R.Crim.P. 573(C)(1)(a) (providing that upon the Commonwealth’s filing of a motion for pre-trial discovery, the trial court may order the defendant, subject to his or her right to be free from compulsory self-incrimination, to divulge reports or test results that the defendant intends to introduce into evidence or which were prepared by a witness whom the defendant intends to call to testify at trial). Pa.R.Crim.P. 573(C) does not require the defendant to disclose reports prepared by a witness whom he or she does not intend to produce at trial.
In Kennedy, supra, we extended the principles of the work-product doctrine from the realm of pre-trial discovery to the course of the trial itself, specifically holding
that a practical application of the work-product doctrine to trial in criminal proceedings prevents the Commonwealth from calling as a witness an agent who[m] the defense hired in preparation for trial but decided not to call as a witness at trial[,] or to use the materials prepared by the agent as evidence at trial, unless the Commonwealth can show a substantial need for such testimony and an inability to obtain the substantial equivalent of such testimony without undue hardship. Consequently, absent these showings, a trial court may not compel such testimony.
Id. at 948-49 (footnote omitted).
In the case sub judice, the Commonwealth never obtained any reports or notes of Dr. Wettstein, nor did the Commonwealth call Dr. Wettstein to testify. Therefore, the work-product protections that this Court has extended to defendants by rule of criminal procedure or case law were not violated. The mere questioning of one expert witness as to whether his failure to consult with another witness who was not called afforded a full view upon which to base an expert opinion does not implicate the work-product doctrine as defined and applied by this Court.
(2) Appellant’s arguments concerning alleged violations of attorney-client privileges and his right to effective assistance of counsel appear to be two sides of the same coin. A criminal defendant is protected by the benefits of an attorney-client privilege; also, he or she is constitutionally entitled to effective assistance of counsel. Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 422-23 (1999). Our Superior Court, based on federal case law, has determined that the attorney-client privilege in criminal matters extends to communications made between the defendant and an agent hired by the defendant’s attorney to provide legal assistance. Commonwealth v. Noll, 443 Pa.Super. 602, 662 A.2d 1123, 1126 (1995). The court stated, “This privilege protects those disclosures that are necessary to obtain informed legal advice which might not have been made absent the privilege. This privilege only applies where the [defendant’s] ultimate goal is legal advice.” Id. (citing In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D.Pa.1992); emphasis in original).
Notably, Appellant does not suggest or argue how the Commonwealth obtained and then divulged to the jury any legal advice given by Dr. Wettstein as an agent for Appellant’s attorney. Again, the Commonwealth never obtained any reports or notes of Dr. Wettstein, nor did the Commonwealth call Dr. Wettstein to testify, nor did the Commonwealth introduce evidence of Dr. Wettstein’s advice to Appellant, if he gave any, through any other witness. There is no basis for the claim that Appellant’s attorney-client protections were violated by the Commonwealth’s cross-examination of Dr. Merikangas.
(3) With regard to a criminal defendant’s right to effective assistance of counsel within the context of the issue Appellant raises herein, the Third Circuit Court of Appeals has stated:
The issue here is whether a defense counsel in a ease involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity make inquiry about the facts surrounding the alleged crime, just as the attorney will. Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.
United States v. Alvarez, 519 F.2d 1036, 1046-47 (3d Cir.1975).
The Alvarez court also couched its concern over such disclosures in terms that related to violation of the attorney-client privilege. Indeed, Alvarez has been interpreted as reading a broad attorney-client privilege into the Sixth Amendment requirement of effective counsel. See Noggle v. Marshall, 706 F.2d 1408, 1413 (6th Cir.1983); see also State v. Mingo, 77 N.J. 576, 587, 392 A.2d 590, 595-96 (1978) (finding a similarity between the attorney-client privilege and the Sixth Amendment right to effective assistance of counsel, and holding that reliance upon the confidentiality of an expert’s advice is a critical aspect of a defense attorney’s ability to consult with and advise his or her client). Hence, Appellant’s arguments concerning alleged violations of attorney-client privileges and his constitutional right to effective assistance of counsel are essentially the same.
As with our determination that the Commonwealth’s cross-examination of Dr. Merikangas did not offend Appellant’s right to attorney-client privileges, for the same reasons, Appellant’s argument invoking the Sixth Amendment right to effective counsel would not have any merit even if we were to decide the question of when such right is implicated, which we decline to do at this time. The record is clear that the Commonwealth did not have access to Dr. Wettstein’s notes or reports, did not introduce them into evidence, and did not call Dr. Wettstein to testify. Thus, nothing of record indicates any interference with Appellant’s counsel’s right or ability to rely upon the confidential communications of an expert retained but not called to testify. Accordingly, Appellant’s Sixth Amendment argument lacks the factual predicate the case law he cites in support of his argument would require for establishing relief. Therefore, we determine that none of the theories Appellant has advanced in support of this issue has merit.
VIII. Cross-Examination of Dr. Merikangas as Due Process Violation
Appellant next argues that the Commonwealth violated Appellant’s due process rights when the Commonwealth posed the following question to Dr. Merikangas on cross-examination: “Well, what if [Appellant] on that date would have said that he wasn’t hearing voices, I just hate blacks, wouldn’t that be important for you to know?” N.T. Trial, 5/4/01, at 1500. Appellant contends that this question violates his due process rights because the question lacked a good faith basis in the evidence, citing Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2004). In Smith, we reversed a death sentence and remanded for a new penalty hearing because the prosecutor, during the penalty phase of trial, referenced the fact that the appellant had been convicted of assaulting a fellow prisoner with a weapon in order to establish that the appellant posed a danger to the prison population. However, no competent evidence had been introduced at trial establishing the fact of this conviction. We determined that an examination of the record revealed that the error was not harmless. Here, Appellant argues that he is entitled to a new trial on guilt because the prosecutor’s question assumed a fact not in evidence, to wit, that Appellant had told Dr. Wettstein that he did not have hallucinations but merely hated blacks.
At the very most, the Commonwealth’s cross-examination of Dr. Merikangas may have suggested, by this one question, that Dr. Wettstein, like Dr. Weiner, had determined that Appellant had killed the victims because of his racist views rather than while suffering from a mental disease sufficient to rise to the level of insanity. Thus, the Commonwealth’s question arguably assumed a fact not in evidence. However, Appellant never objected to the question, except to the extent that he had previously objected to the Commonwealth’s general line of questioning that referenced Dr. Wettstein, which objection was based on the trial court’s pre-trial ruling that the Commonwealth could not have access to Dr. Wettstein’s report or records. Appellant never lodged an objection specifically to the question at issue, nor did he lodge one on the grounds that the Commonwealth’s questions assumed a fact not in evidence or were violative of Appellant’s due process rights. Accordingly, we determine that this issue is waived. See May, supra at 761 (holding that the absence of a specific contemporaneous objection renders the appellant’s claim waived).
IX. Denial of Right to Present Mitigating Evidence
Appellant next argues that his right to present mitigating evidence was improperly curtailed by the trial court. At a penalty hearing, a capital defendant may present relevant evidence in mitigation. 42 Pa.C.S. § 9711(a)(2); May, supra at 765. Evidence is relevant to mitigation if it is probative of any of the enumerated mitigating circumstances set forth at 42 Pa.C.S. § 9711(e). Although Appellant presented evidence to the jury regarding five mitigating circumstances, his present argument concerns only the mitigating circumstances described at 42 Pa.C.S. § 9711(e)(2), concerning whether the defendant was under the influence of extreme mental or emotional disturbance, and (e)(3), concerning whether the defendant had a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. With respect to the argument Appellant now raises, we note that “[t]he admissibility of evidence, including evidence proffered at the penalty phase of a capital trial, is within the discretion of the trial court, and such rulings will form no basis for appellate relief absent an abuse of discretion.” Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430, 459 (2006).
Appellant’s argument has two components. In the first, Appellant contends that the trial court abused its discretion by refusing to allow sentencing phase testimony by Christine Martone, M.D., the chief psychiatrist at the Allegheny County Behavior Clinic, an arm of the Allegheny County Court of Common Pleas. In the second, Appellant contends that the court abused its discretion by precluding the publication to the jury of mitigating evidence in the form of a redacted portion of the March 2, 2001 recorded telephone conversation between Appellant and his parents, during which the parents expressed their opinion that Appellant’s criminal actions stemmed from his mental illness.
(A) Dr. Martone
Dr. Martone’s responsibilities to the court of common pleas require that she evaluate defendants for competency and for dispositional recommendations after a finding of guilt. In her official capacity, Dr. Martone examined Appellant five times after the shootings, the first time being on May 2, 2000, only four days after the shootings occurred. It was Dr. Martone who initially determined that Appellant was not competent to stand trial.
During the guilt phase of trial, the trial court denied, on conflict of interest grounds, Appellant’s request that Dr. Mar-tone testify regarding Appellant’s alleged insanity. However, the court did allow Appellant to question Dr. Martone concerning her psychiatric examination and findings. Appellant’s questions to Dr. Martone concerned her examination of Appellant on two occasions in May 2000. Dr. Martone testified that, based on those examinations, she had diagnosed Appellant with schizophrenia of the paranoid type and had determined that he suffered from auditory hallucinations.
At the penalty phase of trial, Appellant sought to present similar and/or additional testimony from Dr. Martone to address the mitigating factors described at 42 Pa.C.S. § 9711(e)(2), concerning whether the defendant was under the influence of extreme mental or emotional disturbance, and 42 Pa.C.S. § 9711(e)(3), concerning whether the defendant had a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. However, the court refused Appellant’s request because it determined that allowing Dr. Martone, a court employee, to testify for either Appellant or the Commonwealth at this point of the trial would represent a conflict of interest between the court’s neutrality and the interests of the litigants. Additionally, the court was further concerned that if other inmates became aware that Dr. Martone could be called to testify, they would be reluctant to speak openly to her. The court also noted that Dr. Martone had not examined Appellant for sanity, but rather only for competence to stand trial, and that Appellant had at his disposal several psychiatric expert witnesses who had testified for Appellant during the guilt phase of trial and who would be available to testify during the penalty phase of trial. Moreover, the court ruled that Appellant could read Dr. Martone’s guilt-phase testimony to the jury during the penalty phase and could present argument based on that testimony. N.T. Trial, 5/9/01, at 2748-51.
Appellant now argues that the court abused its discretion by refusing to permit Dr. Martone to testify at the penalty phase of trial. First, Appellant contends that the ruling violated a local rule of criminal procedure, All.C.R.Crim.P. 300.31, which provided:
In the trial of any homicide case, after a verdict of Murder of the First Degree is recorded and the court proceeds to the determination of whether a sentence of life imprisonment or the death penalty should be duly imposed, as required by 42 Pa.C.S. § 9711, the court may, upon application of the defense, permit the calling of Behavior Clinic representatives in mitigation.
Second, Appellant refutes the reasoning that Dr. Martone’s testimony would have represented a conflict of interest because Dr. Martone had already testified during the guilt phase of Appellant’s trial. Additionally, Appellant contends that the court’s fear that defendants would be less likely to speak with Behavior Clinic psychiatrists if they knew that these individuals might later testify, is unfounded if such testimony would be beneficial to the defendants, as purportedly Dr. Martone’s testimony would have been for Appellant. Appellant also notes that Dr. Martone had testified in 1995 at the penalty phase of one other capital defendant tried in the Allegheny County Court of Common Pleas, as evidenced by our discussion in Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 72-74 (2003).
Third, although Appellant acknowledges that during the penalty phase of his trial he presented the testimony of two other psychiatric experts for support of the mitigating factors about which he wanted Dr. Martone to testify, he contends that Dr. Martone’s testimony would not have been cumulative of this testimony. Appellant contends that Dr. Martone’s testimony would have carried greater credibility with the jury than Appellant’s hired witnesses because she would have been purportedly viewed by the jury as a “neutral” witness. Moreover, unlike Appellant’s other experts, Dr. Martone examined Appellant near-immediately after the shootings. Additionally, Appellant alleges that his testifying experts were not familiar with the “standards” of the mitigating factors set forth at 42 Pa.C.S. § 9711(e)(2) and (3), even though they testified that in their professional opinions, Appellant met those standards. See Appellant’s Brief at 59. We shall address these three arguments seriatim.
First, as is plain from its words, now-repealed Allegheny County Criminal Rule 300.31 placed the determination as to whether a Behavior Clinic representative would testify upon a defense application within the sound discretion of the trial court; the rule did not mandate that the court grant all requests made under the rule. Therefore, there is no violation of the rule absent a showing of an abuse of discretion. Moreover, Appellant never cited this rule to the court as a basis for his argument that Dr. Martone should testify; Appellant is raising this theory for the first time on appeal. See N.T. Trial, 5/9/01, at 2746-52.
Second, Appellant’s argument concerning the trial court’s stated reasoning for not allowing Dr. Martone to testify does not compel the conclusion that the trial court abused its discretion; in fact, it compels the opposite conclusion. In Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000), we reiterated the well-known definition of “abuse of discretion” as follows:
The term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
Id. at 753.
Here, Appellant does not establish that the court’s reasoning was based on prejudice, personal motivations, or capricious or arbitrary actions; rather, Appellant simply disagrees with the court’s reasoning. The record plainly shows that the court had serious and reasonable concerns with allowing any litigant to call Dr. Martone to testify, given her position with the court and her ongoing, critical duties, which could be jeopardized should she be subject to being called as a witness without sufficient cause. Further, the record shows that the court took into consideration the fact that Appellant had at least three other witnesses qualified to testify as to the same mitigating circumstances for which Appellant wished to call Dr. Martone. Finally, the court observed that the jury already had the benefit of Dr. Martone’s testimony, and that Appellant would be free to publish to the jury, during the penalty phase, the substance of that testimony. Thus, there is no basis in the record to conclude that the court’s determination that Dr. Martone should not testify in the penalty phase, based on a potential conflict of interest, was based on partiality, prejudice, bias, or ill will.
Finally, Appellant’s argument that Dr. Martone’s testimony would not have been cumulative of that of his two psychiatric experts who testified during the penalty phase of trial is not persuasive. Notably, Appellant does not indicate how Dr. Martone’s testimony would have differed significantly from that of his other witnesses, or indeed from that testimony Dr. Martone had already given the jury during the trial phase and which was available for re-publishing to the jury during the penalty phase. Rather, the differences Appellant cites to involve two other aspects: (1) the fact that Dr. Martone had actually examined Appellant near-immedi'ately after the crimes in May 2000, unlike his other two witnesses; and (2) Dr. Martone would have been considered by the jury as a “neutral” witness instead of one biased because of being hired by the defense or, in the case of Matcheri S. Keshavan, M.D., by being Appellant’s regular treating psychiatrist.
.With respect to the fact that Dr. Martone had examined Appellant in May 2000, we note that the testimony Dr. Mar-tone had already given to the jury involved precisely her examination of Appellant in May 2000, and her findings from those examinations. Appellant does not explain how Dr. Martone would have presented anything new had she been allowed to testify during the penalty phase. Indeed, the record establishes that during the penalty phase, Appellant presented only truncated versions of the testimony of his expert psychiatric witnesses, Drs. Keshevan and Merikangas, because their guilt-phase testimony was incorporated by reference at the penalty phase. See N.T. Trial, 5/10/01, at 2924-25 and 2944. Moreover, Appellant had the opportunity to call to testify, but chose not to do so, Laszlo Petras, M.D., a hospital staff and Beaver County Jail psychiatrist, who had actually evaluated Appellant on the day of the murders, and who had testified for Appellant during the guilt phase of trial.
With respect to Dr. Martone’s neutrality, it is only speculative that the jury might have considered her a more persuasive witness, particularly as her examination of Appellant was limited to no more than five encounters and was expressly confined to the question of whether Appellant was competent to stand trial. By contrast, Dr. Keshavan had treated Appellant for mental illness for seven years prior to the shootings. Both Dr. Keshavan and Dr. Merikangas described the severity of Appellant’s mental illness and the potentially exacerbating effect on his mental illness of Appellant’s not taking his medications, which Appellant posited, with some evidence, was the case at the time of the crime spree.
Further, with the witnesses he presented at the penalty phase, Appellant carried his burden of proving to the jury the mitigating circumstance described at 42 Pa.C.S. § 9711(e)(2), concerning whether the defendant was under the influence of extreme mental or emotional disturbance. Thus, the absence of Dr. Martone’s testimony regarding this mitigating factor did not result in prejudice to Appellant. In addition, the alleged “bias” of Drs. Keshavan and Merikangas and the fact that they did not examine Appellant close to the time of the crimes proved no impediment to Appellant in proving this mitigating circumstance.
Appellant did not prove the mitigating circumstance described at 42 Pa.C.S. § 9711(e)(3), concerning whether the defendant had a substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Appellant contends that Dr. Martone’s testimony “would have helped establish this” mitigating factor. Appellant’s Brief at 59. However, Appellant sets forth absolutely no basis for this conclusion. Again, Appellant does not indicate what testimony Dr. Martone would have provided to help establish the subsection (e)(3) mitigating factor. Further, Appellant does not indicate how Dr. Martone would have helped achieve Appellant’s goal of establishing this mitigating factor when she had examined Appellant only to determine competency to stand trial, not for a general assessment of sanity.
There is no questioning the importance of a capital defendant’s right to present mitigating evidence at the penalty phase of trial. However, in light of the above discussion, we must conclude that the trial court did not abuse its discretion by denying Appellant’s request to present the testimony of Dr. Martone.
(B) March 2, 2001 Telephone Conversation
Appellant argues that the court abused its discretion by precluding the publication to the penalty-phase jury of the portion of the March 2, 2001 recorded telephone conversation between Appellant and his parents where the parents apparently expressed their opinion that Appellant’s acts had been caused by mental illness (for convenience, this portion of the telephone conversation shall hereafter be referred to as “the mental illness discussion”). The genesis of this argument lies in the trial court’s allowing the prosecution, during the rebuttal portion of the guilt phase of trial, to publish to the jury a redacted portion of the March 2, 2001 recorded telephone conversation that contained the accusation by Appellant’s parents that Appellant was a racist. The parents’ accusation was based on Commonwealth evidence, by this point shared with the defense, that while in prison, Appellant had autographed for another inmate newspaper or magazine articles on controversial racial issues and had made racist remarks in conversation with this inmate. The Commonwealth sought publication of the redacted portion of the March 2, 2001 telephone conversation to corroborate the truth of the inmate’s testimony regarding these events based on Appellant’s admission on the tape that he had engaged in this conduct. Additionally, the Commonwealth sought to bolster its case that Appellant had committed the crimes because of his racism and not because of insanity, based on Appellant’s failure to deny his parents’ charge that he was a racist. The trial court redacted the telephone conversation to conform, at least in substantial part, with Appellant’s specific objections to publishing other portions of the conversation to the jury. N.T. Trial, 5/8/01, at 2455, 2460, 2500.
During the penalty phase, the trial court denied Appellant’s request to publish to the jury the mental illness discussion, which had not been previously disclosed to the jury. The basis for the trial court’s ruling was that the mental illness discussion constituted inadmissible hearsay, as Appellant was attempting to use this evidence, constituting prior consistent statements, to prove the truth of the matter asserted. (Appellant’s parents testified during the penalty phase, and expressed their opinion that their son was mentally ill and had acted under the influence of this illness.) However, the court did permit Appellant to use the transcript of the mental illness discussion to refresh the recollection of Appellant’s father, during the father’s penalty-phase testimony.
In arguing that the court abused its discretion by its ruling, Appellant fails to address the basis for the court’s determination. Rather, Appellant contends that the mental illness discussion should have been entered into evidence pursuant to Pa.R.E. 106. Rule 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Pa.R.E. 106 (emphasis added).
As can be seen from a plain reading of Rule 106, Appellant’s argument has no merit. Appellant is not arguing that the court abused its discretion by failing to allow the mental illness discussion to be read to the jury at the time the Commonwealth published to the jury the redacted portion of the March 2, 2001 telephone conversation during the guilt phase of trial. Rather, Appellant is arguing that the trial court abused its discretion by refusing to allow the publication of the mental illness discussion at the penalty phase of trial, a point in time well removed from the time of the publication of the material that Appellant now argues requires consideration. Accordingly, Rule 106 is not implicated at all. In addition, Appellant makes no argument as to how the mental illness discussion would have helped him establish the mitigating factor described at 42 Pa.C.S. § 9711(e)(3).
Finally, we note that the trial court’s ruling was correct. In general, prior consistent statements, as they constitute hearsay, are admissible under only very limited circumstances. Pennsylvania Rule of Evidence 613(c) provides:
(c) Evidence of prior consistent statement of witness.
Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’ denial or explanation.
Pa.R.E.'613(c).
The comment to this rule relevantly provides that “under Pa.R.E. 613(c), a prior consistent statement is always received for rehabilitation purposes only and not as substantive evidence.” See Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 301 (1998) (stating: “As a general rule, a prior consistent statement is hearsay, and its admissibility is dependent upon an allegation of corrupt motive or recent fabrication. Additionally, such statements have been admitted in response to an allegation of faulty memory.”) (citations omitted). Here, Appellant does not argue that the mental illness discussion should have been published to the jury to rehabilitate the same testimony given by Appellant’s parents during the penalty phase of trial.
For all of the above reasons, Appellant’s argument regarding the mental illness discussion is wholly without merit.
X. Evidence of Parole Ineligibility (Simmons Charge)
In his next argument, Appellant contends that “[sjince the evidence raised an inference of [Appellant’s] future dangerousness, the [trial] court’s failure to permit the defense to introduce evidence of [Appellant’s] parole ineligibility, and the likelihood of commutation and to instruct the jury that Pennsylvania law does not permit a defendant convicted of first-degree murder to be released on parole violated [Appellant’s (1)] due process and [ (2)] Eighth Amendment rights.” Appellant’s Brief at 64; emphasis added.
