On the evening of January 31, 1995, in his mother’s house in Clearfield County, Pennsylvania, Mark Newton Spotz, who was on parole for robbery, argued with his brother, Dustin, and shot him dead. Over the next three days, running with his girlfriend, he killed three women he did not know, each for her car or her money: June Ohlinger, abducted in Schuylkill County on February 1; Penny Gunnet, found under the wheels of her own car in York County on February 2; and Betty Amstutz, shot nine times in Cumberland County on February 3. He was tried separately in each county. Clearfield convicted him of voluntary manslaughter; the other three juries each sentenced him to death.
The eleven opinions collected here, from 1998 to 2014, are almost all from the Supreme Court of Pennsylvania, and together they run to more than a million characters. The first three affirm the three death sentences on direct appeal, the Schuylkill case in 1998, and the York and Cumberland cases in 2000; the York opinion also describes how he dismissed his lawyers and represented himself. A 2005 opinion concerns the Clearfield manslaughter case, and the long post-conviction opinions of 2006, 2011 and 2012 review his lawyers’ handling of each trial, including their investigation of his childhood, which the defense described as one of severe abuse and neglect.
The last two show how far the litigation had drifted from the crimes. In January 2014 the court reversed a Superior Court order that had given him a new trial in the Clearfield case, and in September 2014 it addressed, in pointed terms, the Federal Community Defender Office’s role in Pennsylvania capital cases, in which Spotz was one of many defendants the office represented. A 2009 Commonwealth Court decision about deductions from his prison account for court costs completes the set.
These are opinions of courts reviewing convictions, and their accounts of the four killings are the evidence as the juries accepted it; much of the later material concerns what his lawyers did or failed to do, not what happened on the road. The accounts of his childhood come from the mitigation evidence and the post-conviction hearings, and the court treats them as claims to be weighed, not as findings. Nothing here covers what became of his three death sentences after 2014.
The eleven opinions are public records. Dustin Spotz, June Ohlinger, Penny Gunnet and Betty Amstutz keep their names, as do the police, experts, lawyers, judges and prison officials. We have given initials to the private people in the record: his girlfriend, his mother, stepfather and other relatives, his former wife, friends and acquaintances who testified at the trials or the post-conviction hearings, motorists who identified him, and people who shared a cell or a case with him.
The Caselaw Access Project text is printed complete and in date order, with the concurring and dissenting opinions and the court’s footnotes. The captures spell one victim both Gunnet and Gunnett, and they keep a few misreadings, such as “January 81, 1995” for January 31; all are left as printed. We closed words split across lines only where the whole word appears elsewhere in the text, and nothing has been spell-checked.
716 A.2d 580
COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newtown SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Submitted Oct. 23, 1997.
Decided July 20, 1998.
Kent D. Watkins (Direct), St. Clair, Harry A. Rubright (Collateral), Frackville, for M. Spotz.
Claude A.L. Shields, Pottsville, Robert A. Graci, Atty. General’s Office, for the Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
[OPINION BY NIGRO, Justice. type=majority]
OPINION
NIGRO, Justice.
Following a jury trial, Appellant Mark Spotz was found guilty of first degree murder for the killing of June Ohlinger. The jury returned a verdict of death, and on March 6, 1996, the trial court formally imposed the death sentence. Appellant filed post-sentence motions which the trial court denied. This direct appeal followed. For the reasons presented herein, we affirm the judgment of sentence.
Petitioner initially contends that the verdict of first degree murder was not supported by the evidence and was against the weight of the evidence. As in all cases in which the death penalty has been imposed, this Court is required to independently review the record to determine whether the evidence is sufficient to sustain the verdict for murder of the first degree. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In conducting such a review, we must view the evidence admitted at trial, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner, and determine whether the jury could find every element of the crime beyond a reasonable doubt. See Commonwealth v. Michael, 544 Pa. 105, 109-12, 674 A.2d 1044, 1047 (1996).
Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing and that the killing was deliberate. 18 Pa.C.S. § 2502(d); Commonwealth v. Rios, 546 Pa. 271, 281, 684 A.2d 1025, 1030 (1996), cert. denied, — U.S.-, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997). A specific intent to Mil may be proven by circumstantial evidence, and therefore, may be inferred from the defendant’s use of a deadly weapon upon a vital part of the victim’s body. Id.; Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).
At the same time, a defendant’s request for a new trial based on the argument that the verdict was against the weight of evidence will only be granted when the verdict is so contrary to the evidence as to shock one’s sense of justice. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). Unless there are facts and inferences of record that disclose a clear abuse of discretion, the trial court’s ruling that a verdict was not against the weight of the evidence must stand. Commonwealth v. Brown, 538 Pa. 410, 436, 648 A.2d 1177, 1189 (1994).
Viewed under these standards, the record below establishes that on January 31, 1995, Appellant and his girlfriend at the time, C.N., were staying in Clearfield County at the home of Appellant’s mother and stepfather, J.N. and D.N. Appellant’s brother, Dustin Spotz, and Dustin’s fiancée and her son were also in the home. That evening, a fight developed between Appellant and his brother, Dustin. During the fight, Dustin stabbed Appellant twice in the back with a kitchen knife. In response, Appellant ran upstairs, retrieved a .9 mm handgun, returned to the kitchen and shot his brother. Although Dustin’s fiancé tried to call the police, Appellant grabbed the phone and declared that no one could call anyone until he had gotten away. Appellant then put the handgun in his pants and fled the house with N. in a vehicle driven by his stepfather.
After getting dropped off at Appellant’s friend’s house, Appellant and N. got a ride to a truck stop in Pine Grove, Schuylkill County, where Appellant had previously worked. At the truck stop, Appellant encountered a friend who gave him and N. a ride into Pine Grove Borough, dropping them off on the main street of town. At this point, it was around 2:30 to 3:00 a.m. on February 1, and Appellant and N. were without any money or a car. They walked up the street to a hotel looking for a car to steal, but were unsuccessful.
Appellant and N. then walked to the Harris Mini-Mart. By this time, it was approximately 5:30 a.m., and June Ohlinger, a Mini-Mart employee, was arriving in her car to open the store. Appellant approached Mrs. Ohlinger with his gun drawn and ordered her to the passenger side. N. got in the back of the car and Appellant then drove to a secluded area, asking Mrs. Ohlinger such questions as what time she opened the store and what time she usually saw her husband. Handing the gun to N., Appellant then removed Mrs. Ohlinger’s jewelry and money. Appellant took back the gun, ordered Mrs. Ohlinger out of the car, and forced her to stand on the side of a roadway bridge. Appellant then shot her in the back of the head and kicked her body over the bridge into the creek below.
Appellant and N. then drove Mrs. Ohlinger’s car to a car wash in Schuylkill County, removed certain items from the car, and then traveled south to Rehoboth Beach, Delaware and then into Maryland. During the trip, N. cut and dyed her hair.
Appellant and N. then drove to York County, where Appellant and N. became separated. N. was left with Mrs. Ohlinger’s car. On February 3, Appellant was arrested at a motel in Carlisle, Pennsylvania. Appellant was charged with numerous offenses, including aggravated assault (18 Pa.C.S. § 2702), kidnapping (18 Pa.C.S. § 2901), robbery of a motor vehicle (18 Pa.C.S. § 3702), robbery (18 Pa.C.S. § 3701), theft by unlawful taking (18 Pa.C.S. § 3921), criminal conspiracy (18 Pa.C.S. § 903) and murder in the first degree (18 Pa.C.S. § 2502(a)). N., meanwhile, abandoned Mrs. Ohlinger’s car and traveled to Altoona by bus. Eventually, N. surrendered to the Altoona police, with Mrs. Ohlinger’s rings still in her possession.
At Appellant’s trial, N. testified against Appellant, describing the events above and identifying Appellant as the one who shot Mrs. Ohlinger. One of the police officers who arrested Appellant, State Trooper Joseph Kalis, testified that the police recovered a .9 mm handgun and full metal jacket ammunition from the motel at the time of Appellant’s arrest. State Trooper Chester Zalegowski testified that Appellant’s fingerprints were found on certain items inside Mrs. Ohlinger’s car, which had been recovered by police in York County. Another witness for the Commonwealth, J.M., testified that he saw Appellant in Harrisburg on February 2, 1995, at which time Appellant told him that he was wanted on a homicide charge in Schuylkill County and showed Mr. M. a .9 mm handgun. The Commonwealth also offered the testimony of Dustin Spotz’s fiancée and her son who testified about the events surrounding the shooting of Dustin Spotz in Clearfield County on the evening of January 31,1995.
On March 4, 1996, the jury found Appellant guilty of first-degree murder, aggravated assault, kidnapping, robbery of a motor vehicle, robbery, theft by unlawful taking and criminal conspiracy. After a penalty hearing, the jury found that there were one or more aggravating circumstances which outweighed any mitigating circumstances. The jury therefore returned a verdict of death for the murder conviction, which the trial court formally imposed on March 6, 1996. For the other offenses, Appellant was sentenced to a total term of fourteen and one-half to twenty-nine years of imprisonment to be served consecutive with the sentence imposed for the killing of Dustin Spotz.
In his first claim of error, Appellant specifically argues that there was insufficient evidence to establish that he had a specific intent to kill, a finding necessary to sustain his conviction for first degree murder. Appellant contends that the only evidence offered by the Commonwealth was the testimony of C.N., the person whom Appellant attempted to portray as the actual shooter. Therefore, Appellant appears to maintain that the evidence could only show him to be an accomplice and thus, there can be no liability for first-degree murder unless he shared N.’s specific intent to kill. We disagree.
In the first instance, it is well settled that issues of credibility are for the jury to resolve. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986). Here, C.N. testified that Appellant was the one who shot Mrs. Ohlinger in the back of the head. The jury, as the finder of fact, was free to believe all, part or none of N.’s testimony. Id. At the same time, the jury was free to disbelieve the evidence proffered by Appellant purporting to show that N. was the trigger person. Clearly, the firing of a weapon at a vital part of Mrs. Ohlinger’s body, the back of her head, demonstrates Appellant’s specific intent to kill Mrs. Ohlinger.
Moreover, even assuming the jury disbelieved N.’s testimony that Appellant was the one to actually pull the trigger, as Appellant seems to argue, we agree with the trial court that there was sufficient evidence to support Appellant’s conviction of first degree murder as an accomplice. It is well established that an accomplice is equally criminally liable for the acts of another if he acts with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense. Commonwealth v. Cox, 546 Pa. 515, 529, 686 A.2d 1279, 1286 (1996), cert, denied, - U.S. -, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). Because the crime involved in this case is first-degree murder, in order to sustain a conviction via accomplice liability, the Commonwealth’s evidence must be sufficient to establish that Appellant possessed a specific intent to facilitate the crime at issue, i.e. first degree murder. See Commonwealth v. Bachert, 499 Pa. 398, 406-07, 453 A.2d 931, 935-36 (1982), cert, denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983) (evidence sufficiently supports verdict for first degree murder where it is reasonable for jury to infer that defendant’s participation was with intent of facilitating commission of the murder). Such a shared criminal intent between the principal and his accomplice may be inferred from a defendant’s words or conduct or from the attendant circumstances. Id.
Here, the evidence revealed that Appellant and N. cooperated together in driving Mrs. Ohlinger to the secluded area where she was shot. It was Appellant who asked her questions clearly designed to determine how long it would be before her absence would be discovered and it was Appellant who had the gun. Given this evidence, the jury could reasonably have concluded that Appellant’s participation was, at a minimum, with the intent of facilitating the commission of Mrs. Ohlinger’s murder. Thus, we conclude that Appellant’s challenge that the evidence was insufficient to establish the requisite specific intent is without merit.
Further, based upon our independent review of the record, we are satisfied that sufficient evidence was produced at trial from which the jury could have found each element of an intentional killing beyond a reasonable doubt. See 18 Pa.C.S. § 2502(a), (d) (1983). Moreover, given the facts in evidence in this case, this is not a verdict which shocks one’s sense of justice. Therefore, we reject Appellant’s contention that the jury’s verdict of murder in the first degree was against the weight of the evidence.
Next, Appellant argues that the trial court erred in allowing evidence of the shooting of his brother to be introduced into this trial to show Appellant’s motive for committing the crimes against Mrs. Ohlinger. We disagree.
Unquestionably, the admission of prior crimes evidence is a matter vested in the sound discretion of the trial court and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Seiders, 531 Pa. 592, 596, 614 A.2d 689, 691 (1992). While evidence of a defendant’s prior criminal activity is generally inadmissible, this Court has recognized that there are certain exceptions to the rule. Commonwealth v. Walker, 540 Pa. 80, 97, 656 A.2d 90, 99 (1995), cert, denied, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995). For example, evidence of prior criminal activity may be admitted if introduced to show motive, intent, absence of mistake or accident, a common scheme or identity. Commonwealth v. Donahue, 519 Pa. 532, 541, 549 A.2d 121,125 (1988). Furthermore, evidence of another crime may also be introduced where such evidence was part of the chain or sequence of events which became part of the history of the case in question and formed part of the natural development of the facts. Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988). When one of these exceptions applies, however, the trial court must still balance the relevancy and evidentiary need for the other crimes evidence against its prejudicial effect and may still exclude the evidence if the probative value is outweighed by the possibility of unfair prejudice. Id.; Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981).
While the trial court in the instant matter prohibited the Commonwealth from introducing evidence that Dustin Spotz had actually been killed, since Appellant was not aware of his death at the time he went on the run, the trial court found that the evidence of the shooting and Appellant’s flight to the Pine Grove area was properly admitted to show Appellant’s motive for shooting Mrs. Ohlinger to get her car and money. In order for evidence to be admissible for purposes of showing motive, however, this Court has stated that the evidence of the other crime must provide sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of circumstances. Commonwealth v. Martin, 479 Pa. 63, 69, 387 A.2d 835, 838 (1978) (evidence that thirteen days before killing, victim attempted to stop defendant from robbing another person was admissible to show motive). Here, contrary to Appellant’s assertions that there is absolutely no connection between the two crimes, the record discloses that the evidence clearly provided sufficient ground to establish that the murder of Mrs. Ohlinger, and the theft of her property, grew out of and was related to the crime involving Dustin Spotz in Clearfield County. Since the evidence of the shooting was used to show that Appellant was in flight from the police, without money or a car, at the time he encountered, robbed and killed Mrs. Ohlinger, it is clear that the criminal activity in Clearfield County was causally connected to the subsequent chain of events in Schuylkill County. Therefore, we find that the evidence of the shooting of Dustin Spotz and Appellant’s subsequent flight was clearly relevant to the issue of Appellant’s motive for robbing and killing Mrs. Ohlinger.
Appellant further argues, however, that this evidence was unduly prejudicial since it was presented solely to show his propensity for committing criminal acts. Again, we disagree.
As noted above, the challenged evidence was introduced, not to show Appellant’s propensity for committing crimes, but as evidence of Appellant’s motive for committing the crimes against Mrs. Ohlinger. Moreover, in balancing the competing interests involved in the instant matter, the trial court concluded that the probative value of the evidence relating to motive outweighed its tendency to prejudice the jury against Appellant. We find no abuse of discretion in this decision. See Commonwealth v. Tedford, 523 Pa. 305, 329-30, 567 A.2d 610, 621-22 (1989) (evidence that defendant was on work release from prison when he killed victim was not unduly prejudicial, and was therefore admissible to establish defendant’s motive for killing victim to avoid capture by police); Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977) (in deciding admissibility of other crimes evidence, trial court should determine whether evidentiary value of evidence is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial).
Furthermore, we note that the jury here was repeatedly instructed to consider the evidence of the Clearfield County crimes for the sole purpose of showing Appellant’s motive for committing the Schuylkill County crimes and not for purposes of determining guilt or innocence in the Schuylkill County crimes. See Commonwealth v. Steele, 522 Pa. 61, 78, 559 A.2d 904, 913 (1989) (jury presumed to follow trial court’s instructions); Commonwealth v. Claypool, 508 Pa. 198, 206, 495 A.2d 176, 179-80 (1985) (trial court did not err in admitting other crime evidence when probative value of evidence outweighed undue prejudice and its admission was accompanied by cautionary instructions explaining limited purpose for which evidence could be considered). Accordingly, this claim offers no basis for relief.
In a related argument, Appellant contends that the admission of evidence of the Clearfield County crime was prejudicial because the only other evidence inculpating Appellant was the testimony of the alleged accomplice, C.N. As such, Appellant argues that evidence of the Clearfield County shooting was improperly admitted only to prejudice Appellant and to bolster the testimony of N.. This argument also fails.
First, we again point out that, contrary to Appellant’s assertions, the testimony of N. was not the only evidence offered by the Commonwealth to demonstrate Appellant’s guilt. Rather, the Commonwealth introduced evidence such as the discovery of Appellant’s fingerprints on items in Mrs. Ohlinger’s vehicle, his presence in the area of the murder scene and his admission made in Harrisburg to the Commonwealth’s witness, J.M., to the effect that he had killed someone in Schuylkill County. Furthermore, as noted previously, the evidence of the Clearfield County shooting was properly admitted for the purpose of establishing Appellant’s motive for robbing and shooting Mrs. Ohlinger. Accordingly, this claim is rejected.
Appellant next asserts that the trial court erred in charging the jury under the accomplice liability theory of murder when the Commonwealth only charged and presented evidence establishing him as a principal. We disagree.
A defendant may be convicted as an accessory though only charged as a principal. Commonwealth v. Perkins, 485 Pa. 286, 290-92, 401 A.2d 1320, 1322 (1979) (equally divided court) (affirming conviction based on accomplice liability where information charged defendant as principal); Common wealth v. Potts, 388 Pa.Super. 593, 566 A.2d 287 (1989) (Commonwealth’s failure to proceed on theory of accomplice liability does not later preclude defendant’s conviction under this theory). As long as the defendant is put on notice that the Commonwealth may pursue theories of liability that link the defendant and another in commission of crimes, the defendant cannot claim that the Commonwealth’s pursuit of such a theory surprised and prejudiced the defendant. Potts, 388 Pa.Super. at 604, 566 A.2d at 293; Commonwealth v. Smith, 334 Pa.Super. 145, 150-51, 482 A.2d 1124, 1126 (1984) (despite being charged only as principal, defendant had sufficient notice of potential for accomplice liability theory, and trial court properly instructed jury on accomplice liability, when evidence adduced at trial supported accomplice theory, defendant attempted to transfer criminal liability to other person and Commonwealth had not misled defendant); Commonwealth v. McDuffie, 319 Pa.Super. 509, 466 A.2d 660 (1983).
Although Appellant asserts that he was surprised and prejudiced by the court’s accomplice liability charge, the record demonstrates that Appellant had sufficient notice that an accomplice liability theory was possible. In the first instance, it was counsel for Appellant who raised the issue of accomplice liability during his cross examination of C.N. and pursued the theory that it was C.N., and not Appellant, who had been the trigger person. See Potts, 388 Pa.Super. at 605, 566 A.2d at 293 (trial counsel not ineffective for failing to object to trial court’s mention of accomplice liability theory when defendant’s counsel made remarks implying Commonwealth could pursue conviction under such theory). Moreover, the Commonwealth not only openly admitted N.’s participation with Appellant in the commission of crimes against Mrs. Ohlinger but even outlined N.’s involvement in its opening statement. Id. at 605, 566 A.2d at 293 (opening statements by Commonwealth that defendant, charged only as principal, and another acted together put defendant on notice that accomplice liability theory was possible). Given that Appellant’s counsel raised the issue of accomplice liability, thereby precluding allegations by Appellant of surprise and prejudice, and that there was ample evidence in the record concerning the collusive nature of N.’s and Appellant’s actions, the Commonwealth was entitled to a proper jury instruction on the accomplice liability theory. Commonwealth v. Browdie, 543 Pa. 337, 348, 671 A.2d 668, 673 (1996) (particular jury instruction only warranted when there is evidence to support such instruction); Commonwealth v. Harper, 442 Pa.Super. 553, 558, 660 A.2d 596, 598 (1995) (trial court must charge the jury in a manner supported by the evidence).
Alternatively, Appellant argues that the charge to the jury regarding accessory liability, even if justified, was improper. Specifically, Appellant claims that the charge failed to adequately inform the jury that in order to convict him of first degree murder on an accomplice liability theory, the jury was required to find that Appellant himself harbored the specific intent to kill. We find no merit to Appellant’s argument.
The trial court gave the following instruction to the jury regarding accomplice liability:
[A defendant] is an accomplice if with the intent of promoting or facilitating the commission of the crime he solicits, commands, encourages or requests the other' person to commit it, or he aids, agrees to aid or attempts to aid the other person in planning or committing the crime.... I want to stress for you that with respect to the charge of first degree murder, if you were going to find the defendant guilty of that charge based on him being an accomplice of someone else committing, you have to be convinced beyond a reasonable doubt that he had the specific intent to aid or abet someone else in killing June Ohlinger. Remember, that’s the charge that requires specific intent.... In other words, if he is the one that actually committed the crime or he aided or abetted someone else in doing it and encouraged them to do it, you could find him guilty on either direct responsibility or as an accomplice, but the Commonwealth still has the duty of proving beyond a reasonable doubt that he had the requisite intent to commit these crimes or to help someone else to do it. In respect to first degree murder, you have to be convinced beyond a reasonable doubt that he had the specific intent to help someone to kill June Ohlinger.
N.T. at 789-90.
Appellant argues that this portion of the charge misinforms the jury that they were only required to find that he had a specific intent “to help” kill, as opposed to a specific intent “to kill.” In support of his argument, Appellant cites Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). The charge in Huffman, however, incorrectly advised the jury that they could find the defendant guilty of first degree murder if either he or his co-conspirator possessed the necessary specific intent to kill. In contrast to Huffman, the charge in the instant case correctly stated the law as to the liability of an accomplice in the commission of the crime. See Commonwealth v. Thompson, 543 Pa. 634, 645, 674 A.2d 217, 222 (1996) (jury charge regarding accomplice liability which provided that “he’s an accomplice if with the intent to promote or facilitate the commission of the crime he ... aids or attempts to aid the other person in committing it” was a correct statement of law). Although Appellant also cites Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), to contest the propriety of this instruction, Bachert actually undermines Appellant’s argument. Bachert reiterates the principle that in order to be liable under an accomplice theory, a defendant must have possessed the intent to promote or facilitate (“help”) the commission of the offense. Bachert, 499 Pa. at 407, 453 A.2d at 936.
We also note that the portion of the charge relating to accomplice liability followed, and referred back to, the trial court’s explanation of first degree murder, where the jury was specifically instructed that in order to convict Appellant of first degree murder, they must be satisfied that Appellant had a specific intent to kill June Ohlinger. Since the jury was clearly guided as to the mental state required for accomplice liability, this claim offers Appellant no basis for relief.
Appellant next asserts that the trial court erred in denying Appellant’s motion to compel consolidation of his case with that of his alleged accomplice, C.N. Again, we disagree.
Pursuant to Pa. R.Crim. P. 1127(A)(2), defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act. Pa. R.Crim. P. 1127(B) sets forth the procedure for consolidating cases. Section (B)(1) of the Rule requires the Commonwealth to give written notice to the defendant that “offenses or defendants” charged in separate informations will be tried together. Pa. R.Crim. P. 1127(B)(1). Section (B)(2), meanwhile, provides that when the Commonwealth does not move for consolidation pursuant to (B)(1) “any” party may move to consolidate “separate indictments or informations.” Pa. R.Crim. P. 1127(B)(2).
Pa. R.Crim. P 2 directs that the Rules of Criminal Procedure be construed in consonance with the rales of statutory construction. One fundamental maxim of statutory construction, “expresio unius est exclusio alteráis,” stands for the principle that the mention of one thing in a statute implies the exclusion of others not expressed. Windrim, v. Nationwide Insurance Co., 537 Pa. 129, 139, 641 A.2d 1154, 1159 (1994) (Cappy, J., concurring); Samilo v. Commonwealth, 98 Pa. Cmwlth. 232, 510 A.2d 412, 413 (1986). Similarly, the court may not supply omissions in the statute when it appears that the matter may have been intentionally omitted. Kusza v. Maximonis, 363 Pa. 479, 482, 70 A.2d 329, 331 (1950).
Applying these principles of statutory interpretation to Pa. R.Crim. P. 1127(B), we agree with the trial court that the Rule is intended to provide greater authority to the Commonwealth in moving for consolidation of cases than is provided to an individual defendant. Section (B)(1) of the Rule specifically states that the Commonwealth may give notice of its intention to consolidate “offenses or defendants” while section B(2) permits any other party to move for consolidation only of “separate indictments or informations.” Since “defendants” is not included in section B(2), we find that the trial court properly determined that Pa. R.Crim. P. 1127, the rule governing consolidation of cases, does not provide a criminal defendant with the right to compel the Commonwealth to consolidate his case with that of another defendant against whom similar charges are pending.
This determination is supported not only by the principles of statutory construction, but also by the inherent, discretionary powers left to the district attorney, including the discretion as to which individuals shall be prosecuted and which shall not. See Hearn v. Myers, — Pa.Super.-, 699 A.2d 1265, 1267 (1997) (district attorney is afforded the power to decide whether and when to prosecute); Commonwealth v. Malloy, 304 Pa.Super. 297, 302, 450 A.2d 689, 692 (1982) (decision of whether or when to bring particular defendant to trial is matter within prosecutor’s discretion). Since there is no procedure available by which a criminal defendant can compel the consolidation of separate defendants, we find that the trial court properly denied Appellant’s motion to compel consolidation of his case with C.N.’s.
In his next claim of error, Appellant argues that the trial court erred in admitting evidence of the Clearfield County shooting to introduce the .9 mm handgun recovered from Appellant at the time of his arrest. In essence, Appellant complains that the handgun was improperly admitted due to the Commonwealth’s failure to offer sufficient evidence to establish that the handgun admitted at trial was positively linked to either the Clearfield or Schuylkill County shootings. Although Appellant failed to make a timely objection to the introduction of the handgun, arguably waiving this issue, we nonetheless find that this claim is without merit.
As Appellant concedes, the Commonwealth need not establish that a particular weapon was actually used in the commission of a crime in order for it to be introduced at trial. Commonwealth v. Thomas, 522 Pa. 256, 273, 561 A.2d 699, 707 (1989). Rather, the Commonwealth need only show sufficient circumstances to justify an inference by the finder of fact that the particular weapon was likely to have been used in the commission of the crime charged. Id. The admission of such evidence is a matter within the sound discretion of the trial court, and absent an abuse of such discretion, the trial court’s decision to admit the evidence must stand. Commonwealth v. Ford, 451 Pa. 81, 85, 301 A.2d 856, 857-58 (1973) (stating that weapon found in the possession of the accused at the time of his arrest, although not identified as the weapon actually used in the crime on trial, is admissible where the circumstances justify an inference of the likelihood that the weapon was used in the crime).
Appellant, however, alleges that the Commonwealth, by failing to offer direct testimony that the .9 mm handgun recovered at Appellant’s arrest could have caused the fatal gunshot wound to Mrs. Ohlinger, failed to lay the foundation required by Thomas for the admission of the handgun. We disagree.
In the first instance, N. testified that Appellant still had the gun used to shoot Dustin Spotz in Clearfield County once they arrived in the Pine Grove area. Additionally, J.M. testified that Appellant, after revealing that he was wanted for a homicide in Schuylkill County, showed him a .9 mm handgun that he was carrying. Moreover, Dr. Bindie, who performed the autopsy of Mrs. Ohlinger, testified that it was his conclusion that a full metal jacket bullet, the same type of bullet found in the motel room where Appellant was arrested, had been used to- kill Mrs. Ohlinger. Further, in direct contradiction to Appellant’s assertion that no evidence showed that the gun retrieved at Appellant’s arrest was the gun used to shoot Dustin Spotz, the state police ballistics expert specifically testified that the bullets from Clearfield County had been discharged from the .9 mm handgun recovered from Appellant at his arrest.
Since the record clearly allowed for the jury to infer that the .9 mm handgun recovered from the motel at the time of Appellant’s arrest was the weapon used to murder Mrs. Ohlinger, we find that the trial court did not abuse its discretion in admitting the handgun into evidence.
Next, Appellant apparently argues that the trial court erred in its charge to the jury regarding conspiracy by asking the jury to determine which crimes Appellant conspired to commit, even though a conspiracy to commit several crimes is only one criminal conspiracy. This claim also fails.
In the first instance, the record reflects that prior to closing arguments, the trial court explained to both counsel that the jury would be asked, if they found Appellant guilty of conspiracy, to indicate what crime it is that they found Appellant conspired to commit. The court further explained that this would be done for sentencing purposes. When asked whether counsel had any objection to this instruction, defense counsel specifically stated that he had no objection. (N.T. at 693). Thereafter, defense counsel did not object either when the trial court proceeded to give these instructions to the jury before deliberations began or again when responding to the jury’s request for supplemental instructions on the criminal conspiracy charge. (N.T. at 804, 808). Given Appellant’s failure to object to this instruction when given, the issue has not properly been preserved for appeal. See Pa. R.Crim. P. 1119(b); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (allegations of error in the trial court’s instructions will not be considered on appeal absent an objection at trial).
Nonetheless, in light of our practice to relax waiver rules in capital cases, see Zettlemoyer, 500 Pa. at 50 n. 19, 454 A.2d at 955 n. 19, we have also reviewed Appellant’s argument on the merits and in doing so, conclude that this claim fails. While Appellant’s contention that conspiracy is not severable as to diverse crimes contemplated by a single agreement may be a correct statement of law, see Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), Appellant fails to demonstrate how he may have been prejudiced by the court’s instruction. The Commonwealth alleged only one conspiracy encompassing the commission of several crimes as its object, and Appellant was sentenced for only one conspiracy. Since Appellant has not shown that he was harmed by the trial court’s instructions, agreed to by defense counsel, this claim does not afford Appellant a basis for relief. See Commonwealth v. Lambert, 529 Pa. 320, 338, 603 A.2d 568, 577 (1992) (no relief due where defendant failed to establish that he was prejudiced by challenged jury instructions).
Appellant next complains that there was insufficient evidence to establish the crime of conspiring to commit first degree murder. Specifically, Appellant argues that the Commonwealth offered no evidence to suggest that there was an agreement between him and N. to kill Mrs. Ohlinger. This claim is without merit.
Generally, a conspiracy conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy. Commonwealth v. Rios, 546 Pa. at 283, 684 A.2d at 1030. Although the existence of an agreement is an essential element of conspiracy, it is generally difficult to prove an explicit or formal agreement. Commonwealth v. Dolfi, 483 Pa. 266, 271, 396 A.2d 635, 638 (1979). Therefore, such an agreement may be established inferentially by circumstantial evidence, i.e. the relations, conduct or circumstances of the parties or overt acts on the part of co-conspirators. Id.
In the instant matter, the trial court properly determined that there was more than sufficient evidence for the jury to conclude that Appellant and N., through their actions, agreed to kill Mrs. Ohlinger. Thus, this claim does not provide a basis for disturbing Appellant’s judgment of sentence.
Appellant’s final claim is that the trial court erred in failing to grant a mistrial during the sentencing phase when the Commonwealth introduced evidence of eight burglary charges although Appellant was convicted of only three. This claim fails.
During the sentencing phase of Appellant’s trial, the Commonwealth sought to establish the existence of a significant history of prior felony convictions involving the use or threat of violence to the person as an aggravating circumstance pursuant to 42 Pa.C.S. § 9711(d)(9). At sidebar, the District Attorney informed the court that there was evidence of four prior robbery convictions and three burglary convictions. Defense counsel did not object to the admissibility of this evidence, if properly presented. However, when the Clerk of Courts of Cumberland County was asked to refer to a criminal file and state to what charges Appellant had entered a guilty plea, the Clerk responded, “burglary, eight counts, receiving stolen property.” Defense counsel immediately objected and requested a mistrial. The trial court sustained the objection, but denied counsel’s motion for a mistrial. Immediately following the denial of the motion for a mistrial, the trial court gave cautionary and curative instructions, essentially advising the jury that they were to disregard any reference to charges of receiving stolen property and that they were only to consider those felonies involving the use or threat of violence to a person for which Appellant had been convicted. Following these instructions, the Clerk of Cumberland County then testified that Appellant had pled guilty to three, rather than eight, counts of burglary.
The granting or denial of a mistrial is within the sound discretion of the trial court. Commonwealth v. Crawley, 514 Pa. 539, 554, 526 A.2d 334, 342 (1987). A mistrial must be granted only when the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial. Id. A mistrial is not necessary where cautionary instructions are adequate to overcome prejudice. Commonwealth v. Lawson, 519 Pa. 175, 185, 546 A.2d 589, 594 (1988).
Here, we agree with the Commonwealth that in the first instance, it would be difficult to find that the inadvertent (but corrected) mention of eight counts of burglary, instead of the three Appellant pled guilty to, aroused undue prejudice against Appellant when his criminal record comprising the aggravating circumstance was lengthy. Moreover, the Clerk’s testimony clarifying the actual number of burglary counts Appellant had pled guilty to and the curative instructions given by the trial court were adequate to overcome any prejudice that may have occurred. Thus, we find that the trial court did not abuse its discretion in denying Appellant’s motion for a mistrial.
Having concluded that Appellant’s claims for relief are without merit, we must, in compliance with our statutory duty pursuant to 42 Pa.C.S. § 9711(h)(3), affirm the sentence of death unless we determine that the sentence was the product of passion, prejudice or any other arbitrary factor; the evidence fails to support the finding of' at least one aggravating factor; or the sentence is excessive or disproportionate to the penalty imposed in similar cases. 42 Pa.C.S. § 9711(h)(3).
Upon review of the record, we conclude that the sentence of death was not the product of passion, prejudice or any other arbitrary factor. Rather, it was based upon evidence properly admitted at trial. We also conclude that the evidence was sufficient to support the finding of at least one aggravating factor, that Appellant had a significant history of felony convictions involving the use or threat of violence to another person. See 42 Pa.C.S. § 9711(d)(9).
In terms of our duty to determine whether Appellant’s sentence is excessive or disproportionate, we note that on June 25, 1997, the Governor signed legislation that removes such a proportionality review requirement from the death penalty statute. Act of June 25, 1997, No. 28 § 1 (Act 28). However, while Section 3 of Act 28 states that the Act shall take effect immediately, Act 28 is not applicable to the instant case as Appellant’s death sentence was imposed prior to June 25, 1997. Thus, applying Act 28 would result in an impermissible retroactive application of the law. See Commonwealth v. Gribble, 550 Pa. 62, 87-91, 703 A.2d 426, 439-40 (1997) (provisions of Act 28 removing proportionality review requirement from death penalty statute do not apply retroactively to death sentences imposed before June 25, 1997). Accordingly, we have reviewed Appellant’s sentence in light of the sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts. Id. at 89, 703 A.2d at 440. We conclude that the sentence of death imposed upon Appellant is not excessive or disproportionate to the penalty imposed in similar cases.
Accordingly, we affirm the verdict and sentence of death.
Pursuant to 42 Pa.C.S. § 9711(h), this Court has automatic jurisdiction to review the trial court’s judgment of a sentence of death.
Dustin Spotz later died from the gunshot wound.
N. was also charged with criminal homicide, robbery, conspiracy, and related offenses in connection with the crimes committed against Mrs. Ohlinger. At trial, it was established that these charges remained pending against N. and that the Commonwealth had not offered her a deal in exchange for her testimony against Appellant.
The aggravating circumstances were that the killing was committed in the perpetration of a felony (42 Pa.C.S. § 9711(d)(6)); that the defendant has a significant history of felony convictions involving the use or threat of violence to the person (42 Pa.C.S. § 9711(d)(9)); and that the defendant has a conviction of voluntary manslaughter committed either before or at the time of the offense at issue (42 Pa.C.S. § 971 l(d)(12)). The mitigating circumstance was that the defendant had a dysfunctional home (42 Pa.C.S. § 9711(e)(8)).
As with many of the arguments presented in this appeal, Appellant's argument on this issue is undeveloped and unclear. However, in relation to the instant claim, as required in death penalty cases, we must independently review the record in each case to determine whether the evidence sufficiently supports the verdict for first-degree murder. See Zettlemoyer, supra. As to Appellant’s other claims which are unclear, this Court has held that an issue will be deemed to be waived when an appellant fails to properly explain or develop it in his brief. See Commonwealth v. LaCava, 542 Pa. 160, 188, 666 A.2d 221, 235 (1995) (failure to sufficiently explain claim waives consideration of claim since this Court will not make an appellant’s arguments for him); Commonwealth v. Ragan, 538 Pa. 2, 37, 645 A.2d 811, 828 (1994) (failure to elaborate on mere assertion renders the claim waived); Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944 n. 1 (1981) (appellate claim waived for lack of argument). However, given the relaxation of waiver rules in death penalty cases, we will not decline to review Appellant’s arguments, even though not thoroughly presented, on the merits. See Zettlemoyer, 500 Pa. at 50 n. 19, 454 A.2d at 955 n. 19.
Moreover, contrary to Appellant’s assertions, the Commonwealth presented evidence other than N.’s testimony, including testimony from J.M. regarding Appellant's admissions, to support a finding that Appellant was actually the person who shot Mrs. Ohlinger.
At trial, Appellant presented evidence of writings by N. which referred to herself and Appellant as "natural born killers” and also presented the testimony of a person in the same jail with N. after her arrest, who claimed that N. admitted to having killed someone. As the trial court noted, and the record reflects, the thrust of Appellant’s argument was that it was N. who did the shooting. However, it is well settled that a mere conflict in the testimony does not render the evidence insufficient because it is within the province of the fact finder to determine the weight to be given to the testimony. Commonwealth v. Pierce, 446 Pa. 479, 483, 288 A.2d 807, 809 (1972).
However, the trial court denied the Commonwealth’s motion to admit evidence that Appellant was on parole for prior felony convictions at the time of the shooting, as well as evidence related to the shootings of Penny Gunnett in York County on February 2, 1995, and Betty Amstutz in Cumberland County on February 3, 1995, allegedly committed by Appellant.
The judge charged the jury as follows: "First degree murder is a murder in which the killer has a specific intent to kill. You may find the defendant guilty of first degree murder if you are satisfied beyond a reasonable doubt that the following three elements have been proven. First, that June Ohlinger is dead. Second, that the defendant killed her, and third, that the defendant did so with a specific intent to kill and with malice.” (N.T. at 780).
We also note that the parties do not cite, nor does research indicate, any Pennsylvania case which addresses the particular issue raised by Appellant. Rather, as the lower court noted in its February 1, 1996 opinion denying Appellant’s pretrial motion to compel consolidation, all available case law addressing questions of consolidation and severance discuss the issues in the context of a notice for consolidation filed by the Commonwealth and a motion for severance on behalf of the defendant. However, in support of his position, Appellant appears to argue that a plurality of this Court’s holding in Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), should apply to his claim involving a defendant's motion to compel consolidation of his case with his co-defendant. Peterson, however, does not address the issue raised by Appellant. There, a plurality of this Court held that the trial court may order two or more indictments against the same defendant to be tried together if the offenses could have been joined in a single indictment. Id. at 192, 307 A.2d at 266-67.
Appellant seems to argue that this instruction confused the jury and therefore, that the jury did not understand the difference between a charge based on criminal conspiracy and one based on accomplice liability. However, each charge gave a correct statement of the applicable law. Appellant then once again revisits his argument that the jury did not appreciate that they must find that he had the specific intent to kill Mrs. Ohlinger in order to convict him of first degree murder. We have already reviewed and rejected this argument.
It appears from the record that Appellant had been charged with eight counts of burglary, but had pled guilty only to three. Also, the trial court notes that the defense counsel objected here on the basis that the reference to receiving stolen property, a misdemeanor, was not admissible'.
The Clerk of Courts of Cumberland County testified that Appellant’s record from Cumberland County showed two robbery convictions and three burglary convictions. Additionally, the Clerk of Courts of Franklin County testified that Appellant's record from Franklin County showed one robbery conviction.
Further, the witness following the Clerk of Courts of Cumberland County, Appellant’s former parole officer, testified that Appellant had pled guilty to three counts of burglary in Cumberland County.
The Prothonotary of the Supreme Court is directed to transmit the complete record of this case to the Governor of Pennsylvania. See 42 Pa.C.S. § 9711 (i) (Supp.1997).
756 A.2d 1139
COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newton SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Argued Nov. 15, 1999.
Decided Aug. 22, 2000.
See also 552 Pa. 499, 716 A.2d 580.
Bruce P. Blocher, Suzanne S. Smith, York, for Mark Newton Spotz.
Christy H. Fawcett, Robert A. Graci, Amy Zapp, Harrisburg, for Office of Atty. Gen.
Before FLAHERTY, C.J., and ZARPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
[OPINION BY CASTILLE, Justice. type=majority]
OPINION
CASTILLE, Justice.
This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of York County. On April 22, 1996, following a jury trial, appellant was convicted of first degree murder, kidnapping, robbery, theft, robbery of a motor vehicle, carrying a firearm without a license, and criminal conspiracy to commit first degree murder, kidnapping and robbery of a motor vehicle. At the penalty phase, the jury determined that the four aggravating circumstances it found outweighed the two mitigating circumstances it found and, therefore, returned a sentence of death. Post-verdict motions were denied and the trial court formally imposed the death penalty for the murder conviction. In addition, the trial court sentenced appellant to an aggregate consecutive term of 20 years and 9 months to 41 years and 6 months on the kidnapping, robbery, carrying a firearm without a license and conspiracy to commit murder charges. He received concurrent sentences on the remaining charges.
Although appellant has not specifically challenged the sufficiency of the evidence to prove murder, we begin, as we do in all death penalty direct appeals, by performing our self-imposed obligation to review the evidence underlying the first degree murder conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports the jury’s finding of all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986).
Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with premeditation or deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 551, 599 A.2d 624, 626 (1991). A specific intent to kill may be proven by circumstantial evidence; it may be inferred from the defendant’s use of a deadly weapon upon a vital part of the victim’s body. Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).
The evidence adduced at trial showed that: at 6:20 a.m. on February 2, 1995, in York County, appellant approached Penny Gunnet’s vehicle on the pretense of asking Ms. Gunnet for directions. Appellant aimed a nine-millimeter semiautomatic pistol at Gunnet and forced her into the passenger seat. He then drove the car to Indian Rock Dam Road, an isolated area, while his girlfriend, C.N., followed him in a car they had stolen from June Ohlinger in Schuylkill County. While the two ears were stopped on Indian Rock Dam Road, N. heard three gunshots. Soon afterwards, appellant sped off in Ms. Gunnet’s car. N. attempted to follow appellant in the Ohlinger vehicle, but she was unable to keep up. Gunnet was eventually found under the wheels of her car, which had been abandoned by appellant. T.S. and P.E., two motorists, both positively identified appellant as the man they saw walking near the area where Ms. Gunnet’s body was found.
J.M. testified that, on the day of the murder, appellant tried to sell him items of jewelry that had belonged to Ms. Gunnet. At that time, appellant informed M. that he had a nine-millimeter semiautomatic pistol that was “dropping them like flies.” M.R., appellant’s ex-wife, testified that less than 24 hours after the murder of Ms. Gunnet appellant gave her several rings that were later identified as belonging to Ms. Gunnet. Appellant also offered her several credit cards at the same time. C.C., another of appellant’s acquaintances, testified that he heard appellant offer R. credit cards that appellant said would have to be used the next day. C. further testified that appellant confessed that he had shot his brother and had killed “these other ladies.” Appellant told C. that he had thrown one woman off of a bridge and “the other lady he ran over with her ear and she got stuck under it.” C. also testified that appellant was in possession of the silver nine-millimeter semiautomatic pistol that was later identified as the weapon that fired at least two of the three nine-millimeter bullets recovered from Ms. Gunnet’s car.
The police eventually tracked appellant to a motel room in Carlisle, Pennsylvania. When appellant opened the door to the room, he discarded a silver nine-millimeter semiautomatic pistol and surrendered to the police. A subsequent search of the room yielded appellant’s bloodstained jeans, a knife, nine-millimeter “full metal jacket” ammunition, five credit cards issued in Ms. Gunnet’s name and one credit card issued in Ms. Gunnet’s husband’s name. Ms. R.’s fingerprint was found on one of the credit cards. Corporal James Rottmund of the Pennsylvania State Police, a ballistics expert, testified that two full metal jacket bullets that were recovered from Ms. Gunnet’s car were conclusively fired from the gun seized from appellant.
Dr. Isidore Mihalikis, a forensic pathologist, testified that Ms. Gunnet died from two gunshot wounds. One bullet passed through Ms. Gunnet’s neck, severing her jugular vein, piercing a carotid artery, and severing her spine before exiting the body. Another bullet entered her chest and pierced her heart and lungs before exiting the body. Dr. Mihalikis further testified that there were three bullet holes in Ms. Gunnet’s vehicle. When appellant was arrested, he was found to have sustained a self-inflicted bullet wound to his thigh. The wound matched the trajectory of bullet holes in appellant’s jeans, in the driver’s seat and in the floor of Ms. Gunnet’s car.
Appellant’s accomplice, C.N., testified for the Commonwealth. She related that, at the time appellant abducted Ms. Gunnet, they were escaping because appellant had shot his brother on January 31, 1995. She further testified that, prior to abducting Ms. Gunnet, she and appellant had committed a similar flight-induced crime in Schuylkill County. Specifically, they forced June Ohlinger into the passenger seat of Ohlinger’s car at gunpoint, drove her to a remote, wooded area and shot her in the back of the head. Commonwealth witness Dr. Richard Bindie, a board certified anatomical and clinical pathologist and forensic pathologist, testified that Mrs. Ohlinger had sustained a gunshot wound to the back of the head consistent with the use of a full-metal-jacket bullet. Ms. N. testified that she and appellant took Ms. Ohlinger’s car and money and drove to Rehoboth Beach, Delaware. In Delaware, they attempted to alter their appearances before returning to York County in search of another vehicle and money for gas. Unfortunately, they happened upon Penny Gunnet.
Based upon the foregoing facts, overwhelming evidence was presented to support the. first degree murder conviction. We now proceed to address appellant’s allegations of error.
Appellant first claims that the trial court abused its discretion in denying his request to appoint new counsel and new standby counsel. Appellant alleges that there was a conflict of interest between himself and appointed counsel and, therefore, he was entitled to new counsel under Pa.R.Crim.P. 316(c)(ii). We discern no error here. ■
On March 14, 1996, approximately one month prior to trial, appellant’s appointed counsel alerted the trial judge that they had received information that appellant was involved in a conspiracy to murder C.N., his co-conspirator and a key Commonwealth witness. The court concluded that this disclosure by appellant’s counsel was proper under Rule I. 6(c)(1) of the Rules of Professional Conduct. Subsequently, on April 3,1996, appellant’s counsel alerted the court that they had received additional credible information that appellant planned to stab one of them in the neck with a pencil during the course of trial- in order to secure a mistrial. During subsequent inquiries by the court, appellant’s counsel repeatedly assured the court that they would still do their best to represent appellant. The court noted that, even if it appointed new counsel, the possibility would still exist that appellant would attack his new counsel in an attempt to cause a mistrial. Although appellant denied that he intended to attack his counsel, as a security precaution, the court arranged for several officers from the sheriffs department to be in close proximity to appellant at all times during the trial.
On April 8, 1996, just before jury selection, appellant requested that new counsel be appointed for him because he believed that he had a conflict with appointed counsel that would hinder counsel from zealously advocating on his behalf. Specifically, appellant claimed that his appointed counsel were in fear of him to such an extent that rendered them incapable of representing him properly. In response, counsel informed the court that, while there was a level of distrust, they would represent appellant to the best of their abilities. Notably, counsel never asked to withdraw.
After the court denied the request for new counsel, appellant asked for leave to represent himself. The court conducted a full colloquy on the waiver of counsel in accordance with Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995), and then granted appellant’s request. As a cautionary measure, the court appointed the two public defenders who were previously representing appellant as standby counsel. Appellant then requested that new standby counsel be appointed, renewing his claim that counsel’s alleged fear of him would prevent them from adequately acting as standby counsel. That request was denied, and appellant proceeded to repre-. sent himself in jury selection, assisted by appointed standby counsel.
Following jury selection, the court provided appellant with an opportunity to reconsider his decision to represent himself. During an extensive colloquy, appellant’s counsel again assured the judge that, while they did have some concern that appellant may try to harm them, they could effectively represent appellant if he allowed them to. They further assured the court that, if there came a point at which they believed that they could no longer adequately represent appellant, they would immediately apprise the court of that fact. Nevertheless, appellant still elected to represent himself at trial.
Pa.R.Crim.P. 316(c)(ii) provides that “[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.” To satisfy this standard, a defendant must demonstrate that he has an irreconcilable difference with counsel that precludes counsel from representing him. See Commonwealth v. Tyler, 468 Pa. 193, 197, 360 A.2d 617, 619 (1976). The decision of whether to appoint new counsel lies within the sound discretion of the trial court. Commonwealth v. Segers, 460 Pa. 149, 154, 331 A.2d 462, 465 (1975).
The trial court acted properly here. When faced with a potential conflict between appellant and his counsel, the court investigated the matter and was assured by appellant’s counsel that they would be able to advocate zealously on appellant’s behalf. Furthermore, as the trial court recognized, the “conflict” here resulted from appellant’s own conduct, and the security measures that his purported conduct required. Even if new counsel were appointed, the security concern — i.e., that steps had to be taken to ensure that appellant did not injure counsel in the hopes of securing a mistrial — would remain. In response to appellant’s threats and attempts to manipulate, the court took appropriate measures to ensure the safety of counsel and appellant’s right to effective, conflict-free representation. There was no abuse of discretion by the trial court in refusing to appoint new counsel or new standby counsel for appellant.
Appellant next asserts that the trial court abused its discretion when it granted the Commonwealth’s motion to sever C.N.’s case from his own. Both appellant and N. were charged in connection with this murder. In May of 1995, the Commonwealth provided a notice of consolidation of the two cases. See Pa.R.Crim.P. 1127(B). On April 8, 1996, however, just prior to jury selection, the Commonwealth moved to withdraw the notice. Appellant asserts that, by granting the Commonwealth’s motion and severing the cases, the trial court undermined his contention at trial that N. had committed the murder.
Appellant raised a similar claim in his appeal in Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) (Spotz I), a case in which this Court upheld his sentence of death for the murder of June Ohlinger in Schuylkill County. There, he argued that the trial court erred in denying his motion to compel consolidation of the prosecution of his case with C.N.’s. As we explained in Spotz I, Rule 1127 was intended to provide greater authority to the Commonwealth to move for consolidation of cases than is provided to an individual defendant. We further noted that the Rule recognizes the “inherent discretionary power left to the district attorney, including the discretion as to which individuals shall be prosecuted and which shall not.” Spotz I, 552 Pa. at 520, 716 A.2d at 590. Logically, since the rule recognizes some degree of deference to the Commonwealth’s decision whether to consolidate a case, deference should also be given to the Commonwealth’s decision not to proceed with consolidation. In addition, appellant cites no authority, and our research has uncovered none, which supports the notion, essential to his argument, that once cases have been consolidated, they must be tried together unless one of the defendants, rather than the Commonwealth, successfully moves for severance. Such a rule would be inadvisable to say the least, considering that a co-defendant may elect to plead guilty before trial or the Commonwealth may elect not to proceed against a co-defendant at all. It would be nonsensical for the trial court to insist that a co-defendant proceed to a joint trial merely because a remaining defendant prefers that course. This is especially so where one co-defendant becomes a cooperating witness on behalf of the prosecution.
There being no proscription against the ruling at issue, the only possible issue is whether granting the motion in this case was an abuse of discretion. It was not. The Commonwealth’s motion to sever could not have come as a surprise to appellant; in the eleven months preceding trial, neither N. nor her counsel were present at any proceedings related to appellant’s case. Furthermore, appellant was well aware that N. was going to testify for the Commonwealth just as she had in Spots I — indeed, there was evidence that he was plotting to kill her in order to prevent her from testifying against him. Finally, the granting of the motion did not prejudice appellant in his attempt to shift the blame to N. for this particular murder. N. was the Commonwealth’s key witness and appellant had a full and fair opportunity to cross-examine her under oath. Throughout the trial, appellant sought to persuade the jury that it was N., rather than he, who had murdered Penny Gunnet. Had the jury accepted that defense, it could have assigned blame accordingly. The fact that appellant stood trial alone did not in any way hinder his ability to present his defense. Accordingly, the trial court did not err in granting the Commonwealth’s motion to sever.
Appellant next contends that the trial court abused its discretion when it admitted into evidence two videotapes, one depicting the crime scene, and the other depicting the path of the Gunnet and Ohlinger vehicles near the time of Gunnet’s murder. Appellant’s argument is rather scattershot. He argues that this evidence was cumulative since the Commonwealth also presented photographs of the crime scene and a chart illustrating the route taken by the two vehicles. He also asserts that the videotapes cemented the Commonwealth’s theory of the case without requiring the Commonwealth to cure unidentified “hearsay” issues or to prove the facts as narrated in the videotapes prior to their being shown. Further, he cites the Superior Court opinion in Commonwealth v. Impellizzeri, 443 Pa.Super. 296, 309, 661 A.2d 422, 428 (1995), and argues that the trial court abused its discretion by failing to conduct an in camera review of the videotapes before admitting them, and by failing to make a determination as to whether the material depicted on the videotapes was “supported by the evidence.” Finally, he alleges that the trial court erred in allowing the Commonwealth to play that portion of the videotape that showed Penny Gunnet’s legs protruding from under her vehicle.
Eulings on the admissibility of evidence are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion. Commonwealth v. Koehler, 558 Pa. 334, 356-57, 737 A.2d 225, 237 (1999). Appellant’s various objections do not demonstrate such an abuse here.
Appellant’s complaint premised upon the Impellizzeri case clearly fails. In its opinion, the trial court plainly states that, “The Court and its staff did view the tape, outside of the presence of either the Commonwealth or the defendant.” Trial Court Opinion, p. 22. There is no reason to doubt the veracity of this statement. But even if the trial court had not conducted a preliminary in camera review, that fact would not automatically entitle appellant to relief. The purpose of in camera review is to determine admissibility. Assuming that in camera review is preferred, as Impellizzeri suggests, a failure to conduct such a review can be error only if the videotape should not have been admitted resulting in prejudice to the defendant. As we find, infra, that appellant has not shown the ultimate ruling on admissibility to be erroneous, no relief is due.
Appellant’s claim that the court failed to determine whether the videotapes were “supported by the evidence” is also meritless. Appellant never develops this argument; for this reason alone, it fails. In any event, it is enough to say that, prior to admitting the tapes, the court required the Commonwealth to explain their relevance. The Commonwealth articulated several reasons for admission, not the least of which was the fact that the tapes would help the jury, which had been drawn from Delaware County, better understand the area in which the crime occurred, the time frame and the course of events. In addition, the Commonwealth made a proffer showing that the tape of the route the cars traveled was made under conditions that were substantially similar to those obtaining when the crime occurred. Appellant was free to argue why this proffer, and the evidence introduced in support of the tapes, was insufficient to prove their authenticity and relevance. He made no such showing below, and none here.
As for appellant’s argument that the videotapes were cumulative and repetitive, the trial court could reasonably conclude that the jury could glean additional insights from viewing videotape in addition to still photographs and charts. Further, even if it is assumed that the videotape evidence was merely cumulative, that in and of itself would not entitle appellant to relief. Where evidence is cumulative of other, properly admitted evidence, any resulting error is harmless. See Commonwealth v. Lopez, 559 Pa. 131, 162 n. 22, 739 A.2d 485, 502 n. 22 (1999).
Finally, the trial court did not abuse its discretion by allowing the jury to see that portion of the crime scene videotape that depicted the victim’s legs protruding from under her vehicle. Prior to admitting photographs of a murder victim, the trial court must decide if the photographs are inflammatory and, if so, whether the probative value of the evidence outweighs its potential to impassion jurors. Commonwealth v. Auker, 545 Pa. 521, 544, 681 A.2d 1305, 1318 (1996). The trial court noted that “the views of the car and the body were not bloodied or gruesome” and the exposure of the jurors to the victim’s body was “minimal and not inflammatory.” Trial Court Opinion, p. 22. A review of the videotape evidence corroborates the trial court’s assessment that the footage was not likely .to impassion the jury. Accordingly, this claim fails.
Next, appellant asserts that the trial court abused its discretion by admitting evidence of the earlier crimes he committed in Clearfield and Schuylkill Counties — ie., the Clearfield County shooting of his brother, Dustin Spotz, and the Schuylkill County murder of June Ohlinger and the theft of her car. Appellant claims that the admission of this evidence unfairly prejudiced him by causing the jury to conclude that, because he committed these other crimes, he must have murdered Penny Gunnet.
Initially, we note that an evidentiary decision will not be reversed absent a clear abuse of discretion by the trial court. Koehler, supra; Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988). Evidence of prior crimes or bad acts is generally not admissible if offered merely to show a defendant’s bad character or a propensity to commit crime. Commonwealth v. Richter, 551 Pa. 507, 512, 711 A.2d 464, 466 (1998). But it is well settled that where such evidence is proffered for some relevant purpose other than to show criminal propensity or bad character, such evidence is admissible, subject to the probative value/prejudicial effect calculus that attends all rulings on admissibility. Id. See also Spotz I, 552 Pa. at 512-13, 716 A.2d at 586. We have recognized that evidence of prior bad acts or crimes may be admitted to show motive, intent, absence of mistake or accident, common scheme, plan, or design, or identity of the perpetrator of a crime. Spotz I, 552 Pa. at 512-13, 716 A.2d at 586. In addition, evidence of other crimes may be introduced where such evidence was part of the chain or sequence of events which became part of the history of the case in question and formed part of the natural development of the facts. Id., citing Commonwealth v. Lark, supra.