Appellant first contends that the trial court erred by failing to give the jury what is referred to as a Simmons instruction, i.e., that a life sentence means life imprisonment without the possibility of parole. We have described the Simmons instruction, and our law regarding when a criminal defendant is eligible for relief with respect to same, as follows:
In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), a plurality of the United States Supreme Court would have held that, if a prosecutor argues a capital defendant’s future dangerousness at a sentencing trial, the defendant may request and should be granted a jury instruction that a penalty of life in prison will render the defendant ineligible for parole. Id. at 170, 114 S.Ct. at 2197. This Court has held that a Simmons instruction is mandated only if two events occur: (1) the prosecutor must place the defendant’s future dangerousness in issue; and (2) the defendant must have requested that the trial court issue the instruction. Commonwealth v. Dougherty, 580 Pa. 183, 860 A.2d 31, 37 (2004), cert. denied, 546 U.S. 835, 126 S.Ct. 63, 163 L.Ed.2d 89 (2005); Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1004 (2002) (citing Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1291 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002)). The failure to issue a Simmons charge is no basis for relief where these circumstances are not met. Jones, 811 A.2d at 1004.
Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 273 (2006), cert. denied, — U.S. —, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007) (emphasis added).
As can be gleaned from the manner in which Appellant raises his argument, he does not allege that the prosecution had raised the issue of future dangerousness to the jury. Rather, he argues that the issue was brought forth to the jury by the nature of the general evidence itself. Specifically, he contends that the extensive evidence concerning his mental illness given by eight mental health experts (seven of whom had testified on behalf of Appellant) had established the issue of future dangerousness in the minds of the jury. With respect to the evidence given by the Commonwealth’s mental health witness, Dr. Weiner, Appellant notes that this witness opined that Appellant suffers from a personality disorder shared with perhaps 70% of the criminal population that is characterized by “a pattern of rule breaking and lying,” and that Appellant in particular has demonstrated a “lifetime pattern of irresponsibility.” See Appellant’s Brief at 70. Appellant also notes the extensive evidence introduced at trial that highlighted his racist views.
However, the evidence Appellant cites does not specifically indicate “a tendency to prove dangerousness in the future.” Kelly v. South Carolina, 534 U.S. 246, 254, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (emphasis added). For example, in Kelly, a case decided after Appellant’s trial, the United States Supreme Court determined that a Simmons instruction was required where the prosecutor (1) adduced testimony that the defendant, following his arrest, created a shank while in prison and had made an escape attempt that included a plan to lure a female guard into his cell to be used as a hostage; (2) adduced testimony from a psychologist that the defendant was a sadist as a child and had developed an inclination to kill anyone “who rubbed him the wrong way;” (3) argued to the jury that the defendant was dangerous and unpredictable while referring to him as “the butcher of Batesburg,” “Bloody Billy,” and “Billy the Kid;” and (4) opined to the jury that “murderers will be murderers[, and the defendant] is the cold-blooded one right over there.” Id. at 248-50, 122 S.Ct. 726. By contrast, in the case sub judice, the Commonwealth did not present evidence establishing Appellant’s future dangerous propensities. The evidence Appellant cites is not even remotely similar in character to the evidence in Kelly. Essentially, the evidence Appellant cites indicates only that he will continue to suffer from his mental disorders, making him, according to Dr. Weiner, a liar, a rule-breaker, and irresponsible. This is not evidence of future dangerousness, or evidence of a “demonstrated propensity for violence,” triggering the need for a Simmons instruction. See Kelly, supra at 253, 122 S.Ct. 726. Additionally, the Commonwealth did not raise the issue of future dangerousness by its argument to the jury, nor does Appellant contend that it did.
More importantly, Appellant never specifically requested a Simmons instruction. Rather, he asked the trial court to allow him to publish to the jury an affidavit by Nelson R. Zullinger, Secretary of the Board of Pardons, which purportedly. averred that since September 13, 1978, only one person sentenced to life imprisonment in the Commonwealth has ever had a sentence commuted or been granted clemency or a pardon. Appellant’s Brief at 67. The trial court denied Appellant’s request, holding that such evidence should not come in unless the Commonwealth raised the issue of future dangerousness. However, a request to introduce such evidence is not the equivalent of asking the court to provide a specific instruction to the jury pursuant to Simmons.
Accordingly, Appellant has failed to meet either of the two requirements for obtaining relief on the issue of whether a jury should be instructed as to parole ineligibility, set forth, inter alia, in Carson, supra at 273. That is, Appellant has failed to show that the Commonwealth had placed the issue of future dangerousness before the jury and that he had requested a Simmons charge. Therefore, Appellant is not entitled to any relief under his due process claim. Carson, supra at 273.
In the second prong of his argument, Appellant contends that he was entitled to introduce into evidence the affidavit of Mr. Zullinger pursuant to Appellant’s rights under the Eighth Amendment to the United States Constitution. Appellant acknowledges that the United States Supreme Court has never ruled that the Eighth Amendment requires a parole ineligibility instruction and the admission of evidence regarding same at every capital sentencing in states prohibiting release on parole on a life sentence, nor has this Court ever made a parole ineligibility instruction mandatory in capital cases. Notwithstanding, Appellant contends that Kelly, su pra, which was decided after Appellant’s trial and sentencing, affords him a basis for relief because that case purportedly “acknowledged that a capital defendant’s future dangerousness always will be a foremost consideration for jurors.” Appellant’s Brief at 75.
However, in this case, Appellant has failed to point to any evidence that specifically indicates his future dangerousness, and, quite significantly, Appellant failed to request either a Simmons instruction or a jury instruction pursuant to the Eighth Amendment. Thus, no relief is due. See Carson, supra at 272-74 (rejecting the appellant’s similar Eighth Amendment argument where the prosecution had not raised the issue of future dangerousness).
XI. Victim Impact Evidence
Appellant argues that because the victim impact evidence presented at the penalty phase was “unduly prejudicial,” his due process rights under the Fourteenth Amendment of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution were violated. Appellant acknowledges that in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the United States Supreme Court held that victim impact evidence introduced in a capital sentencing hearing did not violate the Eighth Amendment of the United States Constitution. In fact, Appellant notes that Payne expressly recognized that evidence showing “a quick glimpse of the life [the defendant] chose to extinguish,” was not a per se violation of the Eighth Amendment. Payne, supra at 825, 830, 111 S.Ct. 2597 (O’Connor, J., concurring, quoting Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). However, Appellant notes that the separate opinions of the Justices in Payne recognized a limit on the use of victim impact evidence. Specifically, where victim impact evidence is unduly inflammatory, several Justices noted that inclusion of such evidence might entitle a defendant to relief under the Due Process Clause of the Fourteenth Amendment. See id. at 831, 111 S.Ct. 2597 (O’Connor, J., concurring).
Here, Appellant argues that the evidence adduced from fourteen victims of Appellant’s crimes at the sentencing phase of trial crossed the threshold from being “a quick glimpse of the life [the defendant] chose to extinguish” to being unduly inflammatory and prejudicial. Appellant highlights the following evidence: (1) Bang Gho, Thao Pak Pham’s wife, describing how their six-year-old son kept asking when his father would return home and how she and her son arrived at the crime scene before her husband’s body had been removed; (2) two of Anita Gordon’s daughters describing the devastating impact Mrs. Gordon’s death had had on their father and grandmother, and how the latter had to be moved to a nursing home because Mrs. Gordon was no longer available to care for her; (3) a friend of the Gordons describing the intense pain the family suffered; (4) individuals familiar with Anil Thakur describing the financial effect that the victim’s death had on his parents in India, who no longer receive the financial assistance the victim had provided; (5) Ji-Ye Sun’s 70-year-old father describing how his wife had cried so much that she required surgery to save her sight, and his own feelings of having “lost everything;” and (6) Mr. Sun’s wife, Jun Sun, describing how, after her husband’s death, she was unable to eat, drink, or sleep but experienced pain and a sense that her “brain is empty.” Appellant’s Brief at 77-78. Appellant avers that the prejudicial impact of this evidence on the jury outweighed its probative value.
There are myriad problems with Appellant’s argument. The first and most significant is that Appellant never made timely and specific objections to the evidence. Appellant had filed a pre-penalty phase motion in limine to exclude all victim impact evidence on the grounds that, because such evidence did not pertain to any statutory aggravating circumstance, the admission of the evidence was unconstitutional. The court denied the motion, noting that the United States Supreme Court had ruled that such evidence was permissible, citing Payne. However, the court indicated that Appellant could request from the Commonwealth an offer of proof as to each witness and could lodge an objection particular to that witness if appropriate. Appellant never objected to any of the Commonwealth’s fourteen victim impact witnesses. Because Appellant failed to object to the evidence on the grounds that he now raises, his issue is waived. Pa.R.A.P. 302(a).
However, it must also be emphasized that “Pennsylvania jurisprudence favors the introduction of all relevant evidence during a capital sentencing proceeding,” including victim impact evidence. Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1139 (2007), cert. denied, — U.S. —, 128 S.Ct. 211, 169 L.Ed.2d 158 (2007). Indeed, victim impact evidence is statutorily admissible in the penalty phase of capital cases pursuant to Section 9711(a)(2) of the Sentencing Code, 42 Pa.C.S. § 9711(a)(2). “Victim impact testimony is permissible when the Commonwealth establishes that the victim’s death had an impact on the victim’s family as opposed to presenting mere generalizations of the effect of the death on the community at large. Once this threshold has been met, the trial court has discretion over the testimony admitted.” Eichinger, supra at 1139-40; see also Commonwealth v. Williams, 578 Pa. 504, 854 A.2d 440, 446 (2004). Testimony that is “a personal account” describing the “devastating impact the murders had on” the surviving families is wholly appropriate and admissible at the sentencing phase of a capital case. Eichinger, supra at 1140.
Here, the specific evidence that Appellant challenges is in the same mold as that determined to be appropriate in Eichinger and Williams. The evidence challenged by Appellant consists of personal accounts describing the devastating impact the murders had on the surviving family members. Moreover, the number of witnesses called to testify was not disproportionate to the number of Appellant’s victims. Thus, there is patently no basis for the conclusion that the trial court abused its discretion by admitting such evidence, even if Appellant had not waived the issue.
XII. Victim Impact Evidence as Causing the Death Sentence to be based on
Caprice and Vague Factors
' In this argument, Appellant concedes that the trial court correctly charged the jury in accordance with this Court’s case law regarding victim impact evidence. However,. Appellant “argues” that the admission and consideration of victim impact evidence interjects an unconstitutionally vague and capricious factor into a jury deliberation process that must determine whether statutory aggravating factors outweigh mitigating factors. Appellant concedes that there is no Pennsylvania authority supporting his argument; however, he raises this claim for the purpose of “preserving] it for federal review.” Appellant’s Brief at 80.
Appellant did not object to the jury charge relating to this issue. Accordingly, Appellant’s issue is waived. Pa.R.A.P. 302(a). Moreover, Appellant does, not even appear to be asking this Court for relief with respect to this issue. See Appellant’s Brief at 79-81. Certainly, none is warranted.
XIII. Dr. Weiner’s “Damning Hearsay”
Appellant argues that his rights under the Sixth Amendment Confrontation Clause were violated when the Commonwealth’s psychiatric expert witness, Dr. Weiner, testified regarding statements made to him by individuals who did not testify at trial. These individuals included a psychologist who had briefly treated Appellant in 1994; high school and law school classmates; Appellant’s sister; Appellant’s ex-girlfriend; and Appellant’s accountant. See Appellant’s Reply Brief at 15-17 (listing these individuals as those at issue). Dr. Weiner purportedly used the information provided by these individuals in arriving at his conclusion that although Appellant suffered from several psychiatric disorders, Appellant’s crimes were not caused by a psychotic illness.
In support of his argument, Appellant cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that the Confrontation Clause of the Sixth Amendment prohibits the use of testimonial hearsay obtained by police officers against a criminal defendant, even if such hearsay is reliable, unless the defendant has the opportunity to cross-examine the out-of-court declarant. In so doing, the Court announced a new interpretation of the Confrontation Clause, overruling its earlier holding in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Crawford, supra at 54, 124 S.Ct. 1354 Appellant acknowledges that he had failed to object to Dr. Weiner’s use of information obtained from these individuals. However, he argues that because Crawford was decided after his trial and sentencing, which trial occurred when the relaxed waiver rule of Freeman was still in effect, he should not now be penalized for failing to anticipate Crawford’s changing the law.
Appellant’s contention that he should not be penalized for failing to have preserved his objections to the challenged evidence is baseless. “It is settled that, in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at all stages of adjudication up to and including the direct appeal.” Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1005 (2002) (quoting Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649, 652 (2001) (quotation marks omitted)). Here, Appellant failed to timely object to the now-challenged evidence. Moreover, although Crawford signaled a change in the law, Appellant fails to indicate how this change was material to his failure to have preserved the issue for review. In Crawford, the Court overruled its previous position that testimonial hearsay did not violate the Confrontation Clause if such evidence bore an “adequate indicia of reliability” by either falling within a “firmly rooted hearsay exception” or having “particularized guarantees of trustworthiness.” Crawford, supra at 40, 124 S.Ct. 1354 (quoting Roberts, supra at 66, 100 S.Ct. 2531). Crawford, holds that now testimonial hearsay obtained by police is inadmissible unless the defendant had the opportunity to cross-examine the out-of-court declarant. Id. at 51-53, 124 S.Ct. 1354.
Here, Appellant did not challenge, as he could have, the purported hearsay statements made during Dr. Weiner’s testimony on the grounds that they did not bear adequate indicia of reliability by either falling within firmly rooted hearsay exceptions or having particularized guarantees of trustworthiness, or on any other grounds. If Appellant was troubled by the purported hearsay testimony given by Dr. Weiner, he did not need support from the specific legal principles later announced in Crawford to pursue his objections. Thus, there is no question that Appellant has waived this issue.
XIV. Lethal Injection as Cruel and Unusual Punishment
Appellant argues that the Eighth Amendment of the United States Constitution and Article I, § 13 of the Pennsylvania Constitution prohibit lethal injection because this penalty constitutes cruel and unusual punishment. Appellant contends that there is “mounting evidence” that prisoners experience “excruciating pain” during execution by lethal injection, particularly since it is believed that potassium chloride, one of the three drugs used, causes a burning sensation as it courses through the body. Appellant’s Brief at 83. Appellant argues that until Pennsylvania investigates whether its three-drug execution protocol is humane, the procedure should be declared a cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Article I, § 13 of the Pennsylvania Constitution.
However, the only issues before us are whether Appellant’s conviction is valid and whether his death sentences were properly imposed. Our inquiry does not extend to the statutory manner by which the death sentence will be imposed, if it is imposed at all. Until a death warrant has been issued for Appellant, we need not determine the issue of whether the then-form of execution, whatever it might be, comports with the Eighth Amendment of the United States Constitution and Article I, § 13 of the Pennsylvania Constitution.
In Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), this Court was confronted with a claim that the defendant’s death sentence should be vacated because there was then no existing statutory authority for the death penalty. We dismissed the claim, holding: “Only the sentence of death is before us. Since no death warrant has been issued, the question of the method of execution is not properly before us. We will consider this issue if and when it is properly before us.” Id. at 412. Similarly, because the issue of the means of execution is not properly before us, we will dismiss Appellant’s argument without prejudice to his right to raise it at a more appropriate time.
XV. Imposition of the Death Penalty on a Mentally 111 Person
Appellant argues that the Eighth Amendment prohibits the imposition of the death penalty on a mentally ill person. Appellant cites Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), for the proposition that the imposition of a death sentence on mentally retarded individuals violates evolving standards of decency embodied in the Eighth Amendment’s Cruel and Unusual Punishment Clause. Appellant argues that Atkins should be extended to individuals such as himself, who had been described at trial by all psychiatric expert witnesses as suffering from mental illnesses.
However, as Appellant acknowledges, this Court has rejected a substantially similar argument in Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 38 (1991). In Faulkner, we stated:
Appellant’s last argument on this subject is that the death penalty statute violates the Eighth Amendment to the United States Constitution by permitting the jury to impose the death penalty when they have found, as a mitigating circumstance, that the defendant was mentally ill. Appellant argues that an automatic life sentence should be imposed- and not the death penalty-when the jury finds mental illness as a mitigating circumstance. In Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986), this Court stated that a finding of substantial mental impairment under 42 Pa.C.S. § 9711(e)(3) does not bar a death penalty imposed by the jury:
Our legislature could have provided that a finding of substantial impairment precludes imposition of the death sentence^] however, it did not do so. Instead, it determined that this factor was to be weighed by the jury along with all the other factors and that it is within the province of the jury to determine how much weight it should be accorded.
Fahy, 512 Pa. at 317, 516 A.2d at 698-99. We believe this rationale is equally applicable when the jury finds as a mitigating factor that a defendant suffered from “a degree of mental illness.”
Id. at 38.
Appellant has failed to advance a compelling argument that would lead us to alter our holdings in Faulkner and Fahy. Appellant mentions that evolving standards of decency should prompt a reassessment of these decisions. However, Appellant does not engage in any analysis as to why this should be the case. Accordingly, we conclude that Appellant’s argument is without merit.
XVI. Vienna Convention
Appellant contends that his rights under the Vienna Convention on Consular Relations (the “Convention”), 21 U.S.T. 77, T.I.A.S. No. 6820, were violated. Appellant, an American citizen raised and educated in the United States, apparently holds dual citizenship with Latvia, a signatory, as is the United States, to the Convention. The preamble to the Convention provides that its purpose is to “contribute to the development of friendly relations among nations.” 21 U.S.T. at 79; see also Medellin v. Texas, — U.S. —, —, 128 S.Ct. 1346, 1353, 170 L.Ed.2d 190 (U.S.2008). In pursuit of that end, Article 36 of the Convention was drafted to “facilitat[e] the exercise of consular functions.” Art. 36(1), 21 U.S.T. at 100. This article provides that if a person detained by a foreign country “ ‘so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State’ of such detention, and ‘inform the [detainee] of his righ[t]’ to request assistance from the consul of his own state.” Medellin, supra at 1353 (quoting Art. 36(l)(b)) (emphasis added). Appellant complains that he was not informed of his “rights” under Article 36(l)(b). Appellant’s Brief at 86.
The absurdities of Appellant’s argument are manifold. Appellant was not detained by a foreign country but by authorities in his own country and state. Appellant was not “sent” by Latvia to be “received” by the United States; he is not a foreign national. Not only is Appellant a United States citizen, he was also trained as a lawyer in the United States. He was represented by counsel at all stages who spoke the same language as Appellant, came from the same American culture as Appellant, and engaged in legal procedures undoubtedly familiar to Appellant from his legal training. Perhaps Appellant believes that he would have had a better trial result had he been represented at trial by a Latvian attorney or afforded advice by the Latvian Consulate. If so, he has not indicated how his defense was prejudiced by this omission. Moreover, Appellant never requested that the Latvian Consulate be notified.
Appellant argues that the decisions of the International Court of Justice (“ICJ”) prohibit the execution of a foreign national where the provisions of the Convention have not been followed, specifically citing the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 12 (March 31, 2004) (“Avena”). Aside from the fact that Appellant is not a foreign national, the United States Supreme Court recently ruled that ICJ judgments, and specifically Avena, are not binding on our domestic law because none of the relevant treaty sources establishes binding domestic law in the absence of implementing legislation, and no such legislation has been enacted. Medellin, supra at 1360-65. In other words, the Convention is not “self-executing.” See id. at 1365-66.
In short, there is absolutely no merit to this argument.
XVII. Ineffective Assistance of Counsel
Appellant’s last argument details alleged instances where he was given ineffective assistance of trial counsel. “Claims of trial counsel ineffectiveness are generally deferred to post-conviction review so that they might be properly developed on a full and complete evidentiary record.” Cousar, supra at 1043 (citing Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 736-37 (2002)). Appellant makes no legal argument as to why his ineffectiveness claims should not be deferred until post-conviction review. Accordingly, we conclude that Appellant’s ineffectiveness claims must be deferred to post-conviction proceedings, as contemplated by the rule set forth in Grant, if Appellant chooses to pursue them.
XVIII. Statutory Review
Having concluded that Appellant’s convictions were proper and that none of his claims of error entitles him to relief, we must affirm each death sentence unless we find that: (i) the sentence was the product of passion, prejudice, or any other arbitrary factor; or (ii) the evidence fails to support the finding of at least one aggravating circumstance. See 42 Pa.C.S. § 9711(h)(3); Cousar, supra at 1044. Upon careful review of the record, we are persuaded that Appellant’s death sentences were not the product of passion, prejudice, or any other arbitrary factor, but rather resulted from properly introduced evidence that Appellant intentionally and deliberately shot to death Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pham, and Garry Lee. We also conclude that the evidence was sufficient to support the two aggravating factors found by the jury in relation to the killings. There is no doubt that “[i]n the commission of the offense [Appellant] knowingly created a grave risk of death to another person in addition to the victim of the offense.” 42 Pa.C.S. § 9711(d)(7). When Appellant shot Ji-Ye Sun and Thao Pak Pham, he created a grave risk of death to D.T., who was present in the restaurant when Appellant opened fire multiple times on his victims. In fact, Pham was shot just two to three feet away from D.T. as he was running past D.T., who was trying to “dodge” the danger that was unfolding before him. N.T. Trial, 4/30/01, at 433-35. When Appellant shot Garry Lee, he created a grave risk of death to G.T., who was present in the karate studio'when Lee was shot quite near to him, and in fact, Appellant had first pointed his weapon at G.T.. Further, there is no doubt that “[t]he defendant has been convicted of another murder committed in any jurisdiction and committed either before or at the same time of the offense at issue.” 42 Pa.C.S. § 9711(d)(ll). Here, Appellant was convicted of five murders, all of which were committed during the two-hour homicidal rampage that occurred on April 28, 2000.
For the foregoing reasons, we affirm the verdicts and sentences of death. The Prothonotary of this Court is directed to transmit the complete record of this case to the Governor of Pennsylvania in accordance with Section 9711(1) of the Sentencing Code, 42 Pa.C.S. § 9711(f).
Chief Justice CASTILLE' and MESSRS. Justice EAKIN and BAER join the Opinion.
Justice SAYLOR files a Concurring Opinion.
Justice TODD files a Concurring Opinion.
The two aggravating circumstances were as follows: "(7) 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;" and "(11) The defendant has been convicted of another murder committed in any jurisdiction and committed either before or at the same time of the offense at issue." 42 Pa.C.S. § 9711(d)(7) and (11).
The five mitigating circumstances were as follows: "(I) The defendant has no significant history of prior criminal convictions;” "(2) The defendant was under the influence of extreme mental or emotional disturbance;” “(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;" "(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress), or acted under the substantial domination of another person;” and "(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(1), (2), (3), (5), and (8).
Aliquippa neighbors Center Township, where the karate studio is located.
Counsel on post-sentence motions was different from trial counsel.
The trial court found that between April 28, 2000, and March 3 or 4, 2001, 535 local newspaper accounts concerning the killings and related subjects appeared. Further, the court also found that during this same period, 584 accounts concerning the event were aired on four local television stations. Many of these accounts "contained prejudicial and highly inflammatory information about [Appellant] and his alleged crimes.” Trial Court Opinion, dated March 26, 2001, at 5-6.
Moreover, Appellant fails to explain how Dr. Bronstein’s evidence would have been substantially different from that adduced by the trial court during its pre-trial change of venire hearings.
With respect to one potential juror, Edward Startari, Appellant’s counsel did question the Commonwealth’s challenge to this potential juror by stating, "This is cause?” The court responded to this question by stating, "Yes. No question about it.” Notes of Testimony Jury Selection, 4/21/01, at 689. However, Appellant did not place an objection on the record to the Commonwealth’s challenge to Startari. See id.
Section 5704(14)(i)(A) provides: It shall not be unlawful and no prior court ápproval shall be required under this chapter for: (14) An investigative officer, a law enforcement officer or employees of a county correctional facility to intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility under the following conditions: (i) The county correctional facility shall adhere to the following procedures and restrictions when intercepting, recording, monitoring or divulging any telephone calls from or to an inmate in a county correctional facility as provided for by this paragraph: (A) Before the implementation of this paragraph, all inmates of the facility shall be notified in writing that, as of the effective date of this paragraph, their telephone conversations may be intercepted, recorded, monitored or divulged. 18 Pa.C.S. § 5704(14)(i)(A) (emphasis added).
Section 5704(14)(i)(C) of the Wiretap Act provides: (C) The contents of an intercepted and recorded telephone conversation shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime. 18 Pa.C.S. § 5704(14)(i)(C).
The trial court further determined that the record showed that all participants in the telephone conversation at issue, i.e., Appellant, his mother, and his father, by their knowledge that their conversation was being recorded, consented to the interception and recording of the conversation. Section 5704(4) of the Wiretap Act provides that it shall not be unlawful for a person to intercept a communication "where all parties to the communication have given prior consent to such interception.” 18 Pa.C.S. § 5704(4). However, federal case law has held, under the Federal Wiretap Act, that inmate knowledge that telephone conversations may be intercepted and recorded and consent to such action are not equivalent. See, e.g., United States v. Daniels, 902 F.2d 1238, 1244-45 (7th Cir.1990). Because of our disposition of this issue, we need not determine whether the trial court's alternative grounds for denying Appellant relief has merit.
Appellant does not cite to any evidence that the Commonwealth by purposeful design misrepresented to the suppression court that which appears not to be true, to wit, that the prison handbook contains written notification that inmate telephone conversations could be intercepted and recorded.
At the time of Appellant's 2001 trial, these provisions were found at Pa.R.Crim.P. 573(C)(2)(a)(i).
However, other courts have disputed that there is a constitutional implication when the prosecution calls as a witness a psychiatric expert consulted by the defendant, and have further refused to recognize a link between the attorney-client privilege and the Sixth Amendment right to effective assistance of counsel. See, e.g., Noggle, supra at 1413-15 (and cases cited therein); and People v. Spiezer, 316 Ill.App.3d 75, 87-88, 249 Ill.Dec. 192, 735 N.E.2d 1017, 1025-26 (2000) (and cases cited therein, rejecting the Alvarez Sixth Amendment analysis).
We observe that although the appellant in Smith did not object to the prosecutor's remark, we determined that the issue could be reviewed under the relaxed waiver doctrine as the case preceded the effective date of the Freeman abolition of that doctrine. Smith, supra at 896 n. 2.
We note that at a sidebar conference, Dr. Martone represented to the court that she never examined Appellant for insanity, but only for competence to stand trial. N.T. Trial, 5/5/01, at 1760.
Appellant's argument fails to set forth the substance of the testimony he had hoped to elicit from Dr. Martone or how such testimony would have been different from that given by Dr. Martone during the guilt phase of trial. As shall be discussed later in the text, this is a significant omission.
The court also opined on the record that it believed that it had initially erred by allowing Dr. Martone to testify during the guilt phase of trial and was “not going to repeat [this] error.” N.T. Trial, 5/9/01, at 2752.
On July 27, 2007, All.C.R.Crim.P. 300.31 was rescinded.
However, it is not clear from Fears what the circumstances were surrounding Dr. Martone's testimony during that proceeding, i.e., whether the defendant had no other witness to testify regarding all of the matters about which Dr. Martone testified in that case.
We also note that Appellant did not address the Commonwealth's argument that it would be fundamentally unreasonable to accept Appellant’s position that Dr. Martone should be available to testify only when her testimony is beneficial to a defendant.
These unpublished portions of the conversation involved discussion of the death penalty and Appellant’s legal counsel. N.T. Trial, 5/8/01, at 2455, 2460.
By contrast, the trial court permitted the redacted portion of the telephone conversation during the guilt phase of trial pursuant to Pa.R.E. 803(25), as admissions by a party opponent, a hearsay exception. N.T. Trial, 5/8/01, at 2466, 2479-80.
Kelly affirmed and further clarified the United States Supreme Court's holding in Simmons. The Court held that a Simmons instruction, when requested by the defense, is required by due process when the jury hears evidence of a defendant’s propensity for violence such that it would reasonably "conclude that [the defendant] presents a risks of violent behavior whether locked up or free, and whether free as a fugitive or a parolee.” Kelly, supra at 253-54, 122 S.Ct. 726. Thus, while Simmons determined that due process concerns are implicated when the prosecutor argues future dangerousness, Kelly appears to hold that relevant due process concerns may be triggered when the evidence establishes future dangerousness. See Kelly, supra at 260, 122 S.Ct. 726 (Rehnquist, C.J., dissenting). However, the majority opinion in Kelly was based on the prosecutor's evidence and argument. See Kelly, supra at 253, 122 S.Ct. 726 ("the evidence and argument ... [show] that future dangerousness was ... an issue in this case”) (citation and quotation marks omitted). Thus, by its evidence and argument, the prosecution in Kelly placed the issue of future dangerousness before the jury.
Our independent review of the Commonwealth’s closing argument establishes that the Commonwealth did not raise the issue of future dangerousness. See N.T. Trial, 5/11/01, at 3079-88.
Notably, Appellant did object to the introduction of a photograph during the testimony of Jun Sun. The court sustained the objection.
However, Appellant does cite, to dissenting opinions in Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001).
Indeed, the Superior Court has applied this basic legal principle to specifically hold that in order for Crawford to be applied retroactively, the appellant would have had to preserve his or her objections to the challenged evidence. Commonwealth v. Gray, 867 A.2d 560, 574 (Pa.Super.2005).
We would also note that the purported hearsay of Dr. Weiner’s testimony is not "testimonial” hearsay as contemplated by the Court in Crawford. Thus, Crawford is inapplicable in any event.
We note that the United States Supreme Court has recently ruled that Kentucky’s three-drug protocol of lethal injection, one of the drugs being potassium chloride, is not cruel and unusual punishment under the Eighth Amendment. Baze v. Rees, — U.S. —, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
Appellant's very brief argument does not specifically state whether he is arguing that a person who has committed first-degree murder while mentally ill should not be executed or whether a person who is mentally ill at the time of execution should not be executed. We infer from Appellant's discussion of relevant case law that he is arguing the former.
It does not appear that Appellant is represented by Latvian counsel on appeal, and Appellant made no averment that he ever consulted with the Latvian consulate to better understand his post-trial rights, despite his knowledge of the Convention.
Specifically, Appellant alleges that trial counsel was ineffective for having failed to (1) request a change of venue or venire; (2) object to the removal of prospective jurors Mock and Hawthorne; (3) move to suppress the evidence obtained pursuant to the April 28, 2000 search of Appellant's house; and (4) object to and seek a hearing regarding his "forced drugging" and request a jury instruction regarding the reasons for his "apparent stupor” during trial. See Appellant’s Brief at 86-92.
Indicating that a petition for post-conviction review will likely be filed, Appellant contends that we will have to review these ineffectiveness issues anyway, so we may as well review them now. Aside from our general disinclination to act based on prognostications of the future, we see no reason to circumvent the rule in Grant, as it was cogently based on the premise that a review of ineffectiveness claims is generally best made upon a full factual record developed by a post-conviction court. [OPINION BY Justice SAYLOR, type=concurrence] Justice SAYLOR, Concurring. I join Parts I through V and XIII through XVIII of the majority opinion, concur in the result with regard to Parts VI through XII, and write to the following. As to Issue VI, concerning the interception of Appellant’s telephone conversations in the asserted absence of written notice, Appellant presents a plain-meaning interpretation of a statute which plainly requires written notice. Further, Appellant relies on decisions of this Court establishing that exceptions to the prohibition against wiretapping must be strictly construed, see Boettger v. Miklich, 534 Pa. 581, 585-86, 633 A.2d 1146, 1148 (1993), as well as this Court’s admonition that: “No violations of any provisions of the Act will be countenanced[.]” Commonwealth v. Hashem, 526 Pa. 199, 206, 584 A.2d 1378, 1382 (1991) (emphasis in original). In light the clear terms of the statute, Boettger, and Hashem, I cannot support the majority’s characterization of Appellant’s argument as being wholly without merit, based on the mere assessment that provision of the written notice required by the Legislature would not have advanced the privacy interests involved. See Majority Opinion, at 33, 960 A.2d at 79. Rather, it seems to me that the majority’s approach represents a departure from the requirement of strict construction and/or a form of prejudice assessment, as was previously prohibited. See Hashem, 526 Pa. at 205, 584 A.2d at 1381 (“We must likewise specifically reject the Superior Court’s holding that before relief can be granted in this type of claim the Defendant must bear the burden of showing how the failure to comply with the Act prejudiced him.”). Nevertheless, I believe the Commonwealth appropriately relies on the principles governing review of suppression-court rulings, which center the appellate court review on the record of the suppression hearing. See, e.g., Commonwealth v. Eichinger, 591 Pa. 1, 22, 915 A.2d 1122, 1134 (2007). Here, even if inmates were not in fact informed via the institution handbook of the practice of recording calls, the evidence presented to the suppression court indicated otherwise. See N.T. at 571-573 (reflecting the testimony of a jail official to the effect that inmates were “[f]irst of all, and most foremost” notified through a posted inmate handbook of the practice of recording telephone calls). The two items of contrary evidence upon which Appellant now relies (the handbook itself and an affidavit of a jail employee) were not brought onto the record of the suppression hearing, but apparently were obtained by Appellant’s counsel after sentencing. As the Commonwealth explains, however, such items are not appropriately considered in this Court’s direct review of the suppression court’s ruling, as they were not before the court at that time. Accordingly, although Appellant may have claims of deficient stewardship to assert during post-conviction proceedings, I do not believe that his argument in this direct appeal is cognizable on the terms on which it is presented. With regard to Issue VII, I agree with the majority that the contested testimony did not violate attorney-client or work-product privileges. See Majority Opinion, at 36-37, 960 A.2d at 81. Nevertheless, I also agree with Appellant that there was a significant possibility that the evidence of Dr. Merikangas’ failure to consult with Dr. Wettstein could have had a prejudicial impact outside the limited purpose for which it was admitted, namely, to test the scope of Dr. Merikangas’ review. See N.T. at 1496. In this regard, however, I find it significant that Appellant did not request a limiting instruction to mitigate the possibility of prejudice. Cf. Commonwealth v. Moore, 594 Pa. 619, 639-40, 937 A.2d 1062, 1074 (2007) (explaining that potential prejudice may be mitigated by a limiting instruction and deferring any analysis of a trial counsel’s performance in failing to request such an instruction to post-conviction review). As to issue IX, the asserted denial of the right to present mitigating evidence in the form of testimony from Dr. Mar-tone, the majority indicates that Appellant failed to set forth the substance of the testimony he hoped to elicit from Dr. Martone or how such testimony would have been different from that given by Dr. Martone during the guilt phase of trial. See Majority Opinion, at 42-43 n. 16, 960 A.2d at 85 n. 16. Appellant, however, does explain: the defense proffered that Dr. Martone would have testified that [Appellant] was under the influence of extreme mental and emotional disturbance at the time she saw him in May 2000 and at the time of the commission of the offense. Further, she would have testified that [Appellant’s] capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. Brief for Appellant at 56-57. In light of the general proffer going specifically to two statutory mitigating factors, I view this issue as a closer one than the majority, particularly in light of the constitutional norms requiring liberal admission of mitigating evidence. See, e.g., Tennard v. Dretke, 542 U.S. 274, 285, 124 S.Ct. 2562, 2570, 159 L.Ed.2d 384 (2004). I agree with the majority, however, that if Dr. Martone’s testimony was to be cumulative of that of other defense experts, in the sense that it would not materially add to the weight of the evidence favoring the finding of one or more mitigating circumstances, the trial court’s decision to exclude the testimony should be sustained. At least in the absence of a developed record concerning the specifics of what Dr. Martone’s testimony would have been, and a fact finder’s assessment regarding the degree of potential impact, there appears to me to be insufficient basis to question the trial court’s judgment as to cumulativeness. Notably, in this regard, Appellant did not raise this claim in his post-sentence motions or request a hearing on the matter to develop a factual record. As to the claim challenging the admission of victim impact evidence (Issue XI), the prosecutor’s indication that one facet of the evidence “cannot be written with such detail and emotion as it unfolded in this case” encapsulates the difficulty with this type of evidence and highlights the need for careful control by the trial courts. N.T. at 3080. Given the number of witnesses presented and the passionate character of many of the statements, I find this to be a close case in terms of whether the trial court exceeded its discretion in this regard. I also recognize, however, that the Constitution does not foreclose evidence of the harm caused by the defendant in capital sentencing proceedings, see Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991), and Appellant caused an immeasurable amount of harm. Thus, although I agree with the majority that no relief is due here, given that we are seeing fairly wide differences across cases in terms of the degree of control exercised by the trial courts over the development of victim impact evidence, I believe that the Court would be well advised to consider exercising its rulemaking function to impose some structural limitations.
The trial court construed the statute to require one-time written notice to existing inmates only upon implementation of the overall practice of recording calls. See Commonwealth v. Baumhammers, Nos. 200014712 et al., slip op. at 14 (C.P. Allegheny Dec. 29, 2005) ("The Court does not read this paragraph as requiring that written notice be provided to every inmate upon their admission to the facility.”). Neither the Commonwealth nor the majority, however, advocates such a construction. Furthermore, although the statute does appear to be ambiguous in the relevant regard, applying the Court’s practice of strictly construing in favor of the privacy interests which are intended to be safeguarded, as referenced below, I agree with the conclusion that the relevant statutory notice is to be provided to each inmate.
While the majority correctly observes that the provision of the Act under review in Hashem appeared in a separate section of the statute, the Hashem Court repeatedly indicated that its approach applied more broadly to the Wiretap Act as a whole, and the majority does not explain how the application of a strict-enforcement approach to one portion of the statute is to be reconciled with its more pragmatic approach to another. The Commonwealth predicates its argument that a plain-meaning application of the legislative mandate for written notice would be absurd upon an example involving the uselessness of providing written notice to blind or illiterate inmates. See Brief for Appellee at 42. This does not seem to me to furnish a reason for the judiciary to retool die statute, however, as such inmates may (and should) obtain assistance from prison officials or others in reading written materials made available to them. Moreover, it seems axiomatic that exceptional circumstances should not be taken to eviscerate clearly stated rules of general application in non-exceptional circumstances.
In his reply brief, Appellant attempts to recast his argument, in the alternative, as a due process challenge. See Reply Brief of Appellant at 12 ("Since the Commonwealth as a prosecuting entity knew that [the jail official's] testimony was false, and there is a reasonable likelihood that had the prosecution revealed the truth about the handbook, the tapes would have been suppressed, Due Process requires a new trial.”). However, arguments first raised before an appellate court in a reply brief are not properly considered. See Commonwealth v. Wharton, 571 Pa. 85, 105, 811 A.2d 978, 990 (2002). The present circumstances demonstrate good reason for this practice, since Appellant's argument addresses the extent of the prosecutor’s knowledge, an inherently factual matter which has not been developed upon an evidentiary record at this juncture.