In the instant case, the admissibility of the prior crimes evidence was the subject of a pretrial evidentiary motion. The trial court found that the other crimes “were part of a chain of events which formed the history of the case and were part of its natural development.” Trial Court Opinion, March 22, 1996, p. 5. The court further concluded that the other crimes evidence was admissible to show motive, intent and identity. Id. at p. 6. The court was careful, however, to limit the evidence to proof of the shootings themselves without reference to the outcome of the trials in Schuylkill and Clearfield Counties.
There was no abuse of discretion here. The other crimes evidence plainly was admissible to establish appellant’s motive for the robbery and murder of Gunnet. To be admissible to show motive, the evidence must provide a sufficient ground to believe that the crime currently being considered grew out of, or was in some way caused by, the prior set of circumstances. See Spotz I, 552 Pa. at 513, 716 A.2d at 586-87. Here, the evidence at issue tended to show that appellant robbed and murdered Gunnet and stole her car in an effort to avoid capture for both the shooting of his brother and the robbery/murder of June Ohlinger. Specifically, the evidence showed that, after killing his brother in Clearfield County, appellant and C.N. fled together. In order to evade capture, they needed a car and money. To that end, they killed June Ohlinger and stole her car. When they approached Penny Gunnet, it was for the same purpose combined with a need to avoid capture for killing Ohlinger.
This Court has already held in Spotz I that evidence that appellant shot his brother in Clearfield County was relevant to demonstrate his motive for killing June Ohlinger. The shooting of his brother and the robbery/murder of June Ohlinger were admissible for a similar purpose in the instant case.
Furthermore, when charging the jury, the trial court gave a limiting instruction explaining that “the [defendant is not charged with those crimes [committed in other counties] here in York County.... If they occurred, you decide if it’s been established to you beyond a reasonable doubt that there’s sufficient evidence there to show motive as far as the defendant’s acts in York County to arrive at a conclusion as to what occurred here.” N.T., April 22,1996, at 2035. Thus, the trial court properly instructed the jury that it could only consider the other crimes evidence for its relevant limited purposes and not merely as evidence of appellant’s propensity to commit crimes. For this additional reason, no relief is due. See Spotz I, 552 Pa. at 514-15, 716 A.2d at 587.
Appellant next contends that the trial court abused its discretion in admitting evidence of the crimes in Clearfield and Schuylkill Counties because appellant did not receive discovery regarding those matters until the first day of trial. Appellant is noticeably vague in describing the materials that comprised this discovery: apparently, it consisted entirely, or almost entirely, of the transcripts from his murder trials in those counties. Appellant, of course, was present at those trials and should have been familiar with the testimony. Moreover, although the trial court directed the Commonwealth to provide appellant with discovery relating to the two other crimes, if it planned on introducing evidence of those crimes, the transcripts were at all times equally available to appellant as they were to the Commonwealth. See Commonwealth v. Rollins, 558 Pa. 532, 550 n. 13, 738 A.2d 435, 445 n. 13 (1999) (no violation of Brady where prosecution failed to turn over evidence readily obtainable by, and known to, defendant); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 305 (1999) (same); Westley v. Johnson, 83 F.3d 714, 725-26 (5th Cir.1996) (no violation of Brady where prosecution failed to turn over testimony from co-defendant’s separate trial, where allegedly inconsistent testimony was presented; transcript of co-defendant’s trial was readily available using reasonable diligence).
Nevertheless, appellant claims that the Commonwealth violated Pa.R.Crim.P. 305(B)(1), relating to mandatory disclosure by the Commonwealth, in failing to produce the transcripts sooner. The claim is meritless on its face. The discovery at issue here was not “evidence favorable to the accused which is material either to guilt or to punishment.” Pa.R.Crim.P. 305(B)(1). Thus, the Commonwealth did not violate the mandatory disclosure provisions by failing to deliver the transcripts sooner.
Although the transcripts were not subject to mandatory disclosure under either our Rules or under Brady, they nevertheless were the subject of a discovery order by the trial court. Specifically, on December 18, 1995, the trial court ordered the Commonwealth to provide information from the other prosecutions to defense counsel if it planned on presenting evidence of those crimes. On April 12, 1996, the first day of trial, the Commonwealth presented appellant with approximately 600 pages of trial transcript from the earlier prosecutions. After appellant requested a delay to review the information, the trial court made special arrangements with the prison to provide appellant with early and late transport to and from the prison, extra privileges concerning use of the phone and visitation and exemptions from prison routines so that he could prepare his defense. Nonetheless, appellant maintains that the late provision of the materials rendered him unable to cross-examine effectively the witnesses who testified concerning the previous crimes. This claim lacks merit.
A defendant requesting relief as a result of tardy disclosure must demonstrate prejudice. Commonwealth v. Simmons, 541 Pa. 211, 237, 662 A.2d 621, 634 (1995). Even if it is assumed that the disclosure here could be deemed tardy, appellant has failed to demonstrate that he was prejudiced. Appellant had already been tried in Clearfield and Schuylkill Counties for the crimes that were the subject of the discovery. Therefore, he was familiar with the testimony of the witnesses in those cases. In fact, the Schuylkill County trial had ended just one month before the commencement of appellant’s trial in the instant case. Furthermore, as appellant concedes in his brief, the materials that he was seeking were in the hands of the attorneys who represented him in the Clearfield and Schuylkill County cases. If prompt acquisition of the materials were imperative, he could have obtained the transcripts from his former attorneys, or could have asked his standby counsel in the instant case to obtain the transcripts for him. He did not do so. In light of these facts, any claim of prejudice rings hollow. Furthermore, even three years after the trial, appellant points to nothing specific in the transcripts that the alleged tardy disclosure prevented him from developing. It is clear that appellant was not prejudiced by the fact that he did not receive the transcripts sooner. Accordingly, he is not entitled to a new trial on this issue.
Appellant next alleges that the trial court abused its discretion when it admitted evidence that the victim in the Schuylkill County case, June Ohlinger, was dead, rather than limiting that evidence to proof that Ohlinger had merely been “shot.” At trial, the Commonwealth called Dr. Richard Bindie, the Schuylkill County pathologist, as a witness. Dr. Bindie testified that Ohlinger had “an obvious injury on top of her head and [that he] checked for rigor mortis and other signs of post mortem interval at the scene.” He further testified that Ohlinger’s skull “was open like an exploding type injury and the skull underneath the scalp was all exposed.” The doctor also gave detailed testimony about the entrance and exit wounds. Appellant asserts that this testimony was harsh and inflammatory and prevented the jury from rendering a fair verdict.
As the trial court recognized, this claim is merely an extension of appellant’s objection that evidence of his prior crimes should not have been admitted. But, as we have already held, evidence of the killing of June Ohlinger was relevant and admissible, and its relevance was not confined to the rather euphemistic fact that she was “shot.” It was also relevant that appellant shot her after stealing her car, just as he did Ms. Gunnet. Furthermore, Dr. Bindie’s testimony established that Ms. Ohlinger died from a “pass-through” wound to the head caused by a large caliber “full metal jacket” bullet. This information was clearly relevant because it tended to show that appellant intended to kill Ms. Gunnet, whom he also shot with a large caliber full metal jacket bullet. It also tended to prove appellant’s identity as the killer, a point he disputed at trial. Thus, appellant’s claim that the evidence was admitted solely to establish his propensity to commit violent crimes is baseless.
Appellant next asserts that the trial court abused its discretion when it denied his request to have a firearm loaded with blanks and then discharged in the courtroom. Specifically, appellant sought to have the Commonwealth’s ballistics expert fire the murder weapon in the darkened courtroom. Appellant argues that this demonstration would have shown that, had he shot Ms. Gunnet at the time that two witnesses alleged, several of the Commonwealth’s other witnesses should have seen the muzzle flash.
Experimental evidence, such as that proposed by appellant, is admissible only if the conditions under which the experiment is conducted are substantially similar to those at the time of the event in question. Commonwealth v. Henry, 524 Pa. 135, 151, 569 A.2d 929, 936 (1990). As the trial court noted, the interior of a car is a radically different environment from the interior of a courtroom; it would have been difficult, if not impossible, to duplicate the lighting, weather conditions and positions of the witnesses on the morning of the murder merely by turning down the lights in the courtroom. Furthermore, the absence of the demonstration did not prejudice appellant. He was permitted to elicit a great deal of testimony from the expert concerning the size and duration of a muzzle flash from the alleged murder weapon. This provided more than sufficient grounds for appellant to make the argument that he proposed that the demonstration would have supported. Accordingly, the trial court did not abuse its discretion by denying appellant’s request to have a firearm discharged in the courtroom.
Appellant next alleges that the trial court abused its discretion in allowing the trial to continue even though he had not been given certain evidence that supposedly was in the Commonwealth’s possession. On April 15, 1996, appellant notified the court that he was in the process of subpoenaing photographs that were taken in Schuylkill County after his arrest. Appellant represented that these “mugshots” were necessary to his defense because they showed that his appearance differed from that of the witnesses’ descriptions of the white male they saw near the crime scene on the day of the murder. The trial court ultimately concluded that it would not be necessary to delay the trial until appellant had received these materials. The record indicates that the photographs were provided to appellant by April 17,1996, approximately midway through the ten-day trial.
Appellant now asserts that he needed these mugshots and “clothing items” that were “seized from the Knight’s Inn Motel” in order to cross-examine effectively the Commonwealth’s witnesses. Preliminarily, we note that appellant does not describe the “clothing items” to which he is referring. In the record, appellant merely referred to these items as “articles.” At that time, the prosecutor indicated that he did not know which items appellant was referring to, and appellant did not elaborate. Because it is impossible for this Court to tell what these items were, whether they existed, and whether appellant ever received them, no reviewable claim is presented with respect to them.
With respect to the mugshots, appellant contends that the Commonwealth violated its discovery obligation. Appellant also asserts that, because several of the eyewitnesses testified before he had received this evidence, he was deprived of his right to confront them. Neither claim has merit.
The discovery provision invoked by appellant is Pa.R.Crim.P. 305(B)(1)(f), which states:
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items ...
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence.
Id. (emphasis added).
As the trial court properly recognized, there was no discovery violation here. There was no reason for the Commonwealth to suspect that appellant’s “mugshots” from another county would be material to this case. Appellant cites no cases, and our research has revealed none, that suggest that “mugshots” pertaining to another case are among the materials that the Commonwealth must automatically retrieve and provide to defendants under Rule 305(b). Further, far from violating any discovery obligation, after appellant belatedly claimed that he needed the photos, the Commonwealth secured and delivered them to appellant during trial.
Appellant’s argument that the trial court’s ruling deprived him of his right to confront the witnesses against him is also entirely without merit. Appellant was provided with, and availed himself of, the opportunity to cross-examine all of the witnesses who claimed to have seen a white male at the crime scene on the morning of the murder. Further, after he secured the photographs, he was free to recall to the stand any relevant witness he pleased, and could confront them with his arrest photograph. That he elected not to do so did not amount to a denial of his right to confront these witnesses.
Next, appellant argues that the trial court erred in denying his motion to quash the charges in this case pursuant to the compulsory joinder provision of 18 Pa.C.S. § 110. Appellant alleges that the same factors that made evidence of his prior crimes relevant to the trial of this matter also requires a conclusion that the killing here must be viewed as being part of the “same criminal episode” as the prior crimes for purposes of § 110. Specifically, appellant argues that the fact that the three killings occurred within a three day period, and “occurred very closely in terms of geography” (albeit they occurred in different counties), combined with the fact that there was an overlapping of certain witnesses and a single laboratory conducted tests for the various prosecutions, proves that the killings were part of the same criminal episode. We disagree.
Section 110 provides in relevant part that: Id. Section 110’s compulsory joinder rule was designed to serve two distinct policy considerations: to protect a person accused of crimes from governmental harassment by being forced to undergo successive trials for offenses stemming from the same criminal episode, and to ensure judicial economy. Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983). Section 110(1)(ii) will only bar a prosecution if: 1) the former prosecution(s) resulted in an acquittal or in a conviction; 2) the instant prosecution is based on the same criminal conduct or arose from the same criminal episode as the former prosecution(s); 3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and 4) the instant charges and the former charges were within the jurisdiction of a single court. See Commonwealth v. Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997); Commonwealth v. Bracalielly, 540 Pa. 460, 472, 658 A.2d 755, 761 (1995). Because we find that the second factor is not present, we need not address the others.
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in conviction as defined in section 109 of this title (relating to when prosecution is barred by a former prosecution for the same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.
To determine whether various acts constitute a single criminal episode, a court must consider two factors: 1) the logical relationship between the acts, and 2) the temporal relationship between the acts. Commonwealth v. Bracalielly, 540 Pa. 460, 472, 658 A.2d 755, 761 (1995). Initially, we reject appellant’s suggestion that, merely because certain evidence of appellant’s previous crimes was relevant and admissible in this prosecution, the crimes must be deemed to be part of the same criminal episode. Other crimes evidence may be admissible, as it was here, for a wide variety of evidentiary purposes; but that fact alone does not prove such a logical connection between the acts so as to constitute a single criminal episode. This is particularly so where, as here, the evidentiary purpose and relevance of the other crimes testimony differs from its use in the previous prosecution. For example, the evidence that appellant shot his brother in Clearfield County was admissible here to, inter alia, complete the story and to explain the motive — the need to escape — for the killing here. When evidence of the killing was introduced in the Clearfield County prosecution, however, it was not for that attenuated point of relevance; instead, it was direct evidence of appellant’s guilt for killing his brother.
Although evidence of the previous two killings was certainly relevant here, that fact does not alter the essentially independent nature of the crimes. These were three different homicides, occurring in different counties, on different days, and generating separate criminal investigations in the separate counties. The first killing occurred on January 31, 1995, in Clearfield County, when appellant shot and killed his brother, Dustin Spotz, following a family argument. The second killing occurred a day later, in Schuylkill County, where appellant and N. had fled after the first killing. In need of an automobile to facilitate their escape, they randomly selected June Ohlinger as their victim, stole her car, robbed her of her jewelry and money, murdered her, and then fled to Rehoboth Beach, Delaware. The murder in this case then occurred only after appellant and N. had returned to Pennsylvania on February 2, 1995. They proceeded to York County and, fearing that they might be caught and arrested in Ohlinger’s car, proceeded to abduct another person whose misfortune it was to randomly venture across their murderous path, Penny Gunnet. After duping Ms. Gunnet into stopping, appellant abducted her at gunpoint, killed her, and then stole her rings, credit cards, and other valuables.
What connects the three killings is not the sort of temporal or logical relationship that requires joinder under § 110. Rather, the common denominator is appellant. But the proof as to each of the killings was largely independent. For example, appellant killed his brother during a heated family argument, during which appellant himself suffered stab wounds. Consistent with the unique circumstances attending the first killing, appellant faced charges in Clearfield County, not of murder, but of manslaughter. That trial focused only on what happened in the family home. The subsequent crimes appellant committed once he fled from Clearfield County had little to do with evaluating that already-completed scenario.
Similarly, the subsequent abductions and killings in Schuylkill and York Counties were confined to those counties, and independent investigations were conducted by local law enforcement officials therein. Although N. was a key witness in both prosecutions, she was hardly the only witness. For example, in this case, the Commonwealth called numerous witnesses to establish that appellant was seen on Indian Rock Dam Road near the time of the murder. Further, the Commonwealth called Ms. Gunnet’s husband and auto mechanic to the witness stand as well as the police officer who investigated the Gunnet crime scene. There was also a great deal of evidence presented relating to the wound to appellant’s leg, which helped to prove his guflt here. This evidence was not relevant to the two previous trials. Thus, this is not a case in which the' Commonwealth relied solely upon the same witnesses) to prove each ■ of the killings.’ Instead, the cases generated testimony of different lay and police witnesses as well as the establishment of separate chains of custody. See Bracalielly, 540 Pa. at 473-74, 658 A.2d at 762. On such a record, we cannot conclude that there was such a “substantial duplication of issues of law and fact” in the various cases that joinder was required. See Commonwealth v. Anthony, 553 Pa. 55, 64, 717 A.2d 1015, 1019 (1998); Bracalielly, 540 Pa. at 472, 658 A.2d at 761.
This is not a circumstance similar to that addressed in Hude upon which appellant relies. In Hude, this Court held that drug charges brought against the defendant were barred by his previous trial on drug charges. But the charges in Hude arose out of a series of twenty sales of marijuana to the same individual between October 1974 and January 1975. The Court based its § 110 holding on the fact that different evidence was not required to establish the alleged individual instances of possession and delivery. Rather, the Commonwealth’s case rested solely on the credibility of the single buyer. Hude, 500 Pa. at 482, 458 A.2d at 177. Though committed by the same individual, the killings of separate human beings here cannot be compared to the ongoing, indistinguishable drug sales at issue in Hude.
The instant case is far more akin to Commonwealth v. Bracalielly, supra. In Bracalielly, the defendant sold cocaine to a confidential informant in Allegheny County on two occasions. He also sold cocaine to the same confidential informant in Butler County. This Court held that the Butler County drug sale was not part of the same criminal episode as the two sales in Allegheny County, noting that the Butler County and Allegheny County authorities were each conducting separate undercover investigations of the defendant. Thus, “proof of each individual instance of possession and delivery in each county would not rest solely on the credibility of a single witness, but rather, would require the testimony of completely different police officers and expert witnesses as well as the establishment of separate chains of custody.” Bracalielly, 540 Pa. at 474, 658 A.2d at 762. In the instant case, there were three victims in three different counties requiring three different investigations, and different witnesses were necessary at each trial. Accordingly, the trial court correctly denied appellant’s motion to quash.
Appellant next asserts that the trial court abused its discretion by allowing into evidence a photograph that was intended to display the path of the bullet that struck appellant during the killing of Penny Gunnet. The photograph depicts a woman wearing appellant’s pants, sitting in the driver’s seat of Ms. Gunnet’s vehicle. A metal probe indicates the path of the bullet through the floor of the car, the seat and appellant’s pants. The exhibit was introduced during the testimony of Dr. Mihalikis, a forensic pathologist. When asked whether he knew if the probe in the exhibit was placed down through the seat of the ear and the hole in the floorboard, Dr. Mihalikis answered, “I believe we did.”
We detect no abuse of discretion in admitting the exhibit. The reenactment made use of the physical evidence that was available — i.e., appellant’s pants, the floor of the car, and the seat. This was sufficiently based on the admitted evidence so that the reenactment photograph could assist the jury in assessing the path of the gunshot. Appellant, of course, was not required to accept the demonstration as gospel; he was free to attempt to show that the demonstration was unreliable and, thus, should be rejected by the jury.
Furthermore, appellant was not prejudiced by the photograph. In his brief, appellant states that, “the fact thát a woman was used sitting in the driver’s seat of the car was extremely prejudicial; in light of the gender of the victim.” But the woman in the reenactment photo did not represent the victim; rather, she was supposed to represent appellant. Appellant fails to explain how the mere fact that a woman was wearing his pants in a reenactment photo could possibly have prejudiced him.
Appellant next alleges that the trial court abused its discretion in allowing Dr. Mihalikis to testify as to Ms. Gunnet’s manner of death. Appellant notes that, during the qualification of Dr. Mihalikis, he stated, “the cause of death is my province, what did the person die of. The manner of death is the province of the coroner, and he puts all the facts together, including the autopsies, and consequently certifies the manner of death.” Seizing upon this, appellant asserts that Dr. Mihalikis was not qualified to testify as to the manner of death. He further argues that Dr. Mihalikis’ opinion as to the manner of death was not stated in terms of a reasonable degree of medical certainty. These arguments are meritless.
A witness may testify as an expert provided that he or she possesses “a reasonable pretension to specialized knowledge on the subject matter in question.” Bennett v. Graham, 552 Pa. 205, 210, 714 A.2d 393, 395 (1998). It is well established in this Commonwealth that expertise can be acquired through occupational experience as well as by scientific study. Churbuck v. Union Railroad Company, 380 Pa. 181, 186, 110 A.2d 210, 213 (1955). Here, Dr. Mihalakis testified that he had served as a medical examiner in the state of New Jersey. In that capacity, it was his responsibility to determine the manner of death in unexpected or unexplained deaths. Further, he testified that he was currently a coroner’s pathologist in Pennsylvania. In that capacity, he performed autopsies at the request of the coroner and made determinations as to the manner of death that the coroner would then consider in reaching his own conclusion as to manner of death. In addition, Dr. Mihalikis had been qualified by courts to testify as an expert as to manner of death hundreds of times. The fact that, in Dr. Mihalikis’ current job, it was another’s “province” to determine the manner of death does not mean that Dr. Mihalikis was unqualified to do so. Based upon his experience, Dr. Mihalikis was eminently qualified to testify as an expert as to manner of death.
Appellant’s second complaint is equally unavailing. In this jurisdiction, experts are not required to use “magic words.” Commonwealth v. Baez, 554 Pa. 66, 101, 720 A.2d 711, 728 (1998). Rather, this Court must look to the substance of Dr. Mihalikis’s testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation. Id. In addition to explaining his medical background and training, Dr. Mihalikis explained his conclusions as follows: Ms. Gunnet had been shot once in the neck and once in the chest; the two bullets entered the front of Ms. Gunnet’s body and exited through the back of her body; Ms. Gunnet was shot while she was alive, a conclusion based on the amount of hemorrhage surrounding the gunshot wounds; she was run over after she had died, a conclusion based upon the minimal amount of hemorrhage surrounding these wounds; based upon the two bullet holes in the passenger door of Ms. Gunnet’s car, the bullets came from the direction of the driver’s side of the car; and, based upon the gunshot residue found upon Ms. Gunnet’s right hand, her arm was raised in a defensive manner. Dr. Mihalikis clearly explained the medical basis for all of his conclusions. Therefore, it is clear that his opinions were based upon a reasonable degree of medical certainty. Accordingly, the trial court did not abuse its discretion in allowing Dr. Mihalikis to testify even if he did not intone the “magic words.” that appellant claims he was supposed to.
Appellant next asserts that it was error for the court to permit Dr. Mihalikis to testify as a ballistics expert. During direct examination, Dr. Mihalikis testified that the gunshots that killed Ms. Gunnet were fired from within a few inches. Appellant argues that Dr. Mihalikis should not have been permitted to so testify because he later stated that he defers to ballistics experts at times. This argument is unpersuasive.
Dr. Mihalikis testified that, during the course of his' career, he has seen hundreds, if not a thousand, gunshot wounds. He has testified concerning ballistics evidence in approximately 50 cases. Further, he stated that he has been qualified as an expert in ballistics in other cases. Accordingly, the trial, court did not err in concluding, that' he possessed a reasonable pretension to specialized knowledge on ballistics. Bennett, 552 Pa. at 210, 714 A.2d at 395. Furthermore, appellant cannot possibly show how he was .prejudiced by Dr. Mihalikis’ testimony. Dr. Mihalikis admitted that he would defer to the greater expertise of a ballistician, and a ballistician did, in fact, testify here. That fact negated any supposed harmful effect of Dr. Mihalikis’ testimony.
Appellant next contends that the trial court abused its discretion in allowing two photographs — one depicting Ms. Gunnet’s vehicle at the scene of the murder, and another depicting a close-up in which ■ it was possible to see Ms. Gunnet’s legs protruding from under the vehicle — into evidence. Appellant does not explain why the trial court erred with respect to the first photo; hence, that claim fails. Appellant argues that the second photo should have been excluded because the depiction of the victim was inflammatory. We disagree.
A two-part analysis governs whether to admit a photograph of the victim in a homicide trial:
First, a court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury’s understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.
Commonwealth v. Chester, 526 Pa. 578, 591-92, 587 A.2d 1367, 1373-74 (1991) cert. denied 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). As the trial court properly found, the photo of the victim here was not inflammatory. Although Ms. Gunnet’s calves and feet are visible protruding from under the vehicle where appellant left her, there is neither blood nor a wound visible. Furthermore, since the photograph depicts the crime scene and shows the angle of the vehicle, it was relevant to the jury’s understanding of how the crime scene appeared on the day of the murder. The trial judge did not abuse his discretion in permitting the photograph into evidence.
Appellant next alleges that the trial court abused its discretion by prohibiting the testimony of proposed defense witness L.S. During the colloquy on the defense proffer, S. informed the court that he had testified on behalf of appellant in Schuylkill County prior to being sentenced in an unrelated case. S. told the court that he believed that he had received a stiffer sentence because of that testimony and, accordingly, would invoke his Fifth Amendment right against self-incrimination rather than testify on behalf of appellant here. Appellant then sought to have S.’ prior testimony admitted. In Schuylkill County, S. had testified that, while he was in the same prison with C.N., he was notified by third persons that N. wished to write to him. He later allegedly received a letter that bore N.’s name, in which the author made reference to having shot someone. S. did not save the letter. The trial court ultimately ruled that S. could not testify and that his prior testimony was inadmissible because it was unreliable and lacked a proper foundation.
There was no error here. As S. informed the court, he did not know N.’s handwriting. The only reason he had to believe that she was the author of the letter was that it bore her name. He further testified that, although he had spoken to N. in a holding cell, she never expressed an intention to write to him. Instead, he was informed that N. wanted to write to him by a third party. Appellant has failed to show, both in the trial court and here, why he thinks S.’ testimony, which would have characterized the out-of-court letter, was admissible. The letter itself certainly would not be admissible into evidence. See Commonwealth v. Brooks, 352 Pa.Super. 394, 398, 508 A.2d 316, 318 (1986) (letters may be authenticated by direct proof such as testimony of witness who saw author sign document, acknowledgement of execution by signer, admission of authenticity by adverse party or proof that document is in the purported author’s handwriting, or by circumstantial evidence.) Since the no-longer-existing letter would be inadmissible, there is no basis to admit S.’ prior testimony characterizing it.
Appellant next asserts that the evidence adduced at trial was insufficient to establish that he was guilty beyond a reasonable doubt of conspiracy to commit first degree murder, kidnapping and robbery of a motor vehicle. Appellant asserts that, because N. testified that she only stayed with appellant because he threatened her, she could not have conspired with him to commit these crimes. Appellant’s argument lacks merit.
A conspiracy conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy. Commonwealth v. Spotz, supra, 552 Pa. at 523, 716 A.2d at 592. Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such an act may be proved inferentially by circumstantial evidence, ie., the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators. Id. at 524, 716 A.2d at 592.
At trial, N. testified that she and appellant were in York County in search of a car and money to further their escape from authorities who were seeking them in connection with the previous crimes. Subsequently, appellant approached Ms. Gunnet’s vehicle on the pretense of asking her for directions. After appellant forced Ms. Gunnet into the passenger seat, N. moved into the driver’s seat of June Ohlinger’s vehicle. She turned the car around while appellant waited for her to do so, and then followed him to a remote country road where he executed Ms. Gunnet. N. explicitly testified that she believed that appellant was going to “hurt [Gunnet] like he did Mrs. Ohlinger” (NT, 4/13/96, at 258). Whether N. feared appellant or not, this evidence amply showed her active role in the conspiracy to steal Gunnet’s car, kidnap her, and murder her to prevent their capture. As the trial court noted, “the conspiracy was proven when Nolan[d] testified to her prior knowledge of the defendant’s criminal intent and her voluntary association and support of his intentions.” Trial Court Opinion at 16. Thus, the evidence was sufficient to support the guilty verdict for conspiracy.
Appellant next asserts that the prosecutor committed misconduct when, after being ordered not to, he continued to refer to the robbery of Ms. Gunnet’s vehicle as a “car-jacking.” The trial court rejected the claim in its post-verdict opinion, finding, inter alia, that the references did not render the jury incapable of fairly weighing the evidence.
The decision whether to grant a new trial because of alleged prosecutorial misconduct rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Rios, 554 Pa. 419, 429-30, 721 A.2d 1049, 1054 (1998). Comments by a prosecutor do not constitute reversible error unless the language was such that its unavoidable effect was to prejudice the jury, forming in their minds fixed bias or hostility towards the defendant, so that they could not weigh the evidence objectively and render a true verdict. Id. The trial court did not abuse its discretion in rejecting the misconduct claim raised here.
During voir dire, the prosecutor referred to the charge of robbery of a motor vehicle, see 18 Pa.C.S. § 903, as “carjacking.” There was an objection that was not, it appears from the record, then ruled upon. A short time later, the prosecutor again made a reference to “car-jacking.” At that time, the trial court instructed the prosecutor to refrain from using that term.
After he was cautioned against using the word during voir dire, the prosecutor refrained from using the word throughout the course of the trial. During closing argument, however, he made three brief references to the robbery of Ms. Gunnet’s vehicle as a “car-jack.” Appellant did not object to any of the references, nor did the trial court sua sponte interrupt the prosecutor.
We agree with the trial court that use of the colloquial term “car-jack”, rather than the formal statutory term robbery of a motor vehicle, did not destroy the jury’s ability to be fair. It is difficult to see how the term “car-jack” carries with it a connotation that is any more negative or prejudicial than the statutory term. Both terms describe the taking of a motor vehicle by force. There is nothing inherently prejudicial in the colloquial phrase. Indeed, both this Court and the Superi- or Court have used the term “car-jacking” in published opinions. See Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014, 1021 (1999); Commonwealth v. George, 705 A.2d 916, 919 (Pa.Super.1998). Finally, we note that the federal offense that is the equivalent of this statute has routinely been referred to as “car-jacking” by the courts interpreting it, notwithstanding that that term does not appear in the statute itself. See United States v. Bishop, 66 F.3d 569 (3d Cir.1995), cert. denied, 516 U.S. 1066, 116 S.Ct. 750, 133 L.Ed.2d 698 (1996); United States v. Romero, 122 F.3d 1334 (10th Cir.1997), cert. denied, 523 U.S. 1025, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998). A term of such common acceptance, accurately describing the essence of the statute, can hardly have prejudiced the jury to the point that it could not weigh the evidence.
Appellant’s last claim is that the prosecutor committed misconduct during his penalty phase closing argument by supposedly quoting from the Bible. During closing argument, appellant’s counsel argued, inter alia, that appellant had endured a troubled childhood and that that circumstance should be deemed a mitigating circumstance. In response to the argument, the prosecutor stated:
Did Mark Spotz have a troubled childhood? I don’t know that — I don’t know that the Commonwealth would dispute that fact. But long before Dustin Spotz was killed and June Ohlinger and Penny Gunnet were murdered, Mark Spotz became a man and put away childish things.
N.T., 4/24/96 at 371.
Petitioner alleges that the prosecutor’s responsive argument was a direct reference to 1 Corinthians 13:11, where St. Paul writes, “when I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put childish ways behind me.” Appellant argues that, based upon this Court’s holdings in Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991) and Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998), the prosecutor’s unobjected-to reference was per se impermissible, and his death sentence must be vacated. We disagree.
First, it is not clear that the prosecutor was invoking the Bible. He certainly never mentioned the Bible by name, nor did he otherwise suggest that he was invoking the Bible. This is in sharp contrast to Chambers, where the reference was explicit, see 528 Pa. at 585, 599 A.2d at 643 (prosecutor argued, “as the Bible says ‘and the murderer shall be put to death’ ”) or Brown, where the reference was very thinly veiled, see Brown, 551 Pa. at 493, 711 A.2d at 457 (in case where defendant was convicted of killing a three-year-old child, prosecutor stated, “there is a page in that book, it says, it is better that you had a millstone tied around your neck and be cast into the deep, than that you harm a child. This is ancient law... .”).
Here, the prosecutor’s statement merely had five words in common with the passage from Corinthians. Furthermore, even if the phrase employed by the prosecutor could be said to have a biblical origin, we cannot say that this phrase was so distinctive that the jury must have believed that a religious document was being invoked. Much of our everyday speech and idiomatic expressions can be traced to biblical sources. To ban all such phrases based upon their etymology might ultimately operate to ban most speech, or certainly most speech concerning moral matters such as criminal responsibility.
More importantly, the impropriety that Chambers and Brown sought to eradicate was the invocation of biblical or-religious authority in support of a death penalty verdict. As we explained in Chambers: “this argument [that the Bible supports the imposition of the death penalty] advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for [a defendant].... If a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition, not because of some other source of law.” Chambers, 528 Pa. at 586-87, 599 A.2d at 644; cf Carruthers v. State, 272 Ga. 306, 528 S.E.2d 217 (2000). We reiterated this point more recently in Brown: “[r]eliance upon the Bible in any manner during a closing argument during the penalty phase is reversible error per se pursuant to Chambers.” Brown, 551 Pa. at 493, 711 A.2d at 457 (emphasis added).
Here, the prosecutor made the alleged biblical reference as he was explaining to the jury that appellant was no longer a child and, therefore, his alleged troubled childhood could not excuse his conduct. The prosecutor did not remotely suggest that there was a biblical basis, independent of Pennsylvania law, for sentencing appellant to death. Accordingly, the prosecutor did not violate the holdings in Chambers and Brown.
Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), our careful review of the record convinces us that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor. Further, we find that the evidence was sufficient to establish the aggravating circumstances found by the jury, ie., that appellant killed Ms. Gunnet during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); that he had a significant history of felony convictions involving the use of violence, id. § 9711(d)(9); that he had been convicted of another offense before the time of the offense at issue for which a sentence of death was possible, id. § 9711(d)(10); and, that he had been convicted of another murder before the time of the offense. Id. § 9711(d)(ll).
Moreover, in accordance with Zettlemoyer, 500 Pa. at 26, 454 A.2d at 942, we must conduct a proportionality review as to appellant’s sentence of death. Here, since the jury found that the four aggravating circumstances outweighed the two mitigating circumstances, the jury was statutorily required to impose a sentence of death. 42 Pa.C.S. § 9711(c)(l)(iv). Further, we have conducted an independent review of similar cases and reviewed the data compiled by the Administrative Office of Pennsylvania Courts in which the sentence of death was made mandatory by the finding of aggravating factors that outweighed mitigating circumstances and conclude that the sentence of death imposed upon appellant is not disproportionate to the sentences imposed in similar cases. Accordingly, we affirm the verdict and the sentence of death imposed upon appellant by the Court of Common Pleas of York County.
Judgment of sentence affirmed.
Justice ZAPPALA concurs in the result.
42 Pa.C.S.§ 9711(h)(1).
18 Pa.C.S. § 2502(a).
18 Pa.C.S. § 2901(a).
18 Pa.C.S. § 3701.
18 Pa.C.S. § 3921.
18 Pa.C.S. § 3702.
18 Pa.C.S. § 6106.
18'Pa.C.S. § 903.
The aggravating circumstances were that appellant committed a killing in the perpetration of a felony, see 42 Pa.C.S. § 9711(d)(6); that appellant had a significant history of felony convictions involving the use or threat of violence to the person, id. § 9711(d)(9); that appellant had been convicted of another offense either before or at the time of the offense in issue for which a sentence of death or life imprisonment was possible, id. § 9711(d)(10); and that appellant had been convicted of another murder either before or at the time of the offense at issue. Id. § 9711(d)(11). The mitigating circumstances were that appellant was under the influence of extreme mental or emotional disturbance, see id. § 9711(e)(2), and any other evidence of mitigation concerning the character of the defendant and the circumstances of his offense, including a bad childhood. Id. § 9711(e)(8).
Appellant was tried separately and sentenced to death for his crimes arising from the killing of June Ohlinger in Schuylkill County. This Court affirmed the death sentence. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998). Appellant was also convicted of first degree murder in Cumberland County and sentenced to death for the murder of Betty Amstutz, a murder which occurred while appellant was attempting to evade capture for the murder of Ms. Gunnet. That judgment is the subject of a separate appeal pending in this Court. Commonwealth v. Spotz, No. 202 Capital Appeal Docket. We note that, pursuant to the ruling of the trial court here, evidence of the subsequent killing of Betty Amstutz in Cumberland County was not introduced at this trial.
Rule 1.6 provides, in pertinent part: (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another....
The trial court also refused to admit evidence that, following the murder of Penny Gunnet, appellant murdered another woman in Cumberland County. Nor did it allow in evidence that Dustin Spotz had died as a result of the gunshot wounds inflicted by appellant. Thus, the trial court took seriously its responsibility to balance the relevancy and evidentiary need for the other crimes evidence against its prejudicial effect.
Evidence of the Schuylkill County murder of June Ohlinger was independently relevant to show intent and identity. Appellant abducted June Ohlinger, drove her in her car to a rural area, shot her with a large caliber weapon loaded with full metal jacket bullets, and threw her body off of a bridge. In this case, appellant abducted Penny Gunnet, drove her to a rural area, shot her with a large caliber weapon loaded with full metal jacket bullets, and ran over her body. The similarity in these crimes was relevant to show both the identity of the killer and that appellant intended to kill Penny Gunnet. Evidence of both prior crimes was independently admissible to show the sequence of events. The killing of Penny Gunnet did not occur in a vacuum, and the jury should hot have been left with a misimpression that it did. Evidence of the prior crimes was admissible so that the jury could have an accurate understanding of the natural development of the facts here.
There is no evidence that the Commonwealth was other than diligent in providing these materials to appellant. The Commonwealth stated to the court that it had only received the materials in question one or two days before it turned them over.
The only specific assertion made by appellant is that “there is information contained in the discovery regarding statements made by the co-defendant about looking through one of the victim’s purses.” According to appellant, this information contradicts the co-defendant’s trial testimony on page 223 where, appellant says, "the co-defendant claimed, she did not touch the victim’s purse.” Brief of Appellant p. 36. Appellant has mischaractcrized N.’s testimony. N. never stated whether or not she touched the purse. All that she said was: “and he (appellant) went through the lady’s purse and stuff.” Furthermore, this portion of N.’s testimony concerns the murder of June Ohlinger, not the murder of Penny Gunnet.
In his brief, appellant inadvertently characterizes this as Rule 205; however, his verbatim quotation makes clear that he intends to invoke Rule 305.
Appellant also seems to suggest that it was error for the court to allow the jury to review this exhibit during their deliberations. However, he does not explain why he thinks this is so, nor does he cite any authority in support of his contention. Under Pa.R.Crim.P. 1114, a trial judge may allow the jury to take into deliberations any exhibits he deems proper. We see no error here.
In any event, appellant was certainly not prejudiced by the testimony in question; the manner of death her;e was indisputable — Ms. Gunnet had been shot in the neck and chest.
Appellant mistakenly refers to these exhibits as Commonwealth’s Exhibit # 3 and Commonwealth’s Exhibit # 4, respectively. Based upon his description however, it is apparent that he is referring to Commonwealth’s Exhibit .#, s 63 and 64.
Appellant also asserts that the trial court erred because it failed to ask certain additional questions of S. that might have created a proper foundation for admitting his testimony. But the trial court was not obliged to act as appellant’s counsel. If appellant wanted different questions to be asked, he should have requested them.
Since the trial court admonished the prosecutor in response to the only objection appellant raised, appellant's claim of misconduct is waived. Nevertheless, we will reach the issue as this is a direct appeal in a capital case. Commonwealth v. Zettlemoyer, 500 Pa. at 26 n. 3, 454 A.2d at 942 n. 3.
This issue was not raised at trial and, thus, is waived. Nevertheless, we will review the claim on the merits. See Commonwealth v. Zetllemoyer, supra.
We noted in Brown that the language employed by the prosecution was distinctive; indeed, it could be found in each of the three synoptic gospels. See Matthew 18:6 ("But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged around his neck, and that he were drowned in the depth of the sea”); Mark 9:42 ("And whosoever shall offend one of these little ones that believe in me, it is better for him that a millstone were hanged about his neck, and he were cast into the sea”); Luke 17:2 ("It were better for him that a millstone were hanged about his neck, and he cast into the sea, than that he should offend one of these little ones”). From the distinctive language and the reference to "that book,” it was clear that the prosecutor was invoking the New Testament.
Appellant cites Brown as prohibiting reliance upon the Bible in any manner during a penalty phase closing. Brawn, of course, was merely applying Chambers. The "reliance” prohibited by the cases — a reliance explicitly invoked by the prosecutor in those two cases — is a reliance upon the Bible as a source, independent of Pennsylvania law, for returning a verdict of death. Moreover, we note that Brown was decided two years after the trial here. The prosecutor did not commit misconduct by making an argument that was not at the time disapproved by this Court. No doubt, that is why appellant failed to object to the innocuous reference, if he even recognized its origin in the first place.
Effective June 25, 1997, the General Assembly repealed 42 Pa.C.S. § 971 l(3)(h)(iii), pursuant to which this review was required. However, we continue to review for proportionality all cases on direct appeal in which the sentence of death was imposed prior to that date. See Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997), cert. denied, 525 U.S. 1005, 119 S.Ct. 519, 142 L.Ed.2d 430 (1998) (Act 28 does not apply retroactively).
The Prothonotary of this Court is directed to transmit to the Governor's office a full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court pursuant to 42 Pa.C.S. § 9711(i).
759 A.2d 1280
COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newton SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Argued Nov. 15, 1999.
Decided Oct. 20, 2000.
Taylor P. Andrews, Carlisle, for Mark Newton Spotz.
M.L. Ebert and Jaime M. Keating, for Com.
Robert A. Graci, for Office of the Atty. Gen.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
[OPINION BY CASTILLE, Justice. type=majority]
OPINION
CASTILLE, Justice.
This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Cumberland County. Following a capital jury trial, which commenced on May 9, 1996, appellant was convicted of first-degree murder. At the penalty phase, the jury found three aggravating circumstances and two mitigating circumstances, and also found that the aggravating circumstances outweighed the mitigating circumstances; accordingly, it returned a sentence of death. Post-verdict motions were denied and the trial court imposed the death penalty. For the reasons set forth below, we now affirm the conviction and judgment of sentence.
Although appellant has not challenged the sufficiency of the evidence, this Court performs a self-imposed duty to review the sufficiency of the evidence underlying the first-degree murder conviction in capital cases. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, supports the jury’s finding of all of the elements of the offense beyond a reasonable doubt. See Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986). Evidence is sufficient to sustain a conviction of first-degree murder where the Commonwealth establishes that the defendant acted with the specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was done with premeditation or deliberation. See 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). A- specific intent to kill may be proven by circumstantial evidence; it may be inferred by the use of a deadly weapon upon a vital part of the victim’s body. Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).
The evidence adduced at trial showed that on February 2, 1995, appellant, who was on the run after committing multiple homicides in other Pennsylvania counties, arrived in Harrisburg and unsuccessfully attempted to sell rings stolen from one of his previous victims to his friend, J.M. Appellant told M. that he was wanted on a homicide charge in Schuylkill County and that his gun was dropping them like flies. After leaving M., and sometime before 4:00 p.m., appellant abducted the elderly Betty Amstutz at or near her home in Harrisburg. Over the next few hours, appellant drove to various places with Ms. Amstutz being held hostage, obtaining money, clothing, and lodging by use of her credit card and checking account. Thus, at 3:59 p.m. a bank employee in Harrisburg, cashed a $500 check for Ms. Amstutz, who was accompanied by appellant. A bank security camera filmed the transaction. At approximately 5 p.m. an employee of a sporting goods store in Cumberland County, sold appellant and Ms. Amstutz $262.05 worth of Orlando Magic products, which were purchased with a credit card belonging to Ms. Amstutz. At 5:26 p.m. an employee of a Camp Hill bank, cashed another check in the amount of $1,139.95 for appellant and Ms. Amstutz. A bank security camera filmed that transaction as well. Finally, at 6:04 p.m., Ms. Amstutz and appellant checked into the Knight’s Inn in Carlisle, Pennsylvania using Ms. Amstutz’s credit card. Shortly thereafter, at approximately 6:30 p.m. a woman and her daughter were driving on McClures Gap Road in Carlisle, Pennsylvania, where they saw a white male standing near a car matching the description of the vehicle owned by Ms. Amstutz. The car was parked at the location where Ms. Amstutz’s lifeless body was discovered the next day.
Later that evening, appellant and a friend, C.C., invited M.R., the mother of appellant’s two children, to join appellant in his room at the Knight’s Inn in Carlisle. There, appellant, C. and R. smoked crack cocaine purchased by appellant. Appellant then gave $200 cash to R. and gave Ms. Amstutz’s car to C.. C. left R. and appellant in the hotel room and drove in Ms. Amstutz’s car to the apartment of R.’s sister and her friend.
The next morning, an employee of a tree service accidentally discovered Ms. Amstutz’s body on the side of McClures Gap Road and contacted local authorities. Police investigated the scene and broadcast information concerning Ms. Amstutz’s missing vehicle. Later that morning, R.’s sister and her friend were en route to the Knight’s Inn to pick up R. and appellant, at C.’ request. The police stopped them because their vehicle matched the description of Ms. Amstutz’s vehicle. Police learned from the two women that appellant was staying at the Knight’s Inn.
Thereafter, a police team surrounded appellant’s hotel room and, after a lengthy standoff, appellant finally tossed his silver nine-millimeter semiautomatic pistol outside of the hotel room, surrendered and was arrested. A subsequent search of the hotel room yielded a pair of bloodstained jeans, a knife, nine-millimeter full metal jacket ammunition, and five credit cards issued in the name of one of appellant’s previous murder victims, Penny Gunnet. In addition, a note written by appellant was recovered, which itemized the money appellant had stolen and his expenditures on crack cocaine and other purchases. At the bottom of the note, appellant had written, a good day’s work.
An autopsy performed on Ms. Amstutz showed that she had been shot nine times, including one lethal shot through the neck and another lethal shot to the head. A ballistics test showed that the full metal jacket bullets recovered at the scene of the murder and from Ms. Amstutz’s body matched appellant’s handgun. Furthermore, appellant’s fingerprints were found on Ms. Amstutz’s vehicle and an analysis of blood found on appellant’s shoe was consistent with Ms. Amstutz’s blood.
C.N. established the chain of events that led to appellant’s presence in Harrisburg and his motive for abducting and executing Ms. Amstutz. On January 31, 1995, N. and appellant had fled from appellant’s mother’s home in Clearfield County after appellant had shot his brother, Dustin, during a family fight. In need of a vehicle to escape, appellant and N. abducted June Ohlinger in Schuylkill County, stole her car and later murdered her. The two then fled to Rehoboth Beach, Delaware, in Ohlinger’s car, where they attempted to alter their appearances. N. and appellant then returned to York County, Pennsylvania, where they abducted Penny Gunnet, stole her car, and murdered her. Following this murder, N. and appellant became separated and N. returned to the home of a friend.
The foregoing evidence overwhelmingly supports the jury’s finding that Ms. Amstutz was unlawfully killed, that appellant committed the killing, that appellant acted with the specific intent to kill when he shot Ms. Amstutz nine times, and that the killing was done with premeditation and deliberation. We now proceed to address appellant’s allegations of error.
Appellant first claims that the trial court erred by denying his motion to dismiss the charges against him pursuant to the compulsory joinder provision of 18 Pa.C.S. § 110. Appellant maintains that the court should have dismissed the charges here because this murder was logically and temporally related to crimes he earlier committed in Schuylkill, York and Clearfield Counties. Appellant essentially argues that the same factors that made evidence of his prior crimes relevant to the trial of this matter also required a conclusion that, for purposes of § 110, the killing here must be viewed as being part of the same criminal episode as the prior crimes.
Appellant’s claim is without merit. Indeed, this Court recently rejected a substantially similar claim in Spotz II. As was noted there, § 110’s compulsory joinder rule was designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment by being forced to undergo successive trials for offenses stemming from the same criminal episode, and (2) to ensure judicial economy. Spotz II, supra, at 1157; Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983). Section 110(l)(ii) will only bar a prosecution if: (1) the former prosecution resulted in an acquittal or a conviction; (2) the instant prosecution is based on the same criminal conduct or arose from the same criminal episode as the former prosecution; (3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and (4) the instant charges and the former charges were within the jurisdiction of a single court. Spotz II, supra, at 1157; Commonwealth v. Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997); Commonwealth v. Bracalielly, 540 Pa. 460, 472, 658 A.2d 755, 761 (1995). Here, as in Spotz II, the dispute centers on the second factor. Because this murder and the previous killings were not part of the same criminal episode for § 110 purposes, appellant’s claim must be rejected.
To determine whether various acts constitute a single criminal episode, a court must consider the logical relationship and the temporal relationship between the acts. Spotz II, supra; Bracalielly, supra, at 472, 658 A.2d at 761. The mere fact that certain evidence of appellant’s other crimes was relevant and admissible in this prosecution does not mean that the four killings must be deemed part of a single criminal episode. Other crimes evidence may be admissible for a variety of evidentiary purposes. Here, the evidence was relevant to establish motive, ie., appellant’s need to escape after the previous killings, his intent, his identity as the killer, and to establish the sequence of events leading up to the murder of Ms. Amstutz. These limited evidentiary purposes of the relevant evidence stand in contrast to the purposes for which portions of the evidence were introduced in the separate prosecutions for each of the killings, where the relevant evidence constituted direct evidence of appellant’s guilt. See Spotz II, supra, at 1158.
However, the mere fact that the prior killings were admissible here for limited purposes does not alter their essentially independent nature. The killings involved four different victims, committed in four counties, occurring on different days, and generating four separate criminal investigations. The first killing occurred on January 81, 1995, in Clearfield County, when appellant killed his brother during a family argument. The second killing occurred on February 1, 1995, in Schuylkill County, where appellant, after fleeing Clearfield County, abducted June Ohlinger, stole her car and murdered her. Following that murder, appellant and N. fled to Rehoboth Beach, Delaware. They returned to York County, Pennsylvania, on February 2, 1995, where they abducted Penny Gunnet, stole her car and appellant ultimately murdered her. After murdering Ms. Gunnet, appellant fled to Harrisburg, without N., abducted Ms. Amstutz, stole her car, used her to get money and lodging from the victim, and then killed her. The killings are logically connected primarily by the fact that appellant committed all four of them.
Furthermore, although N. was an important witness at all three capital trials, there were other, equally important witnesses here who testified only to evidence proving that appellant murdered Ms. Amstutz. Thus, the Commonwealth called numerous witnesses to establish that appellant was seen with Ms. Amstutz prior to her murder, that a man matching appellant’s description was seen standing near a vehicle matching Ms. Amstutz’s at the location where her dead body was later found, and that appellant was staying at the Knight’s Inn. Moreover, an investigation unique to this killing was conducted by local law enforcement officials, which resulted in testimony from different investigating officers and authorities. What this Court noted in Spotz II is equally applicable here: this is not a case in which the Commonwealth relied solely upon the same witness(es) to prove each of the killings. Instead, the cases generated testimony of different lay and police witnesses as well as the establishment of separate chains of custody. Spotz II, supra, at 1158-59. Accordingly, there was not such a substantial duplication of issues of law and fact and duplicative witnesses in the four cases that joinder was required. See also Commonwealth v. Anthony, 553 Pa. 55, 64, 717 A.2d 1015, 1019 (1998); Bracalielly, supra, at 472, 658 A.2d at 761.
Appellant also argues that joinder was required by this Court’s holding in Commonwealth v. Hude. We rejected a similar argument in Spotz II. That analysis need not be repeated here. It is enough to note that the killings of separate human beings here cannot be compared to the ongoing, indistinguishable drug sales at issue in Hude. Spotz II, supra, at 1159. Accordingly, the trial court did not err in denying appellant’s motion to dismiss the charges pursuant to the compulsory joinder requirements of § 110.
Appellant next contends that the trial court abused its discretion in failing to issue an advance cautionary instruction regarding the limited admissibility of the evidence of the previous killings. Where the proffered evidence of other crimes is extensive, appellant argues, waiting until the court’s final charge to caution the jury is improper.
This Court has held that a limiting instruction may be given either as the evidence is admitted or as part of the general charge. Commonwealth v. Covil, 474 Pa. 375, 383, 378 A.2d 841, 845 (1977). Rule 1119(d) of the Rules of Criminal Procedure, adopted after Covil, likewise states that a trial judge may give instruction to the jury before the taking of evidence or at any time during the trial as the judge deems necessary and appropriate for the jury’s guidance in hearing the case. Pa.R.Crim.P. 1119(d). The Comment to the Rule reaffirms that the determination of when to charge the jury is discretionary with the trial court: It is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at anytime during trial are appropriate or necessary to assist the jury in hearing the case. Furthermore, although the Court in Covil expressed a preference that trial courts give a limiting instruction at the time the evidence is introduced, where possible, Covil itself approved a determination in that case to postpone issuing the charge. 474 Pa. at 384, 378 A.2d at 846.
The other crimes evidence in this case indeed was extensive, involving multiple previous crimes and multiple witnesses. In addition, the evidence was admissible for a variety of relevant purposes, i.e., to prove motive, intent, identity, and the sequence of events — as the court ultimately instructed the jury in its closing charge. The trial court here determined that, because of the complexity of the evidence and the number of witnesses involved in presenting it, it would be confusing and repetitive to give instructions on the limited admissibility of the particular evidence as it was introduced. In so holding, the trial court relied upon the Superior Court’s decision in Commonwealth v. Enders, 407 Pa.Super. 201, 595 A.2d 600 (1991). In Enders, the Superior Court held that the trial court there did not err in delaying a limiting instruction to the final charge where, inter alia, the evidence subject to the charge was extensive and numerous witnesses were called. As in Enders, the trial court was in the best position to make the determination here, and we perceive no abuse of discretion. Indeed, given the multiple purposes for which the evidence was relevant — purposes that appellant was free to dispute — and the number of witnesses and acts involved, a comprehensive advance instruction by the trial court would have been difficult. We perceive no error in waiting until the totality of the evidence was placed before the jury before instructing them on the specific, appropriate purposes of the evidence.
In a related argument, appellant next complains that the trial court’s instruction concerning the other crimes evidence was defective because it over-emphasized the relevance of the evidence rather than emphasizing the caution with which the jury should consider it. Appellant argues that, rather than being a cautionary limiting instruction, the court’s instruction wrongly elaborated on the value of the evidence to the Commonwealth.
An instruction will be upheld if it clearly, adequately and accurately reflects the law. Commonwealth v. Hawkins, 549 Pa. 352, 391, 701 A.2d 492, 511 (1997). The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court’s instruction accurately conveys the law. Id. There was no error in the comprehensive instruction here. The Court began the charge by noting the single, improper purpose for which the jury could not consider the evidence, ie., to show bad character or criminal propensity. Part and parcel of any instruction as to what use of the evidence could not be made was guidance as to the proper purpose for which it could be considered. Those purposes and concepts, ie., intent, motive etc., were not self-explanatory, but required elaboration. Appellant does not dispute that the evidentiary purposes outlined in the court’s charge here were both applicable and accurately described. Instead, his complaint appears to be that the instruction was too accurate. Because the instruction accurately explained the purpose for which the evidence could, and could not, be considered in light of the circumstances, it was not erroneous. Accordingly, appellant’s claim fails.
Appellant’s remaining three claims concern the penalty phase. First, appellant contends that the trial court erred in its penalty phase instruction to the jury because it consolidated six mitigating circumstances urged by the defense into four. At the penalty phase, appellant had invoked three statutory mitigating circumstances: (1) he was under the influence of extreme mental or emotional disturbance; (2) his capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired; and (3) his age at the time of the offense. In addition, appellant argued to the jury six other mitigating circumstances falling under the statutory catchall provision, i.e., [a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. 42 Pa.C.S. § 9711(e)(8). The six circumstances were that: (1) he suffered extreme neglect during his formative years; (2) he suffered physical abuse from his father and older brother; (3) he was actively taught antisocial behavior by his mother and stepfather in his formative years; (4) he was denied the treatment he needed by his mother and stepfather; (5) despite his difficult history, he has helped others in need; and (6) he was a talented artist and writer. Appellant requested that these six other mitigating circumstances be specifically enumerated in the court’s jury charge and printed on the verdict slip. The trial court elected not to simply reproduce appellant’s list of alleged mitigating circumstances, but instead charged the jury on the four specific statutory mitigators, including the catchall provision. In speaking of the catchall provision, the court listed some, but not all, of the six circumstances counsel had argued to the jury. The court was careful to emphasize, however, that the circumstances it listed were not the exclusive circumstances to consider under the catchall provision. In addition, the court instructed the jury to consider counsel’s argument with respect to the mitigating factors.
Appellant contends that the trial court’s failure to specifically track his argument by listing each and every one of the mitigating circumstances he had argued infringed upon the province of the jury to decide the mitigating circumstances and, thus, violated the Eighth and Fourteenth Amendments of the United States Constitution. This claim is meritless.