It is well established that the application of the death penalty is to be based on reasoned moral judgment, see Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989), as opposed to passion or emotion. [OPINION BY Justice TODD, type=concurrence] Justice TODD, Concurring. I join in the thorough and .thoughtful majority opinion except for the issues raised herein, as I agree with the majority’s conclusion that Appellant Richard Baumhammers is entitled to no relief, as to either his conviction or his sentence of death. I write separately because my reasoning differs from the majority’s as to several of the issues Baumhammers raises. First, as to Baumhammers’ argument that the Commonwealth violated the Wiretap Act in recording his telephone conversations with his parents while he was incarcerated awaiting trial, I agree with the result reached by Justice McCaffery, but on narrower grounds. See Majority Op. at 28-30, 960 A.2d at 76-80. I would explicitly adopt the parsing of the relevant statute by the trial judge, the Honorable Jeffery A. Manning: that a written notification to inmates is necessary only upon a facility’s implementation of a policy of wiretapping inmate phone calls. Trial Ct. Op., 12/29/05, at 14; see 18 Pa.C.S.A. § 5704(14)(i)(A). Accordingly, I conclude Baumhammers was not entitled to written notification, and the aural notification he was provided was adequate to satisfy the statutory requirements. See Chimenti v. Pa. Dep’t of Corrections, 720 A.2d 205 (Pa.Cmwlth.1998) (concluding in dicta Section 5704 requires written notice when that section is implemented). Next, on several of the issues Baumhammers raises, I would begin and end with waiver. First, Baumhammers asserts the trial court erred in not granting him a change of venue or venire; his trial counsel, however, specifically opposed either suggestion when raised by the trial court. See Majority Op. at 23-29, 960 A.2d at 73-76. Accordingly, this argument is waived for purposes of direct appeal. Second, Baumhammers asserts the trial court erred in not excluding particular victim impact evidence, see Majority Op. at 54-58, 960 A.2d at 92-94; however, his trial counsel did not specifically object to the introduction of testimony from any of the particular victims. Accordingly, this argument is also waived for purposes of direct appeal. Third, Baumhammers asserts that his rights under the Confrontation Clause, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), were violated when Dr. Michael Weiner testified about conversations regarding Baumhammers which Dr. Weiner had with a variety of non-testifying individuals. See Majority Op. at 58-60, 960 A.2d at 94-96. Again, Baumhammers’ trial counsel did not object at trial, and so this argument is waived for purposes of direct appeal. Nevertheless, in each of these instances, the majority continues on to address the merits of the waived claims. Consistent with Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 736-37 (2002), any discussion of the underlying legal support—or lack thereof—for these arguments beyond a finding of waiver is dicta, and is better conducted, if necessary, on collateral appeal. With limited exception, under Grant, we foreclose a prisoner on direct appeal from recasting waived claims in terms of counsel’s ineffectiveness, requiring such appellant to defer such claims until collateral appeal, no matter how potentially meritorious. As a corollary, we ought similarly to resist discussion of the merits of such claims on direct appeal, as our discussion could prejudice the collateral appeal courts’ proper consideration of the relevant issues. Finally, I address Baumhammers’ claim that his execution is barred by the Eighth Amendment’s preclusion of cruel and unusual punishment because he is afflicted with a serious mental illness. I agree with Justice McCaffery that Baumhammers’ claim fails, see Majority Op. at 61-64, 960 A.2d at 96-98, but write separately to express my grave concern about the issue. Initially, it is clear Baumhammers merits no sympathy. As the majority summarizes in detail, Majority Op. at 13-23, 960 A.2d at 67-72, he committed vicious hate crimes, targeting people of African-American, Asian, and Jewish descent. He defaced synagogues, targeted businesses and places of worship catering to members of particular ethnic groups, killed five people, and paralyzed one. Our streets are safer because he is no longer on them. However, distinct from the question of whether Baumhammers is dangerous or evil is the question of whether he may, consistent with the Eighth Amendment, be subjected to capital punishment. Baumhammers argues he may not be executed based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), wherein the United States Supreme Court held that prisoners who, at the time they committed their crimes, suffered from mental retardation could not be executed for those crimes. He avers that individuals with serious mental illnesses are so similar to the mentally retarded that Atkins requires a similar per se ban on their execution. He argues it is constitutionally inadequate merely to permit the mentally ill to argue their mental illness constitutes a mitigating factor at sentencing, as is presently allowed. The evidence that Baumhammers suffers from a serious mental illness is ample. Uncontroverted evidence indicates he was institutionalized in 1993 and 1999 for severe mental illness; was unable to hold a steady job because of his mental illness; hallucinated at his admission to the Georgia state bar that individuals were harassing him and calling him names; believed the FBI, CIA, and Mossad were trying to kill him; and refused to take out the garbage, asserting that when he did so people shot at him with lasers. He unsuccessfully attempted treatment with an alphabet of psychotropic medications, including Anafranil, Ativan, Cogentin, Haldol, Inderal, Luvox, Norphronin, Paxil, Prozac, Risperdol, Seroquel, Trilafon, Zoloft, and Zyprexa. Shortly after the crime, Baumhammers was diagnosed by Dr. Christine Martone with paranoid schizophrenia and auditory hallucinations. See Majority Op. at 42, 960 A.2d at 84. Psychiatric witnesses including Dr. Weiner, the Commonwealth’s expert, testified that Baumhammers suffered from persecutory delusions (Dr. James Merikangas, N.T. 9/4/01, at 1431; Dr. Philip Ninan, id. at 1544; Dr. Edward Friedman, id. at 1587; Dr. Matcheri Keshavan, N.T. 9/5/01, at 1636; Dr. Weiner, N.T. 9/6/01, at 1936); paranoid schizophrenia (Dr. Martone, id. at 1791, 1799; Dr. Laszlo Petras, id. at 1866); and schizo-affective disorder and depression (Dr. Soroya Radiar, N.T. 9/5/01, at 1739-41). Moreover, the Commonwealth concedes in its brief Baumhammers was delusional. Brief for the Commonwealth at 84. Consequently, sufficient evidence was presented at trial to demonstrate Baumhammers’ serious mental illness. Our legal system struggles with how to fairly allocate criminal liability and criminal punishment to individuals whose mental illness leaves them with diminished capacity for moral decision-making. Some defendants, we recognize, are so impaired in this regard that to assign any criminal liability to them would be inequitable. In those cases, the law requires a verdict of not guilty by reason of insanity. See 18 Pa.C.S.A. § 315. Other defendants are less impaired but still impaired enough that the opprobrium of a conviction should be mitigated by a recognition of their condition. In those cases, the law requires a verdict of guilty but mentally ill. See 18 Pa.C.S.A. § 314. Within this latter category, Baumhammers now suggests a further refinement: certain mental illnesses which are so impairing to every person afflicted with them that such a person cannot be culpable enough to merit capital punishment (though, as in Atkins and Roper, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), a life sentence without the possibility of parole would remain constitutionally permissible). As the Majority notes, there is controlling precedent from our Court on this issue. Commonwealth v. Faulkner, 528 Pa. 57, 75-76, 595 A.2d 28, 38 (1991). In Faulkner, we held that the Eighth Amendment did not preclude the execution of prisoners who were mentally ill at the time of the crime. However, the great principle of stare decisis is less powerful in the Eighth Amendment context, since the “national consensus” the Eighth Amendment requires is by definition temporally situated. See Atkins, 536 U.S. at 311, 122 S.Ct. 2242 (“A claim that punishment is excessive is not judged by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail” (italics supplied)); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (noting that the Eighth Amendment is governed by “the evolving standards of decency that mark the progress of a maturing society”). In Atkins, the Supreme Court overturned a 13-year-old precedent, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (holding that the Eighth Amendment does not bar the execution of prisoners who were mentally retarded at the time they committed their offenses). In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court held the execution of prisoners who were under 18 at the time of their crimes was barred by the Eighth Amendment. In so doing, the Court overturned a 16-year-old precedent, Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) (holding that the Eighth Amendment does not bar the execution of prisoners who were under 18 years of age at the time they committed their offenses). Both decisions were based on changes in the factors which, taken together, determine the existence of a national consensus. Accordingly, I believe we may re-examine Faulkner in light of contemporary standards to effectuate the protections afforded by our national charter. A group of offenders may be excluded from capital punishment under the Eighth Amendment only if a national consensus barring the execution of such offenders exists. The United States Supreme Court has set out four indicia to consider in determining the existence of such a consensus: (1) legislation enacted by the country’s legislatures, including whether there is a pattern of movement towards precluding the execution of members of a particular group; (2) the decisions of sentencing juries, appellate courts, and governors about whether to execute defendants in that group; (3) where appropriate, other indicia of national and international opinion; and (4) the court’s own judgment. See Roper, 543 U.S. at 563-65, 125 S.Ct. 1183 (2005). In such cases, though capital punishment usually must be “sensible to the uniqueness of the individual,” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and “tailored to his personal responsibility and moral guilt,” Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), a national consensus may develop which holds that an immutable characteristic of the defendant so affects his individual responsibility and moral guilt that it precludes finding his “consciousness [is] materially more ‘depraved’ than that of any person guilty of murder,” as is required for capital punishment to be lawful. See Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In such circumstances, our high Court holds that a defendant’s execution is barred. Under the United States Supreme Court’s Eighth Amendment jurisprudence, I agree that Baumhammers cannot meet the Atkins/Roper test on the basis of the record before us. While there is some disagreement within our high Court, it is reasonably clear that an offender seeking to satisfy the first factor of Atkins and Roper, which focuses on legislative action, must show, at least, that a majority of jurisdictions bar the execution of members of his group and the “direction of change” is consistent and in favor of barring the execution of members of his group. See Atkins, 536 U.S. at 315, 122 S.Ct. 2242. To satisfy the second factor, he must additionally show that juries impose capital punishment on members of his group exceedingly rarely. See Roper, 543 U.S. at 563-65, 125 S.Ct. 1183; Thompson v. Oklahoma, 487 U.S. 815, 833, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality) (concluding that where only five offenders under the age of 16 had been among the 1,400 defendants sentenced to death nationwide between 1982 and 1986, their sentences had been “cruel and unusual in the same way that being struck by lightning is cruel and unusual”). Critically, Baumhammers does not attempt to demonstrate any of these propositions apply to paranoid schizophrenics, and he has not introduced any evidence which would suggest the existence of such a national consensus. Moreover, Baumhammers conceded at oral argument that the factors laid out in Atkins and Roper are not present here. In his brief, he provided only a cursory argument that Atkins should apply directly to the seriously mentally ill without any evidence demonstrating legislative action against the execution of seriously mentally ill defendants, diminished imposition of the death penalty on seriously mentally ill defendants, support from national and international opinion, or guidance for the exercise of this Court’s independent judgment. Accordingly, in this case, I join Justice McCaffery’s conclusion on the issue. Nonetheless, I concur with the opinions expressed by Justice Evelyn Lundberg-Stratton of the Ohio Supreme Court, that the similarities between individuals with severe mental illness and those with mental retardation or juvenile status are strong enough to justify serious consideration by the country’s legislatures. See Ketterer, 111 Ohio St.3d 70, 855 N.E.2d 48, 81-87 (2006) (Lundberg-Stratton, J., concurring). As Justice Lundberg-Stratton emphasized, as with mentally retarded defendants, it is not clear that either purpose of capital punishment—retribution or deterrence—is served by imposing that punishment on defendants who are severely mentally ill at the time of their crimes. Id. at 85, 855 N.E.2d 48; see also State v. Nelson, 173 N.J. 417, 803 A.2d 1, 47 (2002) (Zazzali, J., concurring); Corcoran v. State, 774 N.E.2d 495, 502 (Ind.2002) (Rucker, J., dissenting). In both Atkins and Roper, the Supreme Court described in some detail the characteristics which rendered members of the group in question constitutionally exempt from capital punishment—the mentally retarded and juveniles, respectively. Justice Stevens noted that mentally retarded offenders: [Frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Atkins, 536 U.S. at 318, 122 S.Ct. 2242 (footnotes omitted). Accordingly, Justice Stevens concluded, “the lesser culpability of the mentally retarded offender surely does not merit” a punishment reserved for the most culpable adult offenders. Id. at 319, 122 S.Ct. 2242. In Roper, Justice Kennedy emphasized three primary differences between adolescents and adults: first, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions”; second, the fact that “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and finally, the fact that “the character of a juvenile is not as well formed as that of an adult.” Roper, 543 U.S. at 569-570, 125 S.Ct. 1183. Serious mental illnesses have similar effects. See Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L.Rev; 293 (2003) (arguing the effects of mental retardation and serious mental illness are so similar as to eliminate a rational basis for distinguishing between the two categories of defendants); see, e.g., National Institute of Mental Health, Schizophrenia, available at http://www.nimh. nih.gov/health/publications/schizophrenia/ complete-publication.shtml (noting that schizophrenics struggle to absorb and interpret information and make decisions based on that information). An individual with a serious mental illness may be just as seriously impaired in his ability to “understand and process information” as an individual with a diminished IQ or an individual who has not yet reached the age of legal majority. Moreover, while mental illness is no more an unavoidable cause of criminal conduct than mental retardation or being a juvenile, its manifestations—such as the delusions that accompany paranoid schizophrenia—hamper a sufferer’s ability to “engage in logical reasoning,” and the disconnect between a paranoid schizophrenic’s basic understanding of the world around him and that of an individual not similarly afflicted will make it difficult for the schizophrenic to understand others’ reactions. Compare Atkins, supra (holding that similar characteristics of the mentally retarded made them categorically ineligible for capital punishment). Moreover, several national organizations have taken positions against the execution of the severely mentally ill. See Recommendations of the American Bar Association Section of Individual Rights and Responsibilities Task Force on Mental Disability and the Death Penalty, 54 Cath. U.L.Rev. 1115, § 2 (2005); Public Policy Platform of the National Alliance on Mental Illness, §§ 9.7.1.1, 9.7.1.2 (8th Ed.2006); Mental Health America, Position Statement 51: The Death Penalty and People with Mental Illnesses, available at ht tp:// www.nmha.org/go/position-statements/54. However, despite my grave concerns, I decline to go beyond what Atkins and Roper require on the record in this case. Accordingly, as did Justice Lundberg-Stratton, I request that our legislature consider the issue, summon and question scientific experts (which an appellate court may not do), and consider whether the national consensus and our statutory law are in line with the demands of the Eighth Amendment and of fundamental fairness, considering the best scientific evidence of the impact of severe mental illnesses on individual culpability.
I recognize we lack detailed advocacy on the issue, as Baumhammers argues only that “the Atkins decision should and will be extended to individuals, like him, who are mentally ill.” Brief for Appellant at 85. Moreover, I note Baumhammers raises no claims under Article I, Section 13 of the Pennsylvania Constitution. However, I am convinced this recurring issue deserves further consideration by legislators and jurists.
Pennsylvania follows the Model Penal Code in allowing mental illness to be argued in mitigation. 42 Pa.C.S.A. § 9711(e)(2); MPC § 210.6(4)(b).
We recently noted the difficult distinctions between defendants who are not guilty by reason of insanity and those who are guilty but mentally ill. Commonwealth v. Rabold, 597 Pa. 344, 951 A.2d 329 (2008).
Research has revealed only one state, Connecticut, which has imposed such a restriction. See Conn. Gen.Stat. Ann. § 53a-46a(h).
To the extent data is available, it may be read to indicate the percentage of mentally ill defendants on death row is increasing, not decreasing. See National Mental Health Association, Death Penalty & People with Mental Illnesses (2006), http://wwwl.nmha.org/position/ deathPenalty/deathpenalty.cfm. This data is not conclusive, since NMHA does not explicitly state whether it is studying only offenders who were mentally ill at the time of the crime or including offenders who become mentally ill on death row. It is beyond cavil that a prisoner who is suffering from a severe mental illness that makes him unable to understand the reasons he is being put to death may not be executed. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (noting that prohibition dates to medieval English common law); Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
Federal courts have consistently declined to extend Atkins to the mentally ill. See, e.g., In re Neville, 440 F.3d 220, 221 (5th Cir.2006) (citing In re Woods, 155 Fed.Appx. 132, 136 (5th Cir.2005)); Joshua v. Adams, 231 Fed.Appx. 592, 593 (9th Cir.2007); Green v. Quarterman, 2008 WL 442356 (S.D.Tx.2008). Our neighboring state courts, too, have concluded Atkins does not apply to the seriously mentally ill. State v. Ketterer, 111 Ohio St.3d 70, 855 N.E.2d 48 (2006); Matheney v. State, 833 N.E.2d 454 (Ind.2005) (holding that permitting a defendant to argue mental illness constitutes a mitigating factor at his penalty phase hearing provides adequate protection).
An independent judicial examination of the culpability of individuals with serious mental illnesses, and the constitutional propriety of their execution for crimes as indubitably heinous as Baumhammers’, is well within the traditional parameters of the Eighth Amendment. See Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) ("the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment”); Roper, 543 U.S. at 565, 125 S.Ct. 1183 (interpreting Coker to require the Court to independently consider the appropriateness of executing members of a particular group). This factor does not subordinate the democratic will to the mere “feelings and intuitions of a majority of the Justices” on a particular court, Atkins, 536 U.S. at 348, 122 S.Ct. 2242 (Scalia, J., dissenting) (italics in original), but requires that judges make a reasoned attempt to interpret and apply that Amendment's prohibition on "cmel” punishments. Not to make such an attempt would be to abdicate our proper judicial role. See id. at 349, 122 S.Ct. 2242 (noting that certain punishments, "such as the rack and the thumbscrew,” are always-and-everywhere cruel and so precluded by the Eighth Amendment).
The views of such organizations may evidence a "broader social and professional consensus” that the execution of members of a certain group is unacceptable. See Atkins, 536 U.S. at 316 n. 21, 122 S.Ct. 2242 (citing the positions of, inter alia, the American Psychiatric Association and American Catholic Conference that the execution of the mentally retarded is cruel and unusual).
Naturally, such an analysis will also require consideration of Article I, § 13 of the Pennsylvania Constitution.
92 A.3d 708
COMMONWEALTH of Pennsylvania, Appellee v. Richard Scott BAUMHAMMERS, Appellant.
Supreme Court of Pennsylvania.
Submitted on Briefs Feb. 19, 2013.
Decided May 27, 2014.
Caroline Roberto, Esq., for Richard Scott Baumhammers.
Francesco Lino Nepa, Esq., Ronald Michael Wabby Jr., Esq., Allegheny County District Attorney’s Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ.
[OPINION BY Justice SAYLOR. type=majority]
OPINION
Justice SAYLOR.
This is a capital post-conviction appeal.
The underlying facts are set forth in this Court’s opinion resolving Appellant’s direct appeal. See Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59 (2008). Briefly, on April 28, 2000, Richard Baumhammers (Appellant) went on a two-hour crime spree in Allegheny and Beaver Counties in which he shot six individuals with a firearm. Appellant first shot to death a Jewish neighbor and set her house on fire. He then drove to public places such as a Chinese restaurant and an Indian grocery store, where he shot five additional persons, all racial or ethnic minorities. Four of these additional victims died of their wounds; the fifth was paralyzed from the neck down. During the crime spree, Appellant also damaged two synagogues by spray-painting swastikas and the word “Jew” onto one of them, and shooting bullets into both. See id. at 13-21, 960 A.2d at 67-71. Appellant was charged with five counts of first-degree murder and related offenses, and the matter proceeded to trial from April 27th to May 9th of 2001. The jury found Appellant guilty on all charges. At the conclusion of the penalty phase, the jury determined that the aggravating circumstances outweighed any mitigation and set the penalty at death for all five murders. Appellant’s post-sentence motions were denied, and this Court affirmed the judgments of sentence. See id. at 66, 960 A.2d at 99.
Appellant filed a counseled, amended petition under Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”), raising nineteen claims. The PCRA court, per Judge Manning (who was also the trial judge), scheduled a hearing on four of the claims and noted its intent to dismiss the remaining fifteen claims without a hearing. A three-day hearing was held in September 2011, at which numerous witnesses testified. The court ultimately denied relief. After Appellant appealed and filed a concise statement of errors complained of on appeal, see Pa.R.A.P. 1925(b), the PCRA court issued an opinion addressing each of the alleged errors and concluding that it had properly denied relief. See Commonwealth v. Baumhammers, CC Nos. 2000-14712-14714, slip op. (C.P. Allegheny June 29, 2012) (“PCRA Court Opinion”).
The statutory framework governing our review is well settled. To be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances enumerated in Section 9543(a)(2) of the PCRA, and that the allegation of error has not been previously litigated or waived. See, e.g., Commonwealth v. Sneed, 616 Pa. 1, 16-17 & n. 13, 45 A.3d 1096, 1105 & n. 13 (2012). For present purposes, the circumstances that would warrant relief are a constitutional violation, or ineffective assistance of counsel, which so undermined the reliability of the truth determining process that no reliable adjudication of guilt or innocence could have taken place. See id.; 42 Pa.C.S. § 9543(a)(2). Details of the trial and post-conviction proceedings are discussed below as necessary in connection with specific claims. We note that, because Appellant’s direct appeal was filed after this Court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), any claims that rest on an allegation of ineffective assistance of trial counsel need not be layered to address appellate counsel’s stewardship. See, e.g., Commonwealth v. McGill, 574 Pa. 574, 589, 832 A.2d 1014, 1023 (2003).
I. Claims Decided Based on an Evidentiary Record
For the claims on which a hearing was held, we consider whether the PCRA court’s findings are supported by the record and free of legal error. See Commonwealth v. Rega, 620 Pa. 640, 662-64, 70 A.3d 777, 790 (2013).
A. Post-trial statements of the Commonwealth’s forensic psychiatrist
Appellant first contends that his constitutional rights to due process and to be free of cruel and unusual punishment were violated when the Commonwealth’s expert testified in the guilt phase that Appellant did not have schizophrenia. To address this argument, it is helpful to review certain aspects of the trial and PCRA testimony.
At trial, Appellant offered an insanity defense. He presented the testimony of several treating psychiatrists as fact witnesses, and of forensic psychiatrist Dr. James Merikangas as an expert witness. Dr. Merikangas testified that, on the day of the crime, Appellant may have been suffering from paranoid schizophrenia and, although he understood the nature and quality of his actions, he did not know that what he was doing was legally or morally wrong. See 18 Pa.C.S. § 315 (setting forth Pennsylvania’s insanity defense in terms of the defendant’s failure to understand the nature and quality of his conduct or that it “was wrong”). Dr. Merikangas’s testimony supported the defense theory that Appellant was suffering from hallucinations in which he believed the FBI was harassing him and causing him physical pain through the use of lasers and poisons, and promised to stop doing so if he would kill ethnic and racial minorities. Dr. Merikangas elaborated that Appellant thought the FBI wanted to discredit his nascent “Free Market” political party and, to that end, directed him to conduct a “right-wing hit.” The expert witness opined that Appellant understood that it is ordinarily wrong to kill others, but he believed his conduct was legally and morally justified because he was obeying a government order.
In its rebuttal case, the Commonwealth adduced the testimony of forensic psychiatrist Dr. Michael Weiner. Based on a records review involving 230 sources and many hours of interviews with Appellant, Dr. Weiner produced a lengthy report. He testified consistent with the report, disputing Dr. Merikangas’s conclusions and opining that Appellant was not schizophrenic, he understood the nature and quality of his actions, and he knew his actions were wrong. Dr. Weiner disbelieved Appellant’s claims of hallucinations, attributing such assertions to after-the-fact malingering. He concluded instead that Appellant acted based on hatred toward non-European immigrants and other minorities. The witness indicated that, although Appellant met the criteria for narcissistic personality disorder, possible antisocial personality disorder, and delusional disorder of a persecutorial type, delusions are different from hallucinations, and moreover, the delusional facet of Appellant’s personality had largely receded during the months leading up to the killings. Dr. Weiner testified that his conclusion regarding Appellant’s hatred-based motive for the killings was supported by Appellant’s desecration of the two synagogues, as well as trial testimony and information he gathered for his report suggesting that Appellant had: angrily threatened two Pakistani restaurant patrons in a Pittsburgh suburb in August 1999, telling them to leave America or they would die; stricken a woman with his fist while traveling in France two months later because he thought she was Jewish; visited white-supremacist websites prior to the day in question; and made anti-minority and white-supremacist statements to fellow inmates shortly after his arrest and while awaiting trial.
Six years after the trial, when a massacre occurred at Virginia Polytechnic Institute (Virginia Tech), Dr. Weiner was working as a paid consultant for ABC News. In that capacity, he was interviewed about the Virginia Tech shootings and, in passing, made reference to Appellant’s case. Dr. Weiner also made comments to other media organizations as well as an educational institution between 2007 and 2011, in which he mentioned Appellant’s case. In at least three of these comments or interviews, Dr. Weiner stated that Appellant suffered from schizophrenia, albeit his actions were motivated by ethnic hatred separate and apart from his schizophrenia.
This suggestion was, of course, inconsistent with Dr. Weiner’s trial testimony in which he rejected a schizophrenia diagnosis for Appellant. Appellant viewed the inconsistency as material because, in Appellant’s view, a schizophrenia diagnosis would have supported his insanity defense better than the personality disorders Dr. Weiner described at trial. Thus, at the PCRA hearing, Appellant presented the testimony of forensic psychiatrist Dr. Phillip Resnick concerning the effect if, hypothetically, Dr. Weiner had testified at trial that Appellant suffered from schizophrenia. Dr. Resnick testified that: (a) if Dr. Weiner had diagnosed Appellant with schizophrenia, the diagnoses of narcissistic personality disorder and possible antisocial personality disorders would have been difficult to support; and (b) a schizophrenia diagnosis would have explained, in terms of a disease of the brain — as opposed to mere personality traits — certain items that may have cast Appellant in a negative light before the jury, such as Appellant’s alleged: grandiosity; inappropriate affect (e.g., smiling) at the time of his arrest; lack of empathy; lack of remorse; aloofness; argumentativeness; and inability to maintain steady employment. See N.T., Sept. 12, 2011, at 15-24.
Appellant also called Dr. Weiner as a PCRA witness and questioned him about the inconsistency between his trial testimony and his subsequent media comments. Dr. Weiner preliminarily agreed that schizophrenia is the “most extreme manifestation of paranoia,” N.T., Sept. 13, 2011, at 190, and acknowledged that, in the media, he had indicated that Appellant suffered from schizophrenia at the time of the shootings. He observed, however, that his role as a media consultant is “very different from” his role as a forensic psychiatrist, id. at 191, because media outlets are not primarily concerned with specific diagnoses or legal issues, but with broader public implications and the public’s sense of vulnerability in the wake of a mass shooting.
As for the particular statements regarding Appellant having schizophrenia, Dr. Weiner: clarified that such assertions stemmed from having erroneously recollected Appellant’s diagnosis, see, e.g., id. at 213 (“I remembered my diagnosis incorrectly.”), 237 (“I thought I remembered [Appellant’s diagnosis], I remembered it incorrectly.”); observed that all such statements were made at least six years after trial and that he had not reviewed his report or any other materials regarding Appellant’s case in the interim, see id. at 208; and pointed out that he had been involved in analyzing a number of other mass shootings in which a schizophrenia diagnosis had been present, thus possibly explaining why he might have become confused and incorrectly stated that Appellant also had schizophrenia. See id. at 213-14. Dr. Weiner testified, as well, that, to the extent any of his misstatements regarding Appellant suffering from schizophrenia remained available on the ABC News website, he had taken steps to rectify them. Finally, Dr. Weiner stated that he stood by his trial testimony and the specific diagnoses he articulated at that time, which excluded schizophrenia. See id. at 232-34. The PCRA court ultimately credited Dr. Weiner’s explanation that he had simply made a mistake when speaking with the media and other organizations many years after the trial, and pointed out that Appellant offered no evidence to contradict such explanation. See PCRA Court Opinion, slip op. at 37-38.
Appellant now argues that it is “unreasonable to believe,” and “difficult to accept,” that Dr. Weiner could have misspoken as a media consultant, Brief for Appellant at 16, 18, since he was being paid to fill an important role within a news organization. Appellant proffers that this is especially so because Dr. Weiner was able to remember other details of Appellant’s case, most notably the names of the victims, during these same media interviews. On this basis, Appellant argues that Dr. Weiner’s trial testimony was so unreliable as to render the guilt and penalty verdicts reached by the jury constitutionally infirm under the Due Process Clause and Eighth Amendment. See Brief for Appellant at 19. Finally, Appellant reasons that Dr. Weiner’s post-trial statements in the media constitute newly discovered evidence entitling him to a new trial. See id. at 19-20. See generally 42 Pa.C.S. § 9543(a)(2)(vi) (allowing for relief where a PCRA petitioner demonstrates that the conviction or sentence resulted from the unavailability of exculpatory evidence that has become available and would have changed the outcome if it had been introduced).
Because the PCRA court heard Dr. Weiner’s responses and observed his demeanor, it was in the best position to determine whether his testimony was credible. See Commonwealth v. Weiss, 565 Pa. 504, 518, 776 A.2d 958, 966 (2001). Such determination is “to be accorded great deference,” Commonwealth v. Dennis, 609 Pa. 442, 457, 17 A.3d 297, 305 (2011), and indeed, is binding on this Court if supported by the record. See Commonwealth v. Williams, 619 Pa. 219, 240-41, 61 A.3d 979, 992 (2013); see also Commonwealth v. White, 557 Pa. 408, 421, 734 A.2d 374, 381 (1999) (“[T]here is no justification for an appellate court, relying solely upon a cold record, to review the fact-finder’s first-hand credibility determinations.”).
Here, it is undisputed that Dr. Weiner’s out-of-court statements were made at least six years after the trial and without the benefit of having reviewed any materials connected with the case since the trial. It is also uncontested that, upon being alerted to the inconsistency with his trial testimony, Dr. Weiner took action to ensure that any news articles still appearing online were corrected so that they no longer reflected that Appellant had schizophrenia. Although Dr. Weiner was able to remember the names of Appellant’s victims, it does not necessarily follow that he must also have remembered Appellant’s diagnosis, and moreover, Dr. Weiner explained that he makes a particular effort to remember victims’ names “because in my experience they become faceless people.” N.T., Sept. 13, 2011, at 236. Thus, we have no grounds to disturb the PCRA court’s decision to credit Dr. Weiner’s testimony to the effect that his post-trial characterization of Appellant as suffering from schizophrenia was a mistake. That decision is supported by the record, and as such, we are bound by it. Accordingly, Dr. Weiner’s now-disavowed out-of-court statements cannot form the basis of a meritorious constitutional claim.
B. Lack of a critique of Dr. Weiner’s testimony
In his next claim Appellant contends that the defense efforts to counter Dr. Weiner’s trial testimony amounted to ineffective assistance of counsel. As explained, Dr. Weiner testified as a psychiatric expert for the prosecution, and Dr. Merikangas testified as a psychiatric expert for the defense. The two experts disagreed over whether Appellant was legally sane at the time of the shootings, and over whether Appellant was suffering from schizophrenia. Dr. Merikangas stated that such a diagnosis was possible and that Appellant was insane, and Dr. Weiner rejected both propositions. Additionally, and as discussed, Dr. Weiner discounted the concept that Appellant’s conduct stemmed from psychotic delusions regarding supposed persecution or harassment by the federal government, and instead attributed Appellant’s actions to his antipathy toward ethnic and racial minorities.
During the PCRA proceedings, Appellant retained Dr. Richard Dudley, a clinical and forensic psychiatrist, to evaluate Dr. Weiner’s methodology and determine whether he could have advised trial counsel on how best to cross-examine Dr. Weiner and rebut his testimony, possibly by advancing a defense surrebuttal case. Dr. Dudley issued a report and provided testimony at the PCRA hearing, concluding that Dr. Weiner’s methodology was flawed. He faulted Dr. Weiner, most notably, for not fully exploring the impact that Appellant’s delusions had on his life and his ability to function. See N.T., Sept. 12, 2011, at 48.
Dr. Dudley gave as an example the fact that Appellant had placed personal ads and utilized female escort services in the days before the crime, but he denied having done this during the videotaped interviews Dr. Weiner conducted with Appellant as part of his clinical examination. At trial, Dr. Weiner suggested that, because Appellant had placed the ads and contacted the escort services using his real name, and had invited strangers from those services into his home, his persecutory delusions were not sufficiently pervasive to indicate schizophrenia during the timeframe involved, since his actions showed that he was not overly guarded and did not suspect the individuals of being government agents. See N.T. Apr. 27-May 9, 2001 (“N.T., Trial”), at 1994-95. Dr. Dudley, who reviewed the videotapes, criticized Dr. Weiner’s conclusion in this regard because, during his clinical examination, Dr. Weiner did not respond to Appellant’s denials by confronting him with information suggesting such denials were false, thus foreclosing any investigation into the relationship between Appellant’s actions and his “disordered thought process.” N.T., Sept. 12, 2011, at 52-53. Dr. Dudley referred to other examples of a similar nature, in each case stating that Dr. Weiner had failed to fully “explore” the issue with Appellant.
Ultimately, Dr. Dudley opined that, in view of such omissions, Dr. Weiner’s diagnoses lacked adequate support, albeit Dr. Dudley disclaimed any intent to: express an opinion as to whether Dr. Weiner’s diagnoses of Appellant’s psychotic or personality disorders were right or wrong; render an independent psychiatric diagnosis; or determine whether Appellant was legally sane at the time of the crimes. See id. at 68, 85-86. Instead, Dr. Dudley described his role as limited to critiquing Dr. Weiner’s “methodology ... in the range of activities that are part of the forensic examination----” Id. at 68-69. Finally, Dr. Dudley noted that, if he had been retained by the defense in 2001, he would have advised counsel on how to develop a more probing cross-examination along the lines of the above, and he would also have been available to testify concerning the flaws he discerned in Dr. Weiner’s forensic evaluation and overall methodology. See id. at 55-58.
Appellant maintains that trial counsel was ineffective for failing to hire an expert such as Dr. Dudley to perform the functions described above, most notably, advise the defense as to how best to cross-examine Dr. Weiner, and testify in surrebuttal that Dr. Weiner’s methodology was flawed. Appellant suggests that counsel must have been aware of the need for such an expert because he complained to the court on more than one occasion that he had insufficient time to review Dr. Weiner’s lengthy expert report. See Brief for Appellant at 22.
To prevail on this claim, Appellant must plead and prove by a preponderance of the evidence that his conviction was the result of ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. § 9543(a)(2)(ii). The test is substantively the same as the performance-and-prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), although this Court has divided the performance component into sub-parts dealing with arguable merit and reasonable strategy. Appellant must therefore show that: the underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission; and Appellant suffered prejudice as a result. See Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987). Because all three “Pierce factors” must be demonstrated, the claim fails if any one of them is not proved. See Commonwealth v. Busanet, 618 Pa. 1, 18, 54 A.3d 35, 45 (2012).
Although Dr. Dudley’s input might have aided the defense at trial, his function would have been limited to advice and impeachment, rather than rebuttal. He criticized Dr. Weiner’s methodology, but he did not offer a substantive opinion in rebuttal to the one rendered by Dr. Weiner. Thus, to the extent Appellant advances that counsel’s stewardship was deficient for failing to call a rebuttal witness, the PCRA record does not support the premise that such witness was available or that counsel was aware of, or had a duty to know of, the witness. See generally Commonwealth v. Weiss, 622 Pa. 663, 725-26, 81 A.3d 767, 804 (2013) (noting that, to establish ineffectiveness for failing to call an expert witness, an appellant must demonstrate, among other things, that the expert witness existed and was available). Even if one assumes that Dr. Dudley was available to act as an advisor or an impeachment witness at trial, this Court’s precedent precludes a finding of arguable merit on that basis alone. Rather, the central issue is whether defense counsel’s cross-examination of the prosecution witness was effective, see Chmiel, 612 Pa. at 388, 30 A.3d at 1143, bearing in mind that its purpose is to subject the state’s expert testimony to meaningful adversarial testing. See Maryland v. Craig, 497 U.S. 836, 846, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). See generally Strickland, 466 U.S. at 688, 104 S.Ct. at 2065 (observing that counsel has a duty to bring skill and knowledge to bear so as to render the trial a “reliable adversarial testing process”). To make such an evaluation, it may be helpful to review counsel’s cross-examination in the context of the trial as a whole. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065 (explaining that the performance inquiry in any case where counsel’s assistance is challenged is whether it “was reasonable considering all the circumstances”).
At trial, the defense called numerous treating psychiatrists as fact witnesses to describe Appellant’s significant mental infirmities. These included Dr. Christine Martone, the chief psychiatrist of the Allegheny County Behavior Clinic, who stated that she had examined Appellant four and six days after the crimes for competency purposes, and diagnosed him with paranoid schizophrenia, see N.T., Trial, at 1791, and Dr. Soroya Radfar, a treating psychiatrist who testified that Appellant was an in-patient under her care in Pittsburgh’s Saint Clair Hospital for eleven days in May 1999, having been brought to the emergency room by his father. Dr. Radfar diagnosed Appellant as suffering from a schizoaffective disorder involving delusions, see id. at 1736-40, and recounted that, upon entry to the hospital: Appellant was having strong hallucinations; his delusions were fixed and diversified; and on a one-to-ten scale, with ten being the most extreme, he was a ten as compared to all other delusional patients she had examined. Further, Dr. Merikangas, testifying as an expert, gave a detailed recitation of Appellant’s psychiatric history, noting that Appellant was subject to psychotic delusions as a result of a physical brain disease, and opining to a reasonable degree of medical certainty that on the day in question he was legally insane.
Although Dr. Weiner testified that Appellant was legally sane, counsel extensively cross-examined Dr. Weiner. During such cross-examination, counsel brought to light that Dr. Weiner: neither treated Appellant nor performed a physical evaluation to rule out a physical cause for Appellant’s psychiatric illnesses, but rather, relied on information from other doctors, see N.T., Trial, at 2116, 2133, 2136; agreed that Appellant met the criteria for delusional disorder of a persecutorial type, see id. at 2110; and agreed, as well, that persecutory delusions can be the cause of violent behavior in a patient, as reflected in two prominent psychiatry reference books, see id. at 2120.
At the PCRA hearing, moreover, guilt-phase counsel, William Difenderfer, Esq., articulated reasonable grounds for not calling an additional expert witness or hiring an expert in an advisory capacity. Counsel testified that he and Dr. Merikangas prepared extensively for the cross-examination of Dr. Weiner, see N.T., Sept. 14, 2011, at 271, and that he was satisfied with both the preparation and the actual cross-examination. See id. at 282. When asked why he did not call a surrebuttal witness to criticize Dr. Weiner’s methodology, counsel stated his belief that such a witness was unnecessary given the responses he was able to elicit when cross-examining Dr. Weiner, together with the strength of the defense case. See id. at 272-73. In this latter regard, counsel noted that Dr. Merikangas’ testimony concerning Appellant’s mental condition was “complemented” by the evidence given by Dr. Mar-tone, who, being employed by the court, would be seen by the jury as impartial. See N.T., Sept. 14, 2011, at 275. Finally, counsel explained that he was concerned about “what another expert would do to this jury,” since the jurors had already “heard from numerous psychiatric experts, and it was extremely apparent that we took issue with Dr. Weiner’s testimony.” N.T., Sept. 14, 2011, at 273; see also id. at 283 (“[W]e can talk now about psychiatrists and doctors, but I think what’s missed is there’s 12 lay people hearing this case.”).
In light of these factors, we agree with the PCRA court that Appellant has not demonstrated that counsel’s stewardship, as it relates to impeaching or rebutting Dr. Weiner, was constitutionally deficient. See PCRA Court Opinion, slip op. at 41. To the contrary, when viewed against the backdrop of the evidence marshaled during the defense case, and in the context of the trial as a whole, there is ample support for the PCRA court’s determination that counsel used reasonable professional skill and subjected Dr. Weiner’s testimony to meaningful adversarial testing. Accordingly, Appellant is not entitled to relief on this claim.
C. Insufficient time to review Dr. Weiner’s report
In a one-page argument, Appellant next maintains that his rights under the Due Process Clause and the Eighth Amendment were violated when the trial court denied counsel’s requests for additional time to review Dr. Weiner’s 89-page report. He states that, with additional preparation time, counsel could have offered testimony along the lines of that given by Dr. Dudley at the PCRA hearing, and that, instead, the “evidence supporting the prosecution’s theory met a rushed and incoherent adversarial challenge and the jury accepted [Dr.] Weiner’s testimony.” Brief for Appellant at 24. Appellant also faults appellate counsel for failing to raise this issue on direct appeal.
Due to the late arrival of the Weiner report, counsel requested extra preparation time on several occasions, including at the conclusion of jury selection. At that juncture, the trial court noted that, because the jury had already been selected and would have to remain idle during any delay, the court was only willing to give counsel one extra day. In fact, trial started on April 27, 2001, three days after jury selection concluded.
Depending on the nature of the materials in question, three days may not have appeared to provide sufficient preparation time to the defense team. Still, Dr. Weiner did not testify until twelve days after trial commenced — after the prosecution and defense had each presented their case-in-chief. Importantly, as well, during the PCRA proceedings trial counsel affirmed that his ability to cross-examine Dr. Weiner was not ultimately impaired by the late delivery of the Weiner report. To the contrary, he testified that he was
very satisfied with what our cross-examination and preparation was with Dr. Weiner. If I would see something glaring today that ... could have been developed if the [cjourt would have given us another week or another month or another day, I’m not seeing it. So ... I totally stand by the cross-examination of Dr. Weiner.
N.T., Sept. 14, 2011, at 282-83.
This testimony was implicitly credited by the PCRA court, as that tribunal relied on it in rejecting the claim. See PCRA Court Opinion, slip op. at 42; cf. Commonwealth v. King, 618 Pa. 405, 418 n. 4, 57 A.3d 607, 615 n. 4 (2012) (inferring that the PCRA court found a particular witness to be credible where it relied heavily upon that witness’s testimony). It is also confirmed by our own review of trial counsel’s extensive cross-examination of Dr. Weiner, as discussed above.
In post-conviction collateral proceedings, the defendant bears the burden to plead and prove eligibility for relief. See 42 Pa.C.S. § 9543(a). In view of the lack of evidence supporting the present constitutional claim, and trial counsel’s PCRA testimony suggesting that the defense was not hindered in its ability to cross-examine Dr. Weiner, Appellant has failed to carry that burden. Therefore, this claim does not entitle him to a new trial.
D. Lack of mitigation expert
Next, Appellant claims that he was denied effective counsel in the penalty phase because no mitigation expert was retained to analyze his parents’ experiences during World War II and explain how those experiences affected the way they responded to his mental illness. Appellant’s theory is that, by investigating the deprivations and traumas his parents suffered during the war, an expert could have given the jury a better understanding of why his parents were willing to support him financially, including providing him with money, cars, and travel expenses, notwithstanding that Appellant never sought or obtained full-time employment. Appellant suggests that this would have added important context to his overall family history, and would have painted his parents in a sympathetic light rather than leaving the jury with the impression that they were merely indulgent.
Appellant’s penalty phase case was extensive. Most relevant to the present claim, Appellant’s parents testified at length in the penalty phase. They described for the jury their family history, as well as their experiences with Appellant from the time of his birth. The family history related by Mr. and Mrs. Baumhammers reflected that they were both born in Latvia in the mid-1930s, although they did not meet until after their families had immigrated to the United States. They were young children in Latvia during World War II when the nation was occupied, first by the Soviet Union, then by Nazi Germany, and then again by the Soviet Union. Because of arrests, executions, property seizures, and deportations to Siberia of entire Latvian families under the Soviet occupation, ten percent of the population was displaced, and Appellant’s parents’ families fled the country in 1944 and traveled to Germany, hoping to “surrender” to the American forces at the conclusion of the war. N.T., Trial, at 3007. They were ultimately successful in this, although they had to endure multiple hardships in the interim. For example, Appellant’s mother survived the Allied firebombing of Dresden, Germany in February 1945, and both parents’ families lived for approximately five years in refugee camps after the war — where employment was scarce — before resettling in the United States. See N.T., Trial, at 2892-99 (testimony of Appellant’s father, Andrejs Baumhammers); id. at 3006-08 (testimony of Appellant’s mother, Inese Baumhammers).
This family history served as background information, whereas the primary focus of the parents’ testimony pertained to their experiences dealing with their mentally ill son, his delusional thought processes spanning seven years, and their efforts to obtain treatment to remedy the problem or at least mitigate the symptoms. This latter testimony additionally, and very graphically, described Appellant’s substantially deteriorating mental state during the years 1993-2000, leading up to the murders.
In support of the present claim, Appellant retained Leslie Lebowitz, Ph.D., a clinical psychologist specializing in psychological trauma, to interview Appellant’s parents, produce a report, and testify at the PCRA hearing concerning the impact of the parents’ wartime experiences on their raising of Appellant. See N.T., Sept. 12, 2011, at 93 (“I was asked to evaluate the issue of whether or not there was a significant trauma history present in [Appellant’s] family of origin, and, if so, to opine as to whether or not that had any influence on the family dynamics or on their response to [Appellant’s] mental illness.”). At the hearing, she testified about the parents’ difficult childhood experiences during the war and their eventual migration to the United States, as well as the increasingly acute mental health problems from which Appellant suffered as he grew into adulthood.
We acknowledge that the hardships delineated by Dr. Lebowitz at the post-conviction stage, in terms of Mr. and Mrs. Baumhammers’ experiences during World War II and their later anguish and struggles in dealing with a mentally-ill son, are very unfortunate. The fact remains, however, that Dr. Lebowitz’s testimony was substantially duplicative of the evidence brought forth at trial. Accord PCRA Court Opinion, slip op. at 43 — 44 (“It is really difficult to discern from her testimony what exactly Dr. Lebowitz could have added that was not already presented.”). As noted, Appellant’s parents had recounted at trial their World War II experiences, albeit in a somewhat more abbreviated fashion. Further, the jury heard a comprehensive description of Appellant’s behaviors, mental illnesses, and personality disorders through, inter alia, the testimony of a series of treating physicians and the reading of Mrs. Baumhammers’ diary.
Appellant submits, however, that counsel’s “basic failure” was in not hiring a mitigation specialist, and points to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), as providing an example of ineffective assistance which occurred when penalty phase counsel “failed to engage a ‘forensic social worker’ to generate a ‘social history.’ ” Brief for Appellant at 34 (quoting Wiggins, 539 U.S. at 524, 123 S.Ct. at 2537). Nevertheless, this Court has expressed that “the same [penalty-phase] investigation will not be required in every case,” since counsel must have wide latitude in making tactical decisions. Commonwealth v. Philistin, 617 Pa. 358, 402, 53 A.3d 1, 26 (2012) (citing Cullen v. Pinholster, — U.S. —, —, 131 S.Ct. 1388, 1406-07, 179 L.Ed.2d 557 (2011)); see also Cullen, — U.S. at —, 131 S.Ct. at 1407 (“It is rare that constitutionally competent representation will require any one technique or approach.” (internal quotation marks and brackets omitted)).
Additionally, this case is readily distinguishable from Wiggins. In Wiggins, the defendant had suffered continuing egregious abuse as a child, including abuse at the hands of his biological mother and numerous foster parents. His counsel failed to investigate his life history and introduced no evidence of it, opting instead to rely solely on Wiggins’ lack of a criminal history, notwithstanding that his penalty-phase counsel had previously told the jurors they would hear evidence of Wiggins’ difficult childhood. Here, by contrast, counsel presented substantial testimony regarding Appellant’s parents’ childhoods and the hardships they met with during World War II, as well as detailed accounts of Appellant’s mental infirmities that persisted over at least a seven-year period.
There is no per se requirement that, in all capital cases, counsel must employ a separate mitigation specialist regardless of the other mitigating evidence that is brought forth. See generally Strickland, 466 U.S. at 688, 104 S.Ct. at 2064 (clarifying that, beyond the general command that counsel’s representation meet an objective standard of reasonableness, “[mjore specific guidelines are not appropriate”). Thus, we disagree with Appellant’s argument that, in the circumstances presented here, penalty phase counsel had a professional obligation to engage a psychologist such as Dr. Lebowitz to present a social history of the Baumhammers family to the jury.
It also bears noting that, to the degree Dr. Lebowitz discussed or analyzed the motivations and actions of Appellant’s family, her testimony focused almost exclusively on Mr. and Mrs. Baumhammers rather than Appellant. What was missing from Dr. Lebowitz’s presentation was any explanation of how Appellant’s parents’ wartime experiences could have provided mitigation relative to Appellant himself, or the murders of which he was convicted. According to the record, Appellant was born in the United States in 1965 and was raised in a middle- or upper-middle-class family in which his parents were dentists and his sister became a successful radiologist. He did not experience any of the wartime hardships that his parents did. Appellant’s parents paid for him to attend law school, and he eventually became a licensed attorney. Appellant’s parents also arranged for him to receive psychiatric treatment upon the manifestation of his symptoms and made efforts to ensure the treatment continued as necessary. For her part, Dr. Lebowitz only interviewed Appellant briefly and did not include a section on Appellant in her report. See N.T., Sept. 13, 2011, at 161-63.
In his advocacy to this Court, moreover, Appellant does not identify any aspect of Dr. Lebowitz’s report or testimony that directly links his parents’ experiences with anything that could be considered mitigating above and beyond what the jury heard at trial. Appellant’s lack of specificity in this regard is illustrated by the highly generalized nature of the passage from Dr. Lebowitz’s testimony that he has chosen to highlight as a demonstration of how his family history allegedly affected him:
[I]f you want to understand the family, you have to understand all the players in the family. If you want to understand a child in the family, you need to understand who their parents are and what the historical, cultural and personal context is of the people who make up that family, and particularly when there’s trauma, or really under any circumstances, the histories of all the players matter, and they explain things about why people do what they do.