This Court has already recognized that the trial court does not unconstitutionally limit the range of mitigating circumstances to be considered by the jury when it accurately describes the relevant statutory mitigating circumstances found at 42 Pa.C.S. § 9711(e), and also instructs the jury on the catchall mitigation. Commonwealth v. Williams, 532 Pa. 265, 279, 615 A.2d 716, 723 (1992). In Williams, the defendant had invoked as a mitigating circumstance that he had acted under extreme duress or under the substantial domination of another person. 42 Pa.C.S. § 9711(e)(5). He maintained that the court’s charge, which tracked the statutory language, unconstitutionally limited the range of mitigating circumstances that the jury could consider. Williams, supra at 279, 615 A.2d at 723. This Court rejected the claim, holding that:
While we agree with appellant that the Eighth Amendment to the United States Constitution requires that the sentencer must consider any relevant mitigating evidence, we cannot conclude that the trial court herein unconstitutionally limited the range of mitigating circumstances that the jury could consider through its use of the words extreme and substantial. ..'. [T]he trial court ... instructed the jury on the ‘catchall’ provision ‘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)(8).... To the extent that relevant evidence nevertheless may not qualify for one of those two enumerated mitigating circumstances, it can always be considered under subsection (e)(8).
Id. (emphasis in original). This Court further specifically noted that it is presumed that the jury will follow the clearly open-ended nature of the reference to ‘any other evidence of mitigation’ in (e)(8). Id. at 280, 615 A.2d at 723-24. See also Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849 (1998).
Similarly, in Commonwealth v. Jasper, 531 Pa. 1, 610 A.2d 949 (1992), the defendant had claimed that the mitigating evidence he had argued was not specifically enumerated in the Court’s charge, but rather was included under the catchall provision at § 9711(e)(8). This Court unequivocally held that the trial court was not required to specifically reiterate the defendant’s arguments in mitigation:
To seek to obligate a court ... to specify to a jury that ‘anything’ in mitigation must be an equal part of the other remaining enumerated mitigating circumstances is to engage in frivolous doubletalk. For in the most elementary and plain sense, ‘any other’ is itself an enumerated consideration .... That is to say that our statutory scheme employs no tricks, gimmicks or barriers of any sort designed to frustrate the full presentation of mitigating evidence which is balanced against aggravating circumstances by an unbound jury.
Id. at 11-12, 610 A.2d at 954.
Here, the trial court’s charge clearly tracked the relevant statutory mitigating circumstances alleged in this case:
The first one is that the defendant was under the influence of extreme mental or emotional disturbance. Two, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. Three, the age of the defendant at the time of the crime. And four, any other evidence of mitigation concerning the character and record of the defendant, and the circumstances of his offense, including but not limited to that the defendant was neglected during his childhood, including any treatment he failed to receive, that the defendant was physically abused, that the defendant had a poor upbringing by his parents, that the defendant could have been helpful to others. Consider counsel’s argument in that — in all these respects. ...
N.T. 5/16/96 at 1909-10 (emphasis added). The trial court thus specifically instructed the jury to consider any other evidence of mitigation concerning the character and record of the defendant. The trial court highlighted representative samples of appellant’s arguments and made clear that those examples were not exclusive, and emphasized that the jury was to consider appellant’s counsel’s arguments respecting mitigation. With regard to the only alleged mitigating factors that the court did not specifically enumerate, i.e., that appellant supposedly was a talented artist and that his family had mistreated him, the court never limited appellant’s counsel’s ability to vigorously argue those points to the jury.
There was no error here. The jury was fully and accurately charged. No limitation was placed upon its consideration of mitigating circumstances. Accordingly, no relief is warranted on this issue.
Appellant next contends that the trial court’s penalty phase definition of the term preponderance of the evidence, in explaining appellant’s burden of proving mitigating circumstances, was erroneous. According to appellant, the court’s charge failed to adequately convey the difference between the Commonwealth’s burden (beyond a reasonable doubt) and his burden (preponderance). When reviewing a challenge to a jury instruction, we must review the charge as a whole. See Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996). So viewed, there was no error here.
The trial court gave the following instruction regarding the relative burdens of proof borne by the Commonwealth and appellant at the penalty phase:
The Commonwealth must prove any aggravating circumstance beyond a reasonable doubt. This does not mean, as I told you before, that the Commonwealth must prove the aggravating circumstance beyond all doubt and to a mathematical certainty. A reasonable doubt is the kind of doubt that would cause a reasonable and sensible person to hesitate before acting upon an important matter in his or her own affairs. A reasonable doubt must be. a real doubt[,] it may not be one that a juror imagines or makes up to avoid carrying out an unpleasant duty. By contrast, the defendant must prove any mitigating circumstances. However, the defendant only has to prove those mitigating circumstances by a preponderance of the evidence. That is by the greater weight of the evidence.
N.T. 5/16/96 at 1905-06. The court further emphasized the Commonwealth’s higher burden, as follows:
This different treatment of aggravating and mitigating circumstances is one of the law’s safeguards against unjust death sentences. It gives a defendant the full benefit of any mitigating circumstances. It is closely related to the burden of proof requirements. Remember, the Commonwealth must prove any aggravating circumstance beyond a reasonable doubt. While the defendant only has to prove any mitigating circumstance by a preponderance of the evidence.
N.T. 5/16/96 at 1912.
In assailing this charge, appellant cites to cases where the trial court stated that the preponderance standard was a lesser burden. But this Court has never suggested that that particular language was required. To the contrary, in Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997), we specifically rejected a claim that a charge, materially indistinguishable from the first quoted portion of the charge above, was defective because it did not clarify that preponderance is a lesser standard than reasonable doubt. We held that the charge issued in Hall, though terse, was adequate because, [t]he trial court instructed the jury that mitigating circumstances need only be proven by a preponderance of the evidence and that a preponderance exists when the evidence for the proposition to be proven is greater than the weight of the evidence against the proposition. Hall, supra at 805, 701 A.2d at 208. The charge here likewise accurately defined preponderance of the evidence.
Moreover, the instruction here was stronger than the charge in Hall. In the second quoted portion of the charge, the trial court specifically contrasted the relative burdens of the Commonwealth and appellant by reminding the jury that the Commonwealth must prove any aggravating circumstance beyond a reasonable doubt. While the defendant only has to prove any mitigating circumstance by a preponderance of the evidence. The court also emphasized that aggravating and mitigating circumstances were treated differently under the law. The court’s use of the terms different, safeguard, full benefit, and its statement that the defendant only had to prove his burden by a preponderance, clearly communicated to the jury the qualitative differences in the respective burdens of proof.
Finally, the language used in the trial court’s charge was virtually identical to the charge issued in Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999). The Court in Williams held that, when viewed as a whole, the trial court’s penalty phase instructions plainly informed the jury concerning the relative burdens of proof applicable to aggravating circumstances and mitigating circumstances and clearly conveyed that Williams bore the lesser burden. Id. at 245, 732 A.2d at 1187. As this Court has previously upheld the accuracy of this jury instruction, no relief is warranted.
Appellant last contends that the trial court should have instructed the'jury at the penalty phase, pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that there is no parole from a sentence of life imprisonment in Pennsylvania. A Simmons instruction, detailing what a life sentence means in Pennsylvania, is required only if the prosecution makes the defendant’s future dangerousness an issue in the case and the defendant specifically requests such an instruction. Commonwealth v. Smith, 544 Pa. 219, 242, 675 A.2d 1221, 1232 (1996), Commonwealth v. Chandler, 554 Pa. 401, 414, 721 A.2d 1040, 1046 (1998). Here, neither of the conjunctive predicates requiring a Simmons instruction exists. Appellant concedes both that the Commonwealth did not argue future dangerousness and that he never requested a Simmons charge. The trial court did not err in failing to issue a charge appellant was not entitled to and did not request.
Finally, this Court must conduct a statutory review of the death sentence. Pursuant to the version of 42 Pa.C.S. § 9711(h)(3) applicable to this appeal, this Court must affirm the sentence of death 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); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
Id. After reviewing the record below, we conclude that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor. We also conclude that the evidence was sufficient to establish the three aggravating factors found by the jury: that appellant committed a killing while in the perpetration of a felony; that appellant had a significant history of felony convictions; and that appellant had been convicted of another murder, committed either before or at the time of the offense at issue.
With respect to proportionality, since the jury found that the three aggravating circumstances outweighed the two mitigating circumstances, it was statutorily required to impose a sentence of death. 42 Pa.C.S. § 9711(c)(l)(iv). Further, we have conducted an independent review of similar cases and reviewed the data collected by the Administrative Office of the Pennsylvania Courts, which reveals that the sentence of death was not disproportionate to the penalty imposed in similar cases. See e.g., Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679 (1998); Bond, supra.
Accordingly, we affirm the verdict and sentence of death imposed upon appellant by the Court of Common Pleas of Cumberland County.
Chief Justice FLAHERTY files a concurring opinion.
Justice NIGRO files a concurring opinion.
[OPINION BY FLAHERTY, Chief Justice, type=concurrence]
FLAHERTY, Chief Justice,
concurring.
A jury with the weighty responsibility of deciding whether one lives or is put to death certainly should be made aware of what is meant by life without parole in this commonwealth, thus, although I join the majority, I write once again to express my view that a Simmons type instruction should be given in all capital cases.
[OPINION BY NIGRO, Justice, type=concurrence]
NIGRO, Justice,
concurring.
I join the majority opinion but write separately only to clarify my position regarding Appellant’s claim that he was entitled to a Simmons instruction at his penalty hearing. Under the current state of the law, I am compelled to agree with the majority that the trial court did not err in failing to issue a Simmons instruction in the instant case, as Appellant did not request such an instruction nor did the Commonwealth raise the issue of Appellant’s future dangerousness. However, for the reasons more fully explained in my concurring opinion in Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 43-44 (1998), I continue to believe that the better approach would be to give a standardized Simmons instruction in all capital cases.
18 Pa.C.S. § 2502.
The aggravating circumstances were that appellant committed a killing while in the perpetration of a felony, see 42 Pa.C.S. § 9711(d)(6); that appellant had a significant history of felony convictions involving the use or threat of violence to the person, id. § 9711(d)(9); and appellant had been convicted of another murder, committed either before or at the time of the offense at issue, id. § 9711 (d)(l 1). The mitigating circumstances were that appellant was neglected during his childhood and appellant had a poor upbringing by his parents. Id. § 9711(e)(8).
The time frame for the abduction was established in part by the fact that investigators found groceries requiring refrigeration on Ms. Amstutz’s kitchen counter. The Commonwealth introduced a tape receipt from a local grocery store indicating that her purchases were made on February 2, 1995, at 3:15 p.m.
Other evidence was introduced proving appellant’s familiarity with the area where Ms. Amstutz’s body was found. Specifically, appellant had previously received a traffic citation and met friends on a bridge on that road. After his arrest, appellant falsely denied ever having been on the road.
The bullets used to kill Ms. Amstutz also matched those that were used to kill appellant’s three previous victims, Dustin Spotz, Penny Gunnet and June Ohlinger.
Appellant was convicted of involuntary manslaughter in Clearfield County, arising from the killing of his brother, Dustin. Appellant was then tried separately, convicted and sentenced to death for the killing of June Ohlinger in Schuylkill County. This Court affirmed the death sentence. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) (hereinafter Spotz I). Appellant was later convicted of first-degree murder in York County and sentenced to death for the murder of Penny Gunnet. This Court likewise affirmed that death sentence. Commonwealth v. Spotz, 756 A.2d 1139 (Pa.2000) (hereinafter Spotz II). It was after avoiding capture lor the murder of Ms. Gunnet, and still in need of a car and money to continue his flight, that appellant murdered Ms. Amstutz in Cumberland County.
We also note that appellant’s suggestion that the jury was unaware of the limited purpose of the evidence until the court’s final charge is not entirely true. In its opening statement, the Commonwealth made reference to the other crimes evidence it would present, noting that it would help to show motive. At no point did the prosecutor suggest that the evidence proved appellant to have a propensity for crime. The fact that the evidence was not employed, or argued, for an improper purpose is further reason to trust that the jury, which is presumed to have followed the charge, did so here. See Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992).
42 Pa.C.S. § 9711(e)(2).
Id. § 9711(e)(3).
Id. § 9711(e)(4).
The trial court listed four factors: (1) appellant was neglected during his childhood, including any treatment he failed to receive; (2) appellant was physically abused; (3) appellant had a poor upbringing by his parents; and (4) appellant could have been helpful to others.
See, e.g., Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994); Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992); Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992).
Appellant attempts to distinguish Hall on the ground that it involved a claim of ineffective assistance of counsel, while appellant preserved his objection here. The Williams case also involved a claim of ineffective assistance. Appellant’s distinction fails. The ineffectiveness claim was rejected in Hall precisely because the charge accurately and correctly conveyed to the jury its task of determining if an aggravating or mitigating circumstance was proven. 549 Pa. at 306, 701 A.2d at 208. Likewise, the charge in Williams, materially identical to the charge here, was held to be a proper charge. Williams, 557 Pa. at 245, 732 A.2d at 1187. Hall and Williams unquestionably control.
Appellant argues that his Simmons claim should prevail, notwithstanding the absence of the necessary predicates, under our relaxed waiver rule in capital case direct appeals. See Zettlemoyer, supra. Relaxed waiver has no applicability here. The trial court's obligation to issue a Simmons charge is triggered only upon the existence of twin requirements, i.e., future dangerousness being placed at issue, and a defense request. These are substantive requirements, not procedural ones. Appellant’s Simmons claim fails on the merits.
Effective June 25, 1997, the General Assembly repealed 42 Pa.C.S. § 971 l(3)(h)(iii), pursuant to which proportionality review is required. However, we continue to review for proportionality all cases on direct appeal in which the sentence of death was imposed prior to that date. See Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997) (Act 28 does not apply retroactively).
The Commonwealth apparently did not pursue charges of kidnapping, robbery or robbery of a motor vehicle, but the court at the penalty phase fully and properly instructed the jury on each element of those felonies and that the Commonwealth bore the burden of proving these elements beyond a reasonable doubt.
Appellant had three prior convictions for robbery, one prior conviction for conspiracy to commit robbery, and three for burglary. In addition, he was convicted of aggravated assault and involuntary manslaughter with regard to the killing of his brother and he was convicted of first-degree murder in the deaths of June Ohlinger and Penny Gunnet.
The Prothonotary of this Court is directed to transmit to the Governor's office a full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court pursuant to 42 Pa.C.S. § 971 l(i).
870 A.2d 822
COMMONWEALTH of Pennsylvania, Appellant/Cross-Appellee v. Mark N. SPOTZ, Appellee/Cross-Appellant.
Supreme Court of Pennsylvania.
Argued Sept. 8, 2003.
Decided March 29, 2005.
Paul Edward Cherry, Clearfield, for the Com. of PA.
Mary Rebecca Ennis, Broomall, Paul Boas, Pittsburgh, for Mark N. Spotz.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.
[OPINION BY Justice CASTILLE. type=majority]
OPINION
Justice CASTILLE.
The dispositive issue in these cross-appeals is whether the Superior Court erred in finding that trial counsel for appellee/cross-appellant Mark N. Spotz (“appellee”) was ineffective, as a matter of law, for failing to object to alleged prosecutorial references to appellee’s post-arrest silence. For the following reasons, we reverse the Superior Court’s grant of a new trial on this claim, reinstate appellee’s judgment of sentence, and dismiss this claim of counsel ineffectiveness, as well as the claims of counsel ineffectiveness raised on appellee’s cross-appeal, without prejudice to appellee’s right to pursue them under the Post Conviction Relief Act (“PCRA”).
On January, 31, 1995, appellee, who was on parole for a robbery conviction at the time, and his brother, Dustin Spotz, engaged in an argument at the home of their mother and stepfather in Clearfield County. The argument began after Dustin’s fíancée’s son placed a pet gerbil in front of appellee’s face while he was watching television. Appellee yelled at the child and threatened to physically harm him, angering Dustin. The argument escalated into a physical confrontation and, during the fight, Dustin stabbed appellee twice in the upper back with a butter knife, slightly wounding him. In response, appellee threatened to kill Dustin and proceeded upstairs, returning with a .9 mm handgun. The argument continued until appellee fired eight shots at his brother. The first six shots missed, but the last two fatally struck Dustin in the chest. After the victim fell to the ground, appellee leaned over him, spit on his face and stated, “There you go, pussy.”
Dustin’s fiancée tried to call the police, but appellee grabbed the phone and declared that nobody could call anyone until he escaped the scene. Appellee put the handgun in his pants and attempted to retrieve the spent bullet shells from the kitchen floor. Appellee and his girlfriend, C.N., then fled the house in a vehicle driven by his stepfather. Three days later, on February 8, 1995, police apprehended appellee at a motel in Carlisle, Pennsylvania.
Following his arrest and return to Clearfield County, appellee was charged with first degree murder, third degree murder, voluntary manslaughter, aggravated assault, recklessly endangering another person, carrying a firearm without a license, and former convict not to own a firearm. At his subsequent jury trial, appellee claimed self-defense and defense of others, arguing for an outright acquittal of the non-firearms charges. In support of this defense, appellee testified and claimed that Dustin had a knife in each hand and was about to attack him, his stepfather, and his mother; only then did he shoot and kill Dustin in defensive response. Appellee further claimed that Dustin had abused both his mother and appellee during appellee’s childhood, including an incident in 1989 where Dustin stabbed appellee in his hand, requiring medical treatment.
On cross-examination, the prosecutor questioned appellee about his failure to help his brother after shooting him, his flight, and his subsequent failure to report the shooting to police on the night in question and to tell the police that he was defending himself. The primary focus of this exchange was upon appellee’s conduct immediately after the killing:
Q: You were bleeding heavily?
A: I said my only concern was if I was going to die. I was bleeding, man. I was bleeding bad. I was hurting. I didn’t know what was happening.
Q: But you didn’t go to the DuBois Hospital; you didn’t go to the Clearfield Hospital. Why?
A: When I was walking across the parking lot, Chris[tine N.] starting filling my head with a lot of stuff that just didn’t make sense. To my knowledge and the way I remember, my brother wasn’t dead when I left. He was still alive. He was on the floor. Everything—I mean, a lot of things I remember now that weren’t clear when this stuff happened. You know. It was traumatic, you know, I was shocked. I didn’t understand a lot of things for a long time.
She told me I killed my brother. I was on the run from parole. And if I went in the hospital, the cops would arrest me. Now, she had me scared. One, I didn’t want to go back to jail for anymore nonsense like getting speeding tickets. And two, she said I killed somebody that I didn’t know I killed, you know. And to me, I didn’t kill him.
Q: And you didn’t stick around to help your brother, either; did you?
A: I did what I could do.
Q: You didn’t stay to report this to the authorities that night?
A: I went to the hospital, man. I was stabbed.
Q: You didn’t go into the hospital?
A: I didn’t say I went in. I went.
Q: Did you go back to Chestnut Grove to talk to the police?
A: No.
Q: No.
A: No.
Q: To tell them that you were defending yourself. Did you tell the police that?
A: I just believe I—
Q: Answer my question, sir. Did you tell the police that night that you were defending yourself?
A: I didn’t talk to the police that night.
N.T. 9/25/1995 at 150-52.
The prosecutor immediately followed this exchange with two questions which, although they did not specifically refer to appellee’s arrest, nevertheless were broadly phrased as to encompass both pre-arrest and post-arrest periods:
Q: Other than today, did you ever tell the police that you were defending yourself?
A: I never talked to the police to this day. They never asked me questions. They never asked me anything.
Q: The police never talked to you, or attempted to talk to you?
A: They said things to me. They never tried to question me. They put guns in my face and said if I ever walked the street, they’d hunt me down and kill me theirself [sic]. That’s what the cops said to me.
N.T. 9/25/1995 at 152 (emphases supplied). Appellee’s counsel did not object to either question.
During closing argument, the prosecutor argued to the jury that the evidence showed that appellee did not act in self-defense, and in highlighting why that was so, he made reference to appellee’s conduct after the killing, including his threat to kill his brother after being stabbed, his flight after shooting his brother, and his failure to relate to the authorities that he was defending himself. In this argument, the prosecutor’s primary focus again was on appellee’s conduct on the night of the killing. The prosecutor nevertheless again made a single, broad temporal reference which encompassed the post-arrest period:
But, no, he came right back down [the stairs]. He came right back down. Another discrepancy in their claim of self-defense. Testimony was you mother F’n son of a bitch, you’re dead. He said that. Does that sound like somebody in self-defense?
He never told the authorities that he was defending himself. Why? Because he fled. Does that sound like somebody who is defending himself and others, that he fled, didn’t stay there to tell the police what happened? Does that sound like somebody who is defending himself or defending his family? No. Instead, he fled, he took off.
N.T. 9/26/95 at 45-46 (emphasis supplied). Again, appellee’s trial counsel forwarded no objection.
With respect to the homicide charge, the trial court instructed the jury on first and third degree murder, as well as “heat of passion” voluntary manslaughter. The court also charged the jury on justifícation/self-defense. N.T. 9/26/95 at 54-55, 81-83. On September 26, 1995, the jury acquitted appellee of first and third degree murder, but convicted him of voluntary-manslaughter, aggravated assault, recklessly endangering another person, and the firearms offenses. On October 17,1995, the trial court sentenced appellee to an aggregate term of seventeen and one-half to thirty-five years of imprisonment. No timely direct appeal was filed.
On January 16, 1996, appellee filed a timely petition for PCRA relief in which he claimed ineffective assistance by his trial counsel for failing to timely appeal his judgment of sentence, and seeking nunc pro tunc reinstatement of his direct appeal rights. On November 17, 1998, following a hearing, appellee was granted that relief and he later filed a timely nunc pro tunc appeal. In his subsequently-filed Pa. R.A.P.1925(b) statement of matters complained of on appeal, appellee alleged several ineffective assistance of counsel claims and several claims of trial court error. On December 22, 1998, the trial court filed an opinion in which it briefly addressed the listed claims, but also noted that it was hamstrung in its evaluation of the claims since no evidentiary hearing had been held regarding the ineffective assistance of counsel claims and, in the court’s view, such a hearing might be necessary to properly resolve the claims.
On February 8, 1999, appellee’s then-counsel filed a motion for withdrawal of appearance. The Superior Court granted the motion, as well as a concomitant motion for leave to strike and re-file briefs. Appellee’s current counsel then filed an amended Rule 1925(b) statement alleging that trial counsel was ineffective in six additional instances, and that the cumulation of these issues entitled appellee to relief. No claims of trial court error were raised therein. The brief that counsel then filed in the Superior Court likewise raised no claims of trial court error, but instead, listed six claims of ineffective assistance of trial counsel and a derivative seventh claim respecting the cumulative effect of the specific claims. Due to the unusual procedural posture of the case, no hearing on the ineffectiveness claims had been held, trial counsel had not been heard from, and the trial court did not address them.
On October 4, 2001, the Superior Court panel issued a memorandum decision granting appellee summary relief on his claim that trial counsel was ineffective in failing to object to the above-quoted cross-examination of appellee and the prosecutor’s closing argument on the grounds that they included impermissible and inherently prejudicial references to his post-arrest silence. Accordingly, the panel reversed the judgment of sentence and remanded for a new trial. Given this disposition, the panel deemed it unnecessary to address appellee’s other ineffective assistance of counsel claims.
In finding trial counsel ineffective, the panel first recognized that neither the U.S. Constitution nor the Pennsylvania Constitution preclude references to a criminal defendant’s pre-arrest silence. Slip op. at 7 (citing Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996)). On the question of whether the references here involved pre-arrest or post-arrest silence, the panel thought that this case was “remarkably similar” to Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), a case involving a preserved objection to a reference to post-arrest silence, and in which this Court granted a new trial. In Turner, the prosecutor’s cross-examination of the defendant asked whether he had “ever” told police the version of events he had just testified to—which, as here, went to self-defense. Turner’s counsel timely objected before Turner could answer the question, the objection was sustained, and a cautionary instruction was issued, but the court refused counsel’s additional request for a mistrial. This Court held that the prosecutor’s reference encompassed post-arrest silence, and therefore was impermissible, and although it was subject to harmless error analysis, it could not be deemed harmless beyond a reasonable doubt under the facts of that case.
In addition to Turner, the panel below cited this Court’s decision in Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154 (1993), and noted that Clark precluded it from holding that the temporal nature of the references in this case (ie., “ever” and “never”) were limited to a pre-arrest failure to speak to police. Because the references here were materially “identical” to the questions posed in Turner and Clark, the panel concluded that appellee’s claim that his counsel was ineffective for failing to object possessed arguable merit. Slip op. at 9.
The panel then turned to the questions of reasonable basis and prejudice. The fact that there had been no hearing below, no testimony from counsel, and no expression of view from the trial court did not cause the panel any concern in resolving the claim. Instead, the panel resolved these aspects of the ineffectiveness inquiry as a matter of law, and in the following cursory manner:
Although there has been no evidentiary hearing on the matter, we fail to see any possible reasonable basis for trial counsel’s inaction. Once the questions were asked, trial counsel should have objected to preserve the issue, and requested a mistrial outside the hearing of the jury. Trial counsel here did absolutely nothing. Moreover, the final prong of the ineffectiveness test, prejudice to the Appellant, is obvious. As noted earlier, we recognize that there exists a strong disposition on the part of jurors to consider the exercise of the Fifth Amendment privilege as an admission of guilt. Turner, 499 Pa. at 582, 454 A.2d at 539. Thus, in accordance with Turner, supra, we find the jury may have impermissibly concluded that Appellant’s exercise of his right to remain silent was an implicit admission of guilt. Consequently, because of its nature, an impermissible reference to the accused’s post-arrest right to remain silence [sic] is innately prejudicial. Clark, 533 Pa. [at] 587, 626 A.2d at 158.
Slip op. at 10-11.
The Commonwealth filed a petition for allowance of appeal challenging the panel’s summary finding that trial counsel was ineffective. Appellee filed a protective cross-petition alleging that the Superior Court erred in failing to address and resolve his additional ineffective assistance of counsel claims. Both the petition and the cross-petition were granted.
At the outset, we note that review in this direct appeal is complicated by the fact that the substantive claims are collateral claims assailing the performance of trial counsel, issues which were raised for the first time on appeal, and as to which there was no hearing below or findings by the trial court. In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which was filed after the Superior Court decided this case, this Court abrogated the procedural rule announced in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which had required new counsel to raise claims of previous counsel’s ineffectiveness at the first appropriate opportunity after new counsel entered the case, even if that first opportunity was on direct appeal and the claims of ineffectiveness were not raised in the trial court. The new rule fashioned in Grant generally requires a defendant to “wait to raise claims of ineffective assistance of trial counsel until collateral review.” 813 A.2d at 738. Grant applied the new rule to the parties in that case, dismissing Grant’s claims of ineffective assistance of trial counsel without prejudice to his ability to raise the claims on collateral review. Additionally, the Grant Court held that this new rule should apply retroactively to “any other cases on direct appeal where the issue of ineffectiveness was properly raised and preserved.” Id. at 738-39.
This Court has since limited the retroactive application of the Grant rule in a way which is implicated here. Specifically, we have held that “the retroactive application of Grant does not apply to claims of ineffective assistance of counsel where the intermediate appellate court rendered a merits disposition prior to the issuance of the decision in Grant.” Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1070 n. 2 (2003), cert. denied, 540 U.S. 1118, 124 S.Ct. 1065, 157 L.Ed.2d 911 (2004). Because the Superior Court in this case rendered a merits disposition on the single issue of ineffective assistance which it addressed prior to this Court’s decision in Grant, the general rule of deferral announced in Grant does not necessarily apply to this claim. Accordingly, if this Court were to determine that the Superior Court’s award of relief on the claim was appropriate on the merits, the award properly should stand; by the same token, if we are able to make a definitive determination that the claim should fail on this record as a matter of law, rejection of the claim would be appropriate. Bethea, 828 A.2d at 1076.
“[T]he test for counsel ineffectiveness is the same under both the Pennsylvania and federal Constitutions: it is the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa.2004) (collecting cases, including Commonwealth v. (Charles) Pierce, 515 Pa.153, 527 A.2d 973, 976-77 (1987), which held that the Pennsylvania constitutional standard for assessing ineffectiveness claims is the same as Strickland, including the standard for prejudice).
To better focus the Strickland analysis, this Court has applied the performance part of the test by looking both to the arguable merit of the claim lodged against counsel as well as the objective reasonableness of the path taken, or not taken, by counsel. E.g., [Commonwealth v.] Bomar, 573 Pa. 426, 826 A.2d [831,] 855 n. 19 [(2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004)]. Thus, the constitutional ineffectiveness standard requires the defendant to rebut the presumption of professional competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commomuealth v. (Michael) Pierce, 567 Pa.186, 786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. (Michael) Pierce, 786 A.2d at 221-23; see also Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998) (“If it is clear that Appellant has not demonstrated that counsel’s act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.”)
Id. at 460-61 (footnote omitted). The question of whether counsel was ineffective can have both factual and legal elements. In this case, however, there has been no evidentiaryhearing, the counsel whose performance is at issue has not been heard from, and there have been no factual determinations made by the trial court. The Superior Court essentially found that counsel was ineffective as a matter of law for failing to object. This purely legal determination is entitled to no deference; thus, this Court’s review of the question as it presents itself sub judice is plenary.
The Commonwealth argues as appellant that the references at issue were not to appellee’s post-arrest silence, but rather to his actions prior to any police involvement or custody. The Commonwealth submits that the trial prosecutor’s point was to emphasize appellee’s flight, such conduct being admissible to demonstrate his consciousness of guilt and to rebut his justification defense. The Commonwealth argues in the alternative that, if the prosecutor’s references implicated appellee’s silence, they nevertheless were not objectionable because, when viewed in context, they focused only upon the pre-arrest period. The Commonwealth also argues that appellee did not demonstrate that he suffered Strickland/Pierce prejudice. The Commonwealth notes that appellee was acquitted of the more serious charges of first degree murder and third degree murder; and that the verdict indicates that the jury accepted, at least in some measure, appellee’s self-defense theory, and is strong proof that he was not prejudiced by counsel’s failure to object.
Appellee responds that the Commonwealth’s argument that the prosecutor’s references related only to appellee’s flight and consciousness of guilt is misguided because the prosecutor never employed those terms. Appellee further argues that by employing the broad phrase, “[o]ther than today, did you ever ... ”, the prosecutor focused on a time frame which clearly encompassed the post-arrest period. Appellee submits that the prosecutor’s comments clearly were objectionable and counsel was ineffective because he failed to object, move for a mistrial, or request a cautionary instruction. Appellee also argues that the comments were prejudicial, stressing that the prosecutor’s further comment in his closing argument served to compound the prejudice.
In the seminal case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the U.S. Supreme Court determined that prosecutorial comment at trial on a defendant’s post-Miranda silence may violate due process, and that the prosecution generally may not impeach a testifying defendant with the fact of his post -Miranda silence. The Court reasoned that it would be fundamentally unfair and a deprivation of due process to provide Miranda warnings, which imply that silence carries no penalty, and then allow the defendant’s post-Miranda silence to be used by the prosecution as impeachment at trial. See Doyle, 426 U.S. at 617-18, 96 S.Ct. at 2244-45. In addition, the Court noted, when silence follows upon issuance of Miranda warnings, it may be a result of an exercise of Miranda rights (rather than, for example, a tacit admission); such silence, therefore, is “insolubly ambiguous.” Id. at 617, 96 S.Ct. at 2244. Following Doyle, the High Court held that cross-examination of a testifying defendant as to post-arrest silence does not violate due process where the silence occurred prior to the issuance of Miranda warnings or similar assurances. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982). Soon thereafter, however, this Court rejected Fletcher as a matter of Pennsylvania constitutional law in Turner, supra, reasoning that under Article 1, § 9 of the Pennsylvania Constitution, “the existence of Miranda warnings, or their absence, [does not] affect ... a person’s legitimate expectation not to be penalized for exercising the right to remain silent.” 454 A.2d at 540. Thus, Turner extended the temporal coverage of the Doyle restriction to the entire post-arrest period. See also Commonwealth v. DiPietro, 538 Pa. 382, 648 A.2d 777, 779 (1994). Both this Court and the High Court, however, have determined that there is no violation of due process when prearrest, pre-Miranda silence is used at trial to impeach a testifying defendant. See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Bolus, 545 Pa. 103, 680 A.2d 839.
If the only remark at issue in this case was the prosecutor’s reference in summation to appellee “never” telling authorities he was defending himself, the question of arguable merit might be close. Notwithstanding that the prosecutor uttered the open-ended word “never,” the context surrounding that remark made clear that the prosecutor was focusing on appellee’s conduct on the night of the killing, and why that conduct (specifically, appellee’s threat to his brother, his flight, and his failure to stay and tell police that he was defending himself when he shot his brother) belied his trial claim of self-defense. Moreover, the prosecutor argued that the reason appellee did not tell police he was defending himself from his brother’s assault was because he fled; that flight was, by definition, pre-arrest. Given this context, and the legitimate point actually being made, it would be difficult to say that counsel was constitutionally obliged to object to this single remark in closing.
However, under this Court’s precedent in cases such as Turner and Clark, the disputed questions posed during the prosecutor’s cross-examination of appellee arguably were subject to objection. First, we reject the notion that the prosecutor’s questions were confined to appellee’s flight; the prosecutor specifically asked appellee, “did you ever tell the police you were defending yourself?,” and appellee responded by countering that police had not questioned him. Second, although the primary thrust of the cross-examination focused upon the period during which appellee was in flight, the prosecutor’s disputed questions were broader; they were not confined either explicitly, or by context, to the pre-arrest period; and in point of fact they elicited testimony from appellee which specifically concerned his interactions with police after his arrest. Accordingly, at least as to the cross-examination of appellee, there were grounds for counsel to object to this questioning. Therefore, the Superior Court did not err in finding that the claim possesses arguable merit.
The Superior Court’s summary resolution of the succeeding questions of reasonable basis and prejudice, however, are more troubling. In recent years, this Court has expressed a distinct preference for a hearing on counsel’s strategy before venturing to hold that counsel lacked a reasonable basis for his or her actions or inactions. See, e.g., (Gribble, 863 A.2d at 473-74 (error for PCRA court to hold counsel ineffective in permitting client to waive penalty phase jury without first holding evidentiary hearing); Commonwealth v. Hughes, 865 A.2d 761, 799 (Pa.2004) (although there did not appear to be a reason for counsel’s failure to pursue claim of arguable merit, since there had been no hearing, “we cannot discern whether a reasonable basis existed for counsel’s omission. In such circumstance,. this Court has declined to divine, in the first instance on appellate review, whether counsel’s actions were reasonably based”) (citing Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa.2004)). Duffey is particularly notable because the claim of counsel ineffectiveness there, as here, sounded in a failure to object to a reference to post-arrest silence. Although this Court found that the claim had arguable merit and that the objectionable reference was prejudicial, we remanded for a determination of a reasonable basis, noting that in the absence of testimony from counsel, the court “should refrain from gleaning whether ... a reasonable basis exists.” Id. (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003)) (court should resolve question of reasonable basis for counsel’s actions in absence of evidentiary hearing only when answer is clear from record). Accord Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847, 849 (1976).
In the case sub judice, it cannot be said as a matter of law that counsel lacked a reasonable basis for failing to object to the prosecutor’s temporal references on cross-examination. Review of the reasonableness of counsel’s trial performance is not measured by an exercise in “spot the objection,” as might occur in a law school evidence examination. Counsel are not constitutionally required to forward any and all possible objections at trial, and the decision of when to interrupt oftentimes is a function of overall defense strategy being brought to bear upon issues which arise unexpectedly at trial and require split-second decision-making by counsel. The fact that an appellate court, reviewing a cold trial record, cannot prognosticate a reasonable basis for a particular failure to raise a plausible objection does not necessarily prove that an objectively reasonable basis was lacking. Objections sometimes highlight the issue for the jury, and curative instructions always do. Particularly in a case such as this, where the general line of questioning concerning flight and post-incident behavior was legitimate to rebut the justification defense, and only the proper temporal bound was crossed, counsel could believe that it was better not to call attention to the temporal limitation and to let his client explain himself. See Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478 (1998). It may be that counsel believed that his client acquitted himself well in his response. In this regal'd, it is worth noting that the actual evidence which resulted from this examination did not reveal that appellee stood silent in the face of a police accusation, thereby tacitly admitting guilt; instead, it revealed that police did not even attempt to question appellee, but instead put guns in his face and threatened him, according to appellee.
Furthermore, if counsel did not desire to call attention to the prosecutor’s temporal reference by requesting a curative charge, there may well be tactical considerations which weighed in favor of counsel’s deciding to proceed with this jury, rather than request the greater relief of a mistrial, as occurred in Turner. This was a case where the success of the justification defense depended in large part upon the jury’s response to appellee’s testimony, and counsel no doubt had some sense of whether this was a favorable or an unfavorable jury for appellee in light of that reality. In short, counsel may have deemed it better both to avoid drawing attention to the issue and to stay with this jury to verdict.
The deference to trial counsel that is required under Strickland and Pierce is a deference that arises from an appreciation of the art involved in the practice of law generally, and in the defense function particularly. This is not to say that there is no instance where the failure to object could be deemed unreasonable as a matter of law. But, such is the exception and not the rule; at least as a general principle, counsel should have a chance to be heard before being declared ineffective. Absent a hearing at which counsel’s actual reasons for failing to object may be explored, this is not a case where it can be said, as a matter of law, that there cannot have been a reasonable basis for failing to object.
A reasonable basis hearing would be unnecessary, however, if it could be determined that there is no reasonable probability that an objection at trial would have led to a more favorable outcome for appellee. Absent a showing of such prejudice, the claim of ineffective assistance fails. E.g., Bethea, 828 A.2d at 1076 (remand for reasonable basis hearing unnecessary where it is clear that appellee failed to show prejudice). Accord Commonwealth v. DiNicola, 866 A.2d 329, 336 (Pa.2005); Gribble, 863 A.2d at 460-61. The Superior Court did not deem the prosecutor’s references in this case to be prejudicial based upon an analysis of the nature of the references as measured against the strength of the prosecution’s case at trial. Instead, the panel applied what amounted to a presumption of prejudice, deeming it simply sufficient to say that references to post-arrest silence are “innately prejudicial” under Turner and Clark, and thus, the prejudice here was “obvious” since “the jury may have impermissibly concluded that [appellee’s] exercise of his right to remain silent was an implicit admission of guilt.” Slip op. at 11. To the extent the panel believed that prejudice in this instance is subject to proof simply by presumption, it clearly erred.
As this Court has recently emphasized, “the mere revelation of silence does not establish innate prejudice.” DiNicola, 866 A.2d at 336-37 (citing Whitney, 708 A.2d at 478) (“Even an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt.”). Moreover, this Court has made clear that improper references to post-arrest silence are subject to harmless error analysis in the direct appeal context, where an objection to the reference has been preserved. Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202, 214-15 (2003) (finding improper prosecutorial reference to post-arrest silence to be harmless given uncontradicted evidence of guilt); Turner, 454 A.2d at 540. More importantly, the test for prejudice in the ineffectiveness context is more exacting than the test for harmless error, and the burden of proof is on the defendant, not the Commonwealth. See Gribble, 863 A.2d at 472 (citing Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1307 (1994)). Accord Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 524-25 (2001). Certainly, if no per se rule attends the harmless error analysis applicable to a preserved Doyle/Tumer claim upon direct review, a similar presumption cannot control the stricter prejudice inquiry in the context of a collateral attack alleging ineffective assistance of counsel. Notably, the U.S. Supreme Court very recently reemphasized that it is only in the rarest of circumstances—none of which are presented here—that a presumption of prejudice is appropriate in assessing a claim of ineffective assistance of counsel. Florida v. Nixon, 543 U.S. 175, ——,-, 125 S.Ct. 551, 555, 562, 160 L.Ed.2d 565 (2004) (presumption of prejudice “is reserved for cases in which counsel fails meaningfully to oppose the prosecution’s case”) (citing United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984)). See also Bell v. Cone, 535 U.S. 685, 696-97, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002) (for Cronic’s presumed prejudice standard to apply, counsel’s “failure must be complete”).
In point of fact, this Court has applied the Strickland ineffectiveness measurement for assessing prejudice in reviewing claims of counsel ineffectiveness relating to the introduction of references to the defendant’s silence, weighing the precise nature of the reference against the strength of the evidence on the point at issue. DiNicola, 866 A.2d at 336-37 (pre-arrest silence case; applying reasonable probability that outcome would be different test, and analyzing prejudicial effect of counsel opening door to evidence in light of “circumspect” nature of reference, which was not “likely to burden Appellee’s Fifth Amendment right or to create an inference of an admission of guilt”); Duffey, 855 A.2d at 775 (post-arrest silence case involving penalty phase of capital trial; applying reasonable probability that outcome would be different test, and finding reference prejudicial); Whitney, 708 A.2d at 478 (post-arrest silence case; applying different outcome test; finding no prejudice in instance where counsel failed to object to reference to post-arrest silence, given strength of Commonwealth’s case and appellant’s failure to show “that the challenged testimony equated his post-arrest silence with guilt”). Thus, an actual showing of prejudice is required to prove counsel ineffective for defaulting on a Doyle/Turuer claim; the presumption of prejudice employed below by the Superior Court cannot suffice.
Viewing the prejudice question under the appropriate standard, it is notable, first, that the evidentiary result of the prosecutor’s exchange with appellee did not reveal that appellee was silent in the face of a post-arrest police accusation, thereby implying a tacit admission of guilt; but instead, appellee testified that police did not even attempt to question him and, indeed, threatened him. As in Whitney, there was no direct evidentiary linkage between appellee’s post-arrest silence and an inference of guilt arising from that silence. Accord DiNicola. Moreover, the prosecutor did not argue in closing that appellee’s post-arrest silence amounted to a tacit admission of guilt; instead, the prosecutor attributed appellee’s failure to tell authorities he was acting in self-defense to the fact that he fled, and that flight necessarily was confined to the pre-arrest stage. Finally, the verdict in this case, though not the outright acquittal appellee sought, nevertheless was favorable, as the jury acquitted appellee on the more serious counts of first and third degree murder.
On the other hand, this is arguably a case where the prosecutor’s references on cross-examination clearly encompassed the post-arrest period, and no less clearly elicited a response which concerned appellee’s post-arrest interaction with police. In addition, the nature of the prosecutor’s questions—if not appellee’s answers and the ultimate argument in summation forwarded by the prosecutor—certainly suggested that appellee failed to offer his self-defense account to police after his arrest, despite an opportunity to do so. Finally, the outcome of the trial turned upon the plausibility of appellee’s claim of justification which, if accepted in its entirety, would have warranted an acquittal.
Ultimately, we conclude that we need not and should not decide whether appellee was prejudiced by counsel’s failure to object to the prosecutor’s line of questioning on cross-examination. Given the procedural posture of this appeal where the Superior Court has reversed the trial court and the Commonwealth is the appellant, the question of prejudice, like the question of a reasonable basis for counsel’s inaction, was not passed upon by the trial court. We believe that the question is better determined by the trial court in the first instance following an evidentiary hearing. Given the nature of the defense forwarded in this case, and the partially-favorable jury verdict, any assessment of prejudice may necessarily be. affected by counsel’s disclosures concerning his trial strategy, including his assessment of the prospects for success in the defense pursued. See Hughes, 865 A.2d at 799 (noting that “the absence of a hearing and fact finding affects our ability to assess prejudice” and holding that, “as the matter must be remanded for a hearing concerning the existence of a reasonable basis for counsel’s actions, it is preferable that any assessment of prejudice be made, in the first instance, by a fact finder”).
The question of appropriate mandate remains. This Court’s decision in Grant, which generally requires deferral of ineffectiveness claims to PCRA review, was made retroactively applicable to cases then pending on appeal, and this appeal was still pending in the appellate courts when Grant was decided. Although the Superior Court did not err in reaching the merits of the collateral claim when it did, since its disposition was entered before Grant was decided, we have now determined that the existing record cannot support the Superior Court’s holding that trial counsel was ineffective and that a new trial is required. Nor do we believe, on the existing record, that the claim should be rejected on the merits. Accordingly, the appeal is now properly subject to disposition pursuant to Grant.
Our review in this matter has confirmed the wisdom of the decision in Grant concerning the presumptively appropriate forum for claims of ineffective assistance of counsel. The primary concern powering Grant’s reconsideration of the Hubbard rule was the realization that entertaining claims of counsel ineffectiveness raised for the first time on appeal forces an appellate court to engage in tasks unsuited to the appellate function, and which an appellate court ordinarily would avoid:
Appellate courts in Pennsylvania routinely decline to entertain issues raised on appeal for the first time. Indeed, the Pennsylvania Appellate Rules of Procedure specifically proscribe such review. See Pa.R.A.P. 302(a). The Rules and case law indicate that such a prohibition is preferred because the absence of a trial court opinion can pose a substantial impediment to meaningful and effective appellate review. See, e.g., Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998). Further, appellate courts normally do not consider matters outside the record or matters that involve a consideration of facts not in evidence. Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1036 n. 11 (1996). Most importantly, appellate courts do not act as fact finders, since to do so would require an assessment of the credibility of the testimony and that is clearly not our function. See, e.g., Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189, 198 (1994); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865, 869 (1986).
Yet, in the arena of ineffectiveness claims, appellate courts are routinely called upon to perform each of these tasks. In ruling on an ineffectiveness claim, it is rare that a trial court opinion exists which will aid the appellate court in examining the claim. Appellate courts are frequently called upon to consider matters outside the record. Moreover, appellate courts often engage in some fact finding by being required to speculate as to the trial strategy of trial counsel in order to rule upon these claims. It seems anomalous that where the issues involve claims of ineffectiveness, we employ the exact opposite appellate review process that we require in almost all other appeals.
813 A.2d at 733-34.
The record in this case contains no evidentiary hearing involving testimony from trial counsel, or relevant factual findings at the trial court level. But, that is not to say that, if given an opportunity to develop his collateral claim, appellee will be unable to sustain it. As Grant establishes, the preferred forum in which to pursue such a claim is via the PCRA. Accordingly, we will dismiss this claim without prejudice to appellee’s right to pursue it under the PCRA. See, e.g., Commonwealth v. Overby, 575 Pa. 227, 836 A.2d 20, 22-23 (2003), cert. denied, — U.S.-, 124 S.Ct. 2838, 159 L.Ed.2d 270 (2004); Commonwealth v. Belak, 573 Pa. 414, 825 A.2d 1252, 1255 (2003). In resolving any such claim, the PCRA court should look to this Court’s opinion for guidance and must, of course, defer to our conclusion respecting arguable merit.
We turn now to appellee’s cross-appeal. Appellee contends that the Superior Court erred in failing to address four additional claims of trial counsel ineffectiveness which he raised for the first time on appeal. In appellee’s view, counsel’s alleged mistakes are bound to be repeated at the retrial ordered by the Superior Court, and thus, the panel should have addressed all of the claims. Appellee goes on to brief the merits of the ineffectiveness claims at some length.
We conclude that the Superior Court committed no error in this regard. It is not a likely conclusion, much less a foregone one, that the same allegedly objectionable circumstances will occur at a new trial, as at a previous trial, much less that new counsel will commit the same alleged responsive errors as former counsel. In any event, this Court has determined that the Superior Court erred in granting a new trial upon the current state of the record, thus removing the factual predicate for appellee’s complaint. What is significant, for purposes of fashioning the appropriate mandate in this case, is that the substantive claims appellee faults the Superior Court for having failed to reach, and which he would now have this Court reach, all sound in the ineffective assistance of counsel. Consistently with the analysis we have set forth above, the appropriate disposition of these collateral claims under Grant is dismissal without prejudice to appellee’s right to pursue them under the PCRA.
For the foregoing reasons, we reverse the Superior Court’s grant of a new trial, reinstate appellee’s judgment of sentence, and dismiss appellee’s claims of ineffective assistance of counsel without prejudice to appellee’s right to pursue those collateral claims under the PCRA. Jurisdiction is relinquished.
Former Justice LAMB did not participate in the decision of this case.
42 Pa.C.S. § 9541 et seq.
During a pretrial hearing on appellee’s motion for change of venue, references were made to three murders he was accused of committing in Schuylkill, York, and Cumberland Counties between February 1, 1995 and February 3, 1995, after fleeing Clearfield County. These references arose only in the context of discussing alleged sensationalized media coverage in Clearfield County and the resulting potential impact that the three murders could have in selecting an impartial jury. Although evidence of appellee’s flight was introduced at trial as consciousness of guilt, there was no mention of the three subsequent killings in this trial. We note that appellee was separately tried, convicted, and sentenced to death for each of the subsequent murders, and each of those death sentences has been upheld by this Court upon direct appeal. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999) (Schuylkill County); Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001) (York County); and Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002) (Cumberland County).
18 Pa.C.S. § 2502(a).
18 Pa.C.S. § 2502(c).
18 Pa.C.S. § 2503.
18 Pa.C.S. § 2702(a).
18 Pa.C.S. § 2705.
18 Pa.C.S. § 6106.
18 Pa.C.S. §§ 6105, 6106.
Evidence of a defendant's flight and/or concealment following a crime is admissible to establish an inference of consciousness of guilt. See, e.g., Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716, 721 (1992).
See 18 Pa.C.S. § 2503(a).
See 18 Pa.C.S. § 501 et seq. The court did not issue an "unreasonable belief” of justification/self-defense voluntary manslaughter charge. See 18 Pa.C.S. § 2503(b).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The reference in Duffey was at the penalty phase of a capital trial.
These cases are consistent with Strickland's emphasis that the prejudice inquiry requires consideration of "the totality of the evidence before the judge or jury” on the question at issue. 466 U.S. at 695, 104 S.Ct. at 2069. Accord Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir.1999), cert. dismissed, 527 U.S. 1050, 119 S.Ct. 2418, 144 L.Ed.2d 815 (1999) (court cannot determine Strickland prejudice "without considering the strength of the evidence against the accused;” "every other circuit has also recognized that, in analyzing Strickland's prejudice prong, a court must consider the magnitude of the evidence against the defendant.”). Notably, the lower federal courts, like this Court, have applied the Strickland test for prejudice in analyzing claims of ineffectiveness arising from a failure to object to an alleged improper reference to post-arrest silence. See Hook v. Iowa, 307 F.3d 756, 758 (8th Cir.2002), cert. denied, 538 U.S. 929, 123 S.Ct. 1586, 155 L.Ed.2d 324 (2003) (given strength of evidence, no Strickland prejudice when counsel failed to object to admission of testimony that appellant had exercised right to remain silent after being read Miranda rights, so court did not reach question of whether counsel’s performance was deficient); Pitts v. Anderson, 122 F.3d 275 (5th Cir.1997) (analyzing ineffective assistance of counsel claim under Strickland and concluding that prosecutor’s questions, used to impeach, defendant with post-arrest silence, did not violate Doyle, so court dicl not reach question of prejudice); Stokes v. Procunier, 744 F.2d 475, 483 (5th Cir.1984) (assuming that counsel's failure to object to questions and comments on defendant’s silence violated Doyle, there was no prejudice under Strickland given strengdi of evidence).
This author has recently noted that, to the extent that a case such as Clark—which predated this Court’s decision in Howard recognizing the distinct showing required to prove prejudice in the context of an ineffective assistance of counsel claim—suggests a lesser standard for assessing prejudice, it is no longer good law. Duffey, 855 A.2d at 781— 82 (Castille, J., joined by Eakin, J., concurring and dissenting).
Superior Court's finding of "innate prejudice” arising because “the jury may have impermissibly concluded that [appellees] exercise of his right to remain silent was an implicit admission of guilt” is premised upon an inaccurate factual predicate. The jury heard no evidence that appellee exercised his right to remain silent.
Appellee alleges that trial counsel was ineffective in: (1) failing to object to the trial court's improper jury instruction regarding justification issues; (2) failing to object to the improper joining of the charge of former convict not to own a firearm; (3) failing to object to the Commonwealth’s improper use of police reports; and (4) failing to object to the improper admission of other-crimes evidence.
896 A.2d 1191
COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newton SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Submitted May 20, 2002.
Decided May 2, 2006.
Robert Brett Dunham, Esq., Philadelphia, for Mark Newton Spotz.
Andrew J. Serina, Esq., Frank Robert Cori, Esq., and Amy Zapp, Esq., Orwigsburg, for Commonwealth of Pennsylvania.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, BAER, and BALDWIN, JJ.
[OPINION BY Justice NEWMAN. type=majority]
OPINION
Justice NEWMAN.
Mark Newton Spotz (Spotz) appeals from an Order of the Court of Common Pleas of Schuylkill County (PCRA court) denying his Petition for Post Conviction Relief pursuant to the Post Conviction Relief Act (PCRA). For the reasons set forth herein, we affirm the Order of the PCRA court.
FACTS AND PROCEDURAL HISTORY
On the evening of January 31, 1995, Spotz and his brother, Dustin, became involved in a heated family argument. A verbal exchange began in the living room of the Clearfield County home of their mother and stepfather and escalated into a physical altercation in the kitchen. Spotz has maintained that Dustin stabbed him in the back with a butter knife, prompting him to leave the kitchen and go upstairs to retrieve a .9-mm handgun. Spotz returned to the kitchen with the weapon and the argument continued. Spotz fired at least seven shots at Dustin, two of which were fatal, striking him in the chest. Spotz then put the gun in his pants and fled his parents’ house with his then-girlfriend, C.N. (N.), in a vehicle driven by Spotz’s stepfather.
After Spotz’s stepfather dropped Spotz and N. off at a friend’s house, they were driven to Pine Grove, Schuylkill County, and made their way to the main street of town at approximately 3:00 a.m. on February 1, 1995. Spotz and N. had no money or any mode of transportation, so they unsuccessfully attempted to locate a vehicle to steal. At approximately 5:30 a.m., Spotz and N. approached the Harris Mini-Mart as June Ohlinger (Ohlinger) arrived in her car to open the store. Spotz moved toward Ohlinger with the ,9-mm handgun drawn and ordered her to the passenger side of her car. N. got into the back of Ohlinger’s car and Spotz drove the three to a secluded area. Spotz handed the gun to N. and proceeded to remove Ohlinger’s jewelry and money from her person. N. returned the weapon to Spotz, who ordered Ohlinger out of the car and made her stand on the side of a bridge. Spotz shot Ohlinger in the back of the head and kicked her body into the creek over which the bridge spanned.
After taking Ohlinger’s car to a Schuylkill County car wash, Spotz and N. traveled to Maryland, where N. cut and dyed her hair. They then returned to Pennsylvania, this time stopping in York County. Spotz and N. separated; N. kept Ohlinger’s car. The police arrested Spotz at a Carlisle, Pennsylvania, motel on February 3, 1995. In the meantime, N. disposed of Ohlinger’s car and took a bus to Altoona, where she eventually surrendered to the police. At the time of her arrest, she was in possession of Ohlinger’s jewelry.
Trial first proceeded against Spotz in the Court of Common Pleas of Clearfield County (Clearfield County trial court) for the death of Dustin. On September 26, 1995, a jury convicted Spotz of voluntary manslaughter, aggravated assault, recklessly endangering another person, carrying a firearm without a license, and violating the provision forbidding a former convict from owning a firearm; the jury acquitted Spotz of first-degree and third-degree murder. On October 17, 1995, the court sentenced Spotz to an aggregate term of imprisonment of seventeen-and-one-half to thirty-five years. Spotz did not file a direct appeal from the Clearfield County trial court’s Judgment of Sentence.
Trial next proceeded against Spotz in the Court of Common Pleas of Schuylkill County (Schuylkill County trial court) for the death of Ohlinger. At trial, N. testified that Spotz had shot Ohlinger in the back of the head; State Trooper Joseph Kalis testified that the police recovered a ,9-mm handgun from the Carlisle motel where they arrested Spotz. Forensic analysis revealed the existence of Spotz’s fingerprints on certain items recovered from Ohlinger’s vehicle, which the police recovered in York County. The Commonwealth also presented the testimony of the fiancée of Dustin and her son concerning the events leading up to the death of Dustin to establish Spotz’s motive for fleeing Clearfield County and the chain of events leading up to the murder of Ohlinger.
On March 4, 1996, the jury found Spotz guilty of first-degree murder, aggravated assault, kidnapping, robbery of a motor vehicle, robbery, theft by unlawful taking, and criminal conspiracy. At the penalty hearing, the jury found three aggravating circumstances: (1) that the killing was committed in the perpetration of a felony; (2) that Spotz has a significant history of felony convictions involving the use or threat of violence to the person; and (3) that Spotz had been convicted of voluntary manslaughter committed either before or at the time of the present offense. The jury found one mitigating circumstance: any other evidence of mitigation concerning the character and record of Spotz and the circumstances of .his offense (the catchall provision), specifically, that he had a dysfunctional home. The jury determined that the aggravating circumstances outweighed the mitigating circumstance and, accordingly, sentenced Spotz to death. The court sentenced Spotz to an additional term of imprisonment of fourteen-and-one-half to twenty-nine years, to run consecutively to the sentence imposed by the Clearfield County trial court for the death of Dustin. On July 28, 1998, this Court affirmed Spotz’s convictions and death sentence. Spotz I, supra.
On November 17, 1998, Spotz filed a pro se Petition for Post Conviction Relief, pursuant to the PCRA, challenging his Schuylkill County conviction. The Defender Association of Philadelphia entered its appearance on behalf of Spotz and subsequently filed a Petition for Writ of Certiorari to the United States Supreme Court. The PCRA court dismissed the pro se PCRA Petition filed by Spotz pending resolution of his Petition for Writ of Certiorari. The United States Supreme Court denied certiorari on July 27, 1999. Spotz v. Pennsylvania, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999). Spotz filed an Amended PCRA Petition on the same day. The PCRA court conducted a hearing on the PCRA Petition from September 28, 2000, through October 3, 2000. By Opinion and Order dated April 5, 2001, the PCRA court denied Spotz’s PCRA Petition, concluding that Spotz had not met the burden of proving, by a preponderance of the evidence, that his constitutional rights were violated or that trial counsel was ineffective at his Schuylkill County trial.