Id. at 135, quoted in Brief for Appellant at 31, and in Reply Brief for Appellant at 3. Although statements such as these may be true as far as they go, they do not purport to elucidate, for the benefit of the fact-finder, how the family’s overall social and generational history supports mitigation in the circumstances. Additionally, our own review of the PCRA record does not reveal any more particularized way in which Dr. Lebowitz connected Appellant’s family history with potential substantive mitigation.
A PCRA petitioner cannot succeed on a claim that counsel was ineffective for failing to call a witness if the witness’s testimony would not have materially aided him. In such a case, the underlying-merit and prejudice prongs of the Pierce test logically overlap. To show prejudice, the petitioner must demonstrate that there is a reasonable probability that, but for counsel’s allegedly unprofessional conduct, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Commonwealth v. Gibson, 597 Pa. 402, 418, 951 A.2d 1110, 1120 (2008). Presently, Appellant’s substantive argument concerning prejudice is limited to a single paragraph in which, without citation to the record, he suggests that: the Commonwealth portrayed his upbringing as “spoiled” and “privileged;” this had an adverse impact on his mitigation case; and Dr. Lebowitz could have provided a “mental health explanation” for why his parents treated him the way they did. Brief for Appellant at 36. Appellant also references a supposed “connection between [his] parents’ trauma history and [his] burgeoning mental illness,” Brief for Appellant at 36, but he does not state what that connection is. He also alludes to the concept that Dr. Lebowitz’s testimony could have weakened any suggestion by the Commonwealth that Appellant was more blameworthy because he was an indulged and spoiled child and adult, see id. at 36-37, but, again, he does not explain how that impression could have been refuted. See also id. (alluding, without further explanation, to “how the parents’ trauma impacted Appellant’s mental health” (emphasis removed)).
These are material deficiencies because the only mitigating circumstance to which Dr. Lebowitz’s testimony could have pertained was the catch-all mitigator, which is expressly defined in terms of the “character and record of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(8) (emphasis added). Even if we were to assume, for instance, that Dr. Lebowitz could have convinced the jury that the parents’ actions in indulging Appellant’s wishes to maintain a comfortable lifestyle without having to engage in gainful employment stemmed, not from poor parenting skills, but from the psychological implications of their wartime experiences, this would only tend to mitigate the blameworthiness (if any) of the parents’ behavior, and not Appellant’s. Nor do we believe that the jurors’ weighing of the aggravators and mitigators would have been materially altered on the basis of Dr. Lebowitz’s assertions, since the weighing process is limited, by definition, to aggravating and mitigating circumstances that were actually found. See 42 Pa.C.S. § 9711(c)(iv).
In light of the above, because Appellant has not adequately explained how Dr. Lebowitz’s testimony would have been helpful, counsel cannot be deemed ineffective for failing to present such testimony. Likewise, even if we assumed, arguendo, that Appellant could somehow establish the first two prongs of the Pierce test for ineffective assistance of counsel, he has failed to demonstrate prejudice. Therefore, for this additional reason, Appellant’s claim necessarily fails. See generally Commonwealth v. Walker, 613 Pa. 601, 611-12, 36 A.3d 1, 7 (2011) (noting that an ineffectiveness claim may be denied upon showing that any one of the three prongs is not satisfied).
II. Claims Dismissed Summarily
On August 11, 2011, the PCRA court entered an order noting its intent to dismiss without a hearing the remaining PCRA claims, that is, those other than the ones for which a hearing was held. See Docket Entry 146. See generally Commonwealth v. Albrecht, 606 Pa. 64, 67, 994 A.2d 1091, 1093 (2010) (“The PCRA court need not hold a hearing on every issue appellant raises, as a hearing is only required on ‘genuine issues of material fact.’ ” (quoting Commonwealth v. Clark, 599 Pa. 204, 212, 961 A.2d 80, 85 (2008), and Pa.R.Crim.P; 909(B))). At a status conference that day, the court stated that the PCRA petition “fails to establish the[r]e are genuine issues concerning any material facts as to those claims, and the [cjourt concludes that [Appellant] is not entitled to post-conviction collateral relief on those claims.” N.T., Aug. 11, 2011, at 17.
To obtain reversal of a PCRA court’s summary-dismissal of a petition, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief. See Commonwealth v. Paddy, 609 Pa. 272, 291-92, 15 A.3d 431, 442 (2011) (quoting Commonwealth v. D’Amato, 579 Pa. 490, 513, 856 A.2d 806, 820 (2004)). The controlling factor in this regard is the status of the substantive assertions in the petition. See D'Amato, 579 Pa. at 513, 856 A.2d at 820. Thus, as to ineffectiveness claims in particular, if the record reflects that the underlying issue is of no arguable merit or no prejudice resulted, no evidentiary hearing is required. See Commonwealth v. Pirela, 556 Pa. 32, 54, 726 A.2d 1026, 1037 (1999). For each such claim, we review the PCRA court’s action for an abuse of discretion, see Commonwealth v. Simpson, 620 Pa. 60, 73, 66 A.3d 253, 261 (2013) (citing Commonwealth v. Collins, 585 Pa. 45, 70, 888 A.2d 564, 579 (2005)); Commonwealth v. Keaton, 615 Pa. 675, 748, 45 A.3d 1050, 1094 (2012); Commonwealth v. Hutchinson, 611 Pa. 280, 354, 25 A.3d 277, 320 (2011), taking into account the degree of specificity required of the PCRA court. See Commonwealth v. Williams, 566 Pa. 553, 569, 782 A.2d 517, 527 (2001). Thus, for example, where the court’s pre-dismissal notice fails to give sufficiently specific notice to the petitioner as to its reason for its intended dismissal, a remand is appropriate to correct the error. See id.
With these guidelines for appellate review, we proceed to address each of the remaining claims Appellant raises in his brief.
A. Lack of guilty-but-mentally-ill instruction
Appellant argues that his guilt-phase attorney was ineffective for failing to request a jury instruction that he could be found guilty but mentally ill. He states that, since he offered an insanity defense, he was entitled to such an instruction based on a provision of the Crimes Code that states:
A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.
18 Pa.C.S. § 314(a). Appellant submits that if the jury had found him guilty but mentally ill, it would also have been forced to conclude that he had established the mitigating circumstance that his capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” 42 Pa.C.S. § 9711(e)(3). Appellant reasons that, due to ineffectiveness in the guilt phase, he suffered prejudice in the penalty phase since the jury did not find the proffered (e)(3) mitigator. See supra note 1.
While we do not deny that guilt-phase ineffectiveness can, under some circumstances, result in sentencing-phase prejudice, the difficulty with Appellant’s claim is that this Court held as early as the late 1980s that a guilty-but-mentally-ill verdict is unavailable as a matter of law in the guilt phase of a capital case. In Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990), the Court first articulated its rationale, explaining that such a verdict:
reflects a penological concern that should be considered in determining the appropriate sanction for the offense. In the usual situation the judge is entrusted with determining the appropriate sentence, and the jury’s function is confined to determining the guilt of the accused. The verdict providing for “guilty but mentally ill” represents an exception to this general rule. By rendering this judgment, the jury is permitted to advise the sentencing judge to consider the fact of mental illness in the exercise of his sentencing decision. Capital cases are unique in that the jury and not the judge sets the penalty in such cases. The consideration of a possible verdict of guilty but mentally ill is a matter that would appropriately be rendered by a jury in a capital case during the sentencing phase as opposed to the guilt[ ] phase. We permit the jury to rule upon this penological concern during the guilt phase in all other cases simply because they have no opportunity for input in the sentencing phase. That consideration is not present in capital cases.
Id. at 392-93, 572 A.2d at 1227. Although Appellant is correct in observing that the above limitation is not reflected in the statutory text, the reasoning in Young was reaffirmed on multiple occasions in the years prior to Appellant’s trial. See, e.g., Commonwealth v. Faulkner, 528 Pa. 57, 72, 595 A.2d 28, 36 (1991); Commonwealth v. Hughes, 536 Pa. 355, 376-77, 639 A.2d 763, 773-74 (1994); Commonwealth v. Williams, 557 Pa. 207, 250, 732 A.2d 1167, 1190 (1999) (“In a capital case, an assertion of ‘guilty but mentally ill’ is properly considered only in the penalty phase of trial and is subsumed within the mitigating circumstances set forth at Section 9711(e)(2) and (e)(3)[.]”).
Appellant candidly recognizes this, see Brief for Appellant at 40 (describing the limitation on the guilty-but-mentally-ill verdict as having become “enshrined in Pennsylvania decisional law”), but argues that counsel’s stewardship was nonetheless deficient because counsel failed to argue for a change in the law based on Section 314(a)’s plain language. In this latter regard, Appellant references Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998), a case in which this Court determined that defense counsel was at fault because he failed to inform the defendant that the Commonwealth’s only alleged aggravating circumstance — that the crime was committed in the perpetration of a felony, see 42 Pa.C.S. 9711(d)(6) — could not be found for accomplices such as herself. This failure on counsel’s part led Ms. Lassiter to plead guilty to second-degree murder to avoid the death penalty, when she was ineligible for the death penalty in the first instance. See Lassiter, 554 Pa. at 595, 722 A.2d at 662. Lassiter, however, is distinguishable because no “enshrined,” contrary interpretation of the scope of the (d)(6) aggravating factor existed at the time Ms. Lassiter pled guilty. Thus, the case did not involve a finding that the attorney was ineffective for failing to argue for a change in settled law, but rather, for failing to recognize the statute’s limited application based on its plain text. In the present matter, however, Appellant is suggesting that his counsel erred by failing to argue for a change in settled law.
Appellant disagrees that Lassiter is distinguishable on these grounds, and suggests that Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990), embodied a holding contrary to Lassiter. See Brief for Appellant at 41. Williams, however, involved a killing where the defendant and a confederate took turns striking the victim in the head with a tire iron or a socket wrench until the victim died, and the Court described the pair as “co-murderers” and “co-brutalizers.” Id. at 222 n. 6, 233, 570 A.2d at 77 n. 6, 83. There was no indication in Williams that the defendant was merely an accomplice, and the issue of whether Section 9711(d)(6)’s scope subsumes accomplices was not expressly addressed by the Court. As well, Lassiter makes no mention of Williams, much less purports to overrule it.
Trial counsel’s performance is evaluated under the standards in effect at the time of trial. See Commonwealth v. Spotz, 616 Pa. 164, 261, 47 A.3d 63, 122 (2012); cf. Commonwealth v. Bennett, 618 Pa. 553, 580, 57 A.3d 1185, 1201 (2012) (“[C]ounsel will not be faulted for failing to predict a change in the law.”). As a logical corollary, counsel cannot be held ineffective for failing to request a jury instruction that was affirmatively prohibited by Pennsylvania law at the time of trial. See Commonwealth v. Fletcher, 604 Pa. 493, 560-61, 986 A.2d 759, 801 (2009); cf. Commonwealth v. Hughes, 581 Pa. 274, 355, 865 A.2d 761, 810 (2004) (noting counsel cannot be deemed ineffective for failing to object to an instruction that was legally required at the time of trial). Here, as explained, a guilt-phase jury instruction under Section 314(a) of the Crimes Code was unavailable at the time of Appellant’s trial (as indeed it still is). That being the case, counsel cannot have been ineffective for not requesting one.
B. Lack of life-with-mental-health-treatment instruction
In his next claim, Appellant again references Section 314 of the Crimes Code, but this time in relation to the sentencing-phase jury charge. His contention is two-fold. First, he maintains that counsel was ineffective for failing to request that the trial court inform the jurors that they could return “a life sentence with mental health treatment,” Brief for Appellant at 44 (emphasis in original), as an alternative to the two sentences permitted by the capital sentencing statute. See 42 Pa.C.S. § 9711(a)(1) (providing that “the jury shall determine whether the defendant shall be sentenced to death or life imprisonment”). Second, and relatedly, Appellant avers that counsel was ineffective for failing to request the jury be informed that he would be eligible for mental health treatment if he were sentenced to life imprisonment. See Brief for Appellant at 46.
The Commonwealth argues that this claim is waived because it does not appear among the claims raised in the PCRA petition. Appellant does not deny this but reasons that the claim is nonetheless preserved because it is “related to the previous claim,” Reply Brief for Appellant at 12, and moreover, it was discussed in a pleading responsive to the Commonwealth’s answer to the PCRA petition. See Petitioner’s Response to the Commonwealth’s Answer, Docket Entry 139, at 9-12. Appellant views this responsive pleading as having “clarified his claim regarding entitlement to the [guilty but mentally ill] instruction.” Reply Brief for Appellant at 13. Appellant also submits that the claim is preserved because it was raised in his Concise Statement of Errors Complained of on Appeal, see id. at 14, and because his counsel made a generalized statement near the conclusion of the evidentiary hearing that none of the claims in the PCRA petition were being waived. See id. at 13 (quoting N.T., Sept. 14, 2011, at 308).
Claim IX of the PCRA petition, on which the present issue is based, is entitled, “Petitioner Was Denied His Rights To Due Process And Effective Assistance Of Counsel, And Under Pennsylvania Law, When The Jury Was Not Instructed That It Could Find Petitioner Guilty But Mentally Ill.” PCRA Petition at 44. The body of the claim pertains exclusively to the guilt phase and the alleged harm that ensued from counsel’s failure to request a guilty-but-mentally-ill charge. See id. at 44-46, ¶¶ 83-88. No issue is raised in the petition with regard to what the jury should have been told in the sentencing phase relative to the availability of psychiatric treatment for mentally ill individuals sentenced to life imprisonment, and there is no contention that an instruction should have been provided informing the jurors that they could return a sentence of “life imprisonment with mental health treatment.” Thus, Appellant’s present distinct contentions regarding the sentencing-phase jury instructions are more than mere “clarifications” of the original claim, as Appellant suggests. Rather, they amount to additional substantive claims that would have had to appear in the PCRA petition, or an authorized amendment thereto, to be preserved. See Pa.R.Crim.P. 902(B) (“Each ground relied upon in support of the relief requested shall be stated in the [PCRA] petition. Failure to state such a ground in the petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief.”); see also Commonwealth v. Rainey, 593 Pa. 67, 86, 928 A.2d 215, 226 (2007) (noting that issues not raised in a PCRA petition are waived and cannot be considered for the first time on appeal).
Our criminal procedural rules reflect that the PCRA judge “may grant leave to amend ... a petition for post-conviction collateral relief at any time,” and that amendment “shall be freely allowed to achieve substantial justice.” Pa.R.Crim.P. 905(A); see Commonwealth v. Williams, 573 Pa. 613, 633, 828 A.2d 981, 993 (2003) (noting that the criminal procedural rules contemplate a “liberal amendment” policy for PCRA petitions). Nevertheless, it is clear from the rule’s text that leave to amend must be sought and obtained, and hence, amendments are not “self-authorizing.” Commonwealth v. Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012). Thus, for example, a petitioner may not “simply ‘amend’ a pending petition with a supplemental pleading.” Id. Rather, Rule 905 “explicitly states that amendment is permitted only by direction or leave of the PCRA Court.” Id. at 523-24, 35 A.3d at 12; see also Williams, 573 Pa. at 625, 828 A.2d at 988 (indicating that the PCRA court retains discretion whether or not to grant a motion to amend a post-conviction petition). It follows that petitioners may not automatically “amend” their PCRA petitions via responsive pleadings.
Here, Appellant never sought leave to amend his PCRA petition to insert a new claim relating to what the jury should have been told in the sentencing phase with regard to mental health treatment for individuals who are sentenced to life in prison. Nor can this new contention reasonably be construed as subsumed within the prior one, which, as explained, relates only to the guilt-phase jury instructions on the possibility of returning a guilty-but-mentally-ill verdict. Additionally, the PCRA court did not treat Appellant’s responsive pleading as a request for leave to amend; the record contains no discussion of such a request and the court did not address this new substantive contention in its opinion disposing of Appellant’s PCRA claims. Finally, Appellant’s counsel’s generalized assertion near the end of the evidentiary hearing that Appellant was not waiving any of the claims in the petition for which no evidentiary hearing was held is insufficient to have constituted a request to amend the petition, or otherwise to have complied with the rules regarding amendment as explained above. See generally Williams, 566 Pa. at 569, 782 A.2d at 527 (stating that, upon receipt of a notice that the PCRA court intends to dismiss claims, “counsel must undertake a careful review of the pleadings and other materials to ensure that a sufficient offer has been made to warrant merits review”). Nor could such assertion have expanded the substantive scope of the claim to include an allegation that the penalty-phase jury instructions were defective.
Therefore, since the present claim was not raised in Appellant’s PCRA petition, and no request was made to amend the petition to include it, it is waived. Finally, waiver cannot be avoided solely by reference to Appellant’s Concise Statement of Matters Complained of on Appeal, as such a statement, which is provided after the notice of appeal has already been filed, cannot operate to add new substantive claims that were not included in the PCRA petition itself. See generally Commonwealth v. Williams, 900 A.2d 906, 909 (Pa.Super.2006).
C. Involuntary medication during trial
Appellant next maintains that he was forcibly medicated during trial in violation of his constitutional rights, and that his trial counsel was ineffective for failing to litigate and enforce those rights. After Appellant was arrested on April 28, 2000, he was examined by psychiatrist Dr. Laszlo Petras at the Beaver County Jail. During the following week, Appellant was also examined on two occasions by Dr. Martone, see supra note 5, who ultimately concluded that he was incompetent to stand trial. See N.T., May 9, 2000, at 4. See generally 50 P.S. § 7402(a) (providing that a defendant is incompetent to stand trial if he is unable to understand the nature or object of the proceedings against him, or to participate and assist in his defense); Commonwealth v. Sanchez, 589 Pa. 43, 56, 907 A.2d 477, 484 (2006). Accordingly, Appellant was sent to Mayview State Hospital, see Baumhammers, 599 Pa. at 14, 960 A.2d at 67, where Dr. Petras was his treating physician. Several months later, ip September 2000, a competency hearing was held at which Dr. Petras testified. The doctor indicated that Appellant had regained competency due to a treatment regimen that included Zyprexa, an antipsychotic drug. See N.T., Sept. 15, 2000, at 12. Based on this testimony, the trial court ruled that Appellant had become competent to stand trial. See id. at 32.
Thereafter, Appellant was present at a pre-trial motions hearing held on April 11, 2001, one week before jury selection began. During the course of the hearing, the judge asked Appellant directly if he was taking medication. Appellant answered, “I am taking Zyprexa medication.” N.T., Apr. 11, 2001, at 167-68.
Appellant argues that he was involuntarily medicated during trial and that this violated his rights pursuant to Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). He states that he suffered prejudice because the medication had an adverse impact on his alertness and demeanor during trial. Appellant suggests that he is therefore entitled to a new trial. Barring such relief, Appellant contends that he is entitled to a remand for an evidentiary hearing on the issue. See Brief for Appellant at 52; Reply Brief for Appellant at 18. In its Rule 1925(a) opinion, the PCRA court concluded that nothing in the record established that Appellant was forcibly medicated during his trial. See PCRA Court Opinion, slip op. at 30. Appellant reasons that this conclusion was erroneous because the record indicates that he was, in fact, involuntarily medicated, as reflected by the testimony provided by Dr. Petras at the September 2000 competency hearing.
According to that testimony, Appellant remained in close contact with his attorney during the months he was at May-view. Upon admission, Appellant was initially hesitant to participate in psychological testing, but after consulting with his lawyer, he agreed to cooperate. See N.T., Sept. 15, 2000, at 12-13. In addition, and most relevant to this claim, Appellant refused to take more than four milligrams of the antipsychotic drug Trilafon — the medication Appellant was initially given at Mayview before being switched to Zyprexa — because he believed that four milligrams was sufficient for his needs and he disliked the drug’s side effects. Thus, when given a higher dosage, Appellant would take four milligrams and spit the rest out. See id. at 13, 15. Dr. Petras described that, upon observing this behavior, he told Appellant “that if his condition would deteriorate to a certain point we might have to force the medication against his will.” Id. at 13. The doctor stated that, after again consulting his lawyer, Appellant began voluntarily taking the medication. See id.
Appellant derives from this passage that he was “threatened that if he did not take the medication, that he would be subject to forcible administration of it,” Brief for Appellant at 50-51, and urges that “such threats cannot possibly constitute a knowing, intelligent, and voluntary waiver” of his constitutional rights. Id. at 51. He maintains that trial counsel was ineffective for failing to request “hearings and findings” on whether he was being forced to take medication and whether such action was appropriate in view of the medication’s alleged side-effects. Id. at 54.
We find Appellant’s suggestion that the above testimony regarding Trilafon, given in September 2000, evidences that the administration of a different drug (Zyprexa) was accomplished involuntarily at trial more than seven months later, to be highly attenuated. Dr. Petras never implied that the drug had been forcibly administered or that Appellant’s condition worsened to the point where he would have to be medicated against his will. Additionally, and contrary to Appellant’s argument, Dr. Petras noted that Zyprexa was substituted for Trilafon because it was just as effective but did not give rise to the side-effects that Appellant found objectionable. As such, Zyprexa was more palatable to Appellant. See id. at 15, 17; see also N.T., Trial, at 1821-22 (reflecting Dr. Petras’s testimony that “I switched him to Zyprexa because the side-effect profile” was “favorabl[e] compared to Trilafon”). Furthermore, Dr. Petras clarified during trial that, although Appellant would have preferred not to take medication while at May-view, he had nonetheless agreed to take a low dose of Trilafon, which was inadequate for his needs; thereafter, instead of forcing a higher dosage on Appellant, the hospital switched Appellant to Zyprexa. See N.T., Trial, at 1822-23. Accordingly, Dr. Petras’s trial testimony reflects that Mayview never reached the juncture where it had to pursue involuntary medication in response to a decline in Appellant’s condition.
We note, as well, that Appellant did not provide any indication that his taking of Zyprexa was involuntary. At the pretrial motions hearing in April 2001 (approximately two weeks before trial started), Appellant said, simply, “I am taking” the medication. Although Appellant stresses that two trial witnesses testified that his appearance at trial was different from his appearance on the day of the incident, this testimony does not purport to suggest whether the administration of the drug was voluntary or involuntary. Thus, there is nothing in the record that affirmatively indicates Appellant was forcibly medicated at the time of trial. See generally Powell v. Kelly, 531 F.Supp.2d 695, 728 (E.D.Va.2008) (observing that no Riggins violation occurs where a defendant is medicated pursuant to a doctor’s directive and does not refuse the medication); Basso v. State, 2003 WL 1702283, *3 (Tex.Crim.App.2003) (“[I]n order for the Riggins test to apply, the record must affirmatively reflect that the defendant was forcibly medicated.” (internal quotation marks omitted)); Ex Parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App.1995) (“The threshold question [is] whether applicant was forcibly medicated.”).
In Hughes, this Court faced a similar claim together with a similar lack of factual support or development in the record or pleadings. Following a competency hearing, the prosecutor requested that Hughes remain on his medication, and this was the sole basis on which Hughes argued that his medication was involuntarily administered. Further, Hughes had been taking the drug for several months and the record contained no indication that he asked that the medication be discontinued. As well, Hughes did not assert that he advised counsel of a desire to stop taking the medication. This Court concluded that, “[a]bsent an offer from Appellant explaining why the maintenance of his medication was involuntary, we will not assume that counsel was ineffective for failing to object.” Hughes, 581 Pa. at 311-12, 865 A.2d at 783 (citing Common wealth v. O’Donnell, 559 Pa. 320, 341, 740 A.2d 198, 210 (1999)).
We find the present case to be comparable. Here, in arguing that his medication was involuntarily administered, Appellant relies solely on Dr. Petras’s remark that if a certain circumstance were to arise Appellant might have to be forced to take Trilafon. Although this remark arguably hints at the possibility of forcible medication in a way that the Hughes prosecutor’s request did not, there is no indication that the condition referenced by Dr. Petras ever arose, and further, Appellant was changed to a different medication because it lacked Trilafon’s adverse side-effects (which constituted the underlying reason Appellant objected to taking Trilafon in the first instance). Notably, Appellant had been voluntarily taking medications for many years prior to the killings, as he and his family had known since 1993 that he had psychiatric problems, and he had obtained medical treatment accordingly. Finally, and as noted, there is no information in the record suggesting that Appellant ever asked to be taken off Zyprexa.
In light of the above, we find that Appellant’s claim rests on grounds that are as speculative as those forwarded by Hughes. As in Hughes, therefore, and in light of the lack of record support for the allegation of involuntariness, the PCRA court acted within its discretion in dismissing this claim without a hearing. See generally Commonwealth v. Clark, 599 Pa. 204, 228, 961 A.2d 80, 94 (2008) (where a PCRA petition’s assertions were speculative and the petitioner offered no evidence in support of a factual claim, concluding that his “assertion simply failed to raise an issue of material fact”); Commonwealth v. Abdul-Salaam, 571 Pa. 219, 230, 812 A.2d 497, 503 (2002); Commonwealth v. Scott, 561 Pa. 617, 627-28 & n. 8, 752 A.2d 871, 877 & n. 8 (2000).
D. Caldwell violation
Appellant’s next contention is that his penalty-phase counsel was ineffective for failing to object to a portion of the trial court’s jury charge that, according to Appellant, violated his Eighth-Amendment rights by diminishing the jury’s sense of personal responsibility for the death verdicts.
In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the jury imposed the death penalty after the prosecutor stated that “your decision is not the final decision” because it “is automatically reviewable by the [state] Supreme Court.” Id. at 325-26, 105 S.Ct. at 2638. For its part, the trial court “not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them.” Id. at 339, 105 S.Ct. at 2645. The Supreme Court vacated the sentence, concluding that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639. That circumstance was found to violate the Eighth Amendment in particular because such minimization of the jury’s role was viewed as incompatible with the Amendment’s requirement that the jury make an individualized decision that death is the appropriate punishment in a specific case. See id. at 333, 105 S.Ct. at 2641-42.
This Court faced a similar situation in Commonwealth v. Jasper, 558 Pa. 281, 737 A.2d 196 (1999), albeit based on remarks by the court rather than the prosecutor. In that matter, the trial judge had instructed the jury that it was not the final arbiter of the sentence, stating:
Somewhere down the line, if you do impose the death penalty, the case will be reviewed thoroughly. And after thorough review the death penalty may be carried out. I won’t go into all the various reviews that we have. That shouldn’t concern you at this point.
Id. at 282, 737 A.2d at 196. Based on Caldwell, the Jasper Court vacated the sentence, noting that the “plain import of the [trial] court’s remarks is that although the jury may impose the death penalty, it may not be carried out, thus removing from the jury the responsibility for imposing the death penalty.” Id. at 282, 737 A.2d at 196. The Court continued that the “central idea is that when remarks about the appellate process minimize the jury’s sense of responsibility for the verdict of death, the sentence of death must be reversed.” Id. at 284, 737 A.2d at 197.
In the present case, Appellant challenges certain remarks made by the Commonwealth, as well as penalty-phase jury instructions, on similar grounds. To understand these remarks and instructions in context, it is helpful to set forth defense counsel’s statements to the jury as well.
During the penalty phase, defense counsel emphasized in his opening statement that the jurors would “carry [their sentencing decision] to their graves,” and that it would be impossible to “come back” in three or five years and change the sentence if they had regrets upon hearing in the media that Appellant was about to be executed. Counsel added that “[t]he question is, do you need to kill him” and suggested that, although killing a mentally ill person might have been normative during the Middle Ages, we have “progressed beyond those days.” See N.T., Trial, at 2783, 2790.
At the conclusion of the penalty-phase, the prosecuting attorney, in his summation, responded to the above advocacy as follows:
You are not here to reflect on social policy.... You are here to evaluate the evidence ... and apply the law.... The notion that [defense counsel] suggested to you that you are killing [Mr.] Baumhammers is simply wrong, misleading and pandering to the sensibilities not present in this case, not part of the evidence and not part of the law. Continue to do your job in this phase as you did in the earlier phase.
Id. at 8081.
Defense counsel then largely repeated what he had expressed in his opening statement, again emphasizing that Appellant was mentally ill, that the jurors could not return later and change their minds, and that the Commonwealth was attempting to persuade the jury to “yield to revenge” and to “kill him.” Id. at 3101.
After the jury recessed, the Commonwealth objected to portions of the defense opening and closing arguments and requested curative instructions. One of the aspects to which the Commonwealth objected was the concept that the jury itself was going to “kill” Appellant. See id. at 3108. Accordingly, the trial court instructed the jury as follows:
You are not to consider matters such as revenge or sympathy and you are not to allow counsel’s emotional appeals to you to sway your decision in that regard. You, performing your task as jurors, do not bear personal responsibility with regard to the death of Mr. Baumhammers .... Your duty here is to fairly and impartially decide these matters and to render a sentencing verdict consistent with the law as I am going to give it to you now.... [Y]our sentence will depend on what you find upon aggravating and mitigating circumstances.... Remember that your verdict is not merely a recommendation. It actually fixes the punishment of death or life in prison .... I direct you to find the facts, to apply the law as I have given you to the facts and to act in accordance with your solemn oath that you have taken[.]
Id. at 3110-12 (emphasis added).
In assessing these comments and instructions, we observe that neither the court nor the prosecutor referred to the appellate review process, or otherwise suggested that the jury’s verdict would be subject to review or correction by other authorities. This materially distinguishes the present case from Caldwell, Jasper, and the other decisions referenced by Appellant, see Brief for Appellant at 57 (citing, inter alia, Riley v. Taylor, 277 F.3d 261 (3d Cir.2001) (en banc)), all of which dealt with the possibility that the jury might return a death verdict upon believing that a separate legal entity would make the final decision as to its appropriateness. See Commonwealth v. Baker, 511 Pa. 1, 21-25, 511 A.2d 777, 788-90 (1986) (summarizing the constitutionally problematic aspects of drawing the jury’s attention to appellate review, as catalogued in Caldwell); cf. Adams v. Wainwright, 804 F.2d 1526, 1530 (11th Cir.1986) (finding a Caldwell violation where the trial court advised the jury, contrary to state law, that it only filled an advisory role in determining the defendant’s sentence), rev’d on other grounds sub nom Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). In this respect, Baker explained that references to appellate review are especially problematic because, among other things, they tempt the jury to believe that only if it returns a sentence of death will “respected legal authorities” be called upon to review the case. Baker, 511 Pa. at 24, 511 A.2d at 789; accord Caldwell, 472 U.S. at 333, 105 S.Ct. at 2642. Nothing in the present record gives rise to this type of difficulty.
Furthermore, and relatedly, the question resolved in Caldwell was expressly framed in terms of whether the jury had been misled with regard to its responsibility for determining the appropriateness of the sentence itself. See Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994) (explaining that Caldwell prohibits prosecutorial comments that “mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision ” (emphasis added)). As such, Caldwell did not directly address a situation like the present one, where the jurors are told they are not responsible for the defendant’s actual death but are solely responsible for the death sentence.
Still, we find the first emphasized sentence in the above jury charge to be less than ideal under Caldwell and Jasper, as it at least approaches the type of instruction that has been disapproved. Thus, we caution that common pleas courts should be scrupulous not to provide instructions that may appear to diminish a capital jury’s responsibility with regard to the death of the defendant. With that said, however, we also recognize that this portion of the instruction was aimed at counterweighing the emotional appeal of Appellant’s penalty phase counsel. Cf. People v. Fierro, 1 Cal.4th 173, 3 Cal.Rptr.2d 426, 821 P.2d 1302, 1340 (1991) (“In admonishing the jurors not to ‘feel guilty’ or ‘personally responsible,’ the prosecutor was merely suggesting ... that the moral blame for the crimes and their consequences rests with defendant, not with the jurors”), disapproved on other grounds by People v. Letner, 50 Cal.4th 99, 112 Cal.Rptr.3d 746, 235 P.3d 62 (2010). Furthermore, when read as a whole, the overall instruction clearly conveyed to the jurors that they were solely responsible for the sentence, as reflected in the second emphasized sentence in the above passage. See Commonwealth v. Keaton, 556 Pa. 442, 472, 729 A.2d 529, 545 (1999) (noting that the jury charge must be considered as a whole); Commonwealth v. Abu-Jamal, 521 Pa. 188, 209, 555 A.2d 846, 856 (1989) (addressing a Caldwell claim upon review of the sentencing hearing record “in its entirety”).
In light of the above, and applying a similar analysis to the prosecutor’s remarks, we conclude that neither those remarks nor the court’s jury instructions as a whole raise the types of concerns animating Caldwell and its progeny. In particular, they were unlikely to have substantially undermined the jurors’ sense of responsibility to determine the appropriate sentencing verdict — either by reference to appellate review, or by downplaying the jury’s role as merely advisory in nature. Accordingly, as we find no constitutional error, the issue underlying Appellant’s present claim of ineffective assistance lacks arguable merit.
E. Multiple-murder aggravator
Pennsylvania’s capital sentencing statute lists as an aggravating circumstance that the defendant “has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at issue.” 42 Pa.C.S. § 9711(d)(ll) (the “multiple-murder aggravator”). The jury found this aggravator as to all five murders. Appellant submits that his penalty-phase attorney was ineffective for failing to challenge this factor on Eighth-Amendment vagueness grounds.
The difficulty "with Appellant’s argument — as the PCRA court pointed out, see PCRA Court Opinion, slip op. at 24-25 — is that this Court has held that the multiple-murders aggravator is not unconstitutionally vague under the Eighth Amendment. See Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898 (2004). The Fletcher Court noted, preliminarily, that “to survive an Eighth Amendment challenge ‘an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” Id. at 428, 861 A.2d at 912 (indirectly quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)). The Court reasoned that, “[a]s worded, this aggravating circumstance clearly narrows the class of persons eligible for the death penalty by excluding those individuals who have not been convicted of another murder.” Id. at 428, 861 A.2d at 913.
Still, Appellant posits that “[a]n aggravating circumstance that is vague on its face can be cured by a narrowing construction issued by the highest court in the jurisdiction,” and criticizes the PCRA court for failing to notice that Fletcher was decided after his trial, meaning that “there was no such narrowing construction” at that time. Brief for Appellant at 61. The argument is unavailing, as Fletcher did not provide a narrowing construction. Rather, Fletcher held that the aggravator satisfies Eighth Amendment requirements. Thus, the Fletcher Court rendered a determination as to the constitutional validity of the aggravator as it existed at the time of Appellant’s trial. In this regard, we note that there was no legislative change to the multiple-murder aggravator between the time of trial and the date Fletcher was decided, and that the text of the aggravator was recited word-for-word in the penalty-phase jury instruction, see N.T., Trial, at 3114, meaning that Fletcher affirmed the validity of the aggravating circumstance that was found by Appellant’s sentencing jury.
Appellant nonetheless submits that the word “convicted” was vague because that word can and should be construed to mean “sentenced.” Appellant maintains that caselaw establishes that the strict legal meaning of “conviction” requires a sentence to have been imposed. Notably, this is not a vagueness challenge, but an assertion that counsel was ineffective for failing to pursue a limiting construction whereby the multiple-murder aggravator can only pertain if the defendant has already been sentenced, on a prior occasion, for a different murder. See Brief for Appellant at 61-62.
This may be a novel claim in the specific context of the (d)(ll) aggravator. More than three decades ago, however, this Court rejected an identical argument relative to the meaning of “convicted” in the context of the (d)(10) aggravating circumstance — a closely-related aggravator that refers, in relevant part, to a defendant’s having “been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable[.]” 42 Pa.C.S. § 9711(d)(10). In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), the Court observed that, although the argument that “convicted” should be read to signify “sentenced” may have had superficial appeal, it failed upon closer scrutiny. The Court stated that the “clear import” of the portion of the (d)(10) aggravator quoted above “is to classify the commission of multiple serious crimes as one of the bases upon which a jury might rest a decision that the crime of which the defendant stands convicted ... merits the extreme penalty of death.” Id. at 496, 467 A.2d at 299; accord Commonwealth v. Cross, 508 Pa. 322, 339, 496 A.2d 1144, 1153 (1985). The Court continued by focusing particular attention on the phase, “or at the time of the offense at issue,” explaining that such language
highlights the incongruity of the construction urged by the Appellants. By including offenses committed contemporaneously with the offense in issue, the legislature clearly indicated its intention that the term “convicted” not require final imposition of sentence, but cover determinations of guilt as well Given the practical operation of the criminal justice system, a contemporaneous offense would either be tried together with the “offense at issue” or severed and tried separately. In the former situation, it would be impossible for sentencing to have occurred prior to the jury’s consideration of sentence on the “offense at issue”; in the latter, the vagaries of scheduling and conducting separate trials of a single defendant, within certain time limits and amidst the ordinary operation of a court calendar, would make it virtually impossible. At best, such factors would render it completely arbitrary [under the interpretation advanced] whether a contemporaneous offense would qualify as an aggravating circumstance under subsection (d)(10).
Travaglia, 502 Pa. at 496-97, 467 A.2d at 299 (emphasis added).
This reasoning applies equally to the same phrase (“or at the time of the offense at issue”) as it appears in subsection (d)(ll), see generally Commonwealth v. Beasley, 505 Pa. 279, 287, 479 A.2d 460, 464 (1984) (in the context of a similar challenge to the (d)(9) aggravator, citing Travaglia and suggesting that the General Assembly can be presumed to have intended the same meaning for “conviction” across all subsections of 42 Pa.C.S. § 9711(d)); Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939) (“In interpreting a statute using the word ‘conviction’ the court has held that the strict legal meaning must be applied except where the intention of the legislature is obviously to the contrary.” (emphasis added)), as the trial court would likely have recognized if counsel had made the argument presently advanced by Appellant. Accordingly, as Appellant’s underlying issue lacks arguable merit, he is not entitled to relief on his ineffective-assistance claim.
F. Death qualification
Next, Appellant contends that counsel was ineffective during voir dire for not attempting to rehabilitate three prospective jurors who were excused for cause based on expressed reservations about imposing the death penalty.
The Supreme Court held in a case predating Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that the death penalty “cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968); see Commonwealth v. Uderra, 580 Pa. 492, 504, 862 A.2d 74, 81 (2004). That was at a time when the jury was invested with unlimited discretion in its choice of sentence. Because sentencing juries could no longer exercise such discretion after Furman and Gregg, the Court eventually clarified that an individual may be excused for cause whenever his views on capital punishment “would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (adopting the standard set forth in Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). This is because a defendant’s Sixth Amendment right to an impartial jury “drawn from a venire that has not been tilted in favor of capital punishment” must be balanced against the Commonwealth’s “strong interest” in seating jurors “who are able to apply capital punishment within the framework state law prescribes.” Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007). Additionally, “in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts.” Id. Therefore, the decision whether to disqualify a juror for cause lies within the sound discretion of the trial court and error will not be found absent an abuse of discretion. See Commonwealth v. Stevens, 559 Pa. 171, 197, 739 A.2d 507, 521 (1999) (citing Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985)).
Presently, the trial court conducted jury selection by interviewing a number of venirepersons as a group, and then holding follow-up interviews with certain individuals. The first juror that Appellant argues should have been rehabilitated was Juror No. 51. During the initial group interview, Juror No. 51 raised her hand when the judge asked if anyone’s ability to be fair and impartial would be affected by the Commonwealth’s decision to seek the death penalty in this case. During her individual interview by the court and counsel for both sides, Juror No. 51 stated that she believes in the death penalty, “but I don’t know how I feel about my sitting in judgment on that.” In response to further questioning on whether she could follow the law and return a sentence of death in an appropriate case, the juror stated, “That I’m not sure about.” Defense counsel explained the process regarding the weighing of aggravating and mitigating factors, and noted that the court would instruct her that, if the former outweighed the latter, she would have to return a death sentence. When counsel asked if she would be able to do so, she replied: “I could follow the Judge’s instructions. But I’m not sure that I want to do that. I’m not sure that I want to be put in that position, to have to do that.” N.T., Apr. 18-24, 2001 (“N.T., Jury Selection”), at 851-54. The Commonwealth moved to exclude the juror for cause, and the trial court granted the motion. No objection was lodged by defense counsel.
The second juror that Appellant states should have been rehabilitated was Juror No. 36. When he was interviewed individually, the Commonwealth reminded him it might request the death penalty depending on the outcome of the guilt phase, and asked if he had any moral, philosophical, or personal opposition to capital punishment. The juror responded, “I would not want to be responsible for that.” On follow-up questioning, he stated, “I would not want to carry [imposition of the death penalty] for the rest of my life.” He later added, “What I tried to say was I did not want to be responsible for the rest of my life of making that decision. It would be a personal thing with me. I can make the decision, but I don’t want the responsibility hanging over me forever.” N.T., Jury Selection, at 687-88. He was excused for cause, and counsel did not object.
The final juror at issue was Juror No. 61. She indicated that, based on her Christian religion, “the death penalty is not for myself to decide.” Subsequently, she expressed that she would be able to “vote one way or another,” but added that she would impose a higher burden on the Commonwealth where the death penalty was at issue. When the Commonwealth asked if she could impose the death penalty in a situation where she thought it was warranted, she answered, “That’s a hard question to answer.” N.T., Jury Selection, at 1053-54. As with Jurors 51 and 36, the court granted the Commonwealth’s motion to exclude for cause, and defense counsel did not object.
Appellant submits that the failure to object to the exclusions for cause, and to attempt to rehabilitate these jurors, amounted to ineffective assistance of counsel. We disagree.
“A juror’s bias need not be proven with unmistakable clarity.” Commonwealth v. Morales, 549 Pa. 400, 417, 701 A.2d 516, 525 (1997) (citing Witt, 469 U.S. at 425, 105 S.Ct. at 852-53). Although Juror No. 51 stated nominally that she “believed in” the death penalty, her answers included repeated equivocation as to whether she could personally impose it in any given case, since she did not wish to have to decide whether another person should live or die. Jurors 36 and 61 exhibited similar uncertainty, as can be seen from their answers above. This type of tentativeness during the death-qualification process has been held sufficient to justify the exclusion for cause in several prior cases. See Commonwealth v. Carson, 590 Pa. 501, 573, 913 A.2d 220, 262 (2006) (citing cases). In Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996), for example, the Court found no error in the exclusion of a juror who did not “feel comfortable having to make a decision about someone else’s life” and who “always” doubts whether imposing the death penalty is correct. Id. at 249, 681 A.2d at 137. Likewise, in Morales, the Court approved the trial court’s actions in excluding a juror who stated, “I’m not certain that I could judge someone fair enough to give them the death penalty.” Morales, 549 Pa. at 418, 701 A.2d at 525. Additionally, in Commonwealth v. Lewis, 523 Pa. 466, 567 A.2d 1376 (1989), the Court affirmed exclusions where one venireperson stated she “would have great difficulty” voting for the death penalty, and another indicated that she “might not be able to vote for it” due to her religious beliefs. Id. at 475, 567 A.2d at 1380; see also Commonwealth v. Hardcastle, 519 Pa. 236, 256-57, 546 A.2d 1101, 1111 (1988) (concluding that juror’s answer that he did not know whether he could impose the death penalty provided the trial court with an adequate basis to excuse the juror for cause over defense counsel’s objection).
As developed above, all three prospective jurors gave answers which demonstrated similar levels of equivocation. Whether or not these answers would have been sufficient to support exclusion for cause under Witherspoon in the preGregg/Furman era, the standard that now controls (as stated in Witt) is more permissive, in part because of the channeling function accomplished via specific factual questions such as whether certain aggravating circumstances are present. See Witt, 469 U.S. at 422, 105 S.Ct. at 851. Further, because the Supreme Court articulated the test in the disjunctive, it is sufficient if the trial court believes that a prospective juror’s beliefs and apprehensions would “substantially impair” (as opposed to “prevent”) the performance of his duties as a juror in accordance with his instructions and his oath. Accord Commonwealth v. Holland, 518 Pa. 405, 416-17, 543 A.2d 1068, 1073 (1988), overrated on other grounds by Commonwealth v. Freeman, 573 Pa. 532, 574, 827 A.2d 385, 410 (2003). The types of equivocal answers and serious apprehensions about imposing the death penalty and having to live with that decision for the rest of their lives, as reflected in the answers given above by the three venirepersons at issue, are adequate, in our view, to support a conclusion by the trial court that the Witt standard was satisfied — particularly in light of the deference accorded to the common pleas court in these types of decisions. See supra note 24. Further, counsel is presumed to have rendered reasonably effective assistance as required by Strickand, see Gibson, 597 Pa. at 417 n. 7, 951 A.2d at 1118 n. 7, and there is nothing in the record or briefs that demonstrates that such presumption has been overcome.