During the pendency of his direct appeal and PCRA court proceedings stemming from the Schuylkill County convictions, Spotz attempted to obtain review of his Clearfield County voluntary manslaughter conviction. On October 4, 2001, approximately six months after the PCRA court denied Spotz collateral relief from his Schuylkill County convictions, the Superior Court reversed Spotz’s Clearfield County voluntary manslaughter conviction and remanded for a new trial. The Superior Court held that Spotz’s counsel for his Clearfield County voluntary manslaughter trial “was ineffective for not objecting when the prosecutor asked questions and made comments concerning [Spotz’s] post-arrest right to remain silent.” Commonwealth v. Spotz, No. 2164 Pittsburgh 1998, slip op. at 11, 790 A.2d 343 (Pa.Super. filed Oct. 4, 2001). Thereafter, the Commonwealth sought allowance of appeal, which this Court granted on December 12, 2002.
The decision of the Superior Court reversing Spotz’s Clearfield County voluntary manslaughter conviction cast doubt on the continuing validity of Spotz’s Schuylkill County death sentence because that death sentence was based, at least in part, on the Clearfield County manslaughter conviction. Nevertheless, in a unanimous decision filed March 29, 2005, this Court reversed the Order of the Superior Court and reinstated Spotz’s Clearfield County voluntary manslaughter conviction. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005) (Spotz IV). In doing so, we recognized that the claim of Spotz that his trial counsel was ineffective for failing to object to the prosecutor’s references to his post-arrest silence possessed arguable merit. Id. at 832; see Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537, 540 (1982) (holding that prosecutorial references to the accused’s post-arrest silence are potentially prejudicial). However, we also emphasized that there was no evidentiary hearing on this ineffectiveness claim and that the trial court did not address the claim or make factual determinations. The Court explained that, absent a full and complete evidentiary record, we could not adequately determine whether trial counsel had a reasonable basis for failing to object to the prosecutor’s comments or whether Spotz had been prejudiced by trial counsel’s failure to object. Therefore, pursuant to our mandate in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the Court dismissed Spotz’s undeveloped ineffectiveness claim without prejudice so that he could pursue this claim on collateral review pursuant to the PCRA. In light of our decision in Spotz IV, which effectively validated Spotz’s Clearfield County voluntary manslaughter conviction, the instant collateral appeal is now ripe for disposition.
DISCUSSION
On appeal, Spotz presents fifteen issues for our review, which we have reordered for ease of discussion. In particular, Spotz raises twelve substantive issues, plus a claim that he did not receive independent appellate review, a generalized claim of ineffectiveness of counsel, and a claim of cumulative error. Initially, we will discuss the first five substantive claims, which are all guilt-phase based.
A. GUILT PHASE
1. Compulsory Joinder
Spotz first contends that the Schuylkill County trial court erred in refusing to join the charges for four deaths pending against him, and that trial counsel was ineffective for failing to preserve this issue on direct appeal. The evidence shows that from January 31, 1995, through February 2, 1995, Spotz went on a crime spree, in the course of which he killed four people: Dustin, Ohlinger, Penny Gunnet (Gunnet), and Betty Amstutz (Amstutz). Each killing was committed in a different county — Dustin in Clearfield County, Ohlinger in Schuylkill County, Gunnet in York County, and Amstutz in Cumberland County. As previously discussed, the Clearfield County trial court convicted Spotz of voluntary manslaughter, which sentence was initially reversed by the Superior Court on direct appeal but later reinstated by this Court on discretionary review. Spotz IV, supra. Moreover, the Schuylkill County trial court convicted Spotz of first-degree murder, which sentence we affirmed. Spotz I, supra. Similarly, the Court of Common Pleas of York County (York County trial court) convicted Spotz of the first-degree murder of Gunnet and sentenced him to death. We affirmed the death sentence on August 22, 2000. Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001) (Spotz II). Likewise, we affirmed the death sentence imposed upon Spotz for the Cumberland County murder of Amstutz. Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002) (Spotz III).
The PCRA court in the case sub judice deemed this issue previously litigated because Spotz had presented similar arguments to this Court on direct appeal of his York County and Cumberland County death sentences. In both of those cases, Spotz claimed that the trial courts had erred in denying his motion to dismiss or quash the charges pending against him pursuant to the compulsory joinder rule, which provides, in relevant part, as follows:
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
* * *
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense----
18 Pa.C.S. § 110(l)(ii). Spotz maintained that the York and Cumberland County murders were based on the same conduct or arose from the same criminal episode as the killings in Schuylkill and Clearfield Counties. The trial courts in both the York and Cumberland County cases rejected Spotz’s motions. On appeal of each death sentence, we affirmed the decisions of the trial courts not to dismiss or quash the charges pending against Spotz. We reasoned as follows:
To determine whether various acts constitute a single criminal episode, a court must consider the logical relationship and the temporal relationship between the acts. The mere fact that certain evidence of [Spotz’s] other crimes was relevant and admissible in this prosecution does not mean that the four killings must be deemed part of a single criminal episode. Other crimes evidence may be admissible for a variety of evidentiary purposes. Here, the evidence was relevant to establish motive, i.e., [Spotz’s] need to escape after the previous killings, his intent, his identity as the killer, and to establish the sequence of events leading up to the murder of [Amstutz]. These limited evidentiary purposes of the relevant evidence stand in contrast to the purposes for which portions of the evidence were introduced in the separate prosecutions for each of the killings, where the relevant evidence constituted direct evidence of [Spotz’s] guilt.
However, the mere fact that the prior killings were admissible here for limited purposes does not alter their essentially independent nature. The killings involved four different victims, committed in four counties, occurring on different days, and generating four separate criminal investigations. The first killing occurred on January 31, 1995, in Clearfield County, when [Spotz] killed his brother during a family argument. The second killing occurred on February 1, 1995, in Schuylkill County, where [Spotz], after fleeing Clearfield County, abducted [Ohlinger], stole her car and murdered her. Following that murder, [Spotz] and N. fled to Rehoboth Beach, Delaware. They returned to York County, Pennsylvania, on February 2, 1995, where they abducted [Gunnet], stole her car and [Spotz] ultimately murdered her. After murdering [Gunnet], [Spotz] fled to Harrisburg, without N., abducted [Amstutz], stole her car, used her to get money and lodging from the victim, and then killed her. The killings are logically connected primarily by the fact that [Spotz] committed all four of them. Furthermore, although N. was an important witness at all three capital trials, there were other, equally important witnesses here who testified only to evidence proving that [Spotz] murdered [Amstutz], Thus, the Commonwealth called numerous witnesses to establish that [Spotz] was seen with [Amstutz] prior to her murder, that a man matching [Spotz’s] description was seen standing near a vehicle matching [Amstutz’s] at the location where her dead body was later found, and that [Spotz] was staying at the Knight’s Inn. Moreover, an investigation unique to this killing was conducted by local law enforcement officials, which resulted in testimony from different investigating officers and authorities. What this Court noted in Spotz II is equally applicable here: this is not a case in which the Commonwealth relied solely upon the same witness(es) to prove each of the killings. Instead, the cases generated testimony of different lay and police witnesses as well as the establishment of separate chains of custody. Accordingly, there was not such a substantial duplication of issues of law and fact and duplicative witnesses in the four cases that joinder was required.
Spotz III, 759 A.2d at 1285-86; see also Spotz II, 756 A.2d at 1157-59.
We do not agree that this issue was previously litigated. For purposes of the PCRA, “an issue has been previously litigated if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue [or] it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” 42 Pa.C.S. § 9544(a)(2)-(3). We have never ruled on the issue of whether Spotz’s Clearfield and Schuylkill County crimes were part of the same criminal episode. In Spotz II, we determined that the York County murder was not part of the same criminal episode as the Clearfield and Schuylkill County crimes; in Spotz III, we held that the Cumberland County murder was not part of the same criminal episode as the Clearfield, Schuylkill, and York County crimes. However, neither of these decisions forecloses the possibility that the Clearfield and Schuylkill County crimes were part of the same criminal episode. Although act three may be distinct from acts one and two, and act four may be distinct from acts one, two, and three, it does not automatically follow that acts one and two are distinct from each other.
We cannot review the alleged error of the Schuylkill County trial court directly because that assertion is waived by Spotz’s failure to preserve it on direct appeal. Thus, we will only consider the substantive issue in light of Spotz’s contention that trial counsel was ineffective for failing to preserve the issue on direct appeal from his Schuylkill County conviction and death sentence. (Brief of Spotz at 12). To demonstrate ineffective assistance of counsel, a PCRA petitioner must show: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel will not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649 (2001).
To reiterate, the compulsory joinder rule bars subsequent prosecutions if:
(1) the former prosecution resulted in an acquittal or a conviction; (2) the instant prosecution is based on the same criminal conduct or arose from the same criminal episode as the former prosecution; (3) the prosecutor was aware of the instant charges before the commencement of the trials on the former charges; and (4) the instant charges and the former charges were within the jurisdiction of a single court.
Spotz III, 759 A.2d at 1285; accord Spotz II, 756 A.2d at 1157; Commonwealth v. Anthony, 553 Pa. 55, 717 A.2d 1015, 1018 (1998); Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755, 760 (1995). Because we determine that the Clearfield and Schuylkill County crimes were not part of the same criminal episode, we need not address the other compulsory joinder factors.
“[W]here a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.” Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177, 183 (1983). “To determine whether various acts constitute a single criminal episode, a court must consider the logical relationship and temporal relationship between the acts.” Spotz III, 759 A.2d at 1285; accord Spotz II, 756 A.2d at 1157-58; Bracalielly, 658 A.2d at 761. “[I]n determining if the logical relationship prong of the test has been met, we must also be aware that a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between offenses. Rather what is required is a substantial duplication of law and fact.” Bracalielly, 658 A.2d at 761.
Even though evidence of Spotz’s shooting of his brother, Dustin, in Clearfield County was relevant and admissible at his Schuylkill County trial, that does not render his actions in causing the two deaths part of the same criminal episode. Spotz III, supra; Spotz II, supra. The evidence of Spotz’s actions towards his brother were relevant and admissible to demonstrate Spotz’s need to escape, his intent, and to establish the sequence of events leading up to the death of Ohlinger (as the evidence of Spotz’s killing of Ohlinger was relevant and admissible to show motive, intent, identity, and sequence of events in the York and Cumberland County trials).
The shooting of Dustin in Clearfield County occurred during a heated family argument. The murder of Ohlinger in Schuylkill County occurred in the midst of Spotz’s flight from Clearfield County. After arriving in Schuylkill County, Spotz abducted Ohlinger and stole her ear before killing her. Law enforcement officers in Clearfield County investigated the shooting of Dustin while law enforcement officers in Schuylkill County investigated the kidnapping, robbery, and murder of Ohlinger. While our holdings in Spotz II and Spotz III are not dispositive, our rationale in those cases is instructive. As we noted in both previous cases, “this is not a case in which the Commonwealth relied solely upon the same witness(es) to prove each of the killings. Instead, the cases generated testimony of different lay and police witnesses as well as the establishment of separate chains of custody.” Spotz III, 759 A.2d at 1286; see Spotz II, 756 A.2d at 1158-59. Moreover, the evidence of the Clearfield County shooting of Dustin was relevant in the Schuylkill County case to establish motive and the chain of events; evidence detailing the shooting of Dustin in the Clearfield County case was admitted to prove Spotz’s guilt directly. Thus, we do not find a logical relationship between the Clearfield County and Schuylkill County prosecutions sufficient to mandate compulsory joinder. As counsel will not be deemed ineffective for failing to raise a meritless claim, Spotz is not entitled to relief on this issue. Tilley, supra.
2. Jury Selection
Spotz next alleges that the prosecution violated his constitutional rights by exercising peremptory challenges to strike prospective female jurors from the venire pool. As trial counsel failed to raise this claim at trial, it is waived. 42 Pa.C.S. § 9544(b). However, Spotz does contend and sufficiently argue that trial counsel was ineffective for failing to raise the issue at trial. (Brief of Spotz at 18). Thus, we will consider his argument in light of the standard for determining whether trial counsel was ineffective for failing to raise the argument at trial. Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997).
In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court held that “[i]ntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where ... the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” Id. at 130-31, 114 S.Ct. 1419 (extended the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which determined that race-based peremptory strikes violated equal protection). Following J.E.B., and in accordance with the rationale employed in Batson, we have held that the defendant has the initial burden of demonstrating a prima facie case that the prosecutor discriminated against potential jurors on the basis of gender. Commonwealth v. Aaron Jones, 542 Pa. 464, 668 A.2d 491, 519 (1995).
To establish such a prima facie case, the defendant must specifically identify: (1) the gender of all the venirepersons in the jury pool; (2) the gender of all venirepersons remaining after challenges for cause; (3) the gender of those removed by the prosecution; (4) the gender of the jurors who served; and (5) the gender of jurors acceptable to the Commonwealth who were stricken by the defense. Id. “After such a record is established, the trial court must consider the totality of the circumstances to determine whether challenges were used to exclude venirepersons on account of their gender. If the trial court finds in the affirmative, it may then require the prosecutor to explain his or her reasons for the challenge.” Id. at 519-20, 668 A.2d 491; accord Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182-83 (1993) (claim of race-based discrimination). To decide whether the totality of the circumstances militates toward a finding that the prosecution used peremptory challenges to exclude women because of their gender, the trial court may conduct an independent review of the record. Aaron Jones I, supra. “A finding by the trial court as to an absence of discriminatory intent must be given great deference on appeal.” Id. at 520, 668 A.2d 491.
The original pool of jurors consisted of thirty-nine females and thirty-one males. The trial court excused twenty females and eleven males for cause, leaving nineteen females and twenty males. The Commonwealth used its peremptory challenges to strike nine females and one male; counsel for Spotz used his peremptory challenges to strike six females and eleven males, leaving a jury of four women and eight men. The record of jury selection indicates that the Commonwealth had accepted four of the six women ultimately stricken by the defense. With the establishment of these facts, the PCRA court reviewed the record of jury selection to consider whether the totality of the circumstances indicated that the prosecution impermissibly excluded female jurors. The PCRA court reasoned as follows:
In some cases the trial court and counsel are able to discuss the jury selection process based on their own recollection of events; however, in this case the claim of discrimination in jury selection was not raised until three years after the trial occurred, and those involved had only sketchy independent recollection of the jury selection.
There is no particular number of peremptory strikes that equates to a prima facie case. Commonwealth v. Stern, 393 Pa.Super. 152, 573 A.2d 1132, 1135 (Pa.Super.1990), petition for allowance of appeal denied, 527 Pa. 610, 590 A.2d 297 (1991). One factor the court may consider is whether the record shows that the particular case was gender sensitive. [Aaron Jones I, supra.] The fact that Spotz’s case involved a man shooting a woman does not make it gender sensitive. The allegations were that he shot a stranger in order to rob her and steal her car. It was never alleged that the sex of the parties played any role in the killing.
A review of the jury selection transcript also fails to suggest purposeful discrimination. The prosecutor accepted four women who were selected to the original panel of twelve jurors. He also accepted four women who were eliminated by defense counsel’s exercise of peremptory challenges. In fact, the prosecutor accepted a female as [Jjuror No. 12, knowing that seven of the next eight jurors in line for consideration were male and that he had exercised only ten of his allotted peremptory strikes. Similarly, he accepted the very first prospective juror, who was a woman that was struck from the jury by the defense. We find no questionable remarks made by [the prosecutor] during his jury selection, nor is there anything else in the transcript to suggest that he was focusing primarily on female jurors. Based on the totality of the circumstances, we find that [Spotz] has failed to make a prima facie showing that the Commonwealth exercised its peremptory challenges in such a way as to purposefully exclude jurors based on gender. Even if it were to be determined that [Spotz] has made a prima facie case for discrimination based on the record, we find the explanations given by [the prosecutor] for his selections demonstrate a gender-neutral reason for his exercise of peremptory challenges. At the [PCRA] hearing [the prosecutor] offered explanations for his peremptory strikes and his notes of jury selection were introduced as Exhibit 30 without a ruling from the court whether a prima facie showing of discrimination had been made. [The prosecutor] denied intentionally striking women from the jury panel and stated that he was looking for jurors who had the capacity to make the decision as to the ultimate sentence. His jury selection notes and the questions he posed to the jurors reflect that this issue was foremost in his mind during the selection process. His notes continuously raise the question of whether a particular juror could make the choice between life and death.
(Opinion of the PCRA Court at 42-43) (citations modified) (internal quotation marks omitted).
As noted previously, “the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005) (quoting Batson, 476 U.S. at 93-94, 106 S.Ct. 1712). In order to meet this burden, a defendant need only produce “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id. at 2417.
In Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), in a race-based discrimination case, the Supreme Court of the United States explained the rationale behind the rule that the determination of the trial court on the question of discriminatory intent should be given great deference. The Supreme Court stated the following:
In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s [non-discriminatory] explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.
Id. at 365, 111 S.Ct. 1859 (internal citation omitted). The judge of the PCRA court in the present case, President Judge William Baldwin (President Judge Baldwin), did have the opportunity to witness the demeanor of the prosecutor and to evaluate the prosecutor’s state of mind because he sat as the trial judge in this case. See Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 223 (2001) (“[I]t is generally preferable for the same judge who presided at trial to preside over the post-conviction proceedings since familiarity with the case will likely assist the proper administration of justice.”). President Judge Baldwin observed the testimony of the prosecutor at the PCRA hearing and was able to gauge his demeanor and state of mind in that proceeding as well.
While approximately five years passed between the time of trial and President Judge Baldwin’s ruling on Spotz’s PCRA petition, Spotz does not present any reason why this Court should not grant “great deference” to the determination of President Judge Baldwin on the question of discriminatory intent, or the absence thereof. Having reviewed the record of jury selection and the trial, we agree with the determination of the PCRA court that the totality of the circumstances does not indicate that the Commonwealth improperly excluded potential female jurors because of their gender. In so holding, we rely on the rationale of the PCRA court, quoted above. Moreover, we agree with the PCRA court that the reasons given by the prosecutor for his decisions to strike certain jurors are supported by the record and warrant our holding that the prosecution exercised its peremptory challenges on gender-neutral bases. As counsel will not be deemed ineffective for failing to raise a meritless claim, Spotz is not entitled to relief on this issue. Tilley, supra.
8. Alleged Failure to Disclose Evidence
Spotz next contends that the Commonwealth impermissibly failed to disclose to him that the Commonwealth and N. had entered into an agreement in exchange for N.’s testimony against Spotz. Spotz contends that the failure of the prosecution to apprise him of this arrangement violated his due process rights. “[D]ue process requires that any potential understanding between the prosecution and a witness be revealed to the jury.” Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1172 (2000) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). “[I]mpeachment evidence is material, and thus subject to obligatory disclosure, if there is a reasonable probability that had it been disclosed the outcome of the proceedings would have been different.” Id. at 1174 (citing United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). “Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case whether that evidence is merely a promise or an understanding between the prosecution and the witness.” Id. at 1175.
To be eligible for post-conviction relief on this claim, Spotz must prove by a preponderance of the evidence that an agreement between the Commonwealth and N. existed and that its introduction would have changed the outcome of the trial. 42 Pa.C.S. § 9543(a). On cross-examination by trial counsel, N. testified at trial as follows:
Q: Now you are also charged right now with criminal homicide, criminal attempt to commit homicide, robbery, theft, and conspiracy [and kidnapping], is that correct?
A: Yes, sir.
Q: And do you expect to go to trial on those charges?
A: I don’t know.
Q: Do you expect a deal?
A: I hope they take it into consideration.
Q: You are telling the jury that these charges have not been dropped, have they?
A: No, sir.
Q: Nor reduced?
A: No, sir.
Q: And are you telling the jury that there is no agreement?
A: Yes, sir.
Q: You are just testifying out of the goodness of your heart?
A: Yes, sir.
Q: You are not expecting to go to trial on these charges, correct?
A: I don’t know.
Q: You are expecting to have a deal?
A: I hope they take it into consideration.
Q: Are you expecting the charges to be dropped or reduced?
A: I don’t know.
Q: Have you ever discussed that with your attorney or with the District Attorney?
A: No, sir.
Q: You have never — You are just here today to see that justice is done, is that what you are telling us?
A: Yes, sir.
(Notes of Testimony, Jury Trial (Trial N.T.), 3/1/96, at 373-75). In fact, prior to the testimony of N., the Schuylkill County trial court conducted a sidebar conference with Claude A.L. Shields (Shields), the Schuylkill County District Attorney and prosecutor in this case, Spotz’s trial counsel, and Michael Cammerano (Cammerano), attorney for N.. At that conference, trial counsel for Spotz requested that the record reflect that he had been informed by Shields and Cammerano that the prosecution had not offered N. any plea bargain or leniency in exchange for her testimony. (Id. at 344). 'The text of the remainder of that sidebar conference is as follows:
[Shields]: I can state for the Commonwealth that we have no agreement with Miss N.. I have spoken on numerous occasions with [Cammerano]. We have not as my understanding even briefly outlined any particular negotiated plea that may be applicable in this particular case. That’s my position, your Honor, that is a fact.
THE COURT: There’s been no agreement?
[Shields]: There has been no agreement.
THE COURT: Has there been discussion about lenient treatment in exchange for her—
[Shields]: Not per se, your Honor. We have had meetings where I had explored [Cammerano] asking him if he were looking to negotiate a deal, and he has indicated, no, at this point, and that is the extent of the negotiations.
THE COURT: Mr. Watkins [(trial counsel for Spotz)].
[Trial Counsel]: Well, Brady requires obviously disclosure if there is any understanding, and there is absolutely no understanding according to [the prosecutor].
[Shields]: I would like it on the record from [Cammerano] and the witness that that, in fact, is the case, because that is the case.
[Cammerano]: Yes, it is. [The prosecutor] has broached the subject and I have said I’m not interested in negotiating a plea in this case, and that’s where it is.
(Id. at 344-46).
Spotz refers to numerous occurrences that allegedly demonstrate that, despite the testimony of Shields and Cammerano recited above, the Commonwealth and N. had entered into a secret agreement. Those occurrences are:
(1) shortly after Spotz and N. were arrested, Shields attended a weekend meeting with prosecutors from Clearfield, York, and Cumberland counties to discuss consolidation; when Shields was asked about this meeting at the PCRA hearing, he testified that he did not recall whether they discussed seeking N.’s cooperation;
(2) the York County prosecutor sent to Shields a letter from Cammerano, in which Cammerano referred to “earlier discussions;”
(3) Shields acknowledged at the PCRA hearing that he was aware of discussions between the York County prosecutor and Cammerano regarding N.’s potential cooperation;
(4) shortly before Spotz’s preliminary hearing, Shields spoke with N. and Cammerano; after the court held Spotz over for trial on all charges, N. waived her preliminary hearing;
(5) at the time of N.’s arraignment, Shields sent her a letter extending a written plea offer;
(6) the Commonwealth did not file a notice of aggravating circumstances against N. and did not seek the death penalty against her;
(7) on at least three separate occasions, the prosecution agreed to continue N.’s trial because she was expected to testify against Spotz; had there been no agreement for her cooperation and testimony, there would have been no need to continue her trial;
(8) Shields acknowledged that he had numerous conversations with Cammerano regarding N.’s testimony against Spotz; and
(9) at N.’s sentencing after her guilty plea, Cammerano and Shields argued that the court should impose a lighter sentence because N. had cooperated in Spotz’s trial.
(Brief of Spotz at 20-22).
Spotz’s allegations in this regard amount to nothing more than mere conjecture and speculation. He has presented no evidence of an actual agreement between N. and Shields. The only evidence on the record relevant to this contention is: (1) the testimony of N. at Spotz’s Schuylkill County trial, during which N. stated that she had not entered into any type of agreement with the Commonwealth in exchange for her testimony against Spotz; and (2) the statements made by Cammerano and Shields to the Schuylkill County trial court immediately before the commencement of N.’s testimony to the effect that they had discussed entering into a plea bargain but that Cammerano and N. did not wish to pursue that possibility. Clearly, then, Spotz has failed to meet his burden of proving by a preponderance of the evidence that such an agreement existed.
Spotz also contends that the PCRA court erred in refusing to admit at the PCRA hearing a transcript of N.’s testimony in York County related to her petition to withdraw her guilty plea there. Spotz asserts that the transcript shows that she would receive leniency in sentencing in exchange for her testimony against Spotz. N. invoked her Fifth Amendment privilege to refuse to testify at Spotz’s PCRA hearing; in her absence, Spotz attempted to produce the York County transcript pursuant to Pennsylvania Rule of Evidence 804(b)(1), which excepts former testimony from the hearsay rule.
The crux of Spotz’s complaint in this regard is that he believes that N. withdrew her guilty plea because the Commonwealth violated the terms of a plea agreement that N. and the Commonwealth entered into in exchange for N.’s testimony against Spotz. A review of the transcript reveals otherwise. N. did testify on cross-examination at her hearing to withdraw her York County guilty plea that “[C]ammerano used to always tell me that I was going to go home and I was going to get time served.” (Exhibit 12 to the Initial Brief of Spotz, Sentencing Hearing of C.N., 10/7/96, at 42). However, N. stated that she did not have any idea how long her sentence could possibly be at the time she pled guilty. (Id. at 18). In fact, N. confirmed that the prosecutor never made to N. any promises about her sentence. (Id. at 64-66). Thus, Spotz has not presented this Court with any evidence that N. and the Commonwealth had entered into an agreement whereby N. would testify against Spotz in exchange for a more lenient sentence.
4. Guilt Phase Defenses
Spotz next argues that trial counsel was ineffective for failing to present a diminished capacity defense. Spotz avers that there was significant evidence available to trial counsel at the time of trial that Spotz suffered from mental illness. Prior to trial, trial counsel arranged for Spotz to undergo a mental health examination by Dr. Stephen A. Ragusea (Dr. Ragusea), a mental health expert. Dr. Ragusea’s examination revealed the existence of post-traumatic stress disorder but ruled out the possibility of an insanity defense. Spotz maintained throughout the trial and direct appeal that N., not he, had shot and killed Ohlinger and that he did not know that N. was planning to kill Ohlinger. (Notes of Testimony, PCRA Hearing (PCRA N.T.), 10/2/00-10/8/00, at 647-48). When questioned by the attorney for the Commonwealth during the PCRA hearing, trial counsel testified as follows:
Q: Now, you at one point said you developed a trial strategy that essentially was, that C.N. was the shooter here?
A: Right.
Q: All right. How did you come to develop that strategy? A: Well, it was based on the evidence and discussions with the client.
Q: And you felt that in your opinion was that the defense for Mr. Spotz given the facts of the situation?
A: Given the facts — there were fingerprints on everything. I couldn’t say he wasn’t there. I mean I could have — I may have been able to say he was passed out in the car or something, but I thought that under the circumstances from knowing what the co-conspirator’s [N.’s] testimony would be and everything else and how long, you know, that he was followed, and it took some time until he was picked up; although, I was keeping out these other incidents, I thought to try to just minimize his involvement.
(PCRA N.T., 9/28/00, at 172-73).
We have held that “[a] defense of diminished capacity is only available to a defendant who admits criminal liability but contests the degree of guilt.” Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 353 (1999) (citing Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505 (1983)). In Weaver, counsel for Weaver had presented, without the consent of Weaver, a diminished capacity defense, even though Weaver insisted that someone else had committed the murder for which he was on trial. A jury convicted Weaver of first-degree murder and related crimes and the Court of Common Pleas of Tioga County sentenced Weaver to life imprisonment. Weaver filed a direct appeal to this Court. We determined that counsel for Weaver presented the only viable defense but, nonetheless, we vacated the Judgment of Sentence imposed by the Court of Common Pleas of Tioga County, finding that the authority to present a defense of diminished capacity, thereby conceding general criminal liability, is solely within the province of the accused. Weaver, 457 A.2d at 506.
“[C]ounsel’s strategic decision to seek acquittal rather than pursue a diminished capacity defense does not constitute ineffective assistance if there is a reasonable basis for the strategy chosen.” Commonwealth v. James Jones, 539 Pa. 222, 651 A.2d 1101, 1109 (1994). Spotz maintained throughout the trial that he did not directly participate in the killing of Ohlinger. Absent an admission from Spotz that he had shot and killed Ohlinger, trial counsel could not have presented a diminished capacity defense. Thus, we cannot say that trial counsel did not have a reasonable strategic basis for rejecting a diminished capacity defense. Accordingly, trial counsel was not ineffective for failing to present such a defense. See Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 454 (1995) (“If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective.”).
In the same manner, Spotz argues that trial counsel was ineffective for failing to present a voluntary intoxication defense. Spotz asserts that there was ample evidence available to trial counsel that he used mind-altering drugs at the time of the offense. Nevertheless:
[t]he mere fact of intoxication does not make out a diminished capacity defense. Rather, to warrant a finding that a homicide does not rise to the level of first[-]degree murder, the evidence must demonstrate that the defendant was intoxicated to such an extent that he was unable to form the requisite intent.
James Jones, 651 A.2d at 1109-10. “Stated in another way, it must be established that the defendant was ‘overwhelmed to the point of losing his sensibilities[.]’” Id. at 1110 (quoting Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035, 1041 (1990)). This contention is likewise without merit because it would also require Spotz to concede liability, which position was inconsistent with Spotz’s recapitulation of events to trial counsel and trial counsel’s strategy of arguing that N., not Spotz, actually shot and killed Ohlinger. Trial counsel will not be deemed ineffective where he or she has a reasonable basis for his or her actions. Paolello, supra.
The final contention of Spotz in this regard is that trial counsel failed to adequately prepare and present the guilt phase defense that N., not Spotz, killed Ohlinger. Specifically, Spotz argues that trial counsel rendered ineffective assistance by: (1) failing to call S.G. (G.) to testify to a statement made by N. that N. had killed Ohlinger; (2) by failing to prepare J.N. (N.), Spotz’s mother, properly; and (3) by failing to establish that Spotz was so incapacitated by the stabbing he suffered at the hands of Dustin that he could not have shot and killed Ohlinger. To prove that counsel was ineffective for not presenting certain witnesses, a defendant “must establish the existence of and the availability of the witnesses, counsel’s actual awareness, or duty to know, of the witnesses, the willingness and ability of the witnesses to cooperate and appear on the defendant’s behalf and the necessity for the proposed testimony in order to avoid prejudice.” Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 480 (1998) (citing Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 298 (1996)).
Spotz presented no evidence at the PCRA hearing regarding the alleged statement of G.. Rather, Spotz filed a petition to reopen the PCRA proceedings to admit G.’s testimony at the York County trial of Spotz. During the York County trial, G., an inmate of the Clearfield County prison at the time of N.’s incarceration there, testified that at one point N. told her that she had shot two women (presumably Ohlinger and Gunnet). Spotz was in the same prison awaiting his trial for the killing of Dustin at the time of N.’s statement to G.; G. testified at the York County trial that she only told Spotz about N.’s alleged confession. She admitted that she never informed the police ancjl never told trial counsel for Spotz, even when they spoke as part of trial counsel’s preparation for the Schuylkill County trial (after G. allegedly had this conversation with N.). (Petition to Reopen Hearing or Admit Prior Testimony of S.G., Exhibit A, at 1773-74). The PCRA court denied Spotz’s petition to reopen the PCRA proceedings, a decision that Spotz has not appealed.
We find Spotz’s failure to present any evidence of this alleged confession during the PCRA hearing fatal to his claim. Spotz had the responsibility of bringing all of his evidence to the PCRA hearing. If he was having trouble locating G., he could have petitioned the PCRA court in advance of the PCRA hearing to postpone that proceeding. He did no such thing. While the PCRA permits liberal amendment of a petition, it does not extend to forgive a petitioner’s failure to present evidence at the PCRA hearing. If we are to believe Spotz’s allegation that trial counsel knew at the time of trial of G.’s willingness to testify to the alleged confession of N., Spotz clearly had notice of the alleged failure of trial counsel well before the instant PCRA hearing. The statement of Spotz’s PCRA counsel that they intended to admit, in the PCRA hearing, G.’s testimony from the York County trial of Spotz, but inadvertently failed to, is unavailing.
Spotz has presented no evidence to show that trial counsel was aware of G.’s willingness to testify to the alleged confession of N.. In fact, the evidence indicates that trial counsel did not know that G. would so testify because G. never informed him of her alleged conversation with N., even though they spoke after the alleged conversation but before the Schuylkill County trial. Spotz has failed to show that trial counsel did not have a reasonable strategic basis for failing to present this testimony. Trial counsel will not be deemed ineffective where he or she has a reasonable basis for his or her actions. Paolello, supra.
Spotz next submits that trial counsel was ineffective for failing to properly prepare N., who could have testified that: (1) when Spotz left her residence after the fight with Dustin, he was in so much pain that he needed the assistance of N. to leave the home; (2) N. knew how to shoot and had been practicing with the alleged murder weapon shortly before Dustin’s death; and (3) when Spotz initially sought treatment for his stab wounds, he did not have possession of the gun.
During the PCRA hearing, N. testified that after Dustin’s death, Spotz could not raise his arms, was bleeding profusely, and needed the assistance of N. to leave the house. (PCRA N.T., 9/29/00, at 322). Spotz points to this testimony to support his theory that N. actually shot Ohlinger. At trial, trial counsel elicited the following testimony from N.:
Q: And was Mark when he was leaving, was he — You had mentioned the injuries, did they appear to have any effect on him?
A: Yes, Mark was chalk white and very unsteady on his feet. [N.] was holding onto his arm the whole time he was walking out of the house. I mean she was pulling on him, but she had a hold of his elbow. Mark was very unsteady on Ms feet. Mark has always been unsteady on his feet when he’s been injured.
(Trial N.T., 3/2/96, at 628). We fail to see how the testimony elicited from N. at trial differs materially from her PCRA testimony. The trial record establishes that trial counsel did adequately question N. concerning the effects of the stab wounds Spotz suffered at the hands of Dustin.
As to Spotz’s claim that N. could have testified that N. knew how to shoot and had been practicing with the murder weapon shortly before Dustin’s death, Spotz points to no place in the PCRA record to establish that N. could have so testified. We refuse to conclude that trial counsel was ineffective for failing to question N. about N.’s use of the murder weapon when Spotz has failed to establish that N. saw N. practice with the murder weapon shortly before Dustin’s death. Moreover, we do not see how this testimony would have affected the outcome of the trial. Trial counsel presented evidence that N. had possession of the gun when she and Spotz left the house after the incident with Dustin (id. at 627) and that N. had killed someone (id. at 576, 662).
Spotz also alleges that trial counsel was ineffective for failing to elicit from N. testimony that Spotz did not have the murder weapon when he sought help for his wounds. However, there is no evidence that Spotz and N. had any face-to-face contact between the time when he left the house immediately after having shot Dustin and his arrest several days later. Spotz does point to the PCRA testimony of M.C. (C.), a friend to whose house Spotz and N. fled immediately after the incident with Dustin. C. testified when questioned by Spotz’s PCRA counsel that it would have been impossible for Spotz to have had possession of the murder weapon, but that it would have been possible for N. to have possessed the gun. (PCRA N.T., 10/2/00-10/3/00, at 573-74). During the trial, when questioned by trial counsel on redirect examination, C. testified that she did not see Spotz with the gun when he came to her house to seek help after having shot Dustin. (Trial N-T., 3/2/96, at 615).
We fail to see how the absence of C.’s admittedly stronger testimony at the PCRA hearing “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). As trial counsel presented evidence that N. had possession of the gun when she and Spotz left the house after the shooting of Dustin, the question of who had possession of the weapon soon thereafter, but still several hours before the kidnapping and murder of Ohlinger, is relatively meaningless. Counsel will not be deemed ineffective for failing to present testimony, the absence of which did not prejudice Spotz. Whitney, 708 A.2d at 480.
Spotz also posits that trial counsel was ineffective for failing to establish that Spotz was so badly injured from his stab wounds that he was incapacitated for a matter of days and, therefore, could not have killed Ohlinger. Spotz has raised this claim in other forms, contending that trial counsel did not adequately question N. and C.. In this context, he is simply contending that trial counsel impermissibly failed to present medical records or expert testimony to establish that Spotz’s injuries were so severe that he could not have killed Ohlinger. However, Spotz does not point us to any testimony or evidence in the record of the PCRA proceedings to support his claim that his injuries were so debilitating. Thus, he has not demonstrated how he was prejudiced by this alleged failure because he has not shown that such medical records and expert testimony were available. “Absent a demonstration of prejudice, [a PCRA petitioner] cannot prevail on a claim for ineffective assistance of counsel and no further inquiry into the claim is warranted.” Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 221 (2001) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000)).
5. Allegedly Improper Prosecutorial Remarks
Spotz next claims that trial counsel was ineffective for failing to object or move for a mistrial when, during the Commonwealth’s opening statement, the prosecutor told the jury that Doris Anderson (Anderson), Dustin’s girlfriend, would testify that Spotz left “the scene of the accident, the scene of the killing, the shooting in Clearfield County.” (Trial N.T., 2/29/96-3/4/96, at 40). The prosecutor also stated during his opening statement that J.M. (M.), a friend of Spotz who spoke with Spotz the day after Ohlinger’s murder, would testify that Spotz pulled out a gun and said, “[T]his is dropping them like flies.” (Id. at 45).
“Generally, a prosecutor’s arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict.” Commonwealth v. Gilbert Jones, 546 Pa. 161, 683 A.2d 1181, 1199 (1996). Improperly admitted evidence can be treated as harmless where either: (1) the evidence of guilt, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to it; (2) the tainted evidence was merely cumulative of other proper persuasive evidence on the issue for which it is offered; or (3) that it was so slight or tangential in its effect that its influence on the jury can be determined to be de minimis. Commonwealth v. E., 531 Pa. 103, 611 A.2d 681, 685 (1992); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246, 250 (1982). “Even if an opening argument is somehow improper, relief will be granted only where the unavoidable effect is to so prejudice the finders of fact as to render them incapable of objective judgment.” Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 456 (1998) (Brown I) (citing Commonwealth v. Damon Jones, 530 Pa. 591, 610 A.2d 931 (1992)).
Before trial, the Schuylkill County trial court ruled that the Commonwealth could introduce evidence that Spotz shot Dustin, but could not introduce evidence that Dustin had died as a result of the shooting because Spotz was not aware of his brother’s death at the time he fled from Clearfield County. Other than these two isolated statements during its opening argument, the Commonwealth presented no evidence regarding the death of Dustin or the allegations that Spotz had committed two murders after he killed Ohlinger. The Commonwealth did not attempt to elicit from either of these witnesses statements that Dustin died or that Spotz had been accused of additional subsequent murders. We agree with the PCRA court, which determined that these two isolated statements were de minimis in nature and did not have the unavoidable effect of prejudicing the jury to the point where it would not be able to render objective judgment. (Opinion of the PCRA Court at 37). As counsel will not be deemed ineffective for failing to raise a meritless claim, Spotz is not entitled to relief on this issue. Tilley, supra.
Spotz further submits that trial counsel was ineffective for failing to object when the prosecutor impermissibly showed Ohlinger’s husband a bag of rings seized from N.. Ohlinger’s husband testified that some of the rings belonged to Ohlinger. Spotz maintains that by presenting the testimony of Ohlinger’s husband that only some of the rings belonged to his wife, the obvious implication was that there were additional victims from whom N. had taken rings. However, Spotz has failed to account for the possibility that the jury would have believed that the rings not belonging to Ohlinger belonged to N. herself. There was absolutely no evidence presented to the jury that there were additional victims from whom N. would have had the opportunity to take jewelry; therefore, it is more likely that the jurors believed that the additional rings belonged to N.. Spotz has failed to show any prejudice resulting from the prosecutor’s presentation of this evidence and, therefore, his claim of ineffective assistance of trial counsel fails. Pierce, supra.
Next, Spotz asserts that trial counsel was ineffective for failing to object or move for a mistrial when the prosecution introduced exhibits that had been previously introduced in his Clearfield County trial, where he was tried in connection with the death of Dustin. Spotz alleges that one of the Commonwealth’s exhibits bore a tag with two sets of numbers, which indicated to the jury that Spotz had already been charged with causing the death of Dustin and had been tried on those charges. The jury did not hear anything about the tag, and as soon as the Commonwealth sought to introduce the evidence, it informed the Schuylkill County trial court of the existence of the Clearfield County tag in a sidebar conversation, whereupon the court ordered the prosecutor to remove the Clearfield County tag, which the prosecutor did. (Trial N.T., 2/29/96-3/4/96, at 219-20). Given the testimony and evidence relating to Spotz’s involvement in the death of Dustin, the jurors would have reasonably inferred that Spotz would potentially be brought up on charges for that incident as well. Therefore, even if the jurors noticed the Clearfield County tag and even if, as Spotz contends, the jurors believed that the tag indicated that Spotz had been previously charged and tried for having caused the death of Dustin, Spotz has still failed to demonstrate prejudice. Thus, trial counsel was not ineffective for having failed to object or move for a mistrial on this basis. Pierce, supra.
Finally, with respect to this broad contention of allegedly improper prosecutorial remarks, Spotz cites to two statements by the prosecutor that vouched for the credibility of prosecution witnesses and stated his personal opinion that the testimony and evidence presented by the Commonwealth was true. According to Spotz, the prosecutor: (1) stated as a fact that N. did not kill Ohlinger; and (2) asserted as a fact that Spotz was wanted at the time that he tried to steal a car in Pine Grove, Pennsylvania. While the underlying contention is waived because trial counsel failed to object during trial, Spotz does argue that trial counsel was ineffective for failing to object, so we will review the claim as one of alleged ineffective assistance of counsel.
It is well settled that “the prosecution, similar to the defense, is accorded reasonable latitude and may employ oratorical flair arguing its version of the case to the jury.” Commonwealth v. Gilbert Jones, 546 Pa. 161, 683 A.2d 1181, 1199-1200 (1996) (citing Commonwealth v. Roy Williams, 541 Pa. 85, 660 A.2d 1316 (1995)). “The arguments advanced must, however, be based upon matters in evidence and/or upon any legitimate inferences that can be drawn therefrom.” Id. (quoting Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1377 (1991)). “Finally, any allegedly improper prosecutorial comments must also be examined within the context of the conduct of defense counsel.” Id. (quoting Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d 385, 396 (1987)).
Spotz first points to the following statement of the prosecutor during his closing argument: “Well, make no mistake about it, defendant’s girlfriend did not shoot June Ohlinger, the defendant’s girlfriend did not order Mrs. Ohlinger from the car, make her climb up on the curb, and shoot her in the back of the head.” (Trial N.T., 3/2/96, at 755). Clearly, this line of argument comports with the evidence presented at trial and was the crux of the Commonwealth’s response to Spotz’s contention that N., not he, shot Ohlinger in the back of the head. Such a statement was entirely within the bounds of proper prosecutorial argument; thus, we conclude that trial counsel was not ineffective for failing to object. Pierce, supra.
Spotz also refers to the following portion of the prosecutor’s closing argument as evidence of prosecutorial misconduct:
Whose father lived in the Pine Grove area and was familiar with the area? Defendant, Mark Spotz. Who approached Leroy Miller for a ride? Who asked Lyle Miller not to call the cops? The defendant, Mark Spotz. Who was wanted at the time the defendant and defendant’s girlfriend tried to steal a car in Pine Grove? Defendant, Mark Spotz.
(Trial N.T., 3/2/96, at 760-61). Spotz is correct that this argument was improper because there was no evidence presented to the jury that Spotz was wanted in connection with any crime at the time he and N. attempted to steal a car in Pine Grove in the early morning hours of February 1, 1995. However, what Spotz fails to note is that trial counsel did object to this statement, which the Schuylkill County trial court sustained. (Id. at 761). In sustaining the objection, the court instructed the jury as follows: “There’s nothing to suggest ... there’s nothing in the evidence to indicate [Spotz] was wanted at that time. The jury should disregard that argument.” {Id,.).
We will not deem counsel ineffective for failing to object to a statement when he in fact did object to that statement for the same reason that Spotz now claims the statement was improper. Moreover, Spotz has failed to demonstrate that he suffered prejudice from this statement. “The law presumes that the jury will follow the instructions of the court.” Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 971 (2001) (Brown II); Commonwealth v. O’Hannon, 557 Pa. 256, 732 A.2d 1193, 1196 (1999) (“Absent evidence to the contrary, the jury is presumed to have followed the trial court’s instructions.”). Spotz does not even attempt to argue that the jurors would have been unable to follow the instructions of the Schuylkill County trial court. Having thus disposed of Spotz’s claims regarding the guilt phase of his trial, we now turn to his eight remaining substantive claims, all of which relate to the penalty phase.
B. PENALTY PHASE
1. Invalid Prior Conviction
As his first claim of penalty phase error, Spotz asserts that he is entitled to a new sentencing hearing because his death sentence was based, at least in part, on a prior conviction that has been subsequently overturned. In particular, pursuant to 42 Pa.C.S. § 9711(d)(12), the jury unanimously found as an aggravating circumstance that Spotz had been convicted of a voluntary manslaughter (in connection with the Clearfield County death of Dustin) committed either before or at the time of the present offense.
As previously discussed, the Superior Court reversed Spotz’s Clearfield County voluntary manslaughter conviction based on the alleged ineffectiveness of his trial counsel. However, our Court has since reversed this decision of the Superi- or Court. Specifically, in Spotz IV, we reinstated Spotz’s Clearfield County voluntary manslaughter conviction and, pursuant to our holding in Grant, dismissed his claims of ineffective assistance of counsel without prejudice so that he could pursue these claims on collateral review pursuant to the PCRA. Although we acknowledged that at least one of Spotz’s ineffectiveness claims had arguable merit, the Court, nevertheless, concluded that an inadequately developed evidentiary record precluded us from determining whether Spotz had satisfied the remaining two prongs of the Pierce test for demonstrating ineffective assistance of counsel, namely whether trial counsel had a reasonable basis for his actions or whether Spotz was prejudiced by counsel’s inaction. As such, we affirmed the Judgment of Sentence imposed by the Clearfield County trial court and thereby validated his voluntary manslaughter conviction.
In light of our decision in Spotz IV, Spotz’s current argument has been rendered meritless. Despite being initially overturned, Spotz’s Clearfield County voluntary manslaughter conviction has since been reinstated. Therefore, this valid, voluntary manslaughter conviction was properly considered by the jury in finding the aggravating circumstance at 42 Pa.C.S. § 9711(d)(12).
2. Alleged Failure to Present Mitigating Evidence
Next, Spotz argues that his trial counsel was ineffective for failing to investigate and present all available mitigating evidence. According to Spotz, his penalty phase counsel failed to: (1) investigate the existence of several mitigation witnesses; (2) interview the witnesses already identified by counsel representing Spotz in his other capital cases; (3) prepare the mitigation witnesses he did present; (4) elicit available mitigating evidence from these witnesses; (5) obtain vital records and background information for his psychological expert witness; and (6) present a substantial portion of the mitigating evidence that his expert witness identified. (Brief of Spotz at 39).
It is well established that capital defense “[c]ounsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary.” Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 735 (2000) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In the context of the penalty phase, trial counsel has an obligation “ ‘to conduct a thorough investigation of the defendant’s background,’ particularly with respect to the preparation and presentation of mitigation evidence.” Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 475 (2004) (Gribble II) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). As we explained in Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761 (2004), this obligation includes the duty of penalty phase counsel
“to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation. See id. at 527, 123 S.Ct. 2527. At the same time, counsel’s obligations do not require an investigation into “every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Id. at 533, 123 S.Ct. 2527.
Hughes, 865 A.2d at 813-14 (citations modified) (internal footnote omitted). Further, as the United States Supreme Court recently elucidated in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), this duty to perform a prompt investigation into the circumstances of a case includes the duty to “investigate prior convictions ... that could be used as aggravating circumstances or otherwise come into evidence.” Id. at 2466 n. 7 (quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.7, cmt. (2003 rev. ed.)). With these standards in mind, we will examine each of the claims raised by Spotz concerning mitigating evidence.
a. J.R.
Spotz contends that his trial counsel failed to investigate, interview, and/or prepare certain lay mitigation witnesses. First, Spotz asserts that his trial counsel neither met with his maternal grandmother, J.R. (R.), nor discussed her penalty phase testimony prior to the date that she testified. However, at the PCRA hearing, trial counsel testified that he spoke with R. on the telephone several times concerning her appearance at trial and her testimony. (PCRA N.T., 9/28/00, at 143-46). In addition, trial counsel offered a Petition of Payment of Fees and Costs, which detailed at least five telephone conferences between counsel and R. prior to the date that she testified. (Id.). Such testimony, which the PCRA court explicitly found credible, clearly refutes the contention of Spotz that his trial counsel failed to prepare R. for trial. (Opinion of the PCRA Court at 16).
In any event, Spotz has failed to demonstrate how he was prejudiced by the alleged failure of trial counsel to interview and prepare R. for trial. As noted earlier, “[a]bsent a demonstration of prejudice, [a PCRA petitioner] cannot prevail on a claim for ineffective assistance of counsel and no further inquiry into the claim is warranted.” Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 221 (2001). Moreover, “[prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Id. at 213.
During her lengthy testimony at the sentencing phase of Spotz’s trial, R. described, with alarming detail, Spotz’s: (1) dysfunctional childhood; (2) volatile relationship with his brother, Dustin; (3) transient lifestyle; (4) substance abuse; (5) health issues; and (6) history of physical, emotional, and sexual abuse. (Sentencing N.T., 3/5/96-3/6/96, at 43-80). This penalty phase testimony effectively painted a disturbing picture of Spotz’s domestic life, such that the jury found the “catchall” mitigating circumstance, namely, that Spotz had been raised in a dysfunctional household. Spotz now insists that trial counsel was ineffective for insufficiently interviewing and preparing R. before his sentencing hearing. However, Spotz has failed to show any prejudice resulting from trial counsel’s alleged failure to present additional, and arguably cumulative, penalty phase testimony from R.. Specifically, Spotz has failed to demonstrate that there is a reasonable probability that, but for counsel’s alleged failure to elicit additional testimony from R. concerning Spotz’s dysfunctional childhood, the outcome of the penalty phase would have been different. Pierce, supra. Therefore, this claim of ineffective assistance of trial counsel necessarily fails.
Along a similar vein, Spotz also asserts that the alleged failure of trial counsel to prepare R. deprived him of the opportunity to present “powerful mitigation evidence” regarding “the circumstances of his brother Dustin’s death, including Dustin’s violently abusive history, death wish, and premeditated suicidal behavior designed to provoke his death.” (Brief of Spotz at 40). In support of his claim, Spotz points to R.’s testimony at the PCRA hearing, where she testified that approximately two weeks prior to Dustin’s death, Dustin hinted that he would antagonize Spotz into killing him. Notably, R. testified that, during one of Dustin’s frequent and violent rages, Dustin stated: “I’m going to have someone whom I love and someone who loves me help me to take my life.” (PCRA N.T., 9/29/00, at 288). According to Spotz, his counsel was ineffective for failing to elicit this significant testimony at trial.
However, in rejecting Spotz’s contention, the PCRA found this newly offered testimony of R. incredible. In particular, the court found “this recent recollection to be a grandmother’s attempt to save her grandson and [could not] assign it any credence.” (Opinion of the PCRA Court at 17). As the PCRA court explained, R. testified at the penalty phase about several of Dustin’s recurrent, violent episodes. Thus, the court concluded that “it is hard to believe that [R.] would have remembered long ago accounts of [Dustin’s] violence but have forgotten the most recent one, especially when this was a conversation, she claims to have personally witnessed, and one that involved such strange comments.” (Id.). Because the PCRA court was afforded the opportunity to assess and weigh the credibility of R. at the PCRA hearing, we should refrain from disturbing its credibility determinations. See Spotz IV, 870 A.2d at 886 (“[A]ppellate courts do not act as fact finders, since to do so would require an assessment of the credibility of the testimony and that is clearly not our function.”).
Regardless, Spotz has failed to show how the result of his penalty hearing would have been different had this additional testimony of R. been presented. We fail to see how the absence of R.’s newly offered testimony at the PCRA hearing “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Accordingly, counsel will not be deemed ineffective for failing to present testimony, the absence of which did not prejudice Spotz. Whitney, supra.
b. J.N.
Next, Spotz avers that his trial counsel was ineffective for failing to interview and prepare his mother, N., prior to her penalty phase testimony. Spotz maintains that, had trial counsel adequately prepared N. for trial, she would have offered overwhelming evidence of Spotz’s childhood neglect and abuse. According to Spotz, the sentencing jury only heard “a superficial description of [Spotz’s] childhood,” and “[w]hat little they heard paled in comparison to the horrors [Spotz] endured at the hands of his mother and male companions, and the devastating effects of that abuse and abandonment.” (Brief of Spotz at 41).
At the PCRA hearing, N. acknowledged that she had spoken to trial counsel on the phone “[a] couple of minutes, a couple of different times” regarding her penalty phase testimony. At this same evidentiary hearing, N. also testified that, had she been adequately prepared by trial counsel, she would have described how: (1) she suffered repeated physical and mental abuse at the hands of Spotz’s father; (2) she considered giving Spotz up for adoption shortly after his birth; (3) her husband, B.B. (B.), regularly locked Spotz and Dustin in their room; (4) B. regularly beat her in front of Spotz; (5) B. verbally abused Spotz; (6) Spotz lived at approximately fifteen different places by the age of eighteen; and (7) Dustin hinted of his impending death. (PCRA N.T., 9/29/00, at 308-50). However, at Spotz’s sentencing hearing, N. offered the same or similar testimony concerning Spotz’s daunting and otherwise dysfunctional childhood. In general, N. testified, inter alia, that: (1) Spotz’s father abused drugs; (2) B. ignored Spotz and Dustin; (3) B. frequently abused her; (4) her subsequent husband, Darrall N. (Darrall), physically abused Spotz; (5) Dustin stabbed Spotz on one occasion because Spotz was protecting her; (6) the family moved frequently; (7) Spotz and Dustin both spent time in foster care; (8) Spotz was deeply saddened by the adoption of her other child, A.; (9) both she and Dustin received mental health treatment; (10) Spotz was prescribed Ritalin at one point; and (11) she rejected Spotz until he was approximately thirteen because he resembled his father. (Sentencing N.T., 3/5/96-3/6/96, at 81-103). Similar to the testimony of R., N.’s penalty phase testimony thoroughly described Spotz’s violent and unstable home life. Hence, the jury found the “catchall” mitigating circumstance that Spotz grew up in a dysfunctional household.
Although N. offered additional recollections of Spotz’s volatile childhood at the PCRA hearing, we fail to see how the testimony elicited from N. at trial differs materially from her PCRA testimony. Rather, the trial record establishes that trial counsel did adequately question N. about Spotz’s dysfunctional childhood, which was plagued by abuse and neglect. The PCRA testimony of N. further detailing Spotz’s background was merely cumulative of her prior testimony offered at Spotz’s sentencing hearing. “Trial counsel cannot be deemed ineffective for failing to pursue cumulative evidence of appellant’s background.” Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 205 (1997) (citing Commonwealth v. Cross, 535 Pa. 38, 634 A.2d 173, 177 (1993)); accord Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955, 961 (1984). Thus, this claim must fail.
c. C.D.
Spotz next reasons that his trial counsel was ineffective for failing to prepare C.D. (Carol), a friend of the Spotz family, before her penalty phase testimony. According to Spotz, had trial counsel effectively prepared Carol prior to his sentencing hearing, she would have testified that “Spotz and Dustin used language ‘inappropriate’ for children — rife with reference to sexual and other matters about which they should have had no knowledge.” (Brief of Spotz at 43 (quoting PCRA N.T., 9/29/00, at 354)).
At the PCRA hearing, Carol testified that that she never met with trial counsel prior to testifying at the penalty phase hearing. (PCRA N.T., 9/29/00, at 353-54). However, during that same PCRA hearing, trial counsel testified that, according to his billing records, he had conducted at least one telephone conference with Carol prior to the date that she testified. (PCRA N.T., 9/28/00, at 149). Moreover, at Spotz’s sentencing hearing, Carol testified that, after visiting the Spotz household, she remembered that Spotz and Dustin used inappropriate language and that “they had been exposed to much more than what children their age should have been.” (Sentencing N.T., 3/5/96-3/6/96, at 117). Although this penalty phase testimony did not explicitly mention the sexual nature of the “inappropriate” language, such an inference was readily apparent from the context of the statement.
Nonetheless, Spotz has failed to show how he was prejudiced by the failure of trial counsel to emphasize that the “inappropriate” language allegedly used by Spotz and Dustin included sexual references. Spotz has not demonstrated that there is a reasonable probability that, but for counsel’s alleged failure to procure this additional testimony from Carol, the outcome of his trial would have been any different. Pierce, supra. As such, counsel will not be deemed ineffective for failing to present additional testimony from a witness, the absence of which did not prejudice Spotz. Whitney, supra.
d. L.C.
Spotz avers that his trial counsel was ineffective for failing to inform his wife, L.C. (Linda), that she would be testifying prior to the time that she was called at Spotz’s sentencing hearing. Spotz insists that, had trial counsel adequately prepared Linda before the penalty phase hearing, she would have testified about his escalating drug and alcohol abuse during the time period preceding the alleged murders. However, as alluded to previously, numerous witnesses, including Spotz himself, testified at the sentencing hearing about Spotz’s recurrent and destructive drug and alcohol abuse. We fail to see how the absence of additional testimony from Linda further detailing Spotz’s well-documented drug and alcohol abuse “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Such testimony from Linda concerning Spotz’s substance abuse would have been purely cumulative in nature. As a defendant is not prejudiced by the failure of trial counsel to pursue cumulative evidence of the defendant’s background, Spotz’s claim of ineffective assistance of counsel must fail. Hall, supra; Clemmons, supra.
e. M.C.
Similarly, Spotz also asserts that his trial counsel was ineffective for failing to interview and prepare C., his sister-in-law, to testify at the sentencing hearing. According to Spotz, his “counsel wholly failed to bring out evidence of [his] downward psychological spiral immediately before his brother’s death.” (Brief of Spotz at 39). Other than making this bald assertion, Spotz does not direct the Court to any evidence to support his argument. Like Linda, C. also testified briefly at the PCRA hearing about Spotz’s escalating drug and alcohol abuse and how he appeared “pretty run down” prior to the alleged murders. (PCRA N.T., 10/2/00-10/3/00, at 572). Meanwhile, at the penalty phase of Spotz’s trial, C. testified that Spotz regularly abused “[mjarijuana, alcohol, crack, [and] ■ acid.” (Sentencing N.T., 3/5/96-3/6/96, at 146). We fail to see how the testimony elicited from C. before the PCRA court differs materially from the testimony that she offered during the sentencing hearing of Spotz. Any additional testimony from C. further detailing Spotz’s escalating substance abuse would have been merely cumulative evidence. A defendant is not prejudiced by the failure of counsel to present merely cumulative evidence, Clemmons, supra.; therefore, this ineffectiveness claim must fail.
f. L.P. and C.D.
Next, Spotz professes that his trial counsel was ineffective for failing to call either L.P. (P.) or C.D. (C.) as mitigation witnesses at his sentencing hearing. Spotz claims that both P. and C., who are friends of the Spotz family, were available to testify at his penalty phase hearing, but trial counsel failed to call either as a mitigation witness. As noted earlier, to prove that counsel was ineffective for not presenting certain witnesses, a defendant “must establish the existence of and the availability of the witnesses, counsel’s actual awareness, or duty to know, of the witnesses, the willingness and ability of the witnesses to cooperate and appear on the defendant’s behalf and the necessity for the proposed testimony in order to avoid prejudice.” Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 480 (1998).
At the PCRA hearing, P. testified that, had she been called as a witness, she would have described: (1) Spotz’s unstable home environment; (2) the deplorable living conditions of the Spotz household; (3) the widespread drug and alcohol abuse throughout the Spotz household; (4) Spotz’s frequent encounters with physical violence; and (5) the regular abuse Spotz suffered at the hands of his stepfather, Darrall. (PCRA N.T., 9/28/00, at 70-92). Moreover, at the same PCRA hearing, C. also testified that, had he been called as a mitigation witness, he would have described that, while growing up, Spotz was subjected to deplorable living conditions and that Spotz’s mother lacked an emotional bond with him. (PCRA N.T., 9/29/00, at 358-63).
Spotz, however, has failed to show how the absence of such testimony of P. and C. prejudiced him. Instead, the PCRA testimony appears to be merely repetitive and cumulative of the penalty phase testimony offered by other mitigation witnesses, which more than adequately illustrated the distressing childhood and home life to which Spotz had been subjected. As a defendant is not prejudiced by the failure of trial counsel to pursue cumulative evidence of the defendant’s background, Spotz’s claim of ineffective assistance of counsel must fail. Hall, supra; Cross, supra; Clemmons, supra.
g. Institutional Records
In continuing his argument that trial counsel was ineffective for failing to investigate and present available mitigating evidence, Spotz contends that his trial counsel conducted no independent investigation of available institutional records. Spotz acknowledges that his trial counsel had been provided a variety of institutional records through a coordinated effort with his defense counsel in the other counties where he had been charged. Nonetheless, Spotz maintains that these institutional records, including his Clearfield County Children & Youth records, which were provided by Cumberland County Public Defender Taylor Andrews (Attorney Andrews), were “woefully incomplete.” (Brief of Spotz at 44). Moreover, Spotz claims that trial counsel failed to obtain any mental diagnoses of other Spotz family members, including the institutional records of Dustin, which, according to Spotz, were necessary “to understand the shocking extent of the abuse, neglect, and violence in the Spotz home or the genesis of the Clearfield County incident that precipitated this killing.” (Id. at 45).
At the PCRA hearing, trial counsel explained that, because Spotz had been charged with homicide in three different counties, the defense attorneys in each county developed a joint investigation effort. (PCRA N.T., 9/28/00, at 101-03). Pursuant to this coordinated effort, Attorney Andrews, counsel for Spotz in Cumberland County, was in charge of investigating and gathering Spotz’s background information concerning potential penalty phase issues. (Id.) In addition, trial counsel testified that he had sent out his own investigators from Schuylkill County “to get additional information to supplement what [he] had been given by the investigator that Attorney Andrews had hired.” (Id. at 102.)
As Spotz notes, the Clearfield County Children & Youth records obtained by Attorney Andrews and utilized by trial counsel were incomplete. However, these institutional records were purposely condensed because of their extensive volume. Because the file was so large, joint counsel asked Molly Muir (Muir), the caseworker assigned to the Spotz family file, to “pick out the documents that would provide the best overview of the family’s file.” (PCRA N.T., 9/29/00, at 194). In response, Muir testified at the PCRA hearing that she “tried to pick out examples until the case was closed that would give the counsel an overview of how [the Spotz] family functioned and what Children & Youth did during its involvement.” (Id. at 280).
We fail to see how Spotz was prejudiced by the failure of trial counsel to obtain the full text of each and every available institutional record relating to Spotz and Dustin. Contrary to the position of Spotz, the condensed institutional records provided by Muir from Clearfield County Children & Youth more than adequately detailed the abuse, neglect, and violence prevalent in the Spotz household. (Id. at 278-79; Exhibit 18A). Moreover, as referenced above, numerous penalty phase witnesses meticulously recounted the substantial abuse, neglect, and violence to which Spotz had been subjected at home. Hence, the jury found, by a preponderance of the evidence, the “catchall” mitigating circumstance, namely that Spotz had been raised in a dysfunctional household.
Spotz has failed to demonstrate that there is a reasonable probability that, but for counsel’s alleged failure to obtain the full text of all available institutional records, the outcome of the penalty phase would have been different. Pierce, supra. Additional, full-text institutional records reiterating the abuse, neglect, and violence in the Spotz home would have been merely cumulative and redundant. A defendant is not prejudiced by the failure of counsel to present merely cumulative evidence. Clemmons, supra. Thus, this claim of ineffective assistance of trial counsel is meritless.
In a related claim, Spotz also argues that his trial counsel was ineffective for relying on the records collection of Attorney Andrews, who Spotz alleges labored under a conflict of interest. Spotz notes that Attorney Andrews, as part of a tri-county coordinated effort, was responsible for investigating and gathering Spotz’s background information and institutional records. Spotz also identifies that Attorney Andrews had represented Dustin during prior, unrelated criminal proceedings concerning Dustin’s involuntary commitment to Warren State Hospital. Because of this prior representation of Dustin, Spotz maintains that an actual conflict of interest existed between Attorney Andrews and him. Therefore, Spotz asserts that his trial counsel was ineffective for “[h]aving relied completely on conflicted counsel’s work product.” (Brief of Spotz at 46-47).
“A defendant cannot prevail on a conflict of interest claim absent a showing of actual prejudice.” Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1094 (1998) (citing Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 38 (1991)). In Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292 (2001), this Court reiterated that while “it is true that prejudice is presumed when counsel is burdened by an actual conflict of interest, this is only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Id. at 297-98 (quoting Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167, 1175 (1986)) (holding that “[a]ppellant’s defense was not prejudiced by the fact that, at a prior time, his counsel had represented a Commonwealth witness”).
Here, Spotz has failed to demonstrate that counsel “actively represented conflicting interests.” Id. Similar to Hawkins and Buehl, this was not a circumstance involving dual representation by a single attorney. Rather, as in Hawkins and Buehl, Attorney Andrews’ representation of Dustin terminated before he was appointed to represent Spotz in Clearfield County. As we stated in Karenbauer, “[w]here, as here, the record clearly demonstrates that counsel did not actively represent conflicting interests, a claim based on the appearance of a conflict of interest lacks merit.” Karenbauer, 715 A.2d at 1094.
Additionally, as in Hawkins, Spotz has failed to show how Attorney Andrews’ previous representation of the now deceased Dustin adversely affected trial counsel’s representation of Spotz in the present matter. Although Attorney Andrews spearheaded the investigation into Spotz’s background information, trial counsel also conducted his own independent investigation into mitigating circumstances. (PCRA N.T., 9/28/00, at 102). Other than the bald assertions that Spotz presents in his Brief to this Court, he has offered no evidence to suggest that Attorney Andrews withheld any of Dustin’s institutional records from trial counsel because of an alleged conflict of interest. Furthermore, there is no evidence of record to suggest that trial counsel requested Dustin’s institutional records and was denied access by Attorney Andrews. Instead, the record reveals that both trial counsel and Attorney Andrews zealously advocated on behalf of Spotz and were unhampered by any alleged conflict of interest created by Attorney Andrews’ prior representation of Dustin.
Nevertheless, Spotz insists that this alleged conflict of interest prevented Attorney Andrews from providing Dustin’s institutional records, which “were substantially richer in detail about the [Spotz] family abuse and violence.” (Brief of Spotz at 48). According to Spotz, “[w]ithout this essential inform a,tion, counsel could not — and did not — accurately inform the jury of the horrific situation in the Spotz household.” (Id.). However, Spotz’s own admissions in his Brief reveal that, even if Attorney Andrews had provided Dustin’s institutional records to trial counsel, these records would have uncovered nothing more than cumulative evidence of the abuse, neglect, and violence prevalent inside the Spotz household. As previously emphasized, numerous mitigation witnesses at Spotz’s sentencing hearing, including Spotz himself, detailed this abuse, neglect, and violence that Spotz endured in his home life. A defendant is not prejudiced by the failure of trial counsel to pursue cumulative evidence of the defendant’s background, Hall, supra; Cross, supra; Clemmons, supra; therefore, Spotz’s claim of ineffective assistance of counsel must fail.
h. Dr. Ragusea
Next, Spotz argues that his counsel was ineffective for failing to provide defense mental health expert, Dr. Ragusea, with sufficient records so that he could make an accurate diagnosis. At the PCRA hearing, Dr. Ragusea, a psychologist, testified that, prior to Spotz’s trial, he did not receive all of Spotz’s available institutional records, including those records contained in the Spotz family file at the office of Clearfield County Children & Youth. (PCRA N.T., 10/2/00-10/3/00, at 507). After reviewing the additional family records provided to him following Spotz’s trial, Dr. Ragusea testified that he would have changed his diagnosis of Spotz. (Id. at 510-11). In particular, Dr. Ragusea stated that he would have changed his diagnosis from just a simple case of post-traumatic stress disorder caused by the stabbing and shooting death of Dustin in Clearfield County to a more “severe case of post traumatic stress disorder,” which predated the Clearfield County incident. (Id. at 511). According to Dr. Ragusea, the additional records indicated that this preexisting post-traumatic stress disorder resulted from the frequent and traumatic abuse that Spotz endured in his household, which Dr. Ragusea explained was “more frequent and more severe than [he] believed at the time of [Spotz’s] trial based upon the documentation then available to [him].” (Id. at 512-13).
Additionally, Dr. Ragusea also testified at the PCRA hearing that, in light of the additional records provided to him after Spotz’s trial, he would have “consider[ed] changing [his] diagnosis regarding the possibility of the schizophrenic disorder or schizoaffective disorder given that there is apparently a strong genetic trend in the family.” (Id. at 511). Dr. Ragusea explained as follows:
Both Dustin Spotz and the father of both Spotz boys were diagnosed with those diagnoses of schizoaffective disorder and schizophrenic disorder and as a result it raised concerns in my mind about Mark Spotz possibly having the same genetic load and at the time I wrote my report I did not have that documentation available to me.
(Id. at 511). Consequently, Spotz contends that the absence of these additional records materially weakened the testimony of Dr. Ragusea and thereby hampered his case for mitigation at the penalty phase.
As explained earlier, Spotz’s institutional records were collected as part of a tri-county cooperative effort of defense counsel and then forwarded to Dr. Ragusea to assist him during his evaluation of Spotz. At the PCRA hearing, Muir, the Children & Youth caseworker from Clearfield County, testified that, because of the overwhelming size and volume of records contained in the Spotz family file, she intentionally excluded many duplicative and surplus records. (PCRA N.T., 9/29/00, at 194). As such, she testified that she “tried to pick out examples until the case was closed that would give the counsel an overview of how [the Spotz] family functioned and what Children & Youth did during its involvement.” (Id. at 280).
According to Spotz, the absence of these additional records, which Dr. Ragusea deemed significant, materially affected his diagnosis. However, this argument of Spotz was discredited and undermined by the PCRA testimony of his own expert witness, Robert Fox (Dr. Fox), a psychiatrist. At the PCRA hearing, Dr. Fox testified that, after reviewing all of the available institutional records of the Spotz family, including those to which Dr. Ragusea was not privy, and interviewing Spotz privately at prison for three hours, he diagnosed Spotz with preexisting post-traumatic stress disorder, which dated back to his childhood as a result of abuse and neglect at home. (PCRA N.T., 10/2/00-10/3/00, at 383-84, 465-66). Although the post-traumatic stress disorder diagnosis of Dr. Fox differed slightly from the diagnosis of Dr. Ragusea, in that it predated the stabbing and shooting death of Dustin, Dr. Fox did not attribute this slight disparity to Dr. Ragusea’s alleged lack of available institutional records. Rather, when asked if the absence of these additional records would have materially affected the diagnosis of Dr. Ragusea, Dr. Fox responded:
No, I don’t think that the absence of these records would materially affect it. I think you could make the diagnosis based on the other body of records. The diag — the records that were not provided to Doctor Ragusea are important records. They’re very useful records but in looking — and it’s — I’m in a difficult situation in trying to answer that question because T read all the records together. I didn’t say — I didn’t read what he had and then read the additional stuff. I read — I just read all of them. So in retrospect to say well, if you didn’t have this page and you only had this, there are an awful lot of records — I think that there were an awful lot records that Doctor Ragusea had and I think that they’re way more records than I would normally expect to receive in a case like this.
(Id. at 477 (emphasis added)).
Furthermore, Dr. Fox ascribed the difference in each doctor’s diagnosis to the timing of the respective examinations, and not to the availability of additional records. (Id. at 484). Specifically, Dr. Fox noted that he “had somewhat of an advantage over Doctor Ragusea” because he had the benefit of examining Spotz several years after the traumatic stabbing and shooting death of Dustin. (Id.). On the other hand, Dr. Fox explained that Dr. Ragusea evaluated Spotz shortly after the traumatic events in Clearfield County, during a time when “the trauma related to [Spotz] being stabbed by his brother and the death of his brother were much more prevalent ... than the whole lifetime history of trauma.” (Id.). Thus, as this PCRA testimony illustrates, Spotz’s own expert witness dismissed his claim that the absence of additional institutional records materially affected the diagnosis of Dr. Ragusea.
Even so, Spotz has failed to establish that he was prejudiced by the failure of trial counsel to provide Dr. Ragusea with additional institutional records. Pierce, supra. As the PCRA court explained, “[t]he difficulty in crediting Dr. Ragusea’s testimony on this point is that he was unable to identify for the court specifically which new records were important and necessary in the formulating of his opinion.” (Opinion of the PCRA Court at 31). Notably, at the PCRA hearing, the following exchange occurred:
THE COURT: You’re not able to delineate for me specifically what records caused you to change your mind [concerning your diagnosis]?
A. [Dr. Ragusea]: Not at this point I could not, your Honor. It’s just — it’s a very complicated matter.
(PCRA N.T., 10/2/00-10/3/00, at 565). Absent a showing of prejudice before the PCRA court, Spotz is not entitled to relief on his claim.
Ultimately, Dr. Ragusea testified that the additional records were helpful in corroborating much of the information that Spotz had detailed during his initial evaluation. (Id. at 556). Other than providing cumulative background information, Spotz has failed to show how the additional records would have materially influenced the diagnosis of Dr. Ragusea. As a defendant is not prejudiced by the failure of trial counsel to present cumulative evidence of the defendant’s background, Hall, supra; Cross, supra, Spotz’s claim of ineffective assistance of counsel is without merit.
In a related claim, Spotz also asserts that his trial counsel was ineffective for failing to prepare Dr. Ragusea during the penalty phase of his trial. According to Spotz, trial counsel failed to direct and guide the testimony of Dr. Ragusea, causing his expert to ramble “through a disjoined monologue of general observations,” which came across to the jury as disorganized and imprecise. (Brief of Spotz at 53). In support of his argument, Spotz points to the testimony of Dr. Ragusea at the PCRA hearing, where he testified as follows: “I expected to be asked lots of questions and I was sort of surprised. I kept looking over at the attorney looking for guidance or structure and I just didn’t get any.” (PCRA N.T., 10/2/00-10/3/00, at 520). Despite allegedly being “set loose” by trial counsel to “just talk until [he] had nothing further to say,” Dr. Ragusea testified that he “still had plenty more to say,” but was not properly guided by Spotz’s attorney. (Id.).
At the PCRA hearing, trial counsel acknowledged that he had only asked Dr. Ragusea a very limited number of questions at the sentencing hearing. (PCRA N.T., 9/28/00, at 154). However, he explained his strategy behind this approach by stating: “If experts can get away with that with putting on their show with nobody stopping them, I don’t stop them.” (Id.). Moreover, trial counsel testified that he had “gone over [Dr. Ragusea’s] testimony with him several times” and even created a checklist of items that he wanted Dr. Ragusea to cover in front of him. (Id. at 155). Because he recollected that he had “checked off everything” on the list, trial counsel testified that he did not believe it was necessary to continue questioning Dr. Ragusea further.
Despite being asked limited questions, Dr. Ragusea testified at length during the penalty phase concerning, inter alia, Spotz’s background information, his evaluation of Spotz, and the diagnoses he reached. (Sentencing N.T., 3/5/96-3/6/96, at 234-62). As the PCRA court concluded, “[t]here appears to be nothing disjointed or confusing about [Dr. Ragusea’s] testimony, which happens to occupy nearly thirty pages in the trial transcript.” (Opinion of the PCRA Court at 34). The decision of trial counsel to allow Dr. Ragusea to testify freely and uninterrupted was a matter of sound trial strategy. As noted previously, trial counsel will not be deemed ineffective where he or she has a reasonable basis for his or her actions. Paolello, supra. Moreover, the mere fact that this trial strategy ultimately proved unsuccessful does not render it unreasonable. Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1085 (2001). Because Spotz has failed to show that trial counsel did not have a reasonable strategic basis for presenting the testimony of Dr. Ragusea in this narrative manner, he is not entitled to relief on this claim. See Paolello, 665 A.2d at 454 (“If we conclude that, the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective.”).
i. Department of Corrections Records
Finally, Spotz maintains that his trial counsel was ineffective for failing to present, as mitigating evidence during the penalty phase, his Department of Corrections records, which, according to Spotz, allegedly detailed his favorable adjustment to prison. In particular, Spotz claims that an institutional report prepared by Franklin Ryan, Ph.D. (Dr. Ryan), the chief psychologist at the state correctional facility where Spotz was imprisoned, would have provided “clear and admissible evidence that incarceration ‘provides [Spotz] with a structure, limits, and guidelines’ and that, in the judgment of the state correctional institution’s own chief psychologist, [Spotz] in time will ‘adjust well to prison life.’ ” (Brief of Spotz at 56 (quoting Exhibit 5 to the Initial Brief of Spotz, PVReclass Psych Eval, 1/31/96, at 2)). Spotz insists that the failure of trial counsel either to introduce this corrections report as mitigating evidence at the sentencing hearing or to provide this institutional report to Dr. Ragusea for his evaluation of Spotz was highly prejudicial.
As Spotz notes, in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the United States Supreme Court determined that it was error for a trial court to preclude testimony that a defendant had made a good adjustment to prison life during the time between his arrest and trial. In reaching its decision, the Supreme Court explained that, “in capital cases, the sentencer [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Skipper, 476 U.S. at 4, 106 S.Ct. 1669 (internal quotation marks omitted); see also Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 851-52 (2003); Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1053-54 (2002).
Here, unlike Skipper, Spotz does not contend that the trial court erred in precluding evidence of his favorable adjustment to prison life. Rather, Spotz asserts that his counsel was ineffective for failing to present such mitigating evidence. This Court was faced with a similar ineffective assistance of counsel claim in Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978 (2002). In Wharton, the defendant claimed that his trial counsel was ineffective for failing to obtain and introduce evidence that, during the seven years between his first and second penalty hearings, he adjusted favorably to prison life and, therefore, he should be sentenced to life in prison because he was amenable to rehabilitation. The defendant argued that his positive adjustment to the prison environment was relevant mitigating evidence that his counsel was constitutionally obliged to produce pursuant to Skipper. In distinguishing Skipper, we explained as follows:
The issue in Skipper, however, was not whether counsel could be deemed ineffective for failing to introduce this sort of evidence, but rather, whether the trial court there erred in excluding actually proffered evidence that the incarcerated defendant’s behavior in prison had been good.... Properly speaking, the issue before this Court is not whether appellant’s prison adjustment was relevant mitigation evidence that the trial court erred in excluding. Instead, the issue is whether appellant’s counsel was ineffective for failing to introduce evidence of that adjustment as mitigation evidence to convince the jury that he had made a positive adjustment to prison.
Wharton, 811 A.2d at 988. After examining the defendant’s voluminous prison records, this Court concluded that the defendant had failed to demonstrate that his counsel lacked an objectively reasonable basis for failing to present this mitigating evidence. Specifically, we noted that the defendant’s institutional records detailed both positive and negative adjustments to prison life. Because the evidence concerning the defendant’s institutional adjustment “cut both ways,” we concluded that “counsel can hardly be deemed constitutionally incompetent for failing to produce it.” Id. at 989.
Similar to Wharton, Spotz has failed to demonstrate how his counsel was ineffective for failing to present his Department of Corrections records as mitigating evidence. First, Spotz has failed to show that trial counsel did not have a reasonable strategic basis for choosing not to present these institutional records. Paolello, supra. Likewise, Spotz has failed to demonstrate how he was prejudiced by the failure of counsel to offer his Department of Corrections records. Notably, the report prepared by Dr. Ryan, which appears to have been an intake evaluation, merely indicates that Spotz is likely to adjust favorably to prison life. Unlike the records in either Wharton or Skipper, this report does not detail Spotz’s actual, favorable adjustment to prison life, but rather speculates as to his potential, favorable adjustment. Because of the speculative nature of the report, we believe that trial “counsel can hardly be deemed constitutionally incompetent for failing to produce it.” Wharton, 811 A.2d at 989. In any case, Spotz has failed to show that there is a reasonable probability that, but for trial counsel’s failure to present his Department of Corrections records, the outcome of his sentencing hearing would have been different. Thus, this claim of ineffective assistance of trial counsel must fail. Pierce, supra.
3. Finding of (d)(6) Aggravating Circumstance
Spotz next asserts that his death sentence must be reversed because the trial court failed to instruct the jury during the sentencing phase that the aggravating circumstance of committing a killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), does not apply to an accomplice who did not personally bring about the death of the victim. Because trial counsel could have, but failed, to raise this claim at trial, it is waived. 42 Pa.C.S. § 9544(b). Spotz, however, presents the argument in terms of the ineffectiveness of his trial counsel for failing to make a request for such an instruction at trial. Therefore, this Court will excuse the waiver and consider his claim in light of the standard for determining whether trial counsel was ineffective for failing to raise the issue at trial. Morales, supra.
In order to impose a sentence of death, the jury must unanimously agree: (1) that the Commonwealth has proved at least one “aggravating circumstance” beyond a reasonable doubt; and (2) that either: (a) the defendant has failed to prove any “mitigating circumstance” by a preponderance of the evidence; or (b) the aggravating circumstance or circumstances outweigh any mitigating circumstances. 42 Pa.C.S. § 9711(c)(1)(iv). During the sentencing phase of his trial, the jury found that Spotz had proved one mitigating circumstance and that the Commonwealth had established three aggravating circumstances, including that Spotz “committed a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6).
On December 23, 1998, this Court held in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 662 (1998) (plurality opinion), that the Section 9711(d)(6) aggravating circumstance “may not be applied to an accomplice who does not ‘commit’ the killing in the sense of bringing it to completion or finishing it.” Thus, at the sentencing phase of a first-degree murder trial, the Commonwealth has failed to prove this aggravator unless and until it has established beyond a reasonable doubt that the defendant himself was the killer. At the trial of Spotz, the court failed to make this requirement clear to the jury; hence the claim of Spotz that his trial counsel was ineffective for failing to make a request for such an instruction has arguable merit.
Nevertheless, it is well established that the effectiveness of counsel is examined under the standards existing at the time of performance rather than at the point when an ineffectiveness claim is made. See, e.g., Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343 (1997) (citing Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74, 77 (1983)). Therefore, Spotz must demonstrate that trial counsel was ineffective under the law in existence at the time of trial. The only decision upon which Spotz relies as compelling the instruction in question, however, is Lassiter, which we decided nearly three years after the jury sentenced him, on March 6, 1996. Consequently, this Court cannot say that the trial court improperly instructed the jury, nor can it find that trial counsel was ineffective for failing to make a request for the instruction that Lassiter would have required. See Cribble II, 863 A.2d at 464 (“Counsel cannot be deemed ineffective for failing to predict developments or changes in the law.”); Commonwealth v. Fowler, 550 Pa. 152, 703 A.2d 1027, 1029 (1997) (“Counsel can never be deemed ineffective for failing to raise a claim that has no merit.”).
In his Concurring and Dissenting Opinion, Justice Saylor denies that Lassiter constituted a development or change in the law existing at the time of Spotz’s sentencing, suggesting that “Lassiter’s holding merely enforces the plain meaning of the statute.” Concurring and Dissenting Opinion of Justice Saylor, op. at 109, 896 A.2d at 1256. Because “capital counsel are responsible to vindicate their clients’ interests under existing statutory provisions,” Justice Saylor finds that Spotz satisfies the arguable merit and reasonable basis prongs of the instant ineffectiveness claim. Id. Moreover, “since the jurors found a mitigating circumstance, and therefore, the sentencing decision was committed to their weighing of the aggravating and mitigating circumstances,” Justice Saylor concludes that Spotz has shown that there is a reasonable probability that the jury would not have imposed the death penalty but for trial counsel’s failure to challenge the jury instruction. Id. at 111—12, 896 A.2d at 1257. Therefore, finding all three prongs of the instant ineffectiveness claim satisfied, Justice Saylor would award a new penalty hearing. Id. Although we agree that Spotz has shown that his claim has arguable merit, we find that he has failed to satisfy the reasonable basis prong and therefore conclude that a new penalty hearing is unwarranted.
To determine whether trial counsel for Spotz had a reasonable basis for not objecting to the jury instructions regarding the (d)(6) aggravator, we must consider the many decisions of this Court dealing with the application of that aggravator that were in effect at the time of Spotz’s sentencing. An examination of these cases reveals that, in the course of reviewing sentences imposed before our decision in Lassiter, we often did not identify the person who must commit the killing when referring to the (d)(6) aggravator. More importantly, on several occasions, this Court upheld the sentencing of a defendant, prior to Lassiter, where the jury found the (d)(6) aggravator applicable even though, as in the instant case, it may have convicted the defendant based on accomplice liability.
Therefore, although the argument based on the text of the statute indeed has arguable merit, and although trial counsel’s decision may seem unreasonable in hindsight, trial counsel for Spotz might reasonably have believed at the time that objecting to the jury charge regarding the (d)(6) aggravator would have been futile given our own prior decisions upholding its application against accomplices. Accordingly, we decline to deem Spotz’s trial counsel ineffective for failing to request that the trial court instruct the jury that the (d)(6) aggravator does not apply to an accomplice who did not personally bring about the death of the victim.
4. Finding of (d)(9) Aggravating Circumstance
Another of the three aggravating circumstances that the jury unanimously found during the sentencing phase of the trial of Spotz is that Spotz “has a significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa.C.S. § 9711(d)(9). Spotz challenges his death sentence on the basis of the failure of his counsel to raise a number of issues relating to this aggravating circumstance. According to Spotz, the failure to raise these issues during the sentencing phase of his trial constitutes ineffective assistance of counsel, which requires that his death sentence be vacated.
The first argument involving the Section 9711(d)(9) aggravator that Spotz asserts his counsel should have raised is based on the failure of the trial court to define the statutory terms “significant history,” “use or threat of violence,” or “to the person.” Spotz argues that the absence of any limiting instructions renders these words unconstitutionally vague. The vagueness argument of Spotz, however, lacks arguable merit.
In Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994), which was decided just two years before the sentencing of Spotz, this Court rejected as “absurd” a vagueness challenge to the “significant history” portion of the language of Section 9711(d)(9). Id. at 719; see also Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689, 697-98 (1986). The terms “use or threat of violence” and “to the person” are, of course, even less ambiguous than “significant history;” Spotz cannot be heard to argue that someone in his position would have had to guess at the meaning of such straightforward language. Therefore, because the vagueness challenge to Section 9711(d)(9) lacks merit, counsel for Spotz cannot be deemed ineffective for failing to make it. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995).
Spotz also challenges the Section 9711(d)(9) aggravating circumstance on the basis of the “inconsistent determination” by this Court of whether burglary is per se a crime “involving the use of threat of violence” pursuant to the language of the statute. (Brief of Spotz at 71). According to Spotz, such inconsistent construction of Section 9711(d)(9), which he calls “arbitrary and capricious,” somehow renders his death sentence unconstitutional. (Id.)
In Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062 (1995) (Bracey I), which was decided within just a year of the trial of Spotz, this Court specifically rejected the same argument raised by Spotz. In Bracey I, this Court determined that trial counsel was not ineffective for failing to object to an instruction by the trial court that burglary is per se a crime of violence pursuant to Section 9711(d)(9). Id. at 1075 n. 15 (citing Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988)). As this Court held in Rolan, “the crime of burglary has always been and continues to be viewed as a crime involving the use or threat of violence to the person.” Rolan, 549 A.2d at 559.
Although Spotz cites prior cases in which this Court has considered the question whether burglary is per se a crime of violence pursuant to Section 9711(d)(9), he fails to provide adequate support for his contention that the jury could not constitutionally find that the Commonwealth had established the aggravator pursuant to the applicable law at the time of trial. The trial court merely followed the binding precedent of this Court when it allowed the jury to find, based on the burglary convictions of Spotz, that he had “a significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa.C.S. § 9711(d)(9). Because the challenge to the jury finding on this basis lacks arguable merit, counsel for Spotz was not ineffective for failing to raise it. Travaglia, supra.
Finally, Spotz raises erroneous testimony at trial that, according to him, renders improper the jury’s finding of the Section 9711(d)(9) aggravator. During the sentencing phase of the trial, the Commonwealth presented Robert C. Gwinn (Gwinn), the Clerk of Courts of Cumberland County, as a witness. While testifying to the criminal record of Spotz, Gwinn stated that Spotz had pled guilty to eight counts of burglary. (Sentencing N.T., 3/5/96-3/6/96, at 29). It is undisputed, however, that Spotz was convicted of only three counts of burglary. To determine whether Spotz had a “significant history” of convictions for crimes of violence, the jury was instructed to consider, inter alia, “the number of previous convictions.” (Id. at 292). Therefore, the erroneous nature of the testimony of Gwinn, unless corrected, would undermine support for the jury finding of the aggravator, see Commonwealth v. Karabin, 521 Pa. 543, 559 A.2d 19 (1989), and, in turn, reliance on it by the jury in imposing the death sentence, see Aaron Jones I, supra.
A careful examination of the record, however, shows that the misstatement of Gwinn did not stand uncorrected. Just after Gwinn misspoke, counsel for Spotz immediately objected, interrupting Gwinn, and a sidebar followed. (Sentencing N.T., 3/5/96-3/6/96, at 29-31). After the sidebar, the judge instructed the jury to disregard a portion of the testimony of Gwinn. (Id. at 31-32). Although the judge did not mention the misstatement in his instructions, once direct examination continued, the prosecutor asked Gwinn whether Spotz entered a plea to three counts of burglary, and Gwinn responded, “Yes.” (Id. at 32). Moreover, immediately following Gwinn on the stand was David John Bennett, a state parole officer, who confirmed that Spotz had pled guilty to “three counts of burglary.” (Id. at 34). Once the number of burglary convictions had thus been clarified, there was no longer a meritorious argument to be made, and counsel for Spotz may not be deemed ineffective for failing to object in that regard. Travaglia, supra.
5. Lack of Simmons Instruction
Next, Spotz alleges that his sentence of death should be reversed because the trial court failed “to provide an accurate sentencing instruction that in Pennsylvania a defendant who receives a life sentence for first-degree murder is statutorily ineligible for parole.” (Brief of Spotz at 79). Because trial counsel failed to raise this claim at trial, it is waived. 42 Pa.C.S. § 9544(b). However, Spotz does contend and sufficiently argue that trial counsel was ineffective for failing to raise the issue at trial. (Brief of Spotz at 87-90). Thus, we will consider his argument in light of the standard for determining whether trial counsel was ineffective for failing to raise the argument at trial. Morales, supra.
Spotz maintains that his trial counsel was ineffective for failing to request a jury instruction at the penalty phase that life imprisonment in Pennsylvania means life without the possibility of parole. See Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Spotz claims that his counsel’s failure to request such an instruction violated his due process rights, his right to an impartial jury, and the requirement pursuant to the Eighth Amendment that a capital sentencing jury be permitted to consider and give effect to all relevant mitigating circumstances.
In Simmons, the United States Supreme Court recognized that a state “may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.” Id. at 171, 114 S.Ct. 2187. Therefore, the Simmons Court held that, where the state puts the future dangerousness of the defendant into issue, due process requires that the defendant be entitled to inform the jury that he or she is ineligible for parole. Id. During the time since the decision of the Supreme Court in Simmons, precedent from this Court has established that “[a] Simmons instruction, detailing what a life sentence means in Pennsylvania, is required only if the prosecution makes the defendant’s future dangerousness an issue in the case and the defendant specifically requests such an instruction.” Spotz III, 759 A.2d at 1291 (citing Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040, 1046 (1998), and Commonwealth v. Smith, 544 Pa. 219, 675 A.2d 1221, 1232 (1996)); see also Aaron Jones II, 811 A.2d at 1004 (“[T]he trial court’s obligation to issue a Simmons charge is triggered only upon the existence of twin requirements, i.e., future dangerousness being placed at issue, and a defense request.”) (emphasis and internal quotation marks omitted).
According to Spotz, the prosecution made his future dangerousness an issue in this case by, inter alia, presenting evidence that he had a significant history of felony convictions involving the use or threat of violence, suggesting that he pled guilty to other violent crimes, and offering evidence of his prior, negative parole status. (Brief of Spotz at 80). Spotz insists that the logical inference from this evidence was that he would pose a future danger to society.
However, as the PCRA court concluded, Spotz was not entitled to a Simmons instruction in this case because the prosecution did not inject concerns over Spotz’s future dangerousness into the proceedings. (Opinion of the PCRA Court at 60). This Court has consistently recognized that “instructions detailing the character of a life sentence are not required where future dangerousness is not expressly implicated. The trial court is not required to issue the instruction based upon references to a defendant’s past violent acts alone.” Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998) (citing Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (1998) (holding that evidence regarding a defendant’s past violent convictions or conduct does not implicate the issue of his or her future dangerousness)).
Here, the specific references that Spotz points to all relate to his past conduct and not his future dangerousness. As the PCRA court concluded, “[n]o arguments were made by the Commonwealth that he would possibly harm someone in the future or that he might be released on parole in the future if given a life sentence.” (Opinion of the PCRA Court at 60). Moreover, as we explained in King and May, evidence that a defendant had a significant history of felony convictions involves only the defendant’s past conduct, not his future dangerousness. King, supra; May, supra. As such, absent a showing that the Commonwealth argued Spotz’s future dangerousness, a Simmons instruction was not warranted. Therefore, counsel will not be deemed ineffective for failing to make such a meritless request. Tilley, supra.
As Justice Saylor notes in his Concurring and Dissenting opinion, the United States Supreme Court in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), revisited the issue concerning the sufficiency of the evidence required to entitle a defendant to a Simmons instruction. In Kelly, the Supreme Court suggested a more relaxed standard for assessing when a defendant is entitled to a Simmons charge. Id. at 253-54, 122 S.Ct. 726 (“Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.”). Although Kelly was decided several years after the sentencing of Spotz, Justice Saylor asserts that it supports Spotz’s claim that trial counsel was ineffective for failing to request a Simmons instruction. According to Justice Saylor, Kelly “merely clarified” existing law and is therefore applicable retroactively to the cases of appellants, like Spotz, who were sentenced before it was decided. Concurring and Dissenting Opinion of Justice Saylor, op. at 112, 896 A.2d at 1258.
For purposes of retroactivity analysis, we distinguish between new rulings involving substantive criminal law, which are applied retroactively on collateral review, and new procedural rulings of constitutional dimension, which are generally subject only to prospective application. Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 780 (2004) (citing Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). A rule is “considered one of substance only ‘if it alters the range of conduct or the class of persons that the law punishes.’ ” Id. (citing Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). Thus, the standard for assessing when a defendant is entitled to a Simmons charge is clearly one of procedure, as it involves the procedural protections of a defendant during the sentencing phase of his trial. The procedural nature of the Kelly ruling’s interpretation of Simmons is all the more clear in light of O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), in which the United States Supreme Court determined that the rule announced in Simmons was itself one of procedure rather than substance.
Therefore, because the principle that the Court articulated in Kelly is procedural in nature, we next ask whether it should be characterized as a new rule of law, as Justice Saylor contends. For the purposes of retroactivity analysis, a ruling is defined as new if it “ ‘breaks new ground or imposes a new obligation on the State or Federal Government,’ or, stated otherwise, where ‘the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Hughes, 865 A.2d at 780 (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060); see also Saffle v. Parks, 494 U.S. 484, 491, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (deeming a rule new where the result was not “compelled]” by existing precedent); Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (noting that it is insufficient that a result is considered to be merely “controlled” or “governed” by prior decisions). Although not dispositive of the question, it is worth noting that, while the majority opinion in Kelly does not address whether the standard it announces constitutes a new rule, four Justices clearly expressed their view that it was far more than a mere clarification of Simmons. See, e.g., Kelly, 534 U.S. at 261, 122 S.Ct. 726 (Rehnquist, C.J., dissenting, joined by Kennedy, J.) (characterizing the decision as “departing] from Simmons ”); id. at 263-64, 122 S.Ct. 726 (Thomas, J., dissenting, joined by Scalia, J.) (lamenting that the Majority was “diluting] the Simmons test” and “eviscerating]” a proposition for which Simmons stood). In the words of Chief Justice Rehnquist, after Kelly, “the test is no longer whether the State argues future dangerousness to society; the test is now whether evidence was introduced at trial that raises an ‘implication’ of future dangerousness to society.” Id. at 261, 122 S.Ct. 726 (Rehnquist, C.J., dissenting); see also Commonwealth v. Robinson, 583 Pa. 358, 877 A.2d 433, 452 n. 1 (2005) (Saylor, J., dissenting) (opining that Kelly may have “rejected” precedent).
More importantly, our own interpretations of Simmons prior to Kelly confirm that the Kelly standard constitutes a new rule of law not subject to retroactive application. In Kelly, the prosecutor presented evidence during trial “ ‘that Kelly took part in escape attempts and carried a shank,’ and that ‘he had been caught carrying a weapon and planning or participating in escape attempts.’ ” Kelly, 534 U.S. at 253, 122 S.Ct. 726 (quoting State v. Kelly, 343 S.C. 350, 540 S.E.2d 851, 857 (S.C.2001) (internal citation omitted)). Nevertheless, the South Carolina Supreme Court held that the prosecutor did not thereby put the future dangerousness of Kelly at issue, interpreting the phrase from Simmons as contemplating “evidence demonstrating future danger if released from prison,” Kelly, 534 U.S. at 253, 122 S.Ct. 726 (quoting Kelly, 540 S.E.2d at 857 n. 8 (internal quotation marks omitted)), whereas the prosecutor’s remark was meant to portray only Kelly’s likely behavior during the remainder of his prison term. The United States Supreme Court, however, reversed, rejecting the suggestion that “evidence of future dangerousness counts under Simmons only when the State introduces evidence for which there is no other possible inference but future dangerousness to society.” Id. at 254, 122 S.Ct. 726 (second emphasis added) (alteration in original) (internal quotation marks omitted). Instead, “evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms,” id., such as, for instance, future dangerousness to fellow inmates.
Prior to Kelly, however, this Court denied Simmons claims where the prosecutor’s arguments echoed those at issue in Kelly. For example, in Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999), the prosecutor noted during trial a prison doctor’s evaluation, which concluded, inter alia, that the appellant “had a potential for explosive action.” Id. at 1244 (internal quotation marks omitted). Nevertheless, we held that the remark did not put the future dangerousness of the appellant at issue. Id. at 1245. Similarly, in Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998), this Court held that “the introduction of evidence concerning [the appellant’s escape from prison and parole violations during the guilt phase of the trial ... was not the equivalent of raising the issue of future dangerousness.” Finally, in another decision issued prior to the United States Supreme Court’s pronouncement in Kelly, we stated the following principle, the broadness of which is impossible to reconcile with that case: “[WJhere the only references to the dangerousness of appellant relate to appellant’s past dangerousness[,] a Simmons instruction is not necessary.” Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 355 (1998).
In each of this Court’s precedents mentioned above, the prosecutor’s arguments strongly resembled those in Kelly, yet, in each case, we rejected the appellant’s Simmons claim. In other words, the result (i.e., requiring the instruction) in these cases, had they followed rather than preceded Kelly, was “not dictated by precedent existing at the time the defendant’s conviction became final.” Hughes, 865 A.2d at 780 (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060) (emphasis omitted). The foregoing compels the conclusion that the standard the United States Supreme Court established in Kelly v. South Carolina constitutes a new rule of law. Consequently, Kelly would not apply to appellants like Spotz who were sentenced before it was decided, and trial counsel was not ineffective for failing to request a Simmons instruction based on the standard announced in that case. See Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997) (“[Counsel’s stewardship must be judged under the existing law at the time of trial and counsel cannot be deemed ineffective for failing to predict future developments or changes in the law.”).
Finally, in addition to the argument just discussed, Spotz also contends that his trial counsel was ineffective for “failing at trial to present evidence of the uncontested fact that no life-sentenced defendant who had been capitally prosecuted [pursuant to] Pennsylvania’s death penalty statute has ever received any reduction of sentence through pardon, clemency, commutation, or parole.” (Brief of Spotz at 87). In Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243 (2000) (opinion announcing the judgment of the court), a plurality of this Court stated:
We now hold that when a Simmons instruction is required because the prosecution has argued the defendant’s future dangerousness, the trial court ... should inform the jury that a life sentence means that a defendant is not eligible for parole, but that the Governor has the power to grant a commutation of a sentence of life or death if based on the recommendation of the Board of Pardons following a public hearing. Further, the trial court should relay any available statistical information relating to the percentage of life sentences that have been commuted within the last several years.
Id. 255-56, 750 A.2d 243. However, as the PCRA court acknowledged, this available statistical information “is only to be used when a Simmons instruction is required.” (Opinion of the PCRA Court at 61). Therefore, because Spotz was not entitled to a Simmons instruction at trial, he was similarly not entitled to a jury charge relaying any available statistics on commutation. Accordingly, counsel will not be deemed ineffective for failing to make such a meritless request. Tilley, swpra.
6. Instruction on Use of Aggravating and Mitigating Circumstances
In his next claim, Spotz argues that his death sentence was “arbitrary and unreliable” because the trial court “failed to properly instruct the jury on the nature and use of aggravating and mitigating factors.” (Brief of Spotz at 90). As trial counsel failed to raise this claim at trial, it is waived. 42 Pa.C.S. § 9544(b). However, Spotz also argues that trial counsel was ineffective for failing to raise the issue at trial. (Brief of Spotz at 91-92). Thus, we will evaluate his argument in light of the standard for determining whether trial counsel was ineffective for failing to raise the argument at trial. Morales, supra.
At Spotz’s sentencing hearing, the trial court instructed the jury as follows:
Ladies and gentlemen of the Jury, you must now decide whether to sentence the defendant to death or to life imprisonment, and your sentence will depend upon what you find about aggravating and mitigating circumstances in this case. The sentencing code defines aggravating and mitigating circumstances, and they are things that make a first[-]degree murder either more terrible or less terrible.
(Sentencing N.T., 3/05/96-3/06/96, at 290). Spotz asserts that this instruction materially deviated from the Pennsylvania Suggested Standard Criminal Jury Instructions Pattern Instruction 15.2502F, which states that aggravating and mitigating circumstances “are things that make a first[-]degree murder case either more terrible or less terrible.” (Emphasis added). According to Spotz, his trial counsel was ineffective for failing to object to the trial court’s omission of the term “case” from its instruction, which allegedly caused the jury to skew their consideration of the mitigating evidence.
“In reviewing a challenged jury instruction, we must review the charge as a whole and not simply isolated portions, to ascertain whether it fairly conveys the required legal principles at issue.” Gilbert Jones, 683 A.2d at 1196. “[I]t is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 899 (1999).
Spotz insists that his trial counsel was ineffective for failing to object to the trial court’s omission of the word “case” from its jury instruction on aggravating and mitigating circumstances. However, as the PCRA court concluded, we find this “hyper-technical semantical claim” to be “patently frivolous.” (Opinion of the PCRA Court at 57).
In Porter, swpra, this Court rejected a similar hyper-technical claim. There, the appellant argued that it was reversible error for the trial court to instruct the jury that a reasonable doubt was one that “would cause a reasonably careful and sensible person to restrain before acting.” Porter, 728 A.2d at 899 (emphasis added). Instead, the appellant insisted that the jury should have been given the Pennsylvania Standard Jury Instructions: Criminal Section, § 7.01(3) (1979), which states that a reasonable doubt is one that “would cause a reasonably careful and sensible person to hesitate before acting.” Id. (emphasis added). In dismissing this semantical claim, we noted that, “although we have historically considered the language contained in these standard instructions to be an aid in our review, we have not placed our imprimatur upon them.” Id. Moreover, we also emphasized that the trial court has broad discretion in phrasing its instructions as long as the instruction clearly, adequately, and accurately reflects the law. Id. Because the distinction between “hesitate before acting” and “restrain before acting” was de minimis, we concluded that such a slight deviation by the trial court was not an abuse of discretion.
Similar to Porter, we believe that the trial court’s omission of the word “case” was de minimis. As the PCRA court concluded, “[t]he instructions as given, clearly, adequately and accurately explained to the jury how to use the aggravating and mitigating circumstances in accordance with the law.” (Opinion of the PCRA Court at 57). As such, we do not believe that such a trivial omission in phrasing would constitute an abuse of the trial court’s discretion. Likewise, as there was no reasonable basis for trial counsel to object to the instruction as given, counsel will not be deemed ineffective for failing to raise a meritless objection. Tilley, supra.
7. Alleged Failure to Produce Institutional Records
Next, Spotz alleges that the Commonwealth failed to produce relevant institutional records at the time of his trial, namely, those records from the Department of Corrections and the Clearfield County Department of Children and Youth Services. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court recognized that “the suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Concerning materiality, the Supreme Court has explained that “such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Therefore, to prevail on a Brady claim, an appellant must demonstrate that “the evidence was favorable to the accused, either because it is exculpatory or because it impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and prejudice ensued.” Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001).
Spotz claims that the Commonwealth failed to provide his defense counsel with relevant Department of Corrections and Children and Youth Services records at the time of trial pursuant to Brady. To be eligible for post-conviction relief on this claim, Spotz must prove by a preponderance of the evidence that these institutional records were previously unavailable and that their introduction would have changed the outcome of the trial. 42 Pa.C.S. § 9543(a). However, Spotz has failed to demonstrate that these records were unavailable and subsequently became available. It is well established that “no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence.” Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696 (2003). Here, Spotz has failed to show how these institutional records were not available at trial or that he could not have uncovered these records with reasonable diligence. See Spotz II, 756 A.2d at 1154 (noting that there is no Brady violation where the prosecutor fails to turn over evidence readily obtainable by, and known to, the defendant). Further, as explained previously in our discussion on mitigating evidence, Spotz has failed to show how the omission of these institutional records prejudiced him. Accordingly, Spotz is not entitled to relief on his alleged Brady claim. Having thus disposed of Spotz’s claims regarding the penalty phase of his trial, we now turn our attention to his final three broad claims of error.
C. PROPORTIONALITY REVIEW
Spotz next contends that his sentence of death must be vacated because he failed to receive “meaningful proportionality review.” (Brief of Spotz at 97). Specifically, Spotz maintains that he failed to receive “meaningful appellate review” because the proportionality database compiled by the Administrative Office of Pennsylvania Courts (AOPC) contained “systematic defects” and he was not given a copy of the data provided to this Court in determining proportionality.
This Court has consistently recognized that issues regarding the proportionality of capital sentences have been decided by the Court on direct appeal and, therefore, are previously litigated. Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 900 (2004) (citing Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 708 (1998) (explaining that issues concerning proportionality of sentence are beyond purview of PCRA where this Court has already ruled against defendant on these issues on direct appeal)). Spotz, however, is not rherely challenging the proportionality of his sentence. Rather, Spotz is challenging the methodology utilized by our Court in conducting proportionality review on direct appeal. Because the PCRA represents the first opportunity for Spotz to raise this claim, we will consider the merits of the issue.
On direct appeal, this Court was statutorily required to determine whether the sentence of death imposed upon Spotz was “excessive or disproportionate to the penalty imposed in similar cases.” 42 Pa.C.S. § 9711(h)(3)(iii). In undertaking proportionality review, this Court stated:
[W]e have reviewed [Spotz]’s sentence in light of the sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts. We conclude that the sentence of death imposed upon [Spotz] is not excessive or disproportionate to the penalty imposed in similar cases.
Spotz I, 716 A.2d at 593.
Spotz now attempts to attack the proportionality review of this Court on direct appeal by arguing that the AOPC’s proportionality database is flawed and that he was not provided with adequate notice concerning the compilation of data relevant to his ease. However, as Spotz readily acknowledges in his Brief to this Court, we have consistently rejected similar challenges to our proportionality review in the past, particularly noting that the data compiled by the AOPC is neither defective nor flawed. See Edmiston, 851 A.2d at 901; Commonwealth v. Marshall, 571 Pa. 289, 812 A.2d 539, 551-52 (2002); Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978, 991 (2002); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 604 (2000); Albrecht, 720 A.2d at 708; Gribble I, 703 A.2d at 440. Spotz has presented no compelling reason for us to revisit this established line of precedent. Thus, we must similarly reject Spotz’s collateral challenge to our proportionality review.
Additionally, Spotz challenges the methodology utilized by this Court in concluding that his sentence of death was not “the product of passion, prejudice or any other arbitrary factor.” 42 Pa.C.S. § 9711(h)(3)(i). On direct appeal, we stated:
Upon review of the record, we conclude that the sentence of death was not the product of passion, prejudice or any other arbitrary factor. Rather, it was based upon evidence properly admitted at trial.
Spotz I, 716 A.2d at 593. On collateral review, Spotz now alleges that, in examining whether passion, prejudice or other arbitrary factors existed, this Court “failed to indicate the scope of the substantive review [it] performed.” (Brief of Spotz at 99). However, as the PCRA court noted, Spotz does not cite to any relevant case law or statutory authority requiring this Court to elaborate on the scope of our review in determining whether passion, prejudice, or other arbitrary factors existed. Here, after conducting our own independent review of the record, we concluded that the sentence of death imposed upon Spotz was not the product of passion, prejudice, or any other arbitrary factors. No further analysis into the scope of our review was necessary. As such, Spotz is not entitled to relief on this meritless claim.
D. INEFFECTIVENESS OF ALL PRIOR COUNSEL
Next, Spotz argues that to the extent that his prior counsel “failed to assert or adequately preserve any claims either at trial, in his post-verdict motions, or on direct appeal, counsel rendered ineffective assistance of counsel.” (Brief of Spotz at 99). However, in baldly asserting the ineffectiveness of all prior counsel, Spotz has failed to develop this claim in any meaningful fashion. Specifically, Spotz has failed to set forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of counsel claim. “Claims of ineffective assistance of counsel are not self-proving. ...” Wharton, 811 A.2d at 986; see also Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 221 (2001) (noting that an appellant cannot prevail on claim of ineffective assistance of counsel when claim is not developed). Therefore, Spotz’s boilerplate, undeveloped argument respecting the ineffectiveness of all prior counsel is insufficient to establish an entitlement to post-conviction relief. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 41 (2002) (noting that a boilerplate allegation that all prior counsel were ineffective for failing to litigate waived issues does not discharge the appellant’s burden of proving ineffectiveness); Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 940 n. 4 (2001) (Bracey II) (noting that a mere statement that all prior counsel were ineffective for failing to raise underlying claim of error does not satisfy the appellant’s burden of establishing that he or she is entitled to post-conviction relief on ineffective assistance of counsel claim); Commonwealth v. Abdul-Salaam, 570 Pa. 79, 808 A.2d 558, 560 n. 3 (2001) (noting that a bald, undeveloped allegation that trial counsel was ineffective for failing to litigate claims on appeal fails to satisfy the appellant’s burden of establishing entitlement to PCRA relief).
E. CUMULATIVE ERROR
Finally, Spotz contends that he is entitled to post-conviction relief based upon the cumulative effect of the errors he has alleged in his Brief to this Court. Because we find no merit to any of the individual claims raised by Spotz, the cumulative effect of these alleged errors does not warrant relief. See Commonwealth v. Blystone, 555 Pa. 565, 725 A.2d 1197, 1208-09 (1999) (“No amount of failed claims may collectively attain merit if they could not do so individually.”); Commonwealth v. Craig Williams, 532 Pa. 265, 615 A.2d 716, 722 (1992) (same).
CONCLUSION
For the foregoing reasons, Spotz has failed to demonstrate eligibility for relief pursuant to the PCRA. Accordingly, we affirm the Order of the PCRA court.
Justice BAER joins the opinion.
Justice EAKIN did not participate in the consideration or decision of this case.
Chief Justice CAPPY files a concurring opinion.
Justice CASTILLE files a concurring opinion.
Justice SAYLOR files a concurring and dissenting opinion.
Justice BALDWIN files a concurring and dissenting opinion.
[OPINION BY Chief Justice CAPPY, type=concurrence]
Chief Justice CAPPY,
concurs.
I join the majority opinion in all but one facet. With respect to the analysis of Appellant’s claim alleging discrimination in jury selection on the basis of gender, I join in the views expressed by Mr. Justice Saylor in his Concurring and Dissenting Opinion and Mr. Justice Castille in his Concurring Opinion regarding the application of our recent decision in Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004) to this issue.
[OPINION BY Justice CASTILLE, type=concurrence]
Justice CASTILLE,
concurs.
I join the Majority Opinion, subject to the three qualifying points set forth below.
First, with respect to Part A(2), pertaining to appellant’s claim of ineffective assistance of counsel in failing to allege gender-based discrimination in jury selection, I agree with Mr. Justice Saylor that, under the majority view set forth in Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004), a petitioner asserting ineffectiveness premised upon a failure to raise a Batson claim must establish actual, purposeful discrimination by a preponderance of the evidence, and cannot rely upon mere inferences. See Uderra, 862 A.2d at 87. Indeed, in the absence of such a showing, the PCRA petitioner cannot begin to meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, I agree with Mr. Justice Saylor that the fact that the defaulted underlying claim in the case sub judice involves gender-based discrimination, rather than racial discrimination, is immaterial to appellant’s collateral attack burden. In other respects, I join the Majority’s ineffectiveness / Batson analysis, mindful that the PCRA decision which is under review here was issued before Uderra was decided.
Second, with respect to Part B(3) of the Majority Opinion, Maj. op. at 79, 896 A.2d at 1237, concerning appellant’s ineffectiveness claim based upon counsel’s failure to forward a challenge premised upon the argument later accepted in this Court’s decision in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (plurality opinion), I concur in the Majority’s general analysis, with one caveat and one elaboration. The caveat is that, because the Lassiter plurality decision post-dated the trial in this matter, I am not convinced that the present claim of ineffective assistance can be said to possess arguable merit; be that as it may, however, I certainly agree that appellant has not satisfied the performance prong of Strickland in forwarding this claim premised upon subsequent authority. The point of elaboration concerns the general question of when counsel may be constitutionally faulted for failing to predict a court’s future interpretation of a statute. On this question, Mr. Justice Saylor’s Concurring and Dissenting Opinion cites the decision in Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761 (2004). I note that I addressed this question in my recent Concurring Opinion in Commonwealth v. Duffey, 889 A.2d 56, 74-75 (Pa.2005) (Duffey II):
Hughes, however, does not stand for the broad proposition that counsel may always be faulted for failing to anticipate any. and all future judicial interpretations of a statute. Even accepting Hughes ... proposition as a starting point, the analysis in any particular case must depend upon considerations including the clarity and lack of ambiguity in the statutory provision; previous interpretations (if any) of the provision; and the mode of analysis set forth in the subsequent opinion/interpretation the defendant invokes — ie. a first interpretation, unanimous plain language reading is more likely to provide a basis for finding an ineffective “failure to vindicate” than is a reading which is bottomed upon statutory construction, over a dissenting opinion, and disapproving a prior construction. In short, whether counsel can be deemed ineffective in such an instance depends upon the circumstances; it is not an absolute.