G. Guilt-phase victim testimony
The next assertion of trial counsel’s ineffectiveness arises from the fact that the only one of Appellant’s shooting victims to survive, Sandip Patel, testified during the guilt phase concerning the facts of the shooting. See N.T., Trial, at 330-35. Appellant’s claim does not concern the content of Mr. Patel’s testimony, but the condition he was in when he testified.
Mr. Patel was paralyzed from the neck down when Appellant shot him, severing his spinal cord. Appellant alleges that Mr. Patel appeared before the jury in a wheelchair and used breathing tubes to help him answer questions, all of which inflamed the jury’s passions and deprived Appellant of a fair sentencing hearing, since the guilt-phase testimony was incorporated into the sentencing phase. Appellant’s specific argument is that guilt-phase counsel should have sought a ruling from the court requiring Mr. Patel’s testimony to be presented via videotape, so that the jury would not have seen him in person. In this regard, Appellant maintains that counsel should have drawn the court’s attention to criminal procedural rule 500, which Appellant interprets broadly as “permitting] the presentation of a "witness through video deposition when doing so would be in the interests of justice and due to exceptional circumstances.” Brief for Appellant at 65.
Rule 500, entitled, “Preservation of Testimony After Institution of Criminal Proceedings,” provides:
At any time after the institution of a criminal proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.
Pa.R.Crim.P. 500(a)(1). Although Mr. Patel was not unavailable for trial, Appellant argues that his “shocking and heart wrenching” condition amounted to “exceptional circumstances” for purposes of the rule, so that presenting his testimony by videotape would have been in the interests of justice. Brief for Appellant at 65.
While Rule 500 suggests that, even apart from witness unavailability, there may be “exceptional circumstances” where the interests of justice require some form of action, that action is limited to the preservation of a witness’s testimony for use in later proceedings. The Rule simply does not address an asserted need to alter the manner in which an available witness testifies at trial. This limitation in the Rule’s scope is confirmed by its official commentary, which states that the “rule is intended to provide the means by which testimony may be preserved for use at a subsequent stage in the criminal proceedings.” Pa.R.Crim.P. 500, Official Cmt. Thus, although Mr. Patel’s circumstances may have been exceptional in one sense, they were not exceptional in the sense contemplated by the Rule, since they did not require that his testimony be preserved for later use. Cf. Commonwealth v. Rizzo, 556 Pa. 10, 16, 726 A.2d 378, 381 (1999) (“It is not exceptional [for purposes of the Rule] that witnesses refuse to testify in the manner which the Commonwealth might wish.”). See generally PCRA Court Opinion, slip op. at 29 (concluding that Appellant had not offered any basis to conclude “that allowing a victim of a crime to testify in person about the actual crime is somehow too prejudicial if the victim has visible evidence of the harm done”). Accordingly, Appellant’s ineffectiveness claim is based on a misreading of Rule 500.
H. Failure to move to suppress physical evidence
In an argument spanning less than a single page, Appellant claims that counsel was ineffective for failing to seek suppression of certain evidence. Notably, Appellant does not indicate in his brief what the evidence was or how he believes its introduction at trial undermines confidence in the outcome of the proceedings. Nevertheless, Appellant does refer to this Court’s disposition of his direct appeal, in which the Court noted that the police seized his computer, which contained files “reveal[ing] evidence of Appellant’s racist and anti-immigrant philosophies.” Baumhammers, 599 Pa. at 29, 960 A.2d at 76. Appellant also presently refers to the trial court’s opinion denying post-sentence motions, which lists the items in general terms as a “computer and some documents found in his room,” Commonwealth v. Baumhammers, CC Nos. 2000-14712-14714, Opinion Disposing of Post-Sentence Motions, slip op. at 10 (C.P. Allegheny Dec. 29, 2005) (“Opinion on Post-Sentence Motions”), reprinted in Brief for Appellant at C — 10, which in turn is mirrored by the PCRA petition’s allegations. See Amended Petition at 64, ¶ 117. Thus, for purposes of this claim we will assume the items in question entailed Appellant’s computer (together with its internal files), which was located in his room, as well as other unspecified documents found in his room.
As explained, however, Appellant has not provided this Court with any developed advocacy on this issue. Therefore, “the issue must be deemed waived in this Court.” Commonwealth v. D’Amato, 579 Pa. 490, 504, 856 A.2d 806, 814 (2004).
I. Failure to request or accept change of venire or venue
Appellant’s next contention is that counsel was ineffective for failing to accept the trial court’s offer of a change of venue, or a change of venire whereby jurors would be brought in from a different county to hear the evidence and decide the case. See Brief for Appellant at 67-68.
At a pre-trial hearing on March 21, 2001, the trial court noted that the case had generated a significant amount of publicity, including numerous stories in the news media, and that the court was prepared to grant any defense request for a change of venire. Counsel preemptively objected to any such change that the court might order sua sponte, expressing his view that the case should be tried by a properly-vetted Allegheny County jury. Counsel indicated that his position in this regard was based on “defense tactical reasons,” N.T., Mar. 21, 2001, at 4-5, which included counsel’s view that an Allegheny County jury would be more receptive to the proffered insanity defense than would a jury drawn from a more rural county. See Commonwealth v. Baumhammers, CC Nos. 2000-14712-14714, Findings of Fact, Opinion and Order, at 14 (C.P. Allegheny March 26, 2001), quoted in Amended Petition, at 77, ¶ 144; see also Opinion on Post-Sentence Motions, slip op. at 6, reprinted in Brief for Appellant at C-6 (finding reasonable counsel’s estimation that jurors from more rural counties would be more “conservative” and, as such, would be less likely to find Appellant not guilty by reason of insanity). Notably, in this regard, there was no suggestion of mistaken identity, and Appellant’s only chance for an acquittal was via his proffered insanity defense.
Three weeks later, the topic of a possible change of venire or venue was revisited at another pre-trial hearing. On this occasion, the trial court conducted a colloquy with Appellant in which it reminded Appellant — who, as noted, was a licensed attorney — that he retained the final decision over how to plead, how to “proceed,” and whether to testify. N.T., Apr. 11, 2001, at 171. The court additionally explained that it had found that a substantial amount of prejudicial pretrial publicity had occurred concerning Appellant’s case. The court noted, in this respect, that it had held hearings on the nature and extent of pretrial publicity, and that it had twice conducted a test of potential jurors and determined that three quarters of them had formed an opinion concerning Appellant’s guilt. Thus, the court informed Appellant that he was entitled to a change of venire. See id. at 170.
During the colloquy, Appellant confirmed unequivocally that: he understood the nature of the prejudicial pretrial publicity and other factors described by the court; he understood all of his rights, including the right to a jury free from the effects of pretrial publicity; he was not under threat or compulsion; and no promises were made to induce him to waive any right to a change in venire or venue. Further, Appellant testified that he understood that, by waiving his right to request a change of venue or venire, he was also waiving his ability to contend in post-trial motions or on appeal that he was denied a fair trial because the jury was unfairly prejudiced by pretrial publicity. Nonetheless, Appellant assured the court that it was not only his attorneys’ decision that he be tried by an Allegheny County jury, but that it was his personal decision as well. See N.T., Apr. 11, 2001, at 169-73. The trial court found Appellant’s waiver to be knowing, intelligent and voluntary. See Opinion on Post-Sentence Motions, slip op. at 5, reprinted in Brief for Appellant at C-5.
Notwithstanding these assurances, Appellant did, in fact, argue in post-sentence motions and on direct appeal that he was denied a fair trial by the court’s failure to order a change of venue or venire sua sponte over his objection. In light of the objection lodged by counsel to such a change, this Court found the claim waived. Hence, Appellant now seeks relief through an ineffectiveness overlay.
Appellant’s approach in this regard is undermined by the fact that he does not challenge the quality of his waiver which, as noted, the trial court found to be adequate. Our own review likewise reflects that the waiver colloquy was extensive in that the court warned Appellant thoroughly of the possible pitfalls of proceeding with an Allegheny County jury, and that Appellant’s responses were coherent. Because a defendant has a constitutionally-guaranteed, “inviolate” right to be tried by a jury drawn from “the vicinage” in question, Pa. Const. art. I, §§ 6, 9; see William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 93-95, 173 A.2d 59, 64-65 (1961), the trial court was precluded by our state charter from overriding Appellant’s personal decision, as he expressed it to the satisfaction of that tribunal, to be tried by an Allegheny County jury.
Under the circumstances — where Appellant had the right to a change in venue or venire based on the trial court’s findings, and additionally had a constitutional right to be tried by an Allegheny County jury — this case is directly analogous to those dealing with waivers of counsel. In such instances, the defendant has the right to representation by counsel, and also the right to forego such representation upon a valid waiver. See Commonwealth v. El, 602 Pa. 126, 134, 977 A.2d 1158, 1162 (2009). Therefore, this Court’s decision in Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995), which dealt with a waiver of counsel, is instructive. In Stan- the Court held that the trial court committed reversible error by denying the defendant’s assertion of his constitutional right to represent himself. See id. at 580-90, 664 A.2d at 1334-39. Likewise, and as noted, it would have been reversible error for the trial court to override Appellant’s assertion of his constitutional right to be tried by a jury of the vicinage. Accord Opinion on Post-Sentence Motions, slip op. at 7, reprinted in Brief for Appellant at C-7 (“This Court is satisfied that it no more had the power to overrule [Appellant’s] constitutional right to be tried by jury of his vicinage, than it had to overrule a defendant’s right to self-representation in Starr.”). In sum, then, since Appellant waived his rights in this regard, he cannot now obtain relief premised upon a claim that his counsel was ineffective for failing to request such a change.
J. Cumulative error
Finally, Appellant indicates that he is entitled to relief based on the cumulative effect of the errors he identifies above. However, nothing in Appellant’s presentation, individually or cumulatively, convinces us that he is entitled to relief.
The order of the PCRA court is affirmed.
Chief Justice CASTILLE and Justices EAKIN, BAER, TODD, McCAFFERY and STEVENS join the opinion.
The jury found the grave-risk-of-death and multiple-murder aggravators as to some of the murders, see 42 Pa.C.S. § 9711(d)(7), (11), and only the multiple-murder aggravator as to others. In each case, at least one juror found that Appellant had no significant histoiy of prior criminal convictions, see id. § 9711(e)(1), that he was under the influence of extreme mental or emotional disturbance, see id. § 9711(e)(2), and that the "catch-all” mitigator applied, see id., § 9711(e)(8) (referencing any other evidence of mitigation concerning the defendant’s character and record and the circumstances of his offense). The defense unsuccessfully proffered mitigating factors pertaining to a substantially impaired capacity to appreciate the criminality of one’s conduct or conform one’s conduct to the law’s requirements, and extreme duress (although not such duress as to constitute a defense to prosecution). See id. § 9711(e)(3) and (5), respectively.
Dr. Weiner explained that delusions are fixed, false beliefs, whereas hallucinations are sensory in nature and can include perceiving nonexistent sights, sounds, and smells. Dr. Weiner agreed that Appellant had had delusions, prominent at one time, that the FBI was harassing him, and that he had written letters to the Pennsylvania Attorney General and a United States Senator requesting help with the imagined harassment.
This conclusion also precludes Appellant’s after-discovered evidence contention. Even if we assume, arguendo, that the out-of-court statements were exculpatory, Dr. Weiner has now disowned them, and hence, their only potential use at trial would be to impeach his credibility. See Commonwealth v. D‘Amato, 579 Pa. 490, 519, 856 A.2d 806, 823 (2004) (reciting that, to obtain relief on a newly-discovered-evidence claim, a PCRA petitioner must establish, inter alia, that the evidence would not be used solely to impeach credibility).
See Commonwealth v. Chmiel, 612 Pa. 333, 387-88, 30 A.3d 1111, 1143 (2011) (“[T]rial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony that was presented by the prosecution.”); accord Commonwealth v. Elliott, 622 Pa. 236, 272-73, 80 A.3d 415, 437 (2013); Commonwealth v. Marinelli, 570 Pa. 622, 644, 810 A.2d 1257, 1269 (2002); Commonwealth v. Copenhefer, 553 Pa. 285, 308 n. 12, 719 A.2d 242, 254 n. 12 (1998); Commonwealth v. Smith, 544 Pa. 219, 238, 675 A.2d 1221, 1230 (1996).
As noted, Dr. Martone, to be precise, worked for the Allegheny County Behavior Clinic, which in turn performs psychological and psychiatric work for the trial court relative to competency and sentencing. See N.T., Trial, at 1790; Baumhammers, 599 Pa. at 42, 960 A.2d at 84. The trial court allowed limited testimony from Dr. Martone during the defense case in the interests of justice, on the basis of necessity. It observed, however, that ordinarily her testimony would have been precluded on conflict-of-interest grounds. See N.T., Trial, at 2748-49.
As for Appellant’s assertion that the jury accepted Dr. Weiner's testimony, this is not certain. Although the jurors rejected Appellant's insanity defense, they did not have to accept Dr. Weiner’s testimony to do so, as it is possible they simply concluded that the defense failed to prove insanity in the first instance. See 18 Pa.C.S. § 315(a) (allocating the burden to the defendant to prove insanity); N.T., Trial, at 2687 (reflecting the court's jury charge that the law presumes all persons to be sane and the defendant must prove otherwise); see also id. at 2665 (containing the court’s instruction that the jurors are "not bound to accept an opinion from an expert merely because it is the testimony of someone having special skill or knowledge”).
Because the underlying contention lacks arguable merit, Appellant’s derivative claim of appellate counsel’s ineffectiveness necessarily fails. See Commonwealth v. Roney, 622 Pa. 1, 48, 79 A.3d 595, 623 (2013).
For example, Drs. Keshevan and Merikangas testified in support of the extreme-mental-or-emotional-disturbance mitigator, 42 Pa.C.S. § 9711(e)(2); see N.T., Trial, at 2929 (Dr. Keshevan), 2946 (Dr. Merikangas); see also supra note 1, and Dr. Merikangas separately testified that two other mitigating factors were present — namely, that Appellant's capacity to understand the criminality of his conduct or conform his conduct to the law's requirements was substantially impaired, see 42 Pa.C.S. § 9711(e)(2), and that he acted under extreme duress, see 42 Pa.C.S. § 9711(e)(5); N.T., Trial, at 2946-47. The penalty-phase defense case also included testimony from numerous prison guards who all agreed Appellant was a model prisoner.
Dr. Lebowitz added various details to give a fuller picture of the severe nature of those experiences, most notably with regard to persistent hunger and insecurity, and Mrs. Baumhammers' extreme fear as a young girl during the Dresden bombing.
For instance, Dr. Lebowitz suggested that what might have seemed to the jury like indulgence on the part of Mrs. Baumhammers could also be explained by understanding that one ramification of the terror she experienced during the war was that she was subject to a "hyper-reactivity that makes it difficult to maintain perspective.” N.T., Sept. 13, 2011, at 127; see also id. at 134 (suggesting that parents with a history of trauma are more susceptible to manipulation by a mentally ill child).
Once the court furnished this notice, it was required to give Appellant at least 20 days to respond and cure any perceived deficiencies. See Commonwealth v. Rivera, 619 Pa. 464, 465-66, 65 A.3d 290, 291 (2013) (per curiam); Pa.R.Crim.P. 909(B)(2)(b). The petition was ultimately dismissed on September 23, 2011, more than 20 days later.
The statute defines "mentally ill" as "[o]ne who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." 18 Pa.C.S. § 314(c)(1). This largely tracks the language of the (e)(3) mitigator, which applies when "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired." 42 Pa.C.S. § 9711(e)(3).
The relevant portion of the lead opinion in Lassiter represented the views of six Justices, although the opinion was a plurality in other respects.
In Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006), the Court cited several cases in which the jury found the (d)(6) aggravator relative to an individual who claimed, on appellate review, to have been an accomplice. See id. at 82 n. 39, 896 A.2d at 1239 n. 39. Notably, many of those cases involved a distinct issue, namely, whether accomplice liability for first-degree murder is appropriate in view of the requirement that the perpetrator have a specific intent to kill. More to the point, none of the cited cases involved an express holding that the (d)(6) aggravator's scope included accomplices.
As to this claim, we use “PCRA petition” instead of “amended petition” to avoid confusion, since the issue involves whether the amended PCRA petition was further amended, as discussed below.
Although denominated as an "Answer” to the PCRA petition, see Docket Entry 138 at 1, the Commonwealth's filing comprised a motion to dismiss the petition. See id. at 111.
Appellant appears to proffer the underlying constitutional argument as a separate substantive basis for relief. As that argument is waived, only the derivative ineffectiveness claim is cognizable. See 42 Pa.C.S. § 9543(a)(3); Commonwealth v. Gibson, 597 Pa. 402, 429, 951 A.2d 1110, 1126 (2008).
In Riggins, the defendant offered an insanity defense to a murder charge and was treated with an antipsychotic drug. He moved to suspend administration of the drug until the end of trial, arguing that its continued administration would prevent him from showing the jury his true mental state. After the motion was summarily denied, the case proceeded to a jury trial at which Riggins testified. Riggins was convicted and sentenced to death. Based on Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990) (recognizing that an individual has a protected liberty interest in avoiding unwanted administration of antipsychotic drugs), the Supreme Court held that the administration of the drug over Riggins’ objection implicated his due process rights and could only be justified if the state established an overriding need for it — such as by showing that treatment with the drug was medically appropriate and, considering less intrusive alternatives, was necessary to protect Riggins’ health or safety or the safety of others, or to obtain an adjudication of Riggins’ guilt or innocence. See Riggins, 504 U.S. at 135, 112 S.Ct. at 1815; see also Commonwealth v. Sam, 597 Pa. 523, 538 n. 11, 952 A.2d 565, 573 n. 11 (2008) (discussing Riggins), Hughes, 581 Pa. at 311, 865 A.2d at 783 (summarizing Riggins' holding). Based on Harper and Riggins, the Supreme Court eventually articulated a four-part test for the permissibility of involuntary medication in Sell v. United States, 539 U.S. 166, 181, 123 S.Ct. 2174, 2185, 156 L.Ed.2d 197 (2003). See Sam, 597 Pa. at 537-38, 952 A.2d at 573; Commonwealth v. Watson, 597 Pa. 483, 506-07, 952 A.2d 541, 554-55 (2008) (reciting the four-part test). To the degree that standard may be construed as more stringent than the one set forth in Riggins, it is inapposite because Sell was decided after Appellant's trial. See King, 618 Pa. at 423, 57 A.3d at 618 (''[C]ounsel’s performance [is] judged by the prevailing professional standards in existence at the time of trial.”). In any event, we find that no genuine issue has been raised that Appellant was subjected to involuntary medication, as discussed below.
The record reflects that Appellant was medicated with Zyprexa, rather than Trilafon, not only at the pre-trial hearing on April 11, 2001, but also during trial. See, e.g., N.T., Trial, at 1397.
To the degree Appellant's brief may be viewed as forwarding a substantively distinct claim that counsel was ineffective for failing to ensure Appellant was competent to be tried, see Brief for Appellant at 53 (citing Drope v. Missouri, 420 U.S. 162, 175, 95 S.Ct. 896, 905, 43 L.Ed.2d 103 (1975)), that contention was not advanced before the PCRA court. See Pa.R.A.P. 302(a) (prohibiting the raising of issues for the first time on appeal).
This and other issues, as stated in Appellant's brief, also reference Article I, Section 13 of the Pennsylvania Constitution, which prohibits "cruel punishments.” In each instance, however, the argument section does not develop the state-constitutional argument in any meaningful fashion. Thus, we will only apply Eighth Amendment law in each such instance. See Commonwealth v. Batts, 620 Pa. 115, 136-37, 66 A.3d 286, 299 (2013) (noting that Article 1, Section 13 is construed as coterminous with the Eighth Amendment absent a persuasive analysis to the contrary in accordance with Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991)).
In Maynard, v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Supreme Court distinguished the void-for-vagueness doctrines as they arise under the Due Process Clause and the Eighth Amendment: Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk____ Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them ... with the kind of open-ended discretion which was held invalid in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Cartwright, 486 U.S. at 361, 108 S.Ct. at 1857-58.
This also distinguishes the (d)(l 1) aggravator from those at issue in the two Supreme Court cases on which Appellant relies, namely, Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Godfrey rejected application of a Georgia statute that listed as an aggravating factor that the offense was "outrageously or wantonly vile, horrible and inhuman,” where the jury was given no guidance concerning the meaning of those terms. The Court explained that, left uninstructed, many lay jurors would consider all murders outrageously or wantonly vile, horrible and inhuman. See id. at 428-29, 100 S.Ct. at 1765. The Court in Cartwright reached the same conclusion with regard to the phrase, "especially heinous, atrocious, or cruel” (at least absent some limiting construction) since, again, "an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’ ” Cartwright, 486 U.S. at 364, 108 S.Ct. at 1859. By contrast, the multiple-murder aggravator implicates a more objective factual circumstance and, as such, is not as susceptible to arbitrary application.
In Witt, the Supreme Court clarified that the governing standard, whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath: does not require that a juror’s bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. [Tjhis is why deference must be paid to the trial judge who sees and hears the juror. Id. at 424-25, 105 S.Ct. at 852-53.
This Court added that, "in rejecting Appellant's post-sentence argument on this issue, the trial court specifically determined that the record of the jury selection process established that it was possible to select a jury untainted by prejudicial pre-trial publicity” and that "[sjuch a jury was, in fact, selected in this matter.” Baumhammers, 599 Pa. at 26-27, 960 A.2d at 75 (internal quotation marks and citation omitted). Although Appellant’s current argument fails to cast doubt upon the trial court’s or this Court's post-trial assessment in this regard, we need not reach the issue of actual prejudice in light of our holding that Appellant's waiver forecloses relief in the circumstances.
Although William Goldman Theatres was decided before certain constitutional amendments were adopted in 1967 and 1968, the relevant language contained in Sections 6 and 9 of Article I has not changed.