Id. at 74 (Castille, J., joined by Eakin, J., concurring). In light of the Majority’s analysis of the state of the law at the time of trial here, I am satisfied that counsel cannot be labeled ineffective for failing to predict Lassiter’s interpretation of this aggravating circumstance.
Third, with regard to Part B(5), pertaining to appellant’s ineffectiveness claim based on trial counsel’s failure to request a jury instruction consistent with the United States Supreme Court’s decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality opinion), I join the first part of the Majority’s analysis, see Maj. op. at 86-87, 896 A.2d at 1242, which is all that is necessary to decide the claim. The balance of the analysis consists of the Majority’s response to Mr. Justice Saylor’s contention that the analysis of the ineffectiveness / Simmons claim must be informed by Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), a case which interpreted Simmons but was decided long after the trial in this case. In my view, this new rule/retroactivity debate is academic. The question of whether a decision of the U.S. Supreme Court should be viewed as a “new rule” for federal habeas corpus review purposes is not the same as the question of whether an attorney can be deemed constitutionally ineffective under the Sixth Amendment for failing to anticipate that decision. I have addressed this point at some length in my Concurring and Dissenting Opinion in Commonwealth, v. Duffey, 579 Pa. 186, 855 A.2d 764 (2004) (Duffey I), where the question was whether trial counsel could be retroactively faulted for failing to anticipate the U.S. Supreme Court’s extension of the rule against references to post-Miranda silence set forth in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), to the penalty-phase circumstance in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986):
I respectfully disagree with the Majority’s conclusion that the objectionable nature of the penalty phase references to silence in this case — which were employed not to impeach a denial of criminal responsibility with insolubly ambiguous silence, but instead as a response to a defense assertion of the mental health mitigating circumstance in the penalty phase — was made plain by Doyle alone, and does not depend upon Wainwright v. Greenfield’s extension of the Doyle rationale. I do not dispute that creative lawyers operating in the post-Doyle, pre-Wainwright v. Greenfield world could have seen the logic in the extension and advocated for such a holding, as Greenfield’s lawyer did. But, the question before us is one of reasonable competence under the Sixth Amendment and the circumstances in Wainwright v. Greenfield were so obviously distinct from Doyle that I do not believe that the U.S. Supreme Court would deem a lawyer to be incompetent for having failed to anticipate that decision.
It is significant in this regard that the U.S. Supreme Court still has not spoken on the issue of the retroactive application of the Wainwright v. Greenfield rule, much less the question of counsel ineffectiveness for failing to anticipate that extension or, as the Majority would have it, application of the rule.... Notably, the single case that the Majority cites in arguing that Doyle commands its result, Thomas v. State of Indiana, 910 F.2d 1413 (7th Cir.1990), is distinguishable because it did not involve an ineffective assistance of counsel claim, but instead involved federal habeas corpus review of a state prisoner’s preserved Doyle/Wainwright claim, which had been rejected in state court. The fact that one of the twelve Circuits believes that the rule in Wainwright v. Greenfield was not “new” for purposes of federal habeas retroactivity purposes does not mean that the Sixth Amendment automatically obliged counsel to predict that extension of the old rule-or, to predict the case that, in the view of the Thomas court, “made explicit what was ... implicit.” Thomas, 910 F.2d at 1416. In conflating and confusing two distinct areas of law — comity-based limitations upon federal courts retroactively applying new constitutional rules to state trials upon habeas review versus substantive ineffective assistance of counsel standards under the Sixth Amendment — which are aimed at very different problems, the Majority goes astray. Though Wainwright v. Greenfield certainly derived from Doyle, it extended Doyle to a new and distinct scenario, and therefore, counsel here cannot be faulted, in hindsight, for failing to anticipate the extension. Thus, appellant’s underlying claim respecting trial counsel fails as a matter of law.
Duffey, 855 A.2d at 780-81 (Castille, J., joined by Eakin, J., concurring and dissenting). See also id. at 779 (“Neither lawyers nor trial judges are expected or required to be clairvoyant. Deeming counsel to be ineffective for failing to forward an objection based upon a principle of law that was not then-governing is the very essence of the sort of perverse second-guessing which is not permitted under Strickland and its progeny.”)
In my view, the question of whether Kelly involves a “new rule” is relevant only to a situation where the defendant claims that he actually raised and preserved a Kelly-type claim; essentially, the direct review paradigm. Here, appellant did not raise the claim; the Kelly aspect of his current claim (to the extent there is one) is reviewable only as a distinct claim sounding in the ineffective assistance of his trial counsel in failing to predict Kelly. For purposes of assessing that claim, counsel’s performance must be viewed in light of a legal landscape that cannot include the Kelly decision itself. And, as the Majority op. at 91-93, 896 A.2d at 1245-46, counsel acted reasonably in light of the existing landscape. In my view, that is all that need be said to resolve the claim forwarded.
Finally, I should note that, even if I could agree with the assumption that animates the dispute between the Majority and Mr. Justice Saylor — i.e., that the question of ineffective assistance is identical to the question of what is a new rule in an instance involving case law development — it would be difficult to view Kelly as anything but a new rule for Strickland purposes, rather than a retroactively-applicable “clarification” of Simmons existing rule. This is so because Simmons was a plurality decision. By definition, it is difficult to view such a decision as commanding any particular interpretation, “clarification,” or expansion in a future case involving different facts. In this regard, the High Court’s decision in O’Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), which was also decided after the trial in this matter, is instructive. In O’Dell, the Court considered whether Simmons itself was a “new” rule for federal habeas purposes. In answering that question in the affirmative, the Court began its analysis by emphasizing that Simmons was a mere plurality decision: “We observe, at the outset, that Simmons is an unlikely candidate for old-rule status [because] ... there was no opinion for the Court.” Id. at 159, 114 S.Ct. 2187 117 S.Ct. at 1974. By the same token, the Simmons plurality decision would be an odd candidate to become a settled conduit by which counsel could be deemed retroactively ineffective based upon a future interpretation of the plurality’s non-majority “rule.”
[OPINION BY Justice SAYLOR, type=concurring-in-part-and-dissenting-in-part]
Justice SAYLOR,
concurs and dissents.
I join Parts A(l), (3) and (5), and B(l), (2) and (4), of the majority opinion, I concur in the holding affirming the denial of relief from the conviction, I would reverse with regard to the denial of a new penalty hearing, and I write to the following points.
With regard to Part A(2), pertaining to Appellant’s claim of gender-based discrimination in jury selection, I would add to the majority’s analysis that in Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74 (2004), this Court adopted the approach of various federal courts to the effect that a post-conviction petitioner asserting an unpreserved claim of racial discrimination in jury selection may not rely on a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), but must prove actual, purposeful discrimination by a preponderance of the evidence. See Uderra, 580 Pa. at 513, 862 A.2d at 87 (citing McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir.1996)). Since the rationale supporting the position adopted in Uderra was not dependent on the type of discrimination asserted, but rather, was premised on the absence of contemporaneous assessment by the trial court, see Uderra, 580 Pa. at 511-12, 862 A.2d at 85-86, I see no reason why it should not apply equally to claims of gender-based discrimination. Although the post-conviction hearing in this case preceded Uderra, I believe that the PCRA court afforded Appellant the opportunity to put forth his evidence concerning the asserted discrimination, and I join the portion of Part A(2) of the majority opinion that credits the PCRA court’s salient factual findings and holds that Appellant has not satisfied his burden of proof.
Concerning the treatment of Appellant’s claim of ineffective assistance of counsel for failing to present a diminished capacity defense in Part A(4) of the majority opinion, I have reservations about the general application of the precept foreclosing a diminished capacity defense to a charge of first-degree murder, where the Commonwealth asserts guilt under principal and accomplice liability theories in the alternative, but where the defendant has not conceded that he acted as a principal. See Majority Opinion, op. at 47, 896 A.2d at 1218 (“Absent an admission from Spotz that he had shot and killed [the victim], trial counsel could not have presented a diminished capacity defense.”). I realize that this general prohibition is fairly well entrenched in our criminal law jurisprudence and previously has been referenced in association with the accomplice liability paradigm. See, e.g., Commonwealth v. Chester, 557 Pa. 358, 379, 733 A.2d 1242, 1252-53 (1999). It appears, however, that the rule derives from the Court’s discussion of the theoretical basis for a diminished capacity defense in Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 919-20 (1976), see Commonwealth v. Weaver, 500 Pa. 439, 440, 457 A.2d 505, 506 (1983) (citing Walzack), rather than a developed assessment concerning the possible assertion of defenses in the alternative; a defendant’s entitlement to rebut essential elements of the Commonwealth’s assertion of specific intent as an essential element of its case; or the nuances associated with the rule’s application to one who, analogous to an actual perpetrator of a killing conceding liability to murder generally, contests liability as an accomplice to first-degree murder only in terms of the requisite mental state relative to the specific intent crime. I would therefore be receptive to reconsidering the contours of the restrictions on the diminished capacity defense in an appropriate case. I agree with the majority, however, that the rule is well established, and trial counsel cannot be deemed ineffective for acceding to its dictates.
With regard to Part B(3) of the majority opinion, concerning Appellant’s challenge to the jury’s finding of the (d)(6) aggravating circumstance, such aggravator applies, where “[t]he defendant committed a killing while in the perpetration of a felony,” 42 Pa.C.S. § 9711(d)(6) (emphasis added). This Court has held that these plain words foreclose the application of the aggravating circumstance to persons who are liable for first-degree murder solely in the capacity of an accomplice. See Commonwealth v. Lassiter, 554 Pa. 586, 595-96, 722 A.2d 657, 662 (1998) (plurality). In spite of the plain text of the statute, however, the trial court instructed the sentencing jury that the aggravator applied if “the killing was committed in the perpetration of a felony,” N.T., March 6, 1996, at 292; see also id. at 296, thus, in effect, conveying that the defendant’s actual perpetration of the killing was immaterial.
The majority deems Lassiter inapplicable because it postdates the trial in this case. As noted, however, Lassiter’s holding merely enforces the plain meaning of the statute, and capital counsel are responsible to vindicate their clients’ interests under existing statutory provisions. See Commonwealth v. Hughes, 581 Pa. 274, 331-32 n. 36, 865 A.2d 761, 795 n. 36 (2004); cf. Lassiter, 554 Pa. at 596, 722 A.2d at 662. Moreover, in my view, none of the decisions referenced by the majority persuasively supports its position that the argument that prevailed in Lassiter had been otherwise rejected and/or diminished by the Court in a fashion that would relieve trial counsel of his obligation to pursue it. See Majority Opinion, op. at 81-82 nn. 38-39, 896 A.2d at 1239 nn. 38-39. Indeed, the majority’s position in this regard is contrary to the prevailing reasoning of Lassiter itself. See Lassiter, 554 Pa. at 596, 722 A.2d at 662 (“Clearly, trial counsel could have no reasonable basis for failing to explain to the appellant that a strong argument could be made that the death penalty could not be applied to her under Pennsylvania law[, because the (d)(6) aggravator does not apply to an accomplice who does not commit the killing].”); see also id. at 599, 722 A.2d at 664 (Saylor, J.) (agreeing with the lead opinion that counsel was ineffective in such regard).
In the circumstances as previously described, see supra note 4, and in light of trial counsel’s testimony on post-conviction review to an erroneous understanding of the (d)(6) aggravator akin to the trial court’s misstatement, see N.T., September 28, 2000, at 152-53, I find the arguable merit and reasonable strategy prongs of the ineffectiveness test satisfied. Further, since the jurors found a mitigating circumstance, and therefore, the sentencing decision was committed to their weighing of the aggravating and mitigating circumstances, see 42 Pa. C.S. § 9711(c)(l)(iv), I believe that counsel’s deficient stewardship was sufficient to undermine confidence in the penalty verdict. Accordingly, I would award a new penalty hearing.
Finally, concerning the discussion of the range of evidence and argumentation that will implicate a capital defendant’s future dangerousness for purposes of determining the availability of an instruction concerning the meaning of a life sentence under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), I respectfully differ with the majority’s analysis. In Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), the United States Supreme Court set forth the following, straightforward test to determine whether or not future dangerousness is implicated for such purposes:
Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.
Id. at 254, 122 S.Ct. at 732.
Rather than applying this test, the majority relies on prior decisions of this Court that are inconsistent with Kelly. Compare Majority Opinion, op. at 88, 896 A.2d at 1243 (cataloguing Pennsylvania precedent reflecting the proposition that “[t]he trial court is not required to issue the instruction based upon references to a defendant’s past violent acts alone”), with Kelly, 534 U.S. at 253, 122 S.Ct. at 731 (“A jury hearing evidence of defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior[.]”). While the majority regards Kelly as a new rule of law subject only to prospective application, see Majority Opinion, op. at 88-89, 896 A.2d at 1243, I believe that the decision merely clarified a matter that previously was unsettled as a matter of United States Supreme Court jurisprudence, namely, the breadth of Simmons holding requiring a special instruction in instances in which a defendant’s future dangerousness is placed in issue by the prosecution in a capital case. It seems to me that competent capital counsel should be well aware of open controversies associated with Simmons, which is a highly prominent matter in capital litigation, and, as such, and where not otherwise inconsistent with trial strategy, do what is necessary to preserve the position favoring the instruction for both state and federal review.
[OPINION BY Justice BALDWIN, type=concurring-in-part-and-dissenting-in-part]
Justice BALDWIN,
concurs and dissents.
I join Parts A(l), (2), (3) and (5) and B(l), (2), (4), (5) and (6) of the majority opinion. I concur in the holding affirming the denial of relief from the conviction; however, I would reverse with regard to the denial of a new penalty hearing.
With regard to Part A(4), I concur with Justice Saylor’s result, but write separately to clarify my reasons for doing so. During Appellant’s trial, the Commonwealth asserted two alternative theories of guilt for the first-degree murder charge: (1) Appellant pulled the trigger and was directly responsible for murdering the victim; or (2) Ms. N. pulled the trigger, but Appellant had the intent to kill and thus Appellant was guilty as an accomplice. It is well-settled law that in order for an accomplice to be guilty of first-degree murder, it must be determined beyond a reasonable doubt that the accomplice possessed the necessary specific intent to take a life. Commonwealth v. Hannibal, 562 Pa. 132, 140, 753 A.2d 1265, 1270 (2000); Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). According to the majority, “[ajbsent an admission from Spotz that he had shot and killed [the victim], trial counsel could not have presented a diminished capacity defense.” Majority Opinion, op. at 47, 896 A.2d at 1218. However, pursuant to the intent requirements necessary to establish accomplice liability for first-degree murder, this is not so. Where, as here, the Commonwealth asserts alternate theories of liability, the defense may put on alternate theories of defense, even when those alternative theories are inconsistent. Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430 (1998); Commonwealth v. Jorgenson, 512 Pa. 601, 606 n. 3, 517 A.2d 1287, 1290 n. 3 (1986). Therefore, in response to the alternate theories of liability asserted by the Commonwealth, the defense could have responded: (1) Appellant did not pull the trigger and did not realize, or intend, that Ms. N. would pull the trigger; and (2) if, for some reason, the jury concludes that Appellant did realize that Ms. N. was going to kill the victim, then they should be aware that Appellant did not have the capacity to form the intent necessary to commit first-degree murder. As Justice Saylor aptly discusses in his Concurring and Dissenting Opinion, because this court and others have frowned on'the use of a diminished capacity defense in the alternative, trial counsel’s failure to raise such an alternative defense does not necessarily rise to the level of ineffectiveness. See Saylor, J., Concurring and Dissenting Opinion, op. at 106-08, 896 A.2d at 1254-55.
As to Part B(3), I again concur with Justice Saylor’s result, but write separately to clarify my reasons for doing so. The majority opines that the trial attorney could not be found to have been ineffective because our decision in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998)(plurality opinion), which clarified that accomplice liability for a killing does not fit the plain meaning of 42 Pa.C.S. § 9711(d)(6), was not issued until two years after the trial in the case sub judice. Majority Opinion, op. at 108-09, 896 A.2d at 1255. However, because the plain meaning of § 9711(d)(6) explicitly requires that the defendant must have committed the murder at issue, and because defense attorneys should be held to a standard which at a minimum includes an ability to carefully read the statute, I find that the claim has arguable merit, fulfilling the first part of the test for ineffective assistance of counsel. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993).
The second prong of the test for ineffective assistance of counsel requires us to determine whether “counsel’s action or inaction was grounded in a reasonable basis.” Legg, 551 Pa. at 443, 711 A.2d at 432. Trial counsel testified that he did not object to the trial judge’s misstatement of the statute in the jury instruction (i.e., that the aggravator applied if “the killing was committed in the perpetration of a felony,” N.T., March 6, 1996, at 292) because he believed that § 9711(d)(6) applied to accomplice liability. N.T., September 28, 2000, at 153. As stated previously, the plain meaning of the statute belies that belief and a reasonable counsel should have at least made the argument that the plain meaning should prevail. There is no reasonable basis for trial counsel’s inaction.
To establish the third prong of the test for ineffective assistance of counsel, we must determine that the counsel’s omission gave rise to a reasonable probability of a changed outcome. Commonwealth v. Marshall, 571 Pa. 289, 299, 812 A.2d 539, 545 (2002). Because here the jury was required to balance the aggravating and mitigating circumstances in accordance with 42 Pa.C.S. § 9711(c)(1)(iv), it is possible that the removal of one aggravating factor would have changed the resulting sentence from “death” to “life.”
Therefore, I would grant a new penalty hearing to the Appellant.
42 Pa.C.S. §§ 9541-9546.
The tacts recited herein are taken in large part from the July 20, 1998 Opinion of this Court on direct appeal of Spotz's first-degree murder conviction, authored by Mr. Justice Nigro. Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999) (Spotz I).
18 Pa.C.S. § 2503 (amended 1995).
18 Pa.C.S. § 2702 (amended 1995, 1996, 1998, 2002, 2004).
18 Pa.C.S. § 2705.
18 Pa.C.S. § 6106 (amended 1995, 1997, 2000, 2005).
18 Pa.C.S. § 6105 (amended 1995, 1997, 1998, 1999, 2002, 2003, 2005).
18 Pa.C.S. § 2502(a).
18 Pa.C.S. § 2502(c).
18 Pa.C.S. § 2901.
18 Pa.C.S. § 3702.
18 Pa.C.S. § 3701.
18 Pa.C.S. § 3921.
18 Pa.C.S. § 903.
42 Pa.C.S. § 9711(d)(6).
42 Pa.C.S. § 9711(d)(9).
42 Pa.C.S. § 971 l(d)(12).
42 Pa.C.S. § 9711(e)(8).
Kent D. Watkins, Esq. (trial counsel) represented Spotz at his Schuylkill County trial and on direct appeal to this Court of his first-degree murder conviction and death sentence.
On January 16, 1996, Spotz filed a Petition for Post Conviction Relief, in which he claimed that his counsel for his Clearfield County trial failed to appeal his conviction in a timely manner. On November 17, 1998, the Clearfield County trial court granted Spotz nunc pro tunc reinstatement of his appellate rights.
Spotz filed a Cross-Petition for Allowance of Appeal, asking this Court to rule on additional claims of trial counsel ineffectiveness that he believed would recur upon his retrial. We also granted allowance of this cross-appeal on December 12, 2002.
In Grant, this Court announced that, as a general rule, claims of ineffective assistance of counsel should be raised for the first time on collateral review. Grant, 813 A.2d at 738.
In Spotz IV, the Court also dismissed without prejudice the additional claims of trial counsel ineffectiveness raised by Spotz in his Cross-Appeal so that he could pursue these claims on collateral review.
At the trial of Spolz in York County, the evidence established that, after approaching Gunnet for directions, he forced her into the passenger seat of her vehicle and drove to a secluded area, where he shot her twice at close range. Spotz II, 756 A.2d at 1147. Eventually, two passing motorists found the body of Gunnet underneath the wheels of her vehicle, which Spotz had abandoned. Id.
The evidence adduced at the trial of Spotz in Cumberland County established tha1 he abducted the elderly Amstutz near her Harrisburg home and, while holding her hostage, obtained money, clothing, and lodging through the use of her credit card and checking account. Spotz III, 759 A.2d at 1283. Thereafter, Spotz shot Amstutz nine times, "including one lethal shot through the neck and another lethal shot to the head[,]’’ before discarding her body along the side of McClures Gap Road in Carlisle, Pennsylvania. Id. at 1283-84.
As noted previously, Spotz was represented by the same counsel at trial and on direct appeal. Therefore, Spotz was not required to plead, present, and prove a layered claim of ineffectiveness because the PCRA proceeding was his first opportunity to challenge the stewardship of prior counsel. See Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003) (explaining that “in order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove” the ineffectiveness of direct appellate counsel, which necessarily relates back to the actions of trial counsel).
We note that recently, in Holloway v. Horn, 355 F.3d 707, 729 (3d Cir.), cert. denied, Beard v. Holloway, 543 U.S. 976, 125 S.Ct. 410, 160 L.Ed.2d 352, (2004), the United States Court of Appeals for the Third Circuit deemed our long-established procedural requirement for the development of a full and complete record to establish a prima facie case of a Batson violation to be an unreasonable application of federal law. However, as we explained in Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 910 n. 15 (2004), ”[a]lthough we consider the decisions of the Third Circuit persuasive authority on matters of federal law, neither this Court nor the United States Supreme Court has ■ explicitly overruled our long line of precedent that supports this requirement of a full and complete record of the asserted violation.”
In Johnson, the United States Supreme Court recently explained that: We did not intend the first step [of a Batson analysis! to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. 125 S.Ct. at 2416.
N. originally pled guilty to charges in York County but later moved to withdraw her plea, which motion the York County trial court granted. As of the date the PCRA court filed its Opinion and Order denying Spotz post-conviction relief, the York County trial court had not yet retried N.. (Opinion of the PCRA Court at 5-6). According to the PCRA court, it appeared that N. sought to withdraw her guilty plea because: (1) Cammerano had never discussed with her the possibility of attempting to decertify her case from adult court (she was seventeen at the time of the offenses); and (2) she had not seen the written guilty plea colloquy until the day the court entered her plea.
At the time of Weaver’s conviction, the statute detailing the direct appellate jurisdiction of this Court, 42 Pa.C.S. § 722, provided that ”[t]he Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following classes of cases: (1) [fjelonious homicide....” Repealed by Act of 1980, No. 137.
Trial counsel did present the testimony of Darcy Smith (Smith), a friend of N.'s who accompanied N. to the police station when N. turned herself in on February 2, 1995. Smith testified as follows: We got dropped off a block away from Sheetz's, and we walked to Sheetz's and we went in. I bought a soda, and we were standing there for a minute, and I asked her, that's when I asked her why she cut and dyed her hair, and she said, because I was on the run, and I said, why. She said, because I killed somebody. She said it with a dead serious face, so I dropped it after that and went outside and called City Hall and they came and got us. (Trial N.T., 3/2/96, at 576). Trial counsel also presented the following testimony of Lawrence S., who corresponded with N. while they were both incarcerated in the Clearfield County Prison: She had wrote some notes about me doing something to Mark, about kicking Mark’s butt and some other, things. But basically what I did, I had told her that I wanted a gangster bitch. You know she had to be a gangster and not be afraid to pull the trigger, you know. And she wrote back to me and told me that that would be no problem with her, that she had done it before and she would be willing to do it again. (Id. at 662).
According to a pretrial Order attached as an Appendix to Spotz's Brief, Attorney Andrews represented Dustin during a 1990 involuntary commitment proceeding. (Exhibit 6 to the Initial Brief of Spotz, Order of Court, 4/3/90, at 1).
Spotz presents no evidence that Attorney Andrews’ representation of Dustin persisted beyond the alleged 1990 involuntary commitment proceeding, and the record is devoid of any continued representation.
Dr. Ragusea testified that, after Spotz’s trial, lie received supplementary records “for an additional trial later on in a different comity,” which referred to Spotz, Dustin, and N.. (PCRA N.T., 10/2/00-10/3/00, a1 504-05). Thereafter, in connection with Spotz's PCRA proceedings, Dr. Ragusea testified that he received even more institutional records "[ijn multiple shipments.” (Id. at 505).
The institutional report of Dr. Ryan states in relevant part: [Spotz] eventually will adjust well to prison life. It provides him with a structure, limits, and guidelines. It will meet his dependency strivings, and won’t tolerate his acts of aggression. He is bright and can be trained at a prison trade. During the next year, however, while his cases are being heard and decided, he must be held in closer custody for the safety of those around him. (Exhibit 5 to the Initial Brief of Spotz, PV-Reclass Psych Eval, 1/31/96, at 2).
The conviction of Spotz for first-degree murder was a general verdict. Therefore, the jury did not necessarily find that Spotz himself was the shooter; rather, so long as the jury determined that it was the specific intent of Spotz to aid or assist — i.e., aid or assist N. — in the killing of the victim, the juiy could have predicated his guilt on a finding that he was merely an accomplice. Consequently, Lassiter would have required the trial court to instruct the jury at the sentencing phase that the jury would first have to find that Spotz himself brought about the killing before it could find that the Commonwealth had established Section 9711(d)(6) as an aggravating circumstance.
In addition to the failure of trial counsel to make the request for instruction to the jury, Spotz also bases his ineffectiveness claim on the failure of counsel to object to the “misstatements of law” that the prosecutor made at trial. (Brief of Spotz at 64-67). Because Spotz relies on Lassiter in making this argument, the ineffectiveness claim based on it fails for the same reason as the one concerning the jury charge.
See, e.g., Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014, 1015 n. 1 (1999) ("The jury found (he following aggravating circumstances: ... (2) the killing was committed in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6)....”); Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049, 1051 n. 8 (1998) ("The three aggravating circumstances were that the murder was committed in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6)....”); Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871, 875 (1998) (“The jury imposed the death penalty after finding two aggravating circumstances, a killing in the perpetration of a felony ... 42 Pa.C.S. § 9711(d)(6)...."); Commonwealth v. Anthony Washington, 549 Pa. 12, 700 A.2d 400, 406 n. 7 (1997) (citing "42 Pa.C.S. § 9711(d)(6) ... (the killing occurred during the perpetration of a felony”)); Commonwealth v. Vinson Washington, 547 Pa. 550, 692 A.2d 1018, 1020 (1997) (same); Commonwealth v, Lambert, 529 Pa. 320, 603 A.2d 568, 572 n. 2 (1992) ("The three aggravating circumstances were: (1) a killing in perpetuation [sic] of a felony ... 42 Pa.C.S. § 9711(d)(6)....”); Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 633 (1991) (”[T]he ... jury found one aggravating circumstance to be present, i.e., that the killing occurred during the commission of a robbery (42 Pa.C.S. § 9711(d)(6)).”); Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780, 782 (1988) ("Th[e] court found that two aggravating circumstances had been proved beyond a reasonable doubt: that ... the killings were committed in the perpetration of a felony, 42 Pa.C.S. § 971(d)(6).").
See, e.g., Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999); Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999); Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014 (1999); Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049 (1998); Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279 (1996).
In his Concurring and Dissenting Opinion, Justice Saylor criticizes this conclusion as "contrary to the prevailing reasoning of Lassiter itself." Concurring and Dissenting Opinion of Justice Saylor, op. at 110, 896 A.2d at 1256. In support of his view, Justice Saylor quotes the following from Lassiter: “Clearly, trial counsel could have no reasonable basis for failing to explain to the appellant that a strong argument could be made that the death penalty could not be applied to her under Pennsylvania law.” Id. at 111, 896 A.2d at 1256-57 (quoting Lassiter, 722 A.2d at 662). The above quotation, however, obscures an important factual distinction between Lassiter and the instant case. Rather than the failure to challenge jury instructions regarding the (d)(6) aggravator, the basis of Lassiter's ineffectiveness claim was trial counsel’s alleged failure “to advise [her] that the Commonwealth's promise not to pursue the death penalty if she agreed to a bench trial constituted illusory consideration because the death penalty would not have applied had the matter gone before a jury,” as the Commonwealth was alleging merely that she was an accomplice. Lassiter, 722 A.2d at 659. A fuller quotation than the one provided by Justice Saylor illustrates more clearly the distinction between Lassiter's claim and that of Spotz: Clearly, trial counsel could have had no reasonable basis for failing to explain to appellant that a strong argument could be made that the death penalty could not be applied to her under Pennsylvania law. No strategic goals were furthered by trial counsel’s failing to fully inform his client of the true nature of the illusory promise with which the Commonwealth sought to bargain away appellant’s right to a jury trial. Lassiter, 722 A.2d at 662 (emphasis added). In the instant case, Spotz is arguing that his trial counsel was ineffective not for failing to advise Spotz that the aggravator does not apply to accomplices but for failing to request that the trial court instruct the jury to this effect. Therefore, contrary to the assertion of Justice Saylor, the reasoning of Lassiter is not directly applicable to the case sub judice.
In a related argument, Spotz claims that the determination by the trial court that burglary is per se a crime of violence "erect[ed] a conclusive presumption that relieved the Commonwealth of its burden of proving all the elements of [Section 9711 (d)(9).]” (Brief of Spotz at 74). To the contrary, this conclusive presumption is one this Court has repeatedly found perfectly consistent with the burden of the Commonwealth to prove all the elements of the aggravator. See Bracey I, 662 A.2d at 1062.
For the same reason, counsel for Spotz was not ineffective for failing to introduce evidence that the burglaries that Spotz committed were not, in fact, violent in nature.
According to Justice Saylor, "the Kelly majority viewed its ruling as an application of Simmons, rather than as an alteration.” Concurring and Dissenting Opinion of Justice Saylor, op. at 113 n. 9, 896 A.2d at 1258 n. 9. Nevertheless, even if the Majority in Kelly had explicitly determined that its opinion was not announcing a new rule of law, "the fact that a court says that its decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for purposes of deciding whether the current decision is a 'new rule’ under Teague." Butler, 494 U.S. at 415, 110 S.Ct. 1212. Indeed, in Butler, the United States Supreme Court held that a principle it had announced in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), constituted a new rule even though the Roberson Court itself arguably considered the result dictated by its previous decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), see Roberson, 486 U.S. at 685, 108 S.Ct. 2093 (characterizing the petitioner’s "attempts at distinguishing the factual setting here from that in Edwards [as] ... unavailing”). Moreover, precedents of the United States Supreme Court are not the only decisions relevant in determining the preexisting legal landscape. Contrary to the view of Justice Saylor, in support of which he cites no authority, see Concurring and Dissenting Opinion of Justice Saylor, op. at 112-13 n. 9, 896 A.2d at 1258 n. 9, "in the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts.” Caspari v. Bohlen, 510 U.S. 383, 395, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); see also Butler, 494 U.S. at 415, 110 S.Ct. 1212 (citing Roberson, 486 U.S. at 679 n. 3, 108 S.Ct. 2093, and relying primarily on state court decisions in holding that Roberson announced a new rule).
We note that, in 1997, the legislature repealed the requirement of proportionality review. Nevertheless, this Court continues to undertake proportionality review on direct appeal of death sentences in cases where the sentence of death was imposed prior to June 25, 1997, the ■ effective date of the repeal. See Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997) (Gribble I).
The Prothonotary of the Supreme Court is directed to transmit a full and complete record of these proceedings to the Governor in accordance with 42 Pa.C.S. § 971 l(i).
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Parenthetically, various Justices have, over the course of the Court’s history, expressed the view that diminished capacity, short of insanity negating all criminal liability, simply should not be available as a defense, see, e.g., Commonwealth v. Weinstein, 499 Pa. 106, 119-21, 451 A.2d 1344, 1350-51 (1982) (McDermott, J., concurring without participation), and certainly Pennsylvania law is not unique in terms of the reluctance to implement an expansive approach to the defense.
The restriction seems particularly questionable as applied to an accomplice, since its application will never allow a diminished capacity defense, despite that first-degree murder as established via accomplice liability theory remains a specific intent crime, see Commonwealth v. Huffman, 536 Pa. 196, 201, 638 A.2d 961, 964 (1994) ("Unless the appellant possessed a specific intent to kill, he could not be found guilty of murder in the first degree.”). Cf. Paul H. Robinson, Criminal Law Defenses § 64, at 273 (1984 & Supp.1993) (discussing the tension between requiring a particular state of mind to support liability for an offense but nevertheless excluding evidence relevant to it).
Although Lassiter is a plurality opinion for other reasons, six Justices agreed that a prosecution for murder based on accomplice liability will not support the use of the aggravating circumstance under Section 9711(d)(6), and that counsel in the case lacked a reasonable strategy for failing to pursue this point at least in consultation with his client. See Commonwealth v. Williams, 581 Pa. 57, 93 n. 4, 863 A.2d 505, 526-27 n. 4 (2004) (Saylor, J., dissenting) (describing the various positions in Lassiter).
The majority incorrectly indicates that the jury found that Appellant "committed a killing while in the perpetration of a felony." See Majority Opinion, op. at 25, 896 A.2d at 1205. In fact, in alignment with the trial court's instruction, the verdict slip reflects only the jury's finding that the "killing was committed in the perpetration of a felony." There simply is no special finding on the record to the effect that Appellant actually perpetrated the killing of the victim; Appellant adduced affirmative evidence tending to support his defense theory that his accomplice, C.N. Nolan, was the actual killer, see e.g., Majority Opinion, op. at 49 n. 31, 896 A.2d at 1220 n. 31 (citing testimony of Darcy Smith and Lawrence S.); the primary direct evidence that Appellant was the actual shooter derived from Nolan, who, by virtue of applicable law, is to be regarded as a tainted source, see N.T., March 2, 1996, at 770 (reflecting the trial court’s directive that the jurors “shall view [Nolan's] testimony with disfavor because it comes from a corrupt and polluted source”); the trial court affirmatively instructed the jury in the guilt phase of trial that Appellant could be held liable for first-degree murder as an accomplice, see id. at 788-90; and the jury returned a general verdict to first-degree murder.
'In light of the plain language of Section 9711(d)(6), it seems to me that, if the trial courts would simply use the words of the statute in their penalty-phase instructions and on verdict slips, this should be sufficient to convey the plain meaning (although I believe that it is preferable to advise the jury specifically that the aggravator cannot be applied if the defendant was found guilty of first-degree murder under accomplice liability theory). The most significant deficiency arises where, as here, a trial court paraphrases the aggravator using the passive voice, removing the defendant from the active position that is elemental in the statute.
In this regard, many of the cases referenced by the majority postdate the 1996 trial of this case, and thus, these are of limited relevance in assessing trial counsel's calculus in 1996; the Lassiter issue was not raised and/or addressed in any of the decisions that are cited (in the only one of the cases that touches on the Lassiter question, the Court noted that it was unnecessary to address it, since the jury had found two other aggravators and no mitigators, see Commonwealth v. Rios, 554 Pa. 419, 435-36 n. 16, 721 A.2d 1049, 1057 (1998)); none of the decisions specifies the relevant penalty-phase instructions that were issued to the jury at trial concerning the Section 9711(d)(6) aggravator; indeed, in many of the cases the trial courts under review had actually quoted the (d)(6) aggravator directly from the statute in their penalty-phase charges, as opposed to displacing the required focus on the active role of the defendant as occurred in the present case, see, e.g., Commonwealth v. Chambers, No. 42 C.A.1987, N.T. June 3, 1994 (V.VII), at 1524 (C.P.York) (reflecting the trial court’s instruction ”[i]xi this case the Commonwealth has presented one aggravating circumstance which is, and I read it from the Act, that the Defendant committed a killing while in the perpetration of a felony”); Commonwealth v. C./Laird, Nos. 741-88, 746-88, N.T., May 20, 1988, at 797 (C.P.Bucks) (reflecting a similar instruction centered on the requirement that “the defendant committed a killing while in the perpetration of a felony”); Commonwealth v. Lambert, Nos. 343 et al. Aug. Term 1983, N.T., Apr. 25, 1984, at 67 (C.P.Phila.) (reflecting the trial judge’s reading of the aggravating circumstances verbatim from the death penalty statute); and finally, the Court has continued after Lassiter to utilize the same shorthand phraseology that the majority references in merely setting out the procedural history of cases, see, e.g., Commonwealth v. Singley, 582 Pa. 5, 13 868 A.2d 403, 408 (2005), and, at least in my view, it would be unreasonable to take the position that such mere imprecision (paiticularly in instances in which precision is not called for) displaces Lassiter. Certaixxly the six Justices in Lassiter who agreed that the appellant’s counsel lacked a reasonable strategy for failing to convey the focus of Section 9711(d)(6) on the defendant's active participation in the killing did not deem controlling some prior or future imprecise phrasing by this Court in decisions in which the particular focus of Section 9711(d)(6) simply was not in issue before it.
In response to my position, the majority distinguishes Lassiter on the ground that the ineffectiveness claim in that case centered on the failure of a defense attorney to advise his client concerning the plain meaning of Section 9711(d)(6) for purposes of her decision whether to enter into a plea agreement, as contrasted with the situation in the present case, entailing trial counsel’s failure to vindicate the plain meaning of the same statute at an actual death penalty hearing. See Majority Opinion, op. at 82-83 n. 40, 896 A.2d at 1239-40 n. 40. Respectfully, I fail to see the relevance of this distinction in terms of Appellant's entitlement to post-conviction relief, since the plain meaning of Section 9711(d)(6) is equally dispositive in either setting. Indeed, if there is any difference, it seems to me that the claim of deficient stewardship is stronger and more direct in the latter circumstance.
Notably, in response to a dissenting opinion asserting that under the Kelly standard the evidence in a substantial proportion of, if not all, capital cases will show a defendant likely to be dangerous in the future, the Kelly majority indicated, that this "may well be,” see Kelly, 534 U.S. at 254 n. 4, 122 S.Ct. at 732 n. 4, albeit that it declined to respond definitively.
As the foundation for its conclusion that Kelly presents a new rule of law, the majority relies on this Court’s various holdings to the effect that references to future dangerousness must be express to implicate the requirement of a Simmons instruction. See Majority Opinion, op. at 91-93, 896 A.2d at 1245-46. The reasoning is that, since this Court’s prior holdings are contrary to Kelly, then Kelly must represent a novel legal proposition. See id. Such logic, however, fails to account for the possibility that a state court might not correctly implement existing federal constitutional doctrine; thus, under the majority’s rationale, it would appear that even a mere correction by the United States Supreme Court of a state court's misinterpretation of federal constitutional law should apply prospectively only. I therefore believe that a broader approach to the retroactivity question is warranted, which does not focus integrally on the Pennsylvania decisions. In particular, in my view, whether Kelly represents a new rule of law should be determined with reference to the relevant decisions of the United States Supreme Court, including Kelly itself. In this regard, it seems apparent that the Kelly majority viewed its ruling as an application of Simmons, rather than as an alteration. For example, the Kelly majority specifically credited the state court decision tinder review for correctly framing the legal issue arising under Simmons by considering whether the defendant's future dangerousness was "a logical inference from the evidence," or was injected into the case through the State's closing argument. Kelly, 534 U.S. at 252, 122 S.Ct. at 731. Moreover, the Kelly majority cited the Simmons lead and concurring opinions for the proposition that “ ‘raising] the specter of ... future dangerousness generally' and ‘advancfing] generalized arguments regarding [same]’ " implicates future dangerousness under Simmons. Id. Indeed, the majority here correctly acknowledges that it was the minority perspective in Kelly that the holding represented a novel proposition of law. See Majority Opinion, op. at 89-92, 896 A.2d at 1244-45 (citing Kelly, 534 U.S. at 261, 122 S.Ct. at 735 (Rehnquist, C.J., dissenting); id. at 263-64, 122 S.Ct. at 736-37 (Thomas, J., dissenting)).
Mark Newton SPOTZ, Petitioner v. COMMONWEALTH of Pennsylvania, Dennis Lebo (Clerk of Court), Jeffrey A. Beard, Ph.D (Secretary of Corrections), Louis Folino (Superintendent), Jean W. Scott (Business Manager), Leslie Wynn (Inmate Accounting Officer), Gina Perry (Inmate Records Supervisor), Respondents.
Commonwealth Court of Pennsylvania.
Submitted on Briefs Oct. 3, 2008.
Decided May 6, 2009.
Mark Newton Spotz, petitioner, pro se.
Timothy I. Mark, Deputy Chief Counsel and Suzanne N. Hueston, Chief Counsel, Camp Hill, for Corrections Respondents.
Christopher E. Fisher, Harrisburg, for respondent, Dennis Lebo.
BEFORE: McGINLEY, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.
[OPINION BY Senior Judge KELLEY. type=majority]
OPINION BY
Senior Judge KELLEY.
Before this Court, in our original jurisdiction, are the Preliminary Objections (Objections) of Dennis Lebo, Clerk of Court for the Court of Common Pleas of Cumberland County (hereinafter, Lebo), and the combined Preliminary Objections of Jeffrey A. Beard, Ph.D (as Secretary of the Pennsylvania Department of Corrections), Louis Folino (as Superintendent of SCI-Greene), Jean W. Scott (as Business Manager of SCI Greene), Leslie Wynn (as Inmate Accounting Officer of SCI-Greene), and Gina Perry (as Inmate Records Supervisor of SCI-Greene) (hereinafter, collectively, the Corrections Respondents). The two sets of Objections sub judice were filed against the pro se Petition for Review of Governmental Action (the Petition) of Mark Newton Spotz (Spotz), an inmate at SCI-Greene.
Spotz is currently incarcerated at SCI-Greene where he is serving a sentence of death imposed by the Court of Common Pleas of Cumberland County (Trial Court) by order dated May 17, 1996, with the sentence formally imposed after post-verdict motions by order dated June 17,1996. The Trial Court’s sentencing order did not include any express language assessing any fines, costs, or reimbursements imposed onto Spotz.
On November 1, 2000, the Department of Corrections (Department) began deducting 20% of all incoming money from Spotz’s inmate account, which money was ultimately remitted to the office of Lebo as Clerk of Cumberland County Courts, costs and fines division. The Department alleged costs in the amount of $14,373.35 from Spotz’s capital prosecution, and entered its deductions as entries within the Department’s Inmate Account System under what is commonly, and hereinafter, referred to as Act 84, Act of June 18,1998, P.L. 640, which amended Section 9728 of the Sentencing Code, 42 Pa.C.S. § 9728.
On December 4, 2002, Spotz filed in the Trial Court a Petition for Habeas Corpus Relief (Habeas Corpus Petition) seeking post-conviction relief. The Habeas Corpus Petition was ultimately held in abeyance pending the resolution of other criminal charges in Clearfield County, which charges were used in aggravation in the criminal case underlying the instant action.
On January 26, 2004, Spotz filed in the Trial Court a Petition to Direct the Department of Corrections to Cease Deducting Funds (Petition to Cease Deductions) from his account, additionally seeking the return of the funds that had already been deducted. The Trial Court did not hold a hearing on Spotz’s Petition to Cease Deductions, and dismissed it by order dated March 2, 2004, which reads in its entirety:
AND NOW, this 2nd day of March, 2004, the within petition IS DISMISSED WITHOUT A HEARING.
See Petition at Ex. F.
Subsequently, on August 23, 2004, Lebo’s office generated a Court Commitment Order, also known as Form DC-30013, indicating costs assessed against Spotz in the amount of $12,179.80, as well as $30.00 assessed for the Crime Victim’s Compensation Fund — Victim/Witness Services Fund. This Form DC-300B was then forwarded to the Department.
On January 16, 2007, Spotz filed in the Trial Court a Motion to Amend his pending Habeas Corpus Petition, alleging in material part that the Department’s deductions violated his constitutional rights, and seeking both cessation of the deductions, and the return of previously deducted monies. By order dated April 20, 2007, the Trial Court denied Spotz’s Petition to Amend his Habeas Corpus Petition.
Beginning in August, 2007, Spotz filed numerous Official Inmate Requests to Staff Members, seeking documentation of, and explanation for, the deductions at issue. Spotz also initiated an Official Inmate Grievance asserting, generally, that he had never been ordered to pay the costs at issue, and that the Department’s deductions were contrary to law. Spotz’s Grievance was denied. Spotz pursued all available appeals within the grievance system, during which pursuit he corresponded again with Lebo regarding his sentencing. Lebo replied, inter alia, by correspondence dated September 11, 2007, emphasizing the Trial Court’s footnote stating that “the assessment of costs are automatic following a conviction” within its March 2, 2004, order as implied authority for the deductions. By decision dated December 14, 2007, the Chief Grievance Officer denied Spotz’s final appeal in the administrative process.
On January 7, 2008, Spotz filed the instant Petition at issue in this Court’s original jurisdiction. Spotz’s Petition seeks, inter alia, the return of funds alleged to have been illegally seized and/or deducted from Spotz’s personal account during his imprisonment. In his Petition, Spotz alleges, in relevant part, that the above-captioned Respondents deprived Spotz of 20% of the incoming monies to his prisoner account in the absence of any court-ordered authority to do so in an attempt to recover court costs from Spotz. Additionally, Spotz challenges the validity of Act 84.
Most generally stated, Act 84 expressly authorizes deductions from an inmate’s account to satisfy orders for costs, fines, and/or restitution, and directs the Department to develop guidelines to carry out its responsibilities, i.e., determining the amount of the installment payments to be made towards an inmate’s unpaid costs, fines and restitution. The crux of Spotz’s Petition avers that the Trial Court’s June 17,1996, sentencing order did not expressly order any payment of costs, and that absent such an express order, the Department and Lebo were without authority to sua sponte initiate, collect, and remit the deductions effected upon Spotz’s inmate account. As relief, Spotz seeks: preliminary and permanent injunctions against the Respondents preventing any further deductions; an order staying any further deduction pending the outcome of the case before us; declaratory judgment; summary relief; the return of all monies previously deducted; amendment to both Act 84 and the regulations enacted thereunder; an order mandating that both the Department and Lebo abide by Act 84 and its resulting regulations, arid; reimbursement for costs associated with the instant Petition.
Subsequent to the filing of Spotz’s Petition, Lebo and the Corrections Respondents filed separate Preliminary Objections thereto, to which Spotz filed responses in opposition. Subsequently, the Objections were briefed by the parties.
In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Marrero by Tabales v. Commonwealth of Pennsylvania, 709 A.2d 956 (Pa.Cmwlth.1998). In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery,- and any doubt should be resolved by a refusal to sustain them. Id.
We first address Spotz’s filing with this Court, following the submission, answering, and briefing of the Objections sub judice, of an Important Notice To The Court (hereinafter, Notice), filed by Spotz on November 6, 2008. Therein, Spotz asserts that certain recent developments in this matter are relevant to this Court’s disposition thereof. In his Notice, Spotz asserts that Lebo’s attorney in this matter has communicated to Spotz that Lebo has ceased making any Act 84 deductions from Spotz’s inmate account and has refunded the sum of $96.00. Spotz requests that this Court view these recent actions by Lebo as “admissions of culpability” as to the illegality of the deductions at issue, and as to the Respondents’ collective responsibility to reimburse Spotz for the funds at issue as requested in his Petition. Neither Lebo, nor the Corrections Respondents, responded in any manner to Spotz’s Notice. We decline to accept Spotz’s invitation to interpret the cessation of the deductions at issue as an implicit admission of error or culpability herein.
However, inasmuch as Spotz himself brings to this Court’s attention Lebo’s ceasing of any Act 84 deductions in the present and moving forward, and affirms and accepts that cessation, Spotz is no longer entitled to the injunctive relief sought to prevent further deductions from his account, or to a stay of those deductions during the pendency of this action. Given Spotz’s acknowledgement and acceptance of the cessation of deductions, we grant the Corrections Respondents’ Objection to Spotz’s request for injunctive relief.
We next address the Corrections Respondents’, and Lebo’s, first advanced Objection. The Respondents advance a demurrer to Spotz’s attacks upon Act 84, and the regulations promulgated thereunder, on the general basis that the precedents of our Courts require a dismissal of Spotz’s Petition.
The Respondents cite to Act 84’s direct authorization of the Department to collect funds:
Collection of restitution, reparation, fees, costs, fines and penalties
(b) Procedure.—
(3) The county clerk of courts shall, upon sentencing, pretrial disposition or other order, transmit to the ... Department of Corrections ... copies of all orders for restitution and amendments or alterations thereto, reparation, fees, costs, fines and penalties.
(5) The county correctional facility to which the offender has been sentenced or the Department of Corrections shall be authorized to make monetary deductions from inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation. Any amount deducted shall be transmitted by the Department of Corrections or the county correctional facility to the probation department of the county or other agent designated by the county commissioners of the county with the approval of the president judge of the county in which the offender was convicted. The Department of Corrections shall develop guidelines relating to its responsibilities under this paragraph.
Section 9728 of the Sentencing Code, 42 Pa.C.S. § 9728(b). Respondents, citing to Boyd v. Department of Corrections, 831 A.2d 779, 783 (Pa.Cmwlth.2003), further emphasize:
42 Pa.C.S. § 9728(b)(5) specifically provides that “[the] Department of Corrections shall develop guidelines relating to its responsibilities under this paragraph.” In response to that directive, the Department developed policy DC-ADM 005, which provides, in relevant part, “the business office will deduct from an inmate’s account monthly payments of 20% of the preceding month’s income provided the account balance exceeds $10.00.”
Continuing their citation to our opinion in Boyd, Respondents also assert that this Court has indicated that Form DC-300B can be an appropriate document upon which the Department may rely to determine the amount of financial obligations imposed by a sentencing court. See Boyd, 831 A.2d at 783, n. 6 (where inmate does not dispute that sentencing court imposed fines, costs, and restitution, but argues that Department may not deduct funds absent an express order authorizing the act of deduction, Form DC-300B can be relied upon by Department even where Form was completed on Court’s behalf by clerk but was not signed by sentencing Judge). Respondents argue, under the above citations, that a Form DC-300B is the typical source document used to notify the Department of the total amount of obligation due, since the information contained therein and furnished by a Clerk of Courts, such as Lebo, is both reliable and accurate.
Boyd, however, is inapplicable to the instant matter. In Boyd, the inmate did not dispute that the sentencing court therein had imposed upon him certain fines, costs, and restitution. The relevant dispositive issue in that matter was whether, given that undisputed imposition of fines, costs, and restitution, the Department could rely upon the Court Commitment Order in effecting the deductions. We held:
Because, in this case, Boyd does not dispute that the sentencing court imposed fines, costs and restitution upon him, but instead, only argues that the Department may not deduct funds for - such purposes without a court order authorizing the “act” of deducting those • funds, his argument must fail.
Boyd, 831 A.2d at 782-783. The fact that the inmate in Boyd did not dispute the sentencing court’s imposition of the fines, costs, and restitution in that matter distinguishes it from the matter sub judice, in which Spotz asserts that no such order has been made by the sentencing court in this case. As such, Boyd is neither controlling of, nor persuasive to, the facts before us presently.
The generalized essence of Respondents’ demurrer arguments centers around the assertion that Spotz has failed to state a claim upon which relief can be granted, in that Act 84 and its related regulations grant the Department the authority to make the deductions at issue, especially given the existence of Form DC-300B as forwarded to the Department by Lebo. We disagree, based on our review of Superior Courts opinion in Commonwealth v. Le-Bar, 860 A.2d 1105 (Pa.Super.2004), which we find to be both instructive, and persuasive, to the matter at hancl.
In LeBar, an inmate sought review of a decision of a sentencing court that had denied the inmate’s motion to compel the county clerk of court, and the Department, to return monies deducted in violation of Section 9728 of the Sentencing Code from the inmate’s monthly income to cover court costs. In its analysis of Act 84, Superior Court first addressed the issue of the assessment of discretionary, court-ordered monies:
[W]e need look no further than the language of Act 84, which provides the “procedural mechanism for the collection of court costs and fines.” [Harding v. Stickman, 823 A.2d 1110, 1112 (Pa.Cmwlth.2003).] The Act vests authority in DOC to collect on court-assessed costs, fines, and restitution. [See] 42 Pa.C.S. § 9728(b)(5). What, on its plain language, Act 84 most assuredly does not do, is vest in the clerks of courts of the counties of this Commonwealth the fundamentally judicial authority to assess costs in the first instance against parties where costs have not been explicitly provided for in that party’s sentencing order. Indeed, the section permitting DOC to collect court-ordered costs could not be more clear on this point: “The county correctional facility to which the offender has been sentenced or the Department of Corrections shall be authorized to make monetary deductions from inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation.” 42 Pa.C.S. § 9728(b)(5) (emphasis added); [see Boyd v. Pennsylvania Dep’t of Corrs., 831 A.2d 779, 783 (Pa.Cmwlth.2003) ] “([T]he Department [of Corrections] is authorized to make monetary deductions from an inmate’s personal account for the purposes of collecting restitution, as well as fines and costs, which were imposed by the sentencing court ....”); [see also Commonwealth v. Larsen], 452 Pa.Super. 508, 682 A.2d 783, 794-95 (1996) (discussing generally the ways in which a court order sentencing a party to costs may be followed within thirty days by a court order setting such costs, which in turn would, by court order, “give the sentencing cost substance and enforcement perimeters to allow the collection agent for the court to act timely”).
... [T]he only money DOC might collect from LeBar’s personal inmate account under § 9728 must be a “court-ordered obligation”-something strikingly absent ... from the original sentencing order ...
LeBar, 860 A.2d at 1109-1110 (non-italicized bold emphasis added).
However, continuing its analysis, Superi- or Court differentiated between costs which the sentencing court has discretion to expressly order paid, or to waive, and statutorily mandated, or non-waivable, costs. Superior Court stated further:
This does not end our inquiry, however; the Commonwealth has directed our attention to a statute the trial court might have referred to when it summarily described court costs as “statutory in nature.” Specifically, the Commonwealth asserts that 18 P.S. § 11.1101 authorizes all of the costs DOC collected from LeBar in this case. Relevantly, that section provides as follows:
§ 11.1101. Costs
(a) Imposition.
(1) A person who pleads guilty or nolo contendere or who is convicted of a crime shall, in addition to costs imposed under 42 Pa.C.S. § 3571(c) (relating to Commonwealth portion of fines, etc.), pay costs of at least $60 and may be sentenced to pay additional costs in an amount up to the statutory maximum monetary penalty for the offense committed.
% ^ % :¡í if;
(c) Payment. This cost shall be imposed notwithstanding any statutory provision to the contrary.
* sjí íH i¡; ‡
(e) Court order. No court order shall be necessary in order for the defendant to incur liability for costs under this section. Costs under this section must be paid in order for the defendant to be eligible for probation, parole or accelerated rehabilitative disposition.
18 P.S. § 11.1101. Our research discloses no cases interpreting this statutory provision, thus we must rely on the statute’s plain language to determine whether and how it applies to LeBar’s case. See 1 Pa.C.S. § 1903(a) (“Words and phrases shall be construed according to rules of grammar and according to their common and approved usage... .”).
The Commonwealth would have us rule that § 11.1101(a) validates all of the fines charged to LeBar, and that § 11.1101(e) authorizes the method of collection implemented in this case notwithstanding the lack of a court order imposing those costs. We disagree. Section 11.1101 unequivocally imposes a $60 fee on LeBar, which we must uphold. To that extent, then, the costs imposed were indeed “statutory in nature,” and to that extent only we affirm the trial court’s order sustaining DOC’s collection of fees from LeBar. With regard to the balance of monies collected from LeBar, however, we note that § 11.1101(a)(1) contains language susceptible. to the same analysis we applied to 42 Pa.C.S. § 9728. As in that section, § 11.1101 provides that a person who pleads guilty “shall ... pay costs of at least $60 and may be sentenced to pay additional costs in an amount up to the statutory maximum monetary penalty for the offense committed.” 18 P.S. § 11.1101(a)(1) (emphasis added). As in § 9728, the statute recognizes that the sentencing court may in its discretion impose costs up to the relevant statutory maximum; beyond the mandatory $60 assessment, however, § 11.1101 is not self-executing but rather requires a “sentence” in the same way that § 9728 requires a court order. Based on our analysis above, and our brief discussion to follow, we find that the trial court neither sentenced nor validly ordered imposition of any costs, fees, or restitution. Consequently LeBar is responsible only for the mandatory $60 assessment provided in 18 P.S. § 11.1101.
Thus, we have no choice but to enforce the original sentencing order, which imposed neither costs nor fines on LeBar. Of course, consistent with the above discussion, we find no impropriety in the collection of $60 from LeBar; as to the difference between this amount and the $466 actually collected, however, we find that DOC’s collection was erroneous and must be remedied.
LeBar, 860 A.2d at 1110-1112.
The crux of LeBar was Superior Court’s distinction between the two categories of costs, namely, those that are waivable, and those that are not, in relation to which of those categories require an express court order for later deduction under Act 84’s plain language. Although Respondents’ acknowledge this distinction, they emphasize LeBar’s holding that statutorily mandated, non-waivable costs can be collected from an inmate even where such payment and concomitant collection has not been specifically ordered by a court. Contrarily, however, Respondents admit that in the instant matter, only some of the costs deducted from Spotz’s account were statutorily mandated, non-waivable costs. Despite the logical implied conclusion that follows Respondents’ assertion, namely, the existence of other non-mandated, waivable costs, Respondents’ argue that LeBar is inapplicable and/or not persuasive. We disagree.
LeBar clearly holds that Act 84 authorizes only the deduction of court-ordered, waivable costs, which are deductible only in the presence of a court order so specifying; however, non-waivable, statutorily mandated costs are deductible absent any express court order. We find Superior Court’s analysis and reasoning on this issue to be astute, and persuasive, and thusly, adopt it. As such, we deny Respondents’ Preliminary Objections in the nature of demurrer.
In addition to joining the Corrections Respondents’ demurrer Objection, as articulated above, Lebo separately provides two additional grounds in support of his own demurrer. First, Lebo asserts— correctly—that his official clerk position is purely ministerial, and that he was thusly merely following the order of the Trial Court dated March 2, 2004, in completing and forwarding the Form DC-300B to the Department, which Form initiated the deductions at issue. We find Lebo’s argument on this point unavailing to his demurrer Objection, in that nothing in the 2004 order can be read to clearly and expressly authorize the deduction of all of the funds placed at issue by Spotz herein. We find this argument particularly unavailing given Lebo’s own contrary concession, within his brief to this Court, that there existed no order expressly imposing costs upon Spotz. See Lebo brief at 7.
Secondly, Lebo argues that Spotz’s instant challenge is properly. brought in the Trial Court as the sentencing court of record in this matter. We disagree. Spotz’s Petition clearly does not attack the June 17,1996, sentencing order underlying this matter; the nature of his challenge, in fact, relies upon the express wording of that sentencing order. Spotz is, in the instant matter, clearly and unequivocally challenging only the governmental action of Lebo and the Correction Respondents in the wake of the sentencing order, which matter the Trial. Court has no jurisdiction over under the instant facts. See Commonwealth v. Parella, 834 A.2d 1253 (Pa.Cmwlth.2003) (Court of Common Pleas lacked subject matter jurisdiction over inmate’s action to stop Department from making deductions from his prison account pursuant to Act 84; inmate did not challenge underlying sentence imposing costs or restitution, and Commonwealth Court had exclusive original jurisdiction over petitions for review of governmental action).
Accordingly we deny Lebo’s additional Preliminary Objection in the nature of demurrer.
Next we address the Corrections Respondents’ Objection that Spotz is not entitled to an order directing the Department to refund or reimburse the deductions previously made, which deductions the Department avers have been remitted to Cumberland County based upon the representations made in Form DC-300B as provided to the Department by Lebo. In support of this Objection, the Corrections Respondents argue that Spotz’s remedy in this case, if any exists, lies solely against Lebo as the Clerk of Courts, if Lebo is in fact in possession of any collected funds, or if some erroneously listed amounts remain owed by Spotz. The Corrections Respondents additionally argue that any ordered refund or reimbursement would not be an equitable remedy herein, but would constitute a punitive measure against the Department, in that, given the Department’s remittance of the funds at issue, the Department would be essentially paying Spotz’s costs as a practical matter. The Corrections Respondents further argue that Spotz, if granted reimbursement or refund, could potentially be unjustly enriched if the Department was ordered to reimburse Spotz, and Lebo was ordered to credit that same reimbursement amount to Spotz’s account. We find the Corrections Respondents’ arguments on this point to be unduly prospective and speculative, and without merit.
In LeBar, our Superior Court directed the trial court therein to “see to the restitution” to the inmate’s account of the monies “improperly collected and ostensibly forwarded” to the trial court in that matter. LeBar, 860 A.2d at 1112. As such, and given our adoption of Superior Court’s reasoning and analysis in LeBar, Spotz may, if successful in advancing his Petition, be entitled to reimbursement and/or refund of the monies at issue herein. Any punitive or unjust enrichment concerns articulated by the Corrections Respondents can be addressed in any potential proceedings on that reimbursement/refund, and are insufficient to support the Corrections Respondents’ Objection on that basis.
Accordingly, the Corrections Respondents’, and Lebo’s, Preliminary Objections are granted in respect to Spotz’s requested injunctive relief, and denied in all other respects.
ORDER
AND NOW, this 6th day of May, 2009, the Preliminary Objections of the above-named Respondents are granted in part, and denied in part, in accordance with the reasoning in the foregoing opinion. Respondents are directed to file an answer in this matter within thirty (30) days of the date of this order.
The Corrections Respondents, together with Lebo, shall hereinafter be referred to collectively as the Respondents.
The Pennsylvania Supreme Court affirmed Spotz’s judgment of sentence by order dated October 20, 2000. See Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000). Thereafter, the United States Supreme Court denied Spotz's Petition for Writ of Certiorari. See Spotz v. Pennsylvania, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002).
See Act 84 Log entries, Petition at Ex. K.
The Department did not allege any fines or restitution costs.
We note that while the original sentencing order is this matter was entered on June 17, 1996, Act 84 did not become effective until 1998. However, Act 84 has been held to be applicable to convictions entered, and costs ordered, prior to the date of its enactment. See Sweatt v. Department of Corrections, 769 A.2d 574 (Pa.Cmwlth.2001) (Act 84, authorizing Department to make monetary deductions from inmate account for the purpose of collecting restitution or court-ordered obligations was not penal in nature, and thus could be applied retroactively to defendant convicted before Act’s effective date). (1)The assessment of costs is automatic following a conviction, (2) the within petition is not a direct appeal or a post-conviction petition, (3) the assessment of costs has not exposed petitioner to initial confinement, additional confinement or increased conditions of supervision, and (4) this court has no jurisdiction over the Department of Corrections. [George v. Beard, 824 A.2d 393 (Pa.Cmwlth.2003); Commonwealth v. Fleming, 804 A.2d 669 (Pa.Super.2002).]
By leave of this Court, Spotz has filed a combined brief in opposition to both Lebo’s and the Corrections Respondents’ Objections.
Affirmed, 559 Pa. 14, 739 A.2d 110 (1999). .Spotz filed a second Important Notice to the Court on February 19, 2009. Therein, Spotz presents additional evidence supporting his claims that no costs were ordered by the sentencing Court in this matter, and that Lebo’s actions exceeded the scope of his authority as a Clerk of Courts. The matters presented in Spotz’s second Notice are of no moment to our disposition of the Objections before us, and thusly, need not be further addressed at this point in the instant proceedings.
In his brief, Spotz renews his two prior motions to this Court that we find Lebo in default in this matter for untimely compliance in filing a response to Spotz’s Petition. By order of this Court dated March 24, 2008, we dismissed Spotz’s default motion, and granted Lebo thirty days within which to respond. As Lebo timely met that deadline, we will not revisit our previous disposition of Spotz’s motion on this issue.
Affirmed, 584 Pa. 540, 886 A.2d 222 (2005). Even though the Court Commitment order, Form DC-300B, was completed on the court’s behalf by the clerk and was not signed by the sentencing judge, the Department did not err in relying on that form which indicated that Boyd had been ordered to pay $5,000.00 in fines, $335.20 in costs and $3,240.00 in restitution by the sentencing court. [See Abraham v. Department of Corrections, 150 Pa.Cmwlth. 81, 615 A.2d 814 (1992), affirmed, 535 Pa. 122, 634 A.2d 214 (1993), overruled on other grounds by Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996).]
Similarly, Respondents' arguments regarding the retroactive application of Act 84, the definition of "income" thereunder, potential separation of powers violations, and due process implications in relation to the lack of any "ability to pay” proceedings in this matter, are wholly irrelevant. No such issues have been raised by Spotz herein, and no such issues are implicated by Spotz’s Petition, or by Respondents' Objections.
This Court ordered the parties to brief the applicability of LeBar to the instant matter. Spotz now attempts to argue that Respondents, having failed to raise the inapplicability of LeBar to this matter in their Objections, have waived any argument that it does not apply to, or control, the matter sub judice. Notwithstanding the fact that Superior Court precedents are not binding upon this Court, we note that Spotz himself raised the applicability of LeBar in his Petition. Spotz apparently misapprehends the nature of waiver in this context: Respondents have not waived their right to argue the applicability, or persuasive value, of this precedent to this matter by failing to specifically so claim in their respective Objections. We denied Spotz's pri- or objection to the Respondents' address of LeBar, and subsequently expressly ordered the parties to address this precedent. Respondents have not waived any right to argue the applicability of potentially persuasive case law, and we will not revisit our prior dismissal of Spotz’s motion on this issue.
We note that Spotz admits that a portion of the costs for which deductions have been made are indeed statutorily mandated, non-waivable costs for which Spotz concedes no court order is required. Spotz is not seeking reimbursement for these deductions.
Spotz, in his Petition, expressly argues that Lebo has exceeded his purely ministerial authority in this matter, which argument forms part of the foundation of Spotz’s central claim in this matter. As such, for purposes of the Objections at issue, Lebo’s assertion on this point is of no moment.
Two ancillary matters, advanced by Spotz in his responses to the Respondents' Objections and brief in support thereof, remain. First, Spotz renews his previously denied leave to amend his Petition to add an additional count of fraud and collusion, and to name an additional respondent. As noted herein, we will not revisit motions that we have previously disposed of. Secondly, Spotz attempts to present a motion, within his brief, for entry of judgment of summary relief. We emphasize to Spotz, in the strongest possible terms, that the rules of procedure before this Court in our original jurisdiction, including rules for proper motion practice, do not allow for the presentation of the various motions presented by Spotz herein within the context of addressing Preliminary Objections. See generally, Pennsylvania Rule of Appellate Procedure 106. As such, we will not address the motions Spotz attempts to present in his responses to the Respondents’ Objections.
18 A.3d 244
COMMONWEALTH of Pennsylvania, Appellee v. Mark Newton SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Submitted Nov. 17, 2009.
Decided April 29, 2011.
Robert Brett Dunham, David Lee Zuckerman, Michael Wiseman, Eric John Montroy, Defender Association of Philadelphia, Philadelphia, for Mark Newton Spotz.
Jaime M. Keating, Cumberland County District Attorney’s Office, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
[OPINION BY Justice McCAFFERY. type=majority]
OPINION
Justice McCAFFERY.
Mark Newton Spotz (“Appellant”) has appealed from the denial of his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), following his conviction for first-degree murder and the imposition of a sentence of death. We affirm.
While engaged in a three-day crime spree in early 1995, Appellant killed four people in four counties. He was tried separately for each homicide, and he was ultimately convicted of voluntary manslaughter in the death of his brother, Dustin Spotz, in Clearfield County, and of first-degree murder in the deaths of June Ohlinger, Penny Gunnet, and Betty Amstutz, in, respectively, Schuylkill, York, and Cumberland Counties. Although the Superior Court overturned Appellant’s manslaughter conviction and granted him a new trial, this Court reversed and reinstated the conviction. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005) (“Spotz IV”). On direct appeal, this Court affirmed each of Appellant’s first-degree murder convictions and sentences of death. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) (Schuylkill County case) (“Spotz I”); Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000) (York County case) (“Spotz II ”); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000) (Cumberland County case) (“Spotz III”). In addition, we affirmed the order of the PCRA court denying Appellant collateral relief from his Schuylkill County first-degree murder conviction. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006) (“Spotz V”).
Here, Appellant seeks review of the order of the PCRA court denying his petition for collateral relief from his conviction for the murder of Betty Amstutz in Cumberland County. Briefly, the circumstances of the case, as set forth by this Court on direct review and/or by the PCRA court, are as follows. On February 2, 1995, having already committed three homicides in the prior two days, Appellant abducted Ms. Amstutz in or near her Harrisburg home. Holding her hostage, he directed her to cash two checks at two different banks, transactions- that were filmed by security cameras. Appellant also used Ms. Amstutz’s credit card to purchase items from a sporting goods store and to check into a Carlisle hotel. In the early evening, two witnesses observed a white male standing along a Carlisle road close to a parked car matching the description of Ms. Amstutz’s vehicle. Later in the evening, Appellant and two other individuals, C.C., an acquaintance, and M.R., the mother of Appellant’s two children, smoked crack cocaine in the hotel room. Mr. C. subsequently left the hotel and drove Ms. Amstutz’s car to the apartment of Ms. R.’s sister.
The following morning, near the side of the road where witnesses had seen Ms. Amstutz’s car, a worker discovered her body, which had sustained multiple gunshot wounds, and notified the authorities. Later in the morning, police stopped Ms. Amstutz’s car, in which Ms. R.’s sister and a friend were traveling to pick up Appellant and Ms. R. at the hotel. Police then surrounded Appellant’s hotel room and apprehended him after a lengthy standoff.
A post-arrest search of the hotel room yielded the following: bloodstained jeans; a knife; credit cards issued in the name of Penny Gunnet, one of the previous murder victims; and an itemized accounting, written by Appellant, of the money he had stolen and his expenditures on crack cocaine and other items. Bullets recovered from Ms. Amstutz’s body and from the location where her body was discovered matched a nine-millimeter semiautomatic pistol in Appellant’s possession. Appellant’s fingerprints were found on Ms. Amstutz’s car, and blood on his shoe was consistent with that of Ms. Amstutz.
Appellant was tried by a jury for Ms. Amstutz’s murder in May 1996. Appellant’s 17-year-old sometime girlfriend, C.N., testified for the Commonwealth regarding Appellant’s actions and motivation in the two days prior to the abduction and murder of Ms. Amstutz. Two days before Ms. Amstutz’s murder, Ms. N. was with Appellant in his mother’s home in Clearfield County when he shot and killed his brother, Dustin Spotz, during an argument. Appellant and Ms. N. fled to Schuylkill County, where, in need of a vehicle, Appellant abducted June Ohlinger, stole her car, and murdered her. After a short trip to Delaware, Appellant and Ms. N. returned to Pennsylvania, this time to York County, where Appellant abducted Penny Gunnet, stole her car, and murdered her. Appellant then went on to Cumberland County without Ms. N., where the abduction and murder of Ms. Amstutz took place. Other evidence admitted at trial showed that the bullets used to kill Ms. Amstutz, Dustin Spotz, Ms. Gunnet, and Ms. Ohlinger all matched Appellant’s pistol.
During the guilt phase of trial, Appellant proceeded pro se, and he asserted an innocence defense, attempting to cast blame on those in his company on the day of the murder. After the jury found Appellant guilty of first-degree murder, Taylor Andrews, Esq., Chief Public Defender of Cumberland County, assumed the role of defense counsel for the penalty phase. After hearing testimony from numerous witnesses, the jury found three aggravating and two mitigating circumstances, determined that the former outweighed the latter, and accordingly imposed the death penalty. The aggravating circumstances were that Appellant had committed the killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); had a significant history of violent felony convictions, § 9711(d)(9); and had been convicted of another murder, § 9711(d)(ll). The mitigating circumstances were that Appellant had been neglected during his childhood and had a poor upbringing by his parents. 42 Pa.C.S. § 9711(e)(8). Following formal sentencing on June 17, 1996, Appellant filed a direct appeal to this Court, during which time he continued to be represented by Mr. Andrews. We affirmed the judgment of sentence on October 20, 2000, and the United States Supreme Court denied Appellant’s petition for a writ of certiorari. Spotz III, 759 A.2d 1280, cert. denied, 534 U.S. 1104,122 S.Ct. 902,151 L.Ed.2d 871 (2002).
On December 4, 2002, Appellant filed a counseled “Petition for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania Constitution And For Statutory Post-Conviction Relief Under The Post-Conviction Relief Act;” three supplemental petitions were filed in 2007. The PCRA court conducted an evidentiary hearing over a period of six days, following which the issues were briefed and then orally argued. On June 26, 2008, the PCRA court filed a 63-page opinion and order denying all of Appellant’s claims. Appellant appealed to this Court on July 25, 2008, via a filing entitled “Jurisdictional Statement,” in which he sought “review of each and every part of the [PCRA court’s June 26, 2008] Order.” Jurisdictional Statement, filed 7/25/08, at 1. In Appellant’s brief to this Court, he has raised twenty issues, many of which have multiple parts.
Under the applicable standard of review, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court’s credibility determinations, when supported by the record, are binding on this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532, 539 (2009). However, this Court applies a due novo standard of review to the PCRA court’s legal conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007).
To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, either of which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been waived “if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b). An issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2).
In many of Appellant’s issues, he has alleged ineffective assistance of counsel. We begin our analysis of ineffectiveness claims with the presumption that counsel is effective. Rios, swpra at 799. To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant suffered prejudice because of counsel’s action or inaction. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the second, ie., the “reasonable basis” prong, we will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060,1064 (2006) (citation omitted). To establish the third, ie., the prejudice prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008).
GUILT PHASE ISSUES
1. Consolidation of Trials
In his first issue, Appellant alleges that the failure to consolidate his homicide trials violated the compulsory joinder requirements of 18 Pa.C.S. § 110, as well as the constitutional protection against double jeopardy and guarantee of due process. Appellant asserts that he “was ‘harassed’ by four separate prosecutions in quick succession” in four counties, for offenses that arose out of the same criminal episode and thus should have been consolidated for trial. Appellant’s Brief at 36. Appellant implies, without expressly so stating, that the relief he seeks is dismissal of the Cumberland County charges. Preliminarily, it is not entirely clear if Appellant is asserting that all four of his homicide trials should have been consolidated, or that only his three capital murder trials should have been consolidated. Compare id. at 2, Statement of Questions Presented (referring to the failure to consolidate his three capital murder trials) with id. at 35, Argument Section (discussing all four homicide trials and asserting that the “failure to consolidate these cases for trial” violated Section 110, double jeopardy protections, and due process guarantees).
On direct appeal, as the PCRA court recognized, Appellant raised a similar, if not identical issue, ie., that the failure to consolidate his trials for all four homicides violated Section 110 and entitled him to dismissal of the Cumberland County-charges. Spotz III, 759 A.2d at 1285; Opinion and Order of PCRA Court, dated 6/26/08 (hereinafter “PCRA Court Opinion”), at 25 (rejecting this claim as previously litigated). This Court determined on direct appeal that Appellant’s first three killings were not part of the same criminal episode as the Cumberland County homicide, but rather were essentially independent, occurring in different counties and on different days, and generating four separate criminal investigations. We concluded that the killings were “logically connected primarily by the fact that [Ajppellant committed all four of them.” Spotz III, supra at 1286. In sum, on direct appeal, we held that there was no merit to Appellant’s claim of trial court error for failing to dismiss his Cumberland County charges based on violation of the compulsory joinder provision of Section 110. Id. at 1285-86.
Thus, Appellant’s first PCRA claim has been previously litigated and is not cognizable under the PCRA. See 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2). Whether Appellant in the instant appeal is actually referring to consolidation of only his three capital murder trials or to consolidation of all four homicide trials does not alter this holding. The rationale set forth in our holding on direct appeal applies equally to either claim of consolidation. See Spotz III, supra at 1285-86.
Also in Appellant’s first issue, he asserts that counsel was ineffective for failing to raise constitutional claims, grounded in alleged violations of double jeopardy protections and due process, related to the failure to consolidate his trials. As the United States Supreme Court has stated, “[t]he constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense----” United States v. DiFrancesco, 449 U.S. 117, 127, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (citation omitted). The high Court has also indicated that there are three separate constitutional protections encompassed in the guarantee against double jeopardy: protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (citation omitted); DiFrancesco, supra at 129, 101 S.Ct. 426 (citation omitted). “These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” Schiro, supra.
Appellant killed four people in three days in four counties, generating four separate criminal homicide investigations. As we held on direct appeal, these “essentially independent” killings are “logically connected primarily by the fact that [A]ppellant committed all four of them.” Spotz III, 759 A.2d at 1285-86. The mere fact that Appellant was subjected to four trials for the independent killing of four human beings implicates neither double jeopardy nor due process concerns. Appellant has developed no argument to the contrary, and, perhaps not surprisingly, has cited no authority that supports his assertions of constitutional violations. Counsel was not ineffective for failing to raise a meritless issue. All of Appellant’s claims in his first issue are meritless.
2. Waiver of Right to Counsel
Appellant’s second issue is focused on his waiver of the right to counsel during the guilt phase of his trial. Appellant was represented by public defender Taylor Andrews for pretrial proceedings, during the penalty phase of the trial, and on direct appeal; however, following a colloquy, the trial court granted Appellant’s motion to represent himself during the guilt phase of his trial. Appellant now contends that his waiver of the right to counsel was not voluntary, knowing, or intelligent; that he was not competent to waive this right; and that Mr. Andrews was ineffective for failing to object to the trial court’s allegedly inadequate colloquy, for declining to present a guilt-phase defense, for failing to investigate and develop an intoxication defense, for failing to investigate Appellant’s competence to waive his right to counsel, and for failing to reveal an alleged conflict of interest related to counsel’s prior representation of Appellant’s brother and first homicide victim, Dustin Spotz. After considering all the evidence presented at the PCRA hearing, the PCRA court concluded that Appellant was competent; that his waiver of counsel was voluntary, knowing, and intelligent; and that counsel was not ineffective. See PCRA Court Opinion at 5-9. We agree.
A criminal defendant has a constitutional right, necessarily implied under the Sixth Amendment of the U.S. Constitution, to self-representation at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, before a defendant will be permitted to proceed pro se, he or she must knowingly, voluntarily, and intelligently waive the right to counsel. Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 655 (2008). To ensure that a waiver is knowing, voluntary, and intelligent, the trial court must conduct a “probing colloquy,” which is a searching and formal inquiry as to whether the defendant is aware both of the right to counsel and of the significance and consequences of waiving that right. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1335-36 (1995). More specifically, the court must determine the following:
(a) that the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the charges against the defendant and the elements of each of those charges;
(c) that the defendant is aware of the permissible range of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
(e) that the defendant understands that there are possible defenses to these charges that counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2); Blakeney, supra at 655; Starr, supra at 1335.
Although our rules set forth specific requirements for a waiver colloquy, we have been careful to distinguish between a colloquy and the right that it was designed to protect, as follows:
A waiver colloquy is a procedural device; it is not a constitutional end or a constitutional “right.”.... [A]n on-the-record colloquy is a useful procedural tool whenever the waiver of any significant right is at issue, constitutional or otherwise, e.g., waiver of a trial, waiver of the right to counsel, waiver of the right to call witnesses, waiver of the right to cross-examine witnesses, waiver of rules-based speedy trial time limits, etc. But the colloquy does not share the same status as the right itself.
Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697 (2008) (applying the above principle in the context of waiver of the right to a jury trial).
As Mallory made explicitly clear, when a petitioner claims ineffective assistance of counsel based on a failure to object to an allegedly defective waiver colloquy, the claim must be analyzed like any other ineffectiveness claim. Id. at 698. The petitioner cannot prevail merely by establishing that the waiver colloquy was indeed defective in some way. Rather, the petitioner must prove that, because of counsel’s ineffectiveness, he waived the constitutional right at issue unknowingly or involuntarily, and that he was prejudiced. To establish prejudice, the petitioner must demonstrate a reasonable probability that but for counsel’s ineffectiveness, he would not have waived the right at issue. Id. at 698-704. In considering such a claim of ineffectiveness, the court considers the totality of the circumstances and the entire record, not just the colloquy itself. Id. at 698, 704.
Here, the record shows that the trial court conducted a colloquy that confirmed, inter alia, the following: Appellant wanted to represent himself, at least at the first phase of his trial, including at jury selection; Appellant understood his right to be represented by counsel and to have free counsel appointed for him; Appellant was not under the influence of alcohol, narcotics, or medications that would affect his decision; Appellant was not threatened, pressured, subjected to physical or psychological abuse, or promised anything to encourage him to waive his right to counsel; Appellant understood the elements of the offenses with which he was charged; Appellant knew the Commonwealth was seeking the death penalty; Appellant knew he would be bound by all the normal rules of procedure and evidence; Appellant recognized that there were certain dangers to proceeding pro se, dangers with which counsel would be familiar, including possible permanent loss of defenses and rights; Appellant understood that errors occurring during trial but not raised in timely manner could be lost permanently; Appellant understood the significance and consequences of a decision to waive counsel. See Notes of Testimony (“N.T.”) Waiver Hearing, 5/2/96. Appellant repeatedly stated that he understood what the court was telling him, and he signed a written waiver at the end of the colloquy, which the court accepted. Id. at 22-23. After posing all of the questions required by Rule 121, the trial court determined that Appellant was knowingly, voluntarily, and intelligently waiving his right to counsel. In addition, the court appointed Mr. Andrews, who had been serving as Appellant’s counsel and thus was familiar with his case, to serve in the role of standby counsel.
It is apparent from the record that, as the PCRA court concluded, the trial court conducted a thorough colloquy, encompassing all of the required questions and safeguards. Appellant’s assertions to the contrary have no merit, and we will not hold counsel ineffective for failing to object to a thorough, complete, and proper colloquy. Furthermore, Appellant fails to address in any way the totality of the circumstances surrounding his waiver of counsel, as required under Mallory. Appellant does not establish that he was prejudiced, i.e., that he would not have waived his right to counsel but for counsel’s failure to object to the colloquy.
Appellant next avers that his decision to waive counsel was not voluntary because it was necessitated by Mr. Andrews’s refusal to prepare a guilt-phase defense, which effectively constituted abandonment of his client. Appellant’s Brief at 12-15; N.T. PCRA Hearing, 5/11/07, at 84. More specifically, Appellant contends that counsel’s failure to investigate and develop an intoxication defense left him no choice but to proceed pro se. Appellant’s Brief at 14-15. The PCRA court rejected these claims, crediting Mr. Andrews’s PCRA hearing testimony, which clearly belied Appellant’s assertion that Mr. Andrews refused to present a defense at the guilt phase of trial. PCRA Court Opinion at 6. In addition, the PCRA court held that an intoxication defense was not available to Appellant because he never admitted that he had killed Ms. Amstutz. Id. at 8-9.
The record supports the PCRA court’s conclusions. At the PCRA hearing, Mr. Andrews testified that he had advised Appellant to plead guilty, advice that Appellant did not “appreciate! ].” N.T. PCRA Hearing, 5/10/07, at 175. Mr. Andrews testified neither that he refused to represent Appellant at the guilt phase of his trial, nor that he declined to present a defense. During the guilt phase of trial, Mr. Andrews served as standby counsel, in which capacity he provided Appellant with legal advice on a range of issues. Id. at 175-76. Appellant’s assertion that he had no choice but to represent himself because of abandonment by his counsel was supported only by his own self-serving testimony, which was rejected by the PCRA court. The PCRA court’s determination has support in the record, and accordingly we will not disturb it.
With regard to Appellant’s more specific assertion that his waiver of the right to counsel was not voluntary because of counsel’s failure to investigate and develop an intoxication defense, we reiterate that such a defense is available only to those capital defendants who admit their criminal liability in the murder, but contest their degree of guilt because of an inability to formulate the requisite intent. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110,1131-32 (2008). As the PCRA court concluded, Appellant never admitted that he killed Ms. Amstutz, and thus an intoxication defense was not available to him. PCRA Court Opinion at 8.
Although Appellant avers that counsel’s failure to investigate an intoxication defense caused his waiver of the right to counsel to be involuntary, Appellant certainly did not pursue any such defense during his pro se representation. Rather, throughout his trial, Appellant maintained an innocence defense, repeatedly and consistently attempting to divert blame for the murder of Ms. Amstutz onto others. He has continued to pursue this strategy in his collateral appeal, asserting that C.C. was the killer. See Appellant’s Brief at 28 (“[T]he jury never heard compelling evidence that C.C., by his own admission, was the one who killed Ms. Amstutz .... the evidence against C. was substantial ... The C. confession would have been highly exculpatory evidence at the guilt phase....”). Thus, even now Appellant still fails to admit that he killed Ms. Amstutz. There is absolutely no evidence in the record to suggest that but for counsel’s alleged ineffectiveness in failing to investigate and develop an intoxication defense, Appellant would not have waived his right to counsel, and thus Appellant has not established that he was prejudiced by counsel’s alleged failings.
In his next sub-claim in Issue 2, Appellant asserts that he was not competent to waive the right to counsel and that Mr. Andrews was ineffective for failing to investigate and raise the issue of Appellant’s competency. Appellant’s Brief at 18-19. Appellant contends that his waiver was the product of mental disorders, specifically, “an active PTSD-related thought disorder” and personality disorders, which affected his capacity to waive his rights, and thus rendered his waiver of the right to counsel not knowing, not voluntary, and not intelligent. Id. at 15-17. After considering all of the evidence presented at the PCRA hearing, including the testimony of Mr. Andrews and psychiatrists called as expert witnesses, the PCRA court found that Appellant was competent to represent himself and that his waiver of counsel was knowing, voluntary, and intelligent. PCRA Court Opinion at 8. Once again, the PCRA court’s conclusion is supported by the record, as discussed infra, and we will not disturb it.
This Court has previously made clear that “the competency standard for waiving the right to counsel is precisely the same as the competency standard for standing trial, and is not a higher standard.” Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 288 (2008) (quoting Starr, 664 A.2d at 1339). We have formulated this standard as follows: “whether the defendant has the ability to consult with counsel with a reasonable degree of understanding and whether the defendant has a rational understanding of the nature of the proceedings.” Puksar, supra at 288-89. The focus is properly on the defendant’s mental capacity, i.e., whether he or she has “the ability to understand the proceedings.” Starr, supra at 1339 (citation omitted) (emphasis added in Starr). If a court finds a defendant incapable of waiving the right to counsel, then the court must also conclude that the defendant is incapable of standing trial. Id. at 1339. Finally, it is important to recognize that a defendant is presumed to be competent to stand trial, and the burden is on the appellant to prove that he was incompetent. Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1156 (2005).
At the PCRA hearing, Mr. Andrews testified that, at the time of trial, he had no questions about Appellant’s competency because he was lucid and rational, understood questions and responded to them, and conducted himself accordingly in court. N.T. PCRA Hearing, 5/11/07, at 40-41. Mr. Andrews also testified that, at one point in the proceedings, Appellant made an objection to one of the court’s instructions, an objection Mr. Andrews had not considered, but one that was indeed correct. Id. at 41. Furthermore, sometime in 1995, prior to trial, Mr. Andrews had retained a psychologist to conduct an assessment of Appellant, and the psychologist’s findings included the following: “For forensic purposes, [Appellant] is certainly competent to comprehend and respond to complex matters related to his legal situation. He is, therefore, intellectually competent to stand trial.” Forensic Psychological Assessment of Appellant by Stephen A. Ragusea, Psy.D., assessment dates 11/20/95 and 12/12/95, at 7.
Appellant offered PCRA testimony as to this issue from two forensic psychiatrists, Robert A. Fox, Jr., M.D., and Neil Howard Blumberg, M.D. Dr. Fox, who conducted forensic evaluations of Appellant in 2000 and 2007, and reviewed portions of the record, opined that Appellant “was not capable of making rational decisions regarding his litigation in the trial.” N.T. PCRA Hearing, 2/22/07, at 143. Dr. Blumberg, who interviewed Appellant three times in 2006, and reviewed background materials, including the trial and sentencing transcripts of all four of Appellant’s trials, had a somewhat different opinion. When Dr. Blumberg was asked on direct examination by Appellant’s PCRA counsel whether he had determined that Appellant “had any difficulty understanding the questions or the surroundings ... in the courtroom at the time [of trial],” Dr. Blumberg testified as follows: “I didn’t find any evidence that he was impaired in that way, and frankly the disorders that he was suffering from at that time wouldn’t preclude his being able to represent himself and ask direct questions and do cross[-]examination.” N.T. PCRA Hearing, 1/18/07, at 44-45.
Thus, the PCRA court’s rejection of Appellant’s claim of incompetence and related claim of ineffective assistance is strongly supported by the record. The psychologist retained by Appellant before trial, as well as one of the psychiatrists retained by Appellant for PCRA proceedings, concluded that Appellant was able to stand trial. Mr. Andrews’s own observations of Appellant’s lucidity, rationality, comprehension, and conduct during the proceedings further support Appellant’s capacity to have stood trial. There is no merit to Appellant’s assertion that Mr. Andrews was ineffective for failing to investigate and raise the issue of Appellant’s competency. In addition, we must note that Appellant’s conduct during his self-representation, as revealed through the notes of testimony, belies any notion that Appellant was legally incompetent to stand trial. See Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 88 (2004) (rejecting the appellant’s contention that the trial court had erred in failing to order a competency hearing, because the proffered evidence was insufficient to bring his competency into question, particularly in light of his extensive assistance in his own defense, including his testimony during the penalty phase). Appellant is entitled to no relief on this claim.
In the final sub-claim of Issue 2, Appellant alleges that Mr. Andrews’s prior representation of Dustin Spotz constituted an undisclosed conflict of interest because counsel’s duty of loyalty to his deceased client precluded counsel from pursuing viable avenues of defense for Appellant. Appellant’s Brief at 17-18. Appellant specifically cites information that counsel would have learned during his representation of Dustin regarding Dustin’s mental illness and propensity for violence, including violence against Appellant. Appellant suggests that his counsel did not develop a diminished capacity defense nor present mitigating circumstances based on this information because of loyalty to Dustin. Thus, according to Appellant, counsel’s failure to disclose this alleged conflict rendered Appellant’s waiver of counsel not knowing and not intelligent, and also violated his Sixth Amendment right to counsel at the penalty phase of trial. Appellant’s Brief at 18.
As the PCRA court has pointed out, Appellant raised a similar issue when seeking PCRA relief from his Schuylkill County first-degree murder conviction. PCRA Court Opinion at 6-7; Spotz V, 896 A.2d at 1281-32. Mr. Andrews, as part of a tri-county coordinated defense effort on behalf of Appellant, was responsible for investigating and gathering Appellant’s background information and institutional records. In Spotz V, Appellant asserted that his Schuylkill County trial counsel was ineffective for having relied on the work product of Mr. Andrews, because he was a “conflicted” counsel. Id. at 1231. We noted in Spotz V that Mr. Andrews’s representation of Dustin had terminated in 1990, well before he was appointed to represent Appellant. Id. at 1232 & n. 33. We concluded that Appellant not only had failed to demonstrate that Mr. Andrews “actively represented conflicting interests,” but also had “failed to show how Attorney Andrews’[s] previous representation of the now deceased Dustin adversely affected trial counsel’s representation of [Appellant] in the present matter.” Id. at 1232.
Similarly, in the instant case, the PCRA court found that Mr. Andrews’s prior representation of Dustin affected neither Mr. Andrews’s representation of Appellant nor Appellant’s decision to represent himself. PCRA Court Opinion at 7. The PCRA court concluded there was no conflict of interest, and we agree.
We have recently reiterated that, to establish a conflict of interest, an appellant must show that “counsel actively represented conflicting interests[,] and the actual conflict adversely affected counsel’s performance.” Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 563 (2009) (citing Spotz V, 896 A.2d at 1232); see also Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 818 (2009) (rejecting the view that counsel’s representation of a client continues until such time as the client’s sentence expires, and requiring a petitioner who alleges a conflict of interest rooted in his counsel’s obligation to a former client to establish that the conflict adversely affected counsel’s performance). Here, Appellant has established neither that his counsel represented conflicting interests, nor that the alleged conflict adversely affected counsel’s performance. In fact, Appellant’s allegations of a conflict of interest are vague, entirely speculative, and contradicted by the evidence of record.
At the PCRA hearing, Mr. Andrews testified as follows:
[I]t was important to show Dustin to have been the aggressor[,] and really the bad guy in Clearfield County[,] that had assaulted [Appellant] and set this chain of events in motion. And I was prepared to do so and didn’t feel in any way inhibited from doing so from having previously represented Dustin.
N.T. PCRA Hearing, 5/10/07, at 135. Mr. Andrews also testified that he did not “recall having any privileged information from Dustin that presented a problem in pursuing information that was relevant in [Appellant’s] case,” and that he did not think there was any conflict in pursuing an investigation or handling Appellant’s case in any way. Id. at 137. Appellant provides no evidence to the contrary, just bald assertions and gross speculation. As we concluded in Spotz V, supra at 1232, “the record reveals that [ ] Attorney Andrews zealously advocated on behalf of [Appellant] and [was] unhampered by any alleged conflict of interest created by Attorney Andrews’[s] prior representation of Dustin.”
Thus, all of Appellant’s claims of error in issue 2 lack merit, and no relief is warranted.
3. Exclusion of W. Testimony
In Appellant’s third issue, he contends that the trial court erred in barring the testimony of one T.W., and that Mr. Andrews was ineffective for failing to argue in favor of the admissibility of this testimony and for failing to raise the issue on direct appeal. The factual background to this issue is as follows. Evidence admitted at trial indicated that, on the day of Ms. Amstutz’s murder, a man named C.C. engaged in drug use with Appellant in the hotel room secured with Ms. Amstutz’s credit card and also drove her car from the hotel. N.T. Trial, 5/13/96, at 797-801, 815-820. On April 3, 1996, T.W., who was in custody for an unrelated crime, made a statement to police to the effect that he had overheard Mr. C. admit to the murder of Ms. Amstutz. More specifically, Mr. W. represented that, sometime between May and July of 1995, when he was in the Cumberland County prison, he had overheard a conversation between two other inmates, Mr. C. and someone named V.R., who was subsequently identified as V.R., in which Mr. C. admitted shooting Ms. Amstutz. Statement of T.W., dated 4/3/96. The trial court refused to admit the testimony of Mr. W. regarding Mr. C.’s statement, determining that it was hearsay to which no exception applied. Appellant argues that Mr. W.’s testimony was admissible both under the hearsay exception for a statement against interest and also pursuant to federal constitutional law as set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
At the PCRA hearing, both Mr. W. and Mr. R. testified; however, Mr. C., through his attorney, invoked his Fifth Amendment right against self-incrimination and did not appear. N.T. PCRA Hearing, 5/10/07, at 62. Mr. W. testified that his 1996 statement to police concerning the overheard confession was accurate, and that he had attempted to contact the district attorney’s office regarding the matter. Id. at 66-67, 73-75. Mr. W. had an extensive record, including prior convictions for crimen falsi, and he acknowledged that he was cooperating with the police on other crimes of which he had knowledge because he wanted to help himself. Id. at 87. V.R., the inmate to whom Mr. C. allegedly confessed, testified that he remembered a conversation with Mr. C. as follows:
Defense Counsel: Do you remember what [Mr. C.] said about why he was in [prison]?
Mr. R.: About him getting high with some guy riding around with a lady in the trunk.
Defense Counsel: Did he say whether the lady was alive? Mr. R.: He basically said that she was alive when they put her in the trunk, you know what I’m saying, and later on he said that she was dead.
The Court: Did he say anything more about [Appellant]? Mr. R.: Yeah. That pretty much he was going to let him fry for what he had done. That’s when I ended the conversation____
Defense Counsel: At some point did you talk to prison officials or guards about Mr. C. being in your cell? Mr. R.: Yes, I did. When we went to dinner and after we came back from dinner, this is when I found out that he was telling on [Appellant]. So I went to the guard at the time.....[T]he next morning ... C.O. Durnin moved him out the cell.
Id. at 98-100. Mr. R. also testified that he would have testified at Appellant’s trial if Appellant’s counsel had asked him. Id. at 100-04.
Appellant’s claim of trial court error in Issue 3 is both waived and not cognizable under the PCRA because it could have been raised on direct appeal. See 42 Pa.C.S. §§ 9543(a)(3) and 9544(b). With regard to the ineffective assistance claims in Issue 3, the PCRA court relied in part on this Court’s decision in Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 736-38 (2004), to hold that Appellant was precluded from raising any claims of ineffective assistance of counsel from the guilt phase of his trial because he had elected to exercise his right to self-representation during that period. PCRA Court Opinion at 12-14. The PCRA court also concluded that Appellant’s claim of ineffective assistance of direct appeal counsel had no arguable merit because Mr. W.’s testimony concerning Mr. C.’s alleged confession was properly excluded as hearsay. Id. at 14-22. We agree with the PCRA court, and address these conclusions in more detail below.
In Faretta v. California, supra, the United States Supreme Court held that a defendant has a Sixth Amendment right to conduct his own defense; however, “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Id. at 834 n. 46, 95 S.Ct. 2525. Relying on Faretta, this Court has held that, when an appellant knowingly, voluntarily, and intelligently has chosen to exercise his right to self-representation, we will not consider any ineffective assistance claims that arose from the period of self-representation. Bryant, supra at 737; see also Commonwealth v. Fletcher, 586 Pa. 527, 896 A.2d 508, 522 n. 13 (2006) {Fletcher II) (explaining that the Court was applying the categorical approach of the Bryant majority “in refusing to consider any claims of ineffectiveness arising from a period of self-representation”); Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 774, 778 (2009) (Fletcher III) (refusing to revisit the holding of Fletcher II, and reiterating that a defendant who chooses to represent himself cannot obtain relief by raising his own ineffectiveness or that of standby counsel).
However, we have also recognized that a defendant may withdraw his waiver of the right to counsel. When the defendant in Bryant claimed, in the midst of his trial, to be unable to continue his self-representation because of a dental problem, the trial court held a colloquy with the defendant, during which he affirmed that, going forward, he wanted his standby counsel to assume the role of trial counsel. Id. at 737-38. The trial court then permitted the defendant to withdraw his waiver, and once again be represented by counsel. Id. at 738.
In the instant case, Appellant represented himself throughout the guilt phase of his trial. As discussed in Issue 2, after a thorough colloquy, the trial court determined that Appellant had knowingly, voluntarily, and intelligently waived his right to counsel, and, accordingly, the court permitted him to proceed pro se. Throughout the guilt phase of his trial, Appellant continued to call and question witnesses, raise objections, and otherwise serve as his own counsel; at no point during the guilt phase did Appellant seek to withdraw his waiver of the right to counsel or to cease his self-representation. Nonetheless, Appellant now attempts to avoid the application of Bryant’s bright-line rule by arguing that, with respect to the particular matter of the admissibility of Mr. W.’s testimony, he permitted Mr. Andrews to represent him. However, our review of the record, as presented in detail below, does not support Appellant’s assertion that he withdrew his waiver of the right to counsel or abandoned his exercise of the right to self-representation at this or any other point during the guilt phase of his trial.
When Appellant sought to call Mr. W. to testify, Appellant himself — not Mr. Andrews, his standby counsel — made a proffer to the court, in the absence of the jury, as to Mr. W.’s proposed testimony. N.T. Trial, 5/14/96, at 1222-25. The court then addressed Mr. W., whom the sheriff had brought to the courtroom, and, after determining that Mr. W. wished to speak with counsel before he spoke to the court, secured an attorney for Mr. W.. Id. at 1225-26. Later in the same session, after his discussion with counsel, Mr. W. was again brought to the courtroom, and the Commonwealth objected to his proposed testimony as hearsay. Id. at 1283. In response, Appellant himself — again, not Mr. Andrews — argued that there had been testimony at trial as to the involvement of Mr. C. in the case. The court then asked Appellant if he was going to call Mr. C. as a witness, and Appellant himself answered “I certainly don’t know what he could say or — what his statements say are nothing to help me.” Id. at 1284. Following a discussion off the record between Appellant and Mr. Andrews, Appellant himself reiterated that he was not going to call Mr. C.. Id. at 1285. The court then indicated that it wanted additional time to consider the matter of Mr. W.’s proposed testimony. Id. at 1287.
At the end of the day-long session, the court stated that it was ready to entertain argument about the admissibility of Mr. W.’s testimony, and the court asked Appellant if he wanted to make that legal argument or if he would trust Mr. Andrews to do so. Id. at 1424-25. After conferring with Mr. Andrews, Appellant stated the following: “Mr. Andrews said that, has indicated that there is no argument to be made. W. cannot be used unless ... C. would be an unavailable witness.” Id. at 1425. The following dialogue then occurred:
The Court: Well, I am ready to entertain any argument.
[Appellant ]: There is no argument to present.
The Court: You are telling me that if there is any argument to present, Mr. Andrews will present it instead of yourself? Is that it?
[Appellant ]: That is fine.
The Court: All right.
[Appellant ]: But Mr. Andrews indicated there is no argument. So if you find some, I guess that is fine, he can make it.
The Court: I am looking at the whole issue.
Mr. Andrews: I think [Appellant] has said that he would agree to me speaking to this.
[Appellant ]: Yeah, that is fine.
Mr. Andrews: I don’t think — I hate to speak for the District Attorney, but we have exchanged cases, or at least they have given me their cases, and they are the same cases I had. I don’t think there is a disagreement with the law. This statement could only be admitted if Mr. C. were unavailable. If he is unavailable, then there is a decision for the Court to make as to whether that renders the statement admissible.
The Court: Well, I think, for openers, you have to call C..
[Appellant ]: Call him as a witness?
The Court: Yes. Because ... he is available and can be brought up here to testify.
Mr. Andrews: In the absence of that, I think what [Appellant] is saying is accurate, I don’t think there is an argument, a disagreement, a divergent point of view between the two tables.
* Hi *
The Court: At this point, you haven’t done what I feel has to be done to get this statement in.
[Appellant ]: I will.
The Court: So at this point—
[Appellant ]: I will.
The Court: — you should know it is not going in. That could change, but that depends on the circumstances. All right. This part of the record is closed.
Id. at 1425-29.
Immediately following the above discussion, the court adjourned for the day. During proceedings the next morning, Appellant requested a break in order to speak with Mr. C. before calling him as a witness. The jury was escorted from the courtroom, and the following discussion transpired:
The Court: Did you have something you wanted to say, Mr. Andrews? Or who is running the show?
Mr. Andrews: I am going to sit down, Your Honor.
The Court: .... Did you [Appellant] want to say something to me now?
[Appellant ]: I just ask for a few minutes to talk to my next witness before — I never talked to him. He was originally a Commonwealth witness.
The Court: Oh, you understand that C. wants to speak to you, is that what you are saying?
[Appellant ]: Yes, sir.
The Court: Is Mr. C. in the courtroom? Would you stand up so I can see you? You want to speak to [Appellant]?
Mr. C.: (Shook head negatively.)
The Court: He shakes his head no.
[Appellant]: I had the law clerk ask him- — and she told me- — if he was willing to speak to me. And she said yes. That is why I ask. I guess now he changed his mind.
The Court: Stand up again, Mr. C.. You are C.C.?
Mr. C.: (Nodded affirmatively.)
The Court: Can you answer?
Mr. C.: Yeah.
The Court: Do you want to speak to [Appellant]?
Mr. C.: If he needs to talk to me or something.
The Court: Pardon me?
Mr. C.: If he needs to talk to me, I guess.
The Court: Do you want to talk to him?
Mr. C.: If he needs to talk to me.
The Court: Can you give me a yes or a no?
Mr. C.: No.
The Court: What?
Mr. C.: No.
The Court: No. Is that your answer?
Mr. C.: Yeah.
The Court: All right. Now, where else are we going here, [Appellant]?
[Appellant]: I had asked to speak to him. He said if I want to speak to him, he will speak to me. He has no need to speak to me unless I have need to speak to him. And he said he will talk to me if I want him to. I want a chance to speak to him.
The Court: Okay. Mr. C., come on up.
N.T. Trial, 5/15/96, at 1501-03.
The sheriff then escorted Appellant and Mr. C. from the courtroom to allow Appellant the opportunity to consult with Mr. C., and the court was in recess for approximately one-half hour. Id. at 1504. When all the parties were back in the courtroom, the following dialogue took place:
The Court: .... Where are we on this business, [Appellant]?
[Appellant ]: The only thing left is to read in the transcripts of the witnesses that invoked their Fifth Amendment right, and the stipulation of Trooper Lander’s- — •
The Court: You have had your opportunity to talk to C., and you are not calling him, is that it?
[Appellant ]: No, I will let it go.
The Court: All right. Then bring the jury down, and let’s get these pieces of evidence read.
Id. at 1504.
The above excerpts of the notes of testimony make clear that Appellant did not withdraw his waiver of the right to counsel or change his mind about exercising his right to self-representation,' but rather continued to prepare, direct, and present his own defense, including developing his own strategy, interviewing the witness, and deciding whether or not to call the witness. Therefore, Appellant’s claim of ineffective assistance of counsel during the guilt phase of his trial is precluded by the categorical rule promulgated by this Court in Bryant.
Also in Issue 3, Appellant contends that Mr. Andrews was ineffective for not claiming on direct appeal that the trial court had erred by denying admission of Mr. W.’s testimony as hearsay. Appellant argues that Mr. W.’s testimony was admissible under the hearsay exception for a statement against interest, which reads as follows:
(b) Hearsay Exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:
* * *
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Pa.R.E. 804(b)(3).
Notably, by its unmistakably clear text, this hearsay exception requires not only that the statement be against interest, but also that there be corroborating circumstances clearly indicative of its trustworthiness, and that the declarant be unavailable. In the instant case, the trial court did not reach the issue of the trustworthiness of the statement in question because the declarant in the instant case, i.e., Mr. C., was not unavailable. See N.T. Trial, 5/14/96, at 1427. In fact, as presented supra in the excerpts of notes of testimony, on the last day of trial, Mr. C. was physically present in the courtroom. Appellant actively contemplated calling Mr. C. as a witness, but, after conferring privately with Mr. C., Appellant told the court that he was not going to call Mr. C. to the witness stand. The trial court correctly concluded that Mr. C. was not unavailable, and accordingly, did not err in refusing to apply the hearsay exception for a statement against interest to Mr. W.’s proffered testimony. Because Appellant’s underlying claim of trial court error has no merit, his claim of direct appeal counsel ineffectiveness for failing to raise the claim of alleged trial court error must fail.
Appellant also contends that appellate counsel should have argued that the exclusion of Mr. W.’s proffered testimony was unconstitutional, based on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In considering Appellant’s contention, the PCRA court concluded that the factual distinctions between Chambers and the instant case were too numerous for Chambers to be controlling. PCRA Court Opinion at 21-22. We agree.
In Chambers, during the appellant’s murder trial, he had sought to introduce testimony from three persons that an acquaintance, one Gable McDonald, had confessed to them that he had committed the murder. The trial court refused to admit this testimony, determining that it was hearsay. Id. at 298-99, 93 S.Ct. 1038. However, the U.S. Supreme Court concluded that the testimony rejected by the trial court “bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.” Id. at 302, 93 S.Ct. 1038. Specifically, the following circumstances of McDonald’s confession provided assurance of its reliability: McDonald had spontaneously made three verbal confessions to close acquaintances shortly after the murder, and he had sworn and signed a confession at the offices of the appellant’s attorney. Id. at 300, 93 S.Ct. 1038. The Supreme Court generally concluded as follows: “[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302, 93 S.Ct. 1038.
Appellant attempts to rely on this general conclusion from Chambers, but it does not provide him relief in the instant case because the circumstances of Chambers bear little, if any, resemblance to his own circumstances. None of the assurances of trustworthiness concerning McDonald’s confession in Chambers is present in C.’s alleged confession in the instant case. Mr. C.’s alleged jailhouse confession was overheard by one other individual, who was another inmate; it was not sworn and signed in counsel’s office; and it was not repeated verbally to three acquaintances.
In addition, it must be noted that the high Court’s reversal of the appellant’s judgment of sentence in Chambers was not based solely on the trial court’s exclusion of certain evidence as hearsay. Rather, it was the concurrent application of two state rules of evidence, not only the hearsay rule but also the voucher rule, that had deprived the appellant of due process and rendered his trial unfair:
In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers [the appellant] of a fair trial.
Id. at 302-03, 93 S.Ct. 1038.
The above considerations make clear that the United States Supreme Court ruling in Chambers was highly dependent upon the facts and circumstances of that case, in which an unusual convergence of two state rules of evidence resulted in an injustice of constitutional proportions. Chambers cannot generally be relied upon to support common, straightforward challenges to hearsay rulings that have correctly applied state criminal procedure. The facts and circumstances of Chambers are very different from those presented in the instant case, and, accordingly, Chambers provides Appellant no relief.
In the final part of Issue 3, Appellant asserts that the Commonwealth withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), concerning Mr. C.’s involvement in another, unrelated murder more than two years earlier, for which he had not been prosecuted. Appellant’s assertion is frivolous.
Under Brady and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. See, e.g., Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1171 & n. 5 (2000). To establish a Brady violation, an appellant must prove three elements:
[1] the evidence [at issue] was favorable to the accused, either because it is exculpatory or because it impeaches; [2] the evidence was suppressed by the prosecution, either willfully or inadvertently; and [3] prejudice ensued.
Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005) (citation omitted).
The evidence at issue must have been “material evidence that deprived the defendant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). “Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)); see also Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (per curiam) (holding that it was not reasonably likely that disclosure of the result of a key witness’s polygraph examination, which was inadmissible under state law, would have resulted in a different outcome at trial). Brady sets forth a limited duty, not a general rule of discovery for criminal cases. Lambert, supra at 854 (citing Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) for the proposition that “there is no general constitutional right to discovery in a criminal case, and Brady did not create one”); Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 297 (1998).
The burden rests with the appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999). There is no Brady violation when the appellant knew or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from non-governmental sources. Lambert, supra at 856; Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002).
Here, Appellant contends that the Commonwealth withheld evidence that, more than two years before Ms. Amstutz’s murder, Mr. C. was implicated in, but never charged with, the murder of one Samuel Thompson. Another individual, Phillip Devenshire, was convicted of Mr. Thompson’s murder in 1993, although three witnesses at Mr. Devenshire’s trial, including the defendant himself, testified that Mr. C. was the shooter. Mr. Devenshire was convicted nearly three years before Appellant’s trial, and Appellant provides no evidence that Mr. Thompson’s murder was in any way related to Ms. Amstutz’s murder. Nonetheless, Appellant asserts that the evidence implicating Mr. C. in Mr. Thompson’s murder was probative to show Mr. C.’s motive and intent, as well as his violent propensities, including his propensity to commit the murder of Ms. Amstutz. Appellant’s Brief at 24-25. Remarkably, Appellant further asserts the following as to the significance of the evidence implicating Mr. C. in Mr. Thompson’s murder: “[T]he suppressed evidence was clearly exculpatory and highly material. The prior murder accusations showed C. was the likely shooter.” Id. at 26.
The PCRA court did not address the above allegations as a Brady issue. However, the PCRA court did find Appellant’s suggestion that evidence as to Mr. Thompson’s murder could have been admissible at Appellant’s trial for the murder of Ms. Amstutz to be “totally without legal merit.” Supplemental Opinion Pursuant to Pa.R.A.P. 1925 of the PCRA Court, dated 8/7/08, at 8.
We conclude that none of Appellant’s allegations has any basis in fact or in law, and his assertion of a Brady violation is frivolous. First, the involvement of Mr. C. in the murder of Mr. Thompson is a matter of pure conjecture. Mr. C. was not arrested for, not charged with, not tried for, not convicted of the Thompson murder. The “evidence” that Mr. C. killed Mr. Thompson consists of some testimony presented at the trial of Mr. Devenshire. Three witnesses, one of whom was Mr. Devenshire himself, testified that Mr. C. was the shooter, but the jury must have concluded that the testimony was not credible, as it found Mr. Devenshire guilty of the first-degree murder of Mr. Thompson. Second, regardless of whether Mr. C. participated in Mr. Thompson’s murder, it is simply unfounded, improper, and indeed outlandish to suggest, as Appellant does, that because Mr. C. committed one murder, he must also have committed a second, unrelated murder years later. There is literally no way that the evidence implicating Mr. C. in the murder of Mr. Thompson could possibly be exculpatory of Appellant for the murder of Ms. Amstutz. Finally, Appellant fails to suggest how the Commonwealth could have withheld, willfully or otherwise, testimony presented in a public trial. Appellant’s Brady claim in Issue 3, like the other claims presented in this issue, is entirely meritless, and Appellant is entitled to no relief.
4. Prosecutor Misconduct during Guilt Phase Closing Argument
In Issue 4, Appellant argues that several comments made by the prosecutor during the guilt phase closing argument destroyed the jury’s objectivity and impartiality and, accordingly, deprived Appellant of a fair trial. Appellant also asserts that Mr. Andrews, in his role as standby counsel, was ineffective for neither objecting to these comments, nor advising Appellant, who was acting pro se during this time, to object. Finally, Appellant asserts that counsel was ineffective for failing to challenge the comments on direct appeal. See Appellant’s Brief at 28-31.
The PCRA court held that all of Appellant’s claims of prosecutorial misconduct were waived because he did not make a contemporaneous objection to the allegedly improper comments. In addition, the PCRA court held that no ineffective assistance of counsel claim derived from the guilt phase of trial was available to Appellant, because he had chosen to represent himself during that portion of the proceedings. PCRA Court Opinion at 22-23 (citing Bryant, 855 A.2d at 726, 737; Fletcher II, 896 A.2d at 522 n. 13). We agree with these conclusions of the PCRA court.
For the same reasons as we discussed in Issue 3, Appellant is precluded from raising a claim of ineffective assistance of trial counsel arising from the guilt phase of his trial. See text supra (discussing Bryant and Fletcher in the context of Issue 3); see also Fletcher III, 986 A.2d at 774 (“The law is clear that a defendant cannot allege his own ineffectiveness or that of standby counsel.”) Because Appellant did not object to the prosecutor’s comments, the issue was not preserved for direct appeal, but rather was waived. There is no merit to Appellant’s claim that appellate counsel was ineffective for failing to raise, on direct appeal, a waived claim of trial court error related to the prosecutor’s comments. See, e.g., Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 397 (2003) (recognizing as “elementary [the principle] that issues not preserved for appellate review ... will not be considered by an appellate court”) (citation omitted).
Appellant attempts to avoid these bars to merits review by invoking the direct capital appeal relaxed waiver doctrine, which was in effect at the time his direct appeal was decided. Under relaxed waiver, this Court retained the discretion to review issues in capital appeals that had not been properly preserved. See Freeman, supra at 393-403 (explaining the background of the relaxed waiver doctrine, and prospectively abrogating the doctrine on direct capital appeals). Appellant asserts that Mr. Andrews, in his role as appellate counsel, should have invoked the relaxed waiver doctrine to raise a challenge on direct appeal to the prosecutor’s comments.
A similar issue has been raised before this Court on several occasions. In Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 64 (2005), we refused to grant relief on a claim of appellate counsel ineffectiveness for failing to raise a waived claim of trial court error under the relaxed waiver doctrine, noting that this doctrine was discretionary, and thus there was no guarantee that we would have reviewed the issue. In Fletcher III, 986 A.2d at 775, 779, we declined to allow an appellant to invoke the relaxed waiver doctrine to obtain review of several issues he had waived during a period of pro se representation. To allow an appellant to obtain review under relaxed waiver of an issue that he waived as a pro se litigant would completely undermine the holdings of this Court in Bryant and Fletcher II. However, in Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 24-26 (2007), we held that direct appeal counsel was ineffective for failing to invoke relaxed waiver to secure review of a claim that implicated the appellant’s actual innocence of a racketeering charge. Id. at 25-26. We recognized in Williams, supra, the difficulty faced by this Court in determining the likelihood that we would have reviewed a particular claim under relaxed waiver when we are faced with collateral claims that direct appeal counsel was ineffective in failing to invoke relaxed waiver. Id. at 25.
We have, however, no difficulty concluding in the instant case that we would not have accepted any of Appellant’s waived claims of prosecutorial misconduct for review under the relaxed waiver doctrine. None of Appellant’s claims implicates actual innocence; indeed, the claims are trivial, as they do not reflect any logical or reasonable reading of the prosecutor’s comments. The challenged comments from the prosecutors closing argument are as follows.
First, Appellant asserts that the prosecutor demeaned Appellants rights to present a defense and to self-representation with the following comment:
Because [Appellant] is an extremely controlling individual. And he wanted to come in here in front of you and show how smart he is, and how he can control things, and how he manipulates women, and then fool you.
N.T. Trial, 5/15/96, at 94 (Closing Argument) (quoted in Appellant’s Brief at 28 & n. 24).
Second, Appellant asserts that the prosecutor improperly argued that the jurors had a duty to society and the victim to convict him, apparently based upon the following excerpt:
The duty on you now is just to be fair. When you are being fair to him, you also have got to be fair to the people of this state, and to Betty Amstutz.
Id. at 91 (cited in Appellant’s Brief at 29).
Third, Appellant asserts that the prosecutor improperly opined to the jury that it needed to decide only the identity of the perpetrator, and not the other elements of the crime, based apparently on the following comments:
First degree murder has four elements. Betty Amstutz is dead. The Commonwealth has to prove that. And I don’t think there is any doubt about it. Secondly, that that defendant is the one who killed her. Third, that that killing was with malice. That means that hardness of heart, cruelty, disposition. And, finally, that it was done with the specific intent to kill. I submit to you, whoever did this to a seventy year old woman had malice and specific intent. So we are down to one thing. Is that the guy that was pulling the trigger?
You have got some special tools to use in this particular case. Because I have to show things that are state of mind.
* * *
I have got the burden of proof in this case. Got to prove each and every one of those four elements beyond a reasonable doubt.
Id. at 91, 93 (cited in Appellant’s Brief at 29-30).
Fourth, Appellant asserts that the prosecutor improperly commented that the judge was required to give instructions as to second- and third-degree murder, based on the following:
We are charging murder in the first degree. You are going to hear the Judge required to [sic] give you instructions about third degree murder and second degree murder. I will say that those are lesser crimes of first degree murder.
Id. at 91 (cited in Appellant’s Brief at 30).
There is no question that, if appellate counsel had invoked the relaxed waiver doctrine in an attempt to obtain review of the above comments, we would have declined to grant such review. Appellant’s assertions of prosecutorial misconduct are unquestionably refuted and belied by the plain text of the prosecutor’s comments. Far from presenting any significant constitutional issues or implicating actual innocence, Appellant’s claims are frivolous, ignoring not just the context of the comments, but the obvious plain meaning. Appellant is not entitled to relief on any of his claims in Issue 4.
5. Jury Instruction as to Intent
In Issue 5, Appellant challenges the following portion of the trial court’s jury instruction, delivered at the close of the guilt phase: “If you believe that the defendant intentionally used a deadly weapon on a vital part of the victim’s body, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the defendant had the specific intent to kill.” N.T. Trial, 5/15/96, at 1562. Appellant asserts that this instruction diminished the Commonwealth’s burden of proof and thereby violated due process because it “did not require the jury to find that [Appellant] intended to aim the gun at a vital part of the deceased’s body.” Appellant’s Brief at 31 (emphasis in original). Appellant further asserts that counsel was ineffective for failing to raise this issue in post-verdict briefing or on direct appeal.
Appellant again fails to acknowledge that, throughout the guilt phase of trial, he represented himself, and thus, as we have discussed in Issues 3 and 4 supra, no claim of ineffective assistance of trial counsel during the guilt phase is available to him. See Bryant, 855 A.2d at 738-39 (rejecting the appellant’s claim of counsel ineffectiveness based on failure to request a cautionary instruction upon the introduction of “bad acts” evidence, because the appellant was representing himself when the complained-of evidence was introduced and he failed to object or to request a cautionary instruction). As we also discussed in Issue 4, because the issue was not preserved with a contemporaneous objection, it was waived; direct appeal counsel was not, and could not have been, ineffective for failing to raise a waived issue. Appellant is entitled to no relief.
6. Prior Criminal Acts Evidence and Jury Instruction
In Issue 6, Appellant argues that the admission of evidence related to his other homicides in Clearfield, Schuylkill, and York counties without an “appropriate” and “immediate” cautionary instruction violated the Sixth, Eighth, and Fourteenth Amendments. Appellant’s Brief at 32. On direct appeal, this Court held that the trial court did not err with respect to the timing or content of the limiting instruction as to other crimes evidence. Spotz III, 759 A.2d at 1286-87. Recognizing that Appellant’s claim of trial court error in Issue 6 had been previously litigated and was therefore not cognizable under the PCRA, the PCRA court correctly held that Appellant was entitled to no relief on this issue. PCRA Court Opinion at 24.
However, as another sub-claim in Issue 6, Appellant further asserts that direct appeal counsel was ineffective in the manner in which he challenged the jury instruction. More specifically, Appellant argues that direct appeal counsel was ineffective because he failed to raise a violation of Appellant’s state and federal constitutional rights, but rather relied only upon state decisional law. This is a distinct claim and one that has not been previously litigated. See Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 573 (2005) (holding that “a Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under § 9544(a)(2) ... [and] a PCRA court should recognize ineffectiveness claims as distinct issues and review them under the three-prong ineffectiveness standard announced in [Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) ]”).
Although ineffective assistance of direct appeal counsel is a distinct claim, Appellant fails to develop and argue it as such. Other than baldly asserting four times that the failure to provide an appropriate and/or immediate instruction to the jury constituted a violation of his Sixth, Eighth, and Fourteenth Amendment rights, Appellant does not explain or develop this issue. See Appellant’s Brief at 32-34. He sets forth no constitutional argument relevant to either the federal or state Constitution. Remarkably, although Appellant faults direct appeal counsel for, inter alia, “failing to cite to federal law,” Appellant likewise fails to cite even a single federal case to support his bald assertion of federal constitutional violations. Nor does he offer the slightest explanation or elucidation of his claim of a state constitutional violation. A constitutional claim is not self-proving, and we will not attempt to divine an argument on Appellant’s behalf. Appellant’s claim of ineffective assistance of direct appeal counsel in Issue 6 is waived for lack of development. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 797 (2008) (stating that when an appellant fails “to set forth all three prongs of the ineffectiveness test and [to] meaningfully discuss them, he is not entitled to relief, and we are constrained to find such claims waived for lack of development”).
PENALTY PHASE ISSUES
7. Jury Instruction on Aggravating and Mitigating Factors as Affecting “Terribleness”
Appellant’s next four issues, i.e., Issues 7-10, are related to various aspects of the aggravating and mitigating circumstances presented, or not presented, during the penalty phase of Appellant’s trial. In Issue 7, Appellant challenges one sentence of the trial court’s jury instruction generally explaining the concept of aggravating and mitigating circumstances.
[Aggravating circumstances are things about the killing or the killer which make first degree murder — which make a first degree murder case more terrible and deserving of the penalty; while mitigating circumstances are those things which make the case less terrible and less deserving of death.
N.T. Penalty Phase, 5/15/96, at 1619 (cited in Appellant’s Brief at 73) (emphasis added).
Appellant contends that this instruction’s focus on “ ‘terribleness’ produced an arbitrary and capricious sentence based upon passion and prejudice [and that] the ‘less terrible’ instruction substantively impaired the jury’s consideration of mitigating evidence.” Appellant’s Brief at 73. Appellant further asserts that counsel was ineffective for agreeing to the above portion of the instruction and for failing to raise the matter on direct appeal. Id. at 74.
The PCRA court points out that the challenged instruction was, at the time of trial in 1996, part of a Pennsylvania suggested standard criminal jury instruction. PCRA Court Opinion at 57. Appellant acknowledges that this Court has repeatedly rejected challenges to this instruction, and that he is presenting it “to preserve it for future review.” Appellant’s Brief at 74.
As Appellant correctly notes, this Court has, indeed, consistently rejected challenges to inclusion of the concept of “terribleness” in the instruction regarding aggravating and mitigating circumstances. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 613-14 (2007) (rejecting the appellant’s assertion that the instruction improperly restricted the weight afforded mitigating factors that did not affect the “terribleness” of the offense); Commonwealth v. Marinelli, 589 Pa. 682, 910 A.2d 672, 687 (2006) (Opinion Announcing the Judgment of the Court) (rejecting the appellant’s assertion that the description of circumstances as “ ‘more terrible or less terrible’ diverted the focus of the jury’s life or death deliberation from a reasoned determination as to the defendant’s personal culpability to an amorphous and unguided consideration of how ‘terrible’ ‘the case’ was”); Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 588 (2002) (concluding that the instructions “merely expressed to the jury, in laymen’s terms, the purpose for the distinction between aggravating and mitigating circumstances in a capital penalty phase”); Commonwealth v. Hawkins, 567 Pa. 310, 787 A.2d 292, 308 (2001) (concluding that a jury instruction defining aggravating and mitigating circumstances, respectively, as “things that make first degree murder cases either more or less terrible” was not amorphous or unguided because instructions must be read in their entirety and because the court also gave detailed instructions as to each aggravating and mitigating circumstance); Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268, 276-77 (1996) (holding a jury instruction proper that defined aggravating and mitigating circumstances, respectively, as “things that make a first degree murder case more or less terrible,” and noting that the instruction was in conformity with the Pennsylvania Suggested Standard Criminal Jury Instructions). Based on this Court’s ample precedent, Appellant’s claims in this issue are meritless.
8. Prior Homicide Convictions as Aggravating Factors
In Issue 8, Appellant asserts that, because his prior three homicide convictions, in Clearfield, Schuylkill, and York counties, respectively, were “invalid,” they were improperly introduced during the penalty phase as evidence of the aggravating circumstances set forth in 42 Pa.C.S. § 9711(d)(9) and (d)(ll), i.e., respectively, a significant history of violent felony convictions, and prior conviction of another murder. Appellant’s Brief at 9-12. Appellant further asserts that counsel was ineffective in failing to challenge the admissibility of the prior convictions during the penalty phase of trial or on direct appeal. Id. at 12. There is no legal basis for Appellant’s claim.
This Court has expressly held that the term “conviction” means simply “found guilty” when used in the context of the aggravating circumstances set forth in 42 Pa.C.S. § 9711(d). Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367, 376 (1985) (citing Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460, 464 (1984)). A collateral murder conviction is not divested of its character as an aggravating circumstance merely because it remains at the appeal stage. Id. at 376. Only if the conviction is overturned on appeal could an error ensue. Id.; Beasley, supra at 464.
Appellant was convicted of the first-degree murder of June Ohlinger, in Schuylkill County, and Penny Gunnet, in York County, and this Court affirmed Appellant’s judgment of sentence of death in each case. See Spotz I, 716 A.2d at 593; Spotz II, 756 A.2d at 1165. This Court also denied Appellant’s appeal of the denial of PCRA relief in the Schuylkill County case. See Spotz V, 896 A.2d at 1250. Although the Superior Court initially reversed Appellant’s conviction for voluntary manslaughter in the death of Dustin Spotz in Clearfield County, this Court reinstated that conviction. See Spotz IV, 870 A.2d at 837. Thus, none of Appellant’s convictions has been overturned, and all were properly proffered and admitted as aggravating circumstances. Because there is no arguable merit to Appellant’s underlying claim of error with regard to use of the convictions, counsel cannot be held ineffective for failing to object to their admission into evidence. Appellant’s eighth issue is entirely lacking in merit.
9. Burglary Convictions as an Aggravating Factor
In Issue 9, Appellant claims that his three prior burglary convictions were improperly admitted as evidence to support the aggravating circumstance of “a significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa.C.S. § 9711(d)(9). Appellant reasons that, because his burglaries were “nonviolent,” they could not be used to establish this aggravating circumstance. Additionally, Appellant asserts that counsel was ineffective for stipulating to the burglary convictions, rather than moving in limine to bar their introduction as an aggravating circumstance. Appellant’s Brief at 75-79; N.T. Penalty Phase, 5/16/96, at 1629-33. As the PCRA court recognized in denying this claim, Appellant raised the same issue in his collateral appeal of his Schuylkill County first-degree murder conviction, and this Court rejected his arguments based on our precedent defining burglary as a crime of violence. Spotz V, 896 A.2d at 1240-41.
In one of those precedential cases, Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553, 559 (1988), we stated that “burglary has always been and continues to be viewed as a crime involving the use or threat of violence to the person.” Accordingly, we held that the defendant’s prior burglary convictions had been properly admitted as evidence of a significant history of violent felony convictions pursuant to subsection 9711(d)(9). Id. at 558-59. In Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1075 n. 15 (1995), we cited Rolan, supra, for the proposition that “[t]rial counsel was [ ] not ineffective in failing to object to the accurate instruction of the trial court that the crime of burglary is a crime of violence as a matter of law.” More recently, in Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 576-77 (2009), we reiterated that burglary is a crime of violence, in which the element of non-privileged entry invites dangerous resistance. We rejected outright the Small appellant’s contention that, because his specific burglaries did not involve violence, they could not be used to satisfy the subsection 9711(d)(9) aggravating factor.
Based on Small, Bracey, and Rolan, as well as Spotz V, we hold that the trial court did not err in presuming that burglary is per se a crime of violence for purposes of subsection 9711(d)(9). Because there is no arguable merit to Appellant’s underlying claim of trial court error, his derivative claim of trial counsel ineffective assistance is entirely lacking in merit.,
Also in Issue 9, Appellant contends that his penalty phase counsel was ineffective for failing to object to the following allegedly misleading statement by the prosecutor, which suggested the use or threat of violence during Appellant’s commission of the burglaries:
The second [aggravating circumstance] is significant history of felony convictions.... But we went through all of these. Two robbery convictions, Franklin County; one here, a conspiracy to commit robbery here; three burglaries, that is breaking into someone’s house to commit another crime, or dwelling place to commit another crime. That is a significant history.
The Judge will tell you that those crimes are felonies. And it is not just a record of felonies, it is significant history of felony convictions involving, what, the use or threat of force. That means you take one of these [a gun] when you are doing it, where you are doing something violent. And they talk about burglary being the type of case that brings you into conflict with other human beings.
N.T. Penalty Phase, 5/17/96, at 154 (Closing Argument) (portions cited in Appellant’s Brief at 77-78; emphasis added by Appellant).
Appellant argues that because his burglaries involved vacation cabins and no actual violence or threat to a person, the prosecutor’s comment was false insofar as it suggested violence and conflict between Appellant and the victims of the burglaries. Appellant contends that, when the prosecutor said “one of these” in the above excerpt, he was referring to a gun and was suggesting that Appellant’s burglaries had been violent, armed confrontations. Appellant’s Brief at 77-78. Appellant cites the following excerpts from the PCRA hearing where his counsel was examining Mr. Andrews, Appellant’s penalty phase counsel:
PCRA Counsel: Setting aside the question of — the specific question of whether or not the burglaries were violent or nonviolent, do you recall the Commonwealth’s closing argument when they talk about the — that burglaries were the type of case that brings you into contact with other human beings, and the prosecutor at that point had picked up a gun that had been one of the exhibits?
Mr. Andrews: I don’t recall that.
N.T. PCRA Hearing, 5/10/07, at 217-18.
The Commonwealth’s interpretation of the prosecutor’s penalty phase statement is quite different. The Commonwealth contends that the prosecutor was not portraying Appellant’s burglaries as involving armed conflict, but rather was describing Appellant’s theft of a shotgun from one of the cabins that he burglarized. Commonwealth’s Brief at 68-69. The Commonwealth admits that the prosecutor’s reference to the gun in the above statement was an improper reference to evidence not of record, but argues that the isolated and vague reference to a gun could not have so prejudiced the jury that it would have been unable to weigh fairly the evidence presented. Id. at 69; see Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1203 (1996) (“[Ajlthough it is improper to comment on evidence not of record, we cannot conclude that the isolated reference here made by the prosecutor ... was so pervasive or deliberate so that the unavoidable effect thereof was to prejudice the jury to the point that they could not fairly weigh the evidence presented.”)
The PCRA court did not make any factual findings with regard to the matter, but rather concluded that the prosecutor’s remark was not so prejudicial as to make the jury incapable of rendering a true verdict. PCRÁ Court Opinion at 53-54. We conclude that the PCRA court’s determination is supported by the record, and we will accordingly not disturb it.
Contrary to Appellant’s assertions, it strains reason to suggest that the prosecutor’s brief, vague, passing reference to a gun during his discussion of Appellant’s prior felony convictions could have so prejudiced the jury that there is a reasonable probability that the outcome of the proceedings would have been different had counsel objected. The prosecutor’s reference to a gun must be considered in the broader context of Appellant’s lengthy history of felony convictions. Specifically, the following felony convictions were presented to the jury to support the aggravating circumstances of a significant history of violent felony convictions, pursuant to subsection 9711(d)(9): voluntary manslaughter and aggravated assault convictions, on September 27, 1995; two felony robbery convictions on, respectively, June 12, 1990, and July 3, 1990; conspiracy to commit felony robbery conviction, on June 12, 1990; and three felony burglary convictions, on April 3, 1990. N.T. Penalty Phase, 5/16/96, at 1623-24, 1629-32, 1635-37; N.T. Penalty Phase, 5/17/96, at 158 (Defense Closing Argument). In addition, Appellant’s two prior first-degree murder convictions were presented to the jury as evidence of the aggravating factor set forth in subsection 9711(d)(ll), conviction of another murder. N.T. Penalty Phase, 5/16/96, at 1639-42.
Given all of Appellant’s prior violent felony convictions and his two prior first-degree murder convictions, we cannot conclude that the prosecutor’s brief reference to a gun in the context of the burglaries was prejudicial. To prevail on this claim, Appellant would have to establish that the prosecutor’s one brief mention of a gun in the context of the burglaries tipped the balance away from mitigation and in favor of aggravation in the jury’s mind, resulting in the verdict of death. This is simply not a tenable position. Given Appellant’s lengthy record of violent felonies and murders with firearms, we cannot ascribe overriding and determinative significance to one brief reference to a gun in one sentence by the prosecutor. Thus, Appellant has failed to establish that he was prejudiced, and he is not entitled to relief on his ineffective assistance of penalty phase counsel claim.
10. Aggravating Circumstance of Killing While in the Perpetration of a Felony
In Issue 10, Appellant argues that the jury’s guilt-stage verdict of first-degree murder but not second-degree murder precluded the applicability of the aggravating factor of “a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6). In other words, Appellant asserts that the jury’s failure to find him guilty of second-degree murder precludes a penalty phase finding that the killing was committed during the perpetration of a felony. Appellant’s Brief at 80-81. Appellant further asserts that counsel was ineffective for failing to raise this issue at trial, in post-trial motions, and on direct appeal. Id. at 82.
As the Commonwealth points out, Appellant’s argument ignores the trial court’s explicit instructions to the jury that it could find one of four possible verdicts: not guilty, guilty of first-degree murder, guilty of second-degree murder, or guilty of third-degree murder. N.T. Trial, 5/15/96, at 1559, 1566, 1568. In denying Appellant’s claim, the PCRA court held that the jury’s verdict of first-degree murder did not constitute or equate to a finding of not guilty of second-degree murder. PCRA Court Supplemental Opinion, dated 8/7/08, at 2. The PCRA court also cited Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, 100-01 (1995), in which this Court rejected a constitutional challenge to the death penalty statute grounded in the identity of the definitions of the 9711(d)(6) aggravating circumstance and of felony murder, a noncapital offense.
We agree with the PCRA court and the Commonwealth. The jury found that Appellant was guilty of first-degree murder, an intentional killing. By no logic can the jury’s verdict be considered a finding that Appellant did not commit the murder while perpetrating a felony, and thus was not guilty of second-degree murder. Appellant’s assertions to the contrary are groundless; inconsistent with the law, see Walker, supra; and unsupported by the record or the facts. Accordingly, there is no merit to Appellant’s assertion that counsel was ineffective for failing to raise this issue.
11. Prosecutorial Comments during the Penalty Phase
Appellant challenges numerous comments made by the prosecutor during the penalty phase and contends that trial counsel was ineffective because he failed to object to each of these comments. The PCRA court denied relief. Although the PCRA court did not address individually each of the numerous challenges, it concluded that “[njothing stated by the prosecutor was so prejudicial that the jury was incapable of rendering a true verdict.” PCRA Court Opinion at 52, 54 (citing Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 242 (2006)). After careful review of the notes of testimony, including the prosecutor’s entire opening statement and closing argument, we conclude that the PCRA court’s conclusion is supported by the record, and we will not disturb it.
As we have recently reiterated, a claim of ineffective assistance grounded in counsel’s failure to object to a prosecutor’s comments “may succeed when the petitioner demonstrates that the prosecutor’s [comments] violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self-incrimination or the Sixth Amendment right to a fair trial, or a constitutional interest such as due process.” Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 685 (2009) (quoting Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 29 (2008)). “To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Cox, supra at 685 (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). “The touchstone is the fairness of the trial, not the culpability of the prosecutor.” Id.
A prosecutor may make fair comment on the admitted evidence and may provide fair rebuttal to defense arguments. Id. at 687. Even an otherwise improper comment may be appropriate if it is in fair response to defense counsel’s remarks. Id. Any challenge to a prosecutor’s comment must be evaluated in the context in which the comment was made. Id. During closing argument in the penalty phase, a prosecutor must be afforded reasonable latitude, and permitted to employ oratorical flair when arguing in favor of the death penalty. Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 231-32 (2003). It is not improper for the prosecutor to urge the jury to view the defense’s mitigation evidence with disfavor and thus to impose the death penalty. Id. at 233.
Not every unwise, intemperate, or improper remark made by a prosecutor mandates the grant of a new trial:
Reversible error occurs only when the unavoidable effect of the challenged comments would prejudice the jurors and form in their minds a fixed bias and hostility toward the defendant such that the jurors could not weigh the evidence and render a true verdict.
Cox, supra at 687 (citation omitted); see also Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 242 (2006).
In the instant case, none of the prosecutor’s comments so prejudiced the jury. Appellant has taken most of the challenged comments out of context, has misinterpreted their meaning, and/or has failed to consider directly relevant decisional law from this Court, as discussed below.
First, Appellant challenges several comments made by the prosecutor during his opening statement or closing argument as to his role and the role of the jury, alleging that the comments diminished the jury’s sense of responsibility for the decision to impose the death penalty:
I am required by law to be in front of you. I did ask each one of you when you were questioned about being a juror on the case if you could promise me that in an appropriate case, you could vote for a death penalty. I have to now ask each and every one of you to live up to that oath, to be a juror.
And, remember, you are still the fact finders in this case. That is important. The sentence is set by the law. It is a very simple process.....
I will just read it to you now again. You find the facts of aggravating and mitigating and weigh them, and then the law sets the sentence. The statutes of our Commonwealth, the laws of the people of this state, [sic] The verdict must be a sentence of death, must be, if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance; or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.
I am not going to say to you now that this is going to be any easy thing. But I look to each and every one of you, remember that all of us in this society are governed by law. I have read to you what the law stated. And I ask you simply to remember your oath to follow that law.
N.T. Penalty Phase, 5/16/96, at 121-22, 124 (Prosecutor’s Opening Statement) (emphasis added to portions cited by Appellant in his Brief at 84).
We are here because of certain things. I have a duty as the elected prosecutor for the people of Cumberland County to present cases where the law says that the penalty should be death.
You, by I guess sheer chance of lot, got chosen to take on a special duty to follow the law, and now to decide the appropriate sentence for the willful, deliberate, and premeditated killing of Betty Amstutz.
The law, again, says the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.
Because if one of you says that the mitigation in this case outweighs the aggravating circumstances, it is life. But, again, that person would still have to say under the law, 1 have weighed these and that mitigation outweighs the aggravating circumstances.
N.T. Penalty Phase, 5/17/96, at 144-15 (Prosecutor’s Closing Argument) (emphasis added to portions cited by Appellant in his Brief at 84).
Most egregiously, Appellant contends that the prosecutor argued to the jury that it “had a ‘societal’ responsibility to return a death verdict.” Appellant’s Brief at 84 (citing N.T. Penalty Phase, 5/16/96, at 124). This allegation constitutes a gross mischaracterization of the prosecutor’s statements, supra. The only “ ‘societal’ responsibility” implied by the prosecutor was to follow the law. Furthermore, we have previously concluded that there was no error where a prosecutor asked a jury to “live up to” the promise it made under oath to follow the law and to impose the death penalty in an appropriate case. Carson, 913 A.2d at 268-69; Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 450 (1999). The fact that the prosecutor discussed the duty of the jurors to follow the law immediately after discussing his own duty constitutes “nothing more than a simple comparison.” Carson, supra at 269. The prosecutor made clear that the jury was the factfinder and that its weighing of aggravating and mitigating factors would determine the sentence to be imposed under the law. Appellant’s allegation that the prosecutor diminished the jury’s sense of responsibility in the penalty phase is meritless, as it does not reflect any fair or reasonable interpretation of the prosecutor’s own words.
In his second challenge to prosecutorial comments, Appellant focuses on the cross-examination of defense expert witness Dr. Stephen Ragusea, a clinical psychologist, and the prosecutor’s closing argument regarding Dr. Ragusea’s mitigation testimony. Appellant contends that the prosecutor improperly denigrated, distorted, and trivialized the mental health mitigating evidence offered by Dr. Ragusea. The relevant excerpts, in their proper context, are as follows:
Prosecutor: Just take the devil’s advocate view, this modeling approach then is what we are telling [Appellant] is, now, [Appellant], this isn’t your fault, you have had all these problems, so you are really not responsible for killing Betty, right?
Dr. Stephen Ragusea: No.
N.T. Penalty Phase, 5/17/96, at 1887-88.
Prosecutor: I mean [Mark] Hinckley was diagnosed as a schizophrenic who was making a move to impress Jody Foster.
Dr. Stephen Ragusea: Absolutely in that sense, Mark Hinckley was a much more mentally ill man than is [Appellant]. From the perspective of knowing right and wrong and understanding reality.
Prosecutor: I am assuming these are from, what, the diagnostic manual?
Dr. Stephen Ragusea: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.
Prosecutor: The fourth edition is apparently they [sic] are up to 995 point 5 disorders now?
Dr. Stephen Ragusea: That has always been there. That is just a categorical system.
Prosecutor: How many are there now?
Dr. Stephen Ragusea: I don’t know.
Prosecutor: There is [sic] an awful lot of them, aren’t there?
Dr. Stephen Ragusea: A bunch.
Prosecutor: There is one, is there not, for — if you drink a lot of coffee, isn’t there, something about being addict[ed] to caffeine?
Dr. Stephen Ragusea: It may be there. I don’t know. I don’t recall it. I have never used it. So I can’t verify that for sure.
Prosecutor: It is true, is it not, sir, that you can go into that book [the DSMJ and take almost any person in this room, and if you sat down there and went through with them and talked with them long enough, you would find one of those numbers that fits somebody, doesn’t it?
Dr. Stephen Ragusea: No. Not even remotely like that. Many of the people we see in our everyday practice don’t meet the criteria for any diagnostic category. That is a real overstatement.
Prosecutor: When people are in trouble though, there always seems to be one that fits, isn’t that true?
Dr. Stephen Ragusea: It is certainly common. But, again, the important point is that all these things have been consistent throughout [Appellant’s] lifetime. None of them is unique or unusual. It parallels his entire life experience.
Id. at 1896-87 (emphasis added to portions cited by Appellant in his Brief at 85).
During his penalty phase closing, the prosecutor argued as follows regarding the testimony offered in mitigation:
Talk about the accounting for his capacity to appreciate criminality is because he has, what, attention deficit disorder? You say, well, you know, a lot of people have that. I think he even said seven percent of the population. Seven percent of the population don’t end up doing what happened in this particular case.
The whole thing comes down to that Dustin is the big boogie man.
N.T. Penalty Phase, 5/17/96, at 148-49 (Prosecutor’s Closing Argument) (emphasis added to portion cited by Appellant in his Brief at 86).
Finally, we get to [mitigating factor] number eight: Other. I’m sure Mr. Andrews, doing his job as he is required, is going to have a long list of things that we heard yesterday.
I pointed it out back before, the computer suggested that this is an invalid profile due to exaggeration tendencies. It is a psychological thing. It is not objective as it was made out to be.....
Now, I submit to you, as the Doctor [Ragusea] admitted and Molly Muir admitted, they have a thousand cases in Children and Youth, does every one of those people grow up to be a killer? No. Did the Doctor say that every time somebody gets in trouble their profile will probably fit into that diagnostic manual? Yeah. And that certainly is [sic] everybody with attention disorder doesn’t end up in a room like this.
Id. at 150-51 (emphasis added to portions cited by Appellant in his Brief at 85).
So now that is the mitigation. That is supposed to excuse this.
Id. at 153 (emphasis added to portion cited by Appellant in his Brief at 86).
To accept that mitigation that has been presented to you— and think about it — he has got that for the rest of his life, anything he does from now on is mitigated because of his childhood. No responsibility to society. No responsibility to make some positive choices about don’t take one of these and do that to an old woman. You have got to weigh that.
Id. at 155 (emphasis added to portion cited by Appellant in his Brief at 86).
We have held that the prosecutor may rebut mitigation evidence in his arguments and may urge the jury to view such evidence with disfavor. Carson, supra at 271 (concluding that the following prosecutorial argument did not improperly prevent the jury from giving full effect to the appellant’s mitigation evidence: “[A]ny argument to say that [the appellant] didn’t have that opportunity [to climb out of poverty and make something out of himself] is a slap in the face to any one of those children who managed to succeed, to have managed to climb out of the gutter and make something of themselves instead of putting a bullet through some 53-year-old man’s head”); Stokes, supra at 233; Rollins, supra at 449 (concluding that it was permissible for the prosecutor to disparage the mitigation evidence proffered by the appellant and to imply that it was of so little weight that it should not affect the verdict); Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178, 1189 (1988) (concluding that it was not improper for the prosecutor to comment on the appellant’s childhood history of epileptic seizures when the appellant himself had introduced the evidence into the record as a mitigating circumstance). Based on these clear precedents, we conclude that Appellant’s claim of improper denigration of his mental health mitigation evidence is meritless.
In the third sub-issue of Issue 11, Appellant challenges the portion of the prosecutor’s closing argument that mentioned the statutory mitigation factors not proffered by Appellant.
Weigh that mitigation you heard yesterday against the aggravating circumstances we showed and against all of the evidence that was put in in the prior five days of trial. It is not a question of numbers. It is not a little checklist of like if there are eight mitigating and only three, well, it is obvious. It is a question of quality, that question of quality.
You go through these mitigating circumstances, there is [sic] eight listed in the statute. And we will get to the last one, which basically is anything else you want to consider. I am sure Mr. Andrews is going to dwell on that at length. But what are they?
N.T. Penalty Phase, 5/17/96, at 146-47 (Prosecutor’s Closing Argument) (emphases represent portions cited and relied upon by Appellant in his Brief at 86-87).
The prosecutor then set forth, in the order in which they appear in the statute, the list of possible mitigating circumstances. Id. at 147-50. The prosecutor rebutted the four statutory mitigating circumstances that Appellant had proffered, and also briefly mentioned three statutory circumstances that Appellant had not invoked. Id. On the sentencing verdict slip, only the mitigating circumstances proffered by Appellant were listed. The trial court, in its instructions to the jury, restated the proffered mitigation factors and clearly informed the jury how to consider them:.
In deciding whether aggravated [sic] outweigh mitigating circumstances, do not simply count their number. Compare the seriousness and importance of the aggravating with the mitigating [circumstances].
[Y]ou are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present, despite what other jurors may believe.....
This different treatment of aggravating and mitigating circumstances is one of the law’s safeguards against unjust death sentences. It gives a defendant the full benefit of any mitigating circumstances.
N.T. Penalty Phase, 5/17/96, at 1911-12 (Jury Instructions).
We cannot conclude that the prosecutor’s brief mention of uninvoked statutory mitigation circumstances prejudiced Appellant, particularly since the prosecutor also correctly informed the jury that its duty to weigh aggravating versus mitigating circumstances was not simply a matter of counting how many of each category applied to Appellant. In addition, the trial court reiterated for the jury the relevant mitigating circumstances, and then correctly and in detail informed the jury of the law with respect to its weighing of aggravating and mitigating factors. We hold there is no reasonable possibility that the prosecutor’s brief mention of uninvoked mitigators created such bias and hostility toward Appellant in the jurors’ minds that they were unable to weigh the evidence and render a true verdict.
In Appellant’s fourth sub-issue, he contends that the prosecutor improperly presented and argued non-statutory aggravating factors:
It’s always easy to talk about the death penalty when you are out on the street and you hear about all the polls and everything else. But fortunately there are few people like you or like me that ever get personally involved in it.
* * *
You, by I guess sheer chance of lot, got chosen to take on a special duty to follow the law, and now to decide the appropriate sentence for the willful, deliberate, and premeditated killing of Betty Amstutz.
* * *
But it is a question of choices. You make a choice here today. The defendant made a choice on that February night.
I guess the one person who didn’t get any choices was Betty Amstutz. She might have liked to sit in a room for the rest of her life and at least get to see her family, unite poetry, and read books. She isn’t going to get that opportunity.
N.T. Penalty Phase, 5/17/96, at 144-45 (Closing Argument) (emphases represent the portions cited and relied upon by Appellant in his Brief at 87-88).
Appellant’s allegation that the above excerpts constitute improper presentation of non-statutory aggravating factors is meritless. The trial court clearly instructed the jury as to the three aggravating circumstances proffered by the Commonwealth; the prosecutor’s opening statement and closing argument, as well as the sentencing verdict slip, were consistent with and reinforced those instructions. In the excerpt above, the prosecutor reminded the jury of its duty to follow the law, and certainly did not suggest “unconstitutionally expanding] the death penalty to include the entire class of first degree murders.” Appellant’s Brief at 87.
Fifth, Appellant contends that the prosecutor made a number of material misstatements of law and fact concerning aggravating circumstances. We address each contention in turn. Appellant argues that the prosecutor “erroneously defined the (d)(9) aggravating circumstance,” merely referring to one page of the prosecutor’s penalty phase opening argument. Appellant’s Brief at 88. The (d)(9) circumstance is a significant history of felony convictions involving the use or threat of violence to the person. The only relevant portion of the page to which Appellant refers is as follows:
The Commonwealth in this case is going to show you three aggravating circumstances. First of all, [the Commonwealth is] going to prove to you that that defendant had a significant history of felony convictions before he killed Betty Amstutz.
You are going to hear evidence of three prior robbery convictions, a conviction for conspiracy to commit robbery, that he had three prior burglary convictions, that he was convicted of aggravated assault and involuntary manslaughter with regard to the death of his brother on the last two. That, under the law, I submit to you, is a significant history of prior felony convictions.
N.T. Penalty Phase, 5/16/96, at 123 (Opening Argument) (cited in Appellant’s Brief at 88).
While the prosecutor failed to state in the above excerpt that the subsection 9711(d)(9) aggravating circumstance required a significant history of felony convictions involving the use or threat of violence to the person, he correctly listed the felonies that had been proffered to satisfy that subsection. In addition, the trial court defined this aggravating circumstance precisely and correctly, see N.T. Penalty Phase, 5/16/96, at 1909; and the sentencing verdict slip also bore the correct definition. There is absolutely no evidence to suggest that the jury did not follow the trial court’s instructions, did not understand the verdict slip, or was confused by the prosecutor’s omission.
Next, Appellant asserts that the prosecutor “improperly sought to rebut the mitigation case by further misstating the gravity and relevance of Appellant’s juvenile offenses.” Appellant’s Brief at 88. The excerpt below is apparently the basis for this assertion:
Talk about the next possible mitigation, mitigating circumstance is the age of the defendant at the time of the crime. He was, what, two weeks short of his twenty-fourth birthday.
And what had he shown to that particular time? He had a serious record of serious felony convictions at that point. Which started, even by his own exhibit, when he was a juvenile. Risking a catastrophe, a felony of the second degree.
N.T. Penalty Phase, 5/17/96, at 149 (Closing Argument) (cited in Appellant’s Brief at 88).
The information summarized by the prosecutor in the above excerpt had been admitted into evidence, and accordingly, the prosecutor could properly comment on it and draw reasonable inferences from it. See Carson, 913 A.2d at 271 (concluding that the prosecutor properly referred to the appellant’s unrealized opportunities for rehabilitation while in juvenile detention, because evidence of his offenses as a juvenile had been admitted into evidence at the penalty phase of trial).
Next, Appellant argues that the prosecutor improperly invited the jury to speculate as to what else was in his criminal record:
The second [aggravating factor] is significant history of felony convictions. I don’t know if you get to see these upstairs because they have other things on that you shouldn’t consider, because they are just records and they tell a big story. But we went through all of these. Two robbery convictions, Franklin County; one here, a conspiracy to commit robbery here; three burglaries, that is breaking into someone’s house to commit another crime, or dwelling place to commit another crime. That is a significant history.
N.T. Penalty Phase, 5/17/96, at 154 (Closing Argument) (emphasis represents the portion quoted in Appellant’s Brief at 88).
The prosecutor’s brief and vague statement about the contents of Appellant’s criminal record is insignificant, particularly since the prosecutor immediately also states that “we went through all of these [felony convictions].” See excerpt supra.
Thus, none of the challenged statements in this sub-issue remotely reaches the level of prosecutorial misconduct.
Appellant’s sixth and final sub-issue in Issue 11 is that the prosecutor misstated the applicable burden of persuasion with regard to the weighing of aggravating and mitigating circumstances. The specific comment challenged by Appellant is presented below in its proper context:
The law, again, says the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.
Now, [defense counsel] will tell you that, well, a jury to give death has to unanimously decide, all twelve of you will have to check that block individually. And that is the question during voir dire when you were asked, will you stand up for your opinion, will you stick to your guns.
Because if one of you says that the mitigation in this case outweighs the aggravating circumstances, it is life. But, again, that person would still have to say under the law, I have weighed these and that mitigation outweighs the aggravating circumstances.
N.T. Penalty Phase, 5/17/96, at 145 (Prosecutor’s Closing Argument) (emphasis added to portion quoted by Appellant in his Brief at 88).
As Appellant correctly recognizes, the statutory standard for imposition of a death sentence is “one or more aggravating circumstances which outweigh any mitigating circumstances.” 42 Pa.C.S. § 9711(c)(l)(iv); see also Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871, 876 (1998) (stating that § 9711(c)(l)(iv) provides that “if the jury finds that the aggravating circumstance(s) do not outweigh the mitigating circumstance(s), it must impose a life sentence”) (emphasis omitted). Thus, under the statutory standard, when the aggravating circumstances and mitigating circumstances are precisely balanced, i.e., in a “tie,” the proper sentence is life imprisonment, not death.
However, the prosecutor stated that for the verdict to be a sentence of life imprisonment, one juror must conclude that mitigating circumstances outweigh aggravating circumstances. See excerpt supra. Thus, under the prosecutor’s formulation of the standard, when there is a tie between aggravating circumstances and mitigating circumstances, the sentence would be death — and this is contrary to the statute. Appellant’s Brief at 88.
We decline to conclude that Appellant was prejudiced by the prosecutor’s misstatement. Appellant fails to give any recognition to the fact that, in the first sentence of the above excerpt, where the prosecutor is telling the jury what the law requires, he states the standard exactly correctly and completely. The prosecutor then reiterates that an imposition of the death penalty must be unanimous and reminds the jurors that during voir dire they were asked if they would “stand up for [their] opinion.” The challenged comment is made in this context, and while it is not strictly correct, we cannot conclude that it rendered the jurors unable to weigh the evidence and render a true verdict. See Cox, supra at 687.
It is noteworthy that the trial court correctly and repeatedly instructed the jury on the appropriate standard by which to weight aggravating and mitigating factors. See N.T. Penalty Phase, 5/17/96, at 1905, 1911, 1913-14. The trial court’s clear instructions remove any possible confusion as to the appropriate standard. There is no evidence to suggest that the jury did not follow the trial court’s detailed and clear instructions. See Spotz V, 896 A.2d at 1224 (“The law presumes that the jury will follow the instructions of the court.”) (citation omitted).
In sum, as we have discussed above, none of Appellant’s claims of ineffective assistance of penalty phase counsel for failing to object to prosecutorial statements has any merit. Accordingly, Appellant is not entitled to any relief in Issue 11.
12. Jury Instructions as to the “Presumption of Life”
In Issue 12, Appellant argues that the trial court’s penalty phase jury instructions erroneously required the jury to “reject death,” thereby “unconstitutionally shifting] the sentencing-stage burden of persuasion from the Commonwealth to the defense, undermining] the presumption of life afforded defendants in capital sentencing proceedings, and violating] the Pennsylvania sentencing statute and the Sixth, Eighth, and Fourteenth Amendments.” Appellant’s Brief at 69. Appellant also asserts that counsel was ineffective for failing to object to the jury instructions. Id.
Appellant challenges specifically the portion of the court’s instruction that directed the jury how to fill out the sentencing verdict slip. However, because, when reviewing a challenge to a jury instruction, we must consider the entire charge, not just selected portions thereof, see Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138 (2007), we set forth much of the instruction in the paragraphs below:
Your verdict must be a sentence of death if you unanimously find — that is if you all find — at least one aggravating circumstance and no mitigating circumstances.
If you do not all agree on one or the other of these findings, then the only verdict that you may return is a sentence of life imprisonment.
N.T. Penalty Phase, 5/17/96, at 1905 (Jury Instructions).
The trial court then instructed the jury regarding the differing burdens of proof applicable to the Commonwealth and the defendant with regard to, respectively, aggravating and mitigating circumstances. The instruction continued with an explanation of each of the proffered aggravating circumstances and mitigating circumstances, and then continued as follows:
As I told you earlier, you must agree unanimously on one of two general findings before you can sentence the defendant to death. [The general findings] are a finding that there is at least one aggravating circumstance and no mitigating circumstances, or a finding that there are one or more aggravating circumstances which outweigh any mitigating circumstances.
If you all agree on either one of the two general findings, then you can and must sentence the defendant to death. When voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present, despite what other jurors may believe.....
This different treatment of aggravating and mitigating circumstances is one of the law’s safeguards against unjust death sentences. It gives a defendant the full benefit of any mitigating circumstances.
It is closely related to the burden of proof requirements. Remember, the Commonwealth must prove any aggravating circumstance beyond a reasonable doubt. While the defendant only has to prove any mitigating circumstance by a preponderance of the evidence, [sic]
If you do not agree unanimously on a death sentence, and on one of the two general findings that would support it, then you have two immediate options.
You may either continue to discuss the case and deliberate the possibility of a death sentence, or if all of you agree to do so, you may stop deliberating and sentence the defendant to life imprisonment.
If you should come to a point where you have deliberated conscientiously and thoroughly, and still cannot all agree either to sentence the defendant to death or to stop deliberating and sentence him to life imprisonment, report that to me. If it seems to me that you are hopelessly deadlocked, it will be my duty to sentence the defendant to life imprisonment.
I now ask you to pick up the verdict slip again.....I shall now give you specific directions about how to complete this part of the verdict slip. Before you can sentence the defendant to death, you must all agree on a general finding in either B-l on page three, or B-2, beginning on the top of page four.
Remember, you can stop deliberating and sentence the defendant to life imprisonment only if you all agree to do so. .... [I]f your sentence is life imprisonment, you should check the finding either C-l or C-2 which will explain why you are rejecting the death penalty and imposing a life sentence.
If the reason for rejecting the death penalty is that one or more of you find no aggravating circumstances, check C-l. If the reasons for rejecting death is that, although all of you agree on at least one aggravating circumstance, one or more of you find that mitigating circumstances are not outweighed by aggravating circumstances, then you would check C-2.
N.T. Penalty Phase, 5/17/96, at 1911-14 (Jury Instructions).
Appellant contends that, by repeatedly using the phrase “rejecting death,” the trial court failed to make clear that life imprisonment was the appropriate sentence unless the Commonwealth met its high burden of persuasion that death should be imposed. Appellant’s Brief at 70.
In rejecting Appellant’s claim of error with respect to this instruction, the PCRA court cited Commonwealth v. Eichinger, supra, for the proposition that the words “presumption of life” were not mandatory in a capital penalty phase jury instruction. PCRA Court Opinion at 56. The PCRA court concluded that the trial court had adequately explained the deliberately disparate treatment of aggravating and mitigating circumstances, and had made clear that life in prison is the appropriate sentence unless the Commonwealth has carried its high burden of proof. Id. We agree.
In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288, 300 (1983), this Court acknowledged that, in some sense, a “presumption of life” is inherent in the capital sentencing statute. This “presumption” arises from the limited number of statutory aggravating circumstances, any one of which the Commonwealth must prove beyond a reasonable doubt, as compared to the wide latitude granted for mitigating circumstances, which the defendant need prove only by a preponderanee of the evidence. Id. In Eichinger, supra at 1137, the appellant relied on Travaglia to allege denial of due process by the trial court because it had declined to include an explicit “presumption of life” jury instruction. We recognized that “life has intrinsic value and should not be taken by the state without good cause, proven to our highest standard, whereas life imprisonment remains our default punishment for capital cases.” Id. at 1138. However, consistent with this Court’s policy to give trial courts latitude and discretion in the phrasing of jury instructions, we held that the words “presumption of life” were not explicitly required in penalty phase instructions. We clarified what was required in a proper instruction as follows:
An explanation of the deliberately disparate treatment of the aggravating and mitigating circumstances under the applicable standards of proof and a clear indication that life in prison is the sentence unless the Commonwealth meets its high burden is sufficient to convey the fact that life is presumed.
Id.; accord, Commonwealth v. Lesko, 609 Pa. 128,15 A.3d 345 (2011).
Based on our review of the entire jury instruction, we conclude that the trial court here met this standard. The trial court clearly explained and provided the correct rationale for the disparate treatment of and the distinct standard of proof applicable to aggravating and mitigating circumstances. In addition, the trial court stated directly and indirectly that life imprisonment was the appropriate sentence unless the Commonwealth met its high burden of proof with regard to aggravating factors. In fact, the instruction here in its entirety was very similar to the one challenged in Commonwealth v. Marinelli, 589 Pa. 682, 910 A.2d 672, 682-84 (2006) (Opinion Announcing the Judgment of the Court), even to the point of using the phrase “rejecting the death penalty” or “rejecting death” three times. We concluded that there was no merit to the Marinetti appellant’s claim that the repeated use of the word “reject” rendered the instructions erroneous. We reach the same conclusion here, and accordingly hold that counsel was not ineffective for failing to object to the jury instructions.
13. Simmons “Life Means Life” Instruction
Appellant contends that the trial court erred by failing to instruct the jury that, if Appellant were sentenced to life imprisonment, he would not be eligible for parole. In addition, he argues that penalty phase counsel was ineffective for failing to seek such an instruction, and that direct appeal counsel was ineffective in the way in which he litigated the matter on direct appeal.
In his direct appeal, Appellant grounded his claim of trial court error for failing to instruct the jury that “life means life” on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 138 (1994) (plurality). See Spotz III, 759 A.2d at 1291. In Simmons, supra at 156,114 S.Ct. 2187, a plurality of the United States Supreme Court held that “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” We subsequently explained that a Simmons instruction is triggered only when a defendant’s future dangerousness has been placed at issue and the defense has requested an instruction that there is no parole from a sentence of life imprisonment in Pennsylvania. Spotz III, supra at 1291 & n.
14. In Appellant’s direct appeal, we concluded that neither of these predicate requirements existed, and the “trial court did not err in failing to issue a charge [A]ppellant was not entitled to and did not request.” Id. at 1291. Thus, the PCRA court properly denied Appellant’s current claim of trial court error as previously litigated and not cognizable under the PCRA. See PCRA Court Opinion at 48 (citing 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2)).
In addition, the PCRA court correctly concluded that Appellant’s claim of ineffective assistance of penalty phase counsel for failing to request a Simmons instruction must fail because Appellant’s future dangerousness had not been placed at issue and thus he was not entitled to such an instruction. Spotz III, supra at 1291; PCRA Court Opinion at 49. Counsel will not be held ineffective for failing to request an instruction to which his client was not entitled.
With regard to appellate counsel, Appellant’s claim of ineffectiveness is based on counsel’s failure to argue on direct appeal that Appellant’s future dangerousness was placed at issue by the introduction of evidence of his prior violent offenses, including three homicide and other felony convictions, and his juvenile record of crimes and detention. Some of this evidence was presented at the penalty phase as support for aggravating circumstances, while certain evidence of other crimes, specifically the voluntary manslaughter and two first-degree murders committed during the three days prior to the murder of Ms. Amstutz, was also presented during the guilt phase of trial. Appellant further contends that the testimony of his mental health expert, Dr. Ragusea, supported a propensity for violence. The PCRA court rejected this claim, citing Commonwealth v. May, 551 Pa. 286, 710 A.2d 44 (1998), in which this Court held that a defendant’s criminal record of violent felonies did not address future dangerousness. Relying on May, the PCRA court found no arguable merit to Appellant’s underlying claim, and accordingly held that appellate counsel was not ineffective for failing to raise the argument on direct appeal. We will not disturb the PCRA court’s ruling, as explained below.
In May, supra at 47, the appellant, like Appellant here, argued that, by raising the aggravating circumstance of a significant history of violent felony convictions, the prosecutor had injected the issue of the appellant’s future dangerousness into the sentencing hearing, and therefore, the trial court had erred by failing to provide a Simmons instruction. We denied this claim, holding that a Simmons instruction was not required because the evidence proffered to support the appellant’s history of violent felony convictions addressed only his past conduct, not his future dangerousness. May, supra.
We reached a similar conclusion more recently in Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 538 (2005), a triple first-degree murder case in which the Commonwealth’s evidence to support the appellant’s history of prior violent felonies included the description of a violent rape. We held that the introduction of this evidence of the Chmiel defendant’s past violent convictions did not implicate the issue of his future dangerousness. Id. at 538. Also in Chmiel, the appellant contended that his future dangerousness was implied by the prosecutor’s comments concerning the circumstances of the triple murder and his characterization of the appellant’s actions as “despicable” and “abysmal,” revealing a “coldness of heart, the type of depravity that tells you that he deserves death.” Id. at 537. We concluded that the challenged comments focused exclusively on the facts surrounding the murders of which the appellant had been convicted, and did not speculate about the appellant’s inherent characteristics that implied future dangerousness. Id. at 538. Because the chailenged comments, when taken in context, “were proper commentary on [the appellant’s] crimes as an appropriate predicate for the death penalty,” no relief was due. Id. at 537-38.
Appellant submits that this Court’s rulings in Chmiel and similar cases are erroneous as to the nature and sufficiency of evidence and prosecutorial argument that can establish future dangerousness for purposes of a Simmons instruction. Appellant’s Brief at 64 & n. 80. Appellant relies primarily on Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), a case in which the high Court reversed a state court’s determinations that the appellant’s future dangerousness had not been placed at issue and a Simmons instruction was not required. The high Court held that the state court had erred, not in its formulation of the legal issue, but rather “on the facts [because] the evidence and argument cited by the state court are flatly at odds with the view that ‘future dangerousness was not an issue in this case.’ ” Kelly, supra at 252-53,122 S.Ct. 726 (citation omitted).
The Kelly Court provided the following guidance as to how to evaluate evidence for purposes of a Simmons instruction:
A jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior....
Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.
Kelly, supra at 253-54,122 S.Ct. 726.
The evidence admitted during the sentencing phase of the trial in Kelly showed the following: the appellant had attempted an armed escape from prison, had formulated a plan to hold a female guard hostage, and had exhibited sadism at an early age, with an inclination to kill anyone who rubbed him the wrong way. Id. at 248-49, 122 S.Ct. 726. With regard to the prosecutor’s opening and closing arguments, the high Court stated the following:
The prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would “never in their lives again have to experience being some thirty feet away from such a person” as [the appellant].... [S]ince the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of [the appellant] only if he got out of prison, as he might if parole were possible.....
And there was more. The state court to be sure considered the prosecutor’s comparison of [the appellant] to a notorious serial killer, variously calling him a “dangerous” “bloody” “butcher.”.... Characterizations of butchery did go to retribution, but that did not make them any the less arguments that [the appellant] would be dangerous down the road. They complemented the prosecutor’s submissions that [the appellant] was “more frightening than a serial killer,” [ ] and that “murderers will be murderers.” Thus was [the appellant’s] jury, like its predecessor in Simmons, invited to infer “that petitioner is a vicious predator who would pose a continuing threat to the community.”
Id. at 255-56,122 S.Ct. 726 (internal citations omitted).
Based on the evidence admitted and the prosecutor’s arguments from that evidence, the United States Supreme Court held that the Kelly appellant’s future dangerousness had indeed been placed at issue. However, the Kelly Court was careful to specify the limits of its ruling: “The only questions in this case are whether the evidence presented and the argument made at [the appellant’s] trial placed future dangerousness at issue.” Id. at 254 n. 4,122 S.Ct. 726. No issue was raised in Kelly with respect to “a defendant’s entitlement to instruction on a parole ineligibility law when the State’s evidence shows future dangerousness but the prosecutor does not argue it.” Id.
In Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 90-92 (2008), this Court applied the United States Supreme Court’s constitutional directives in Simmons and Kelly to a case in which the jury had rejected the appellant’s insanity defense and had sentenced him to death for the first-degree murder of five individuals. At trial, the Commonwealth had introduced evidence of the appellant’s derogatory comments and actions toward blacks and Jews, his anti-immigration and pro-segregation views, his desire to start a white supremacist party, and his hatred for all “ethnic” people. Id. at 71. On direct appeal, the appellant claimed that the trial court had erred by failing to give a Simmons instruction, and he asserted that the issue of his future dangerousness had been brought before the jury by the proffered evidence, including not only the testimony as to his racist views, but also the extensive testimony concerning his mental illness and personality disorder, which, in the opinion of the Commonwealth’s mental health witness, made him a liar, a rule-breaker, and an irresponsible person. Id. at 90-91. We denied this claim, concluding that the evidence cited by the appellant was not evidence of future dangerousness or of a demonstrated propensity for violence, and was “not even remotely similar in character to the evidence in Kelly.” Id. at 91.
In the instant case, Appellant’s attempt to rely on Kelly is equally unavailing. Appellant raised a similar claim in his collateral appeal of his Schuylkill County first-degree murder conviction. Spotz V, 896 A.2d at 1242-46. We affirmed the PCRA court’s denial of that claim, citing, inter alia, May, supra, and concluding that evidence of Appellant’s significant history of violent felony convictions did not inject concerns over his future dangerousness into the proceedings. Spotz V, supra at 1242-43. In addition, we held that “Kelly would not apply to appellants like Spotz who were sentenced before it was decided, and trial counsel was not ineffective for failing to request a Simmons instruction based on the standard announced in that case.” Id. at 1246; see also Carson, 913 A.2d at 273 n. 34 (“Trial counsel’s conduct [ ] must be evaluated under the law prevailing at the time of trial which was the non-precedential plurality in Simmons.”). The same holding applies to the instant case, as Appellant’s trial for the murder of Ms. Amstutz took place in 1996, well before Kelly was decided.
Furthermore, even if Kelly were to be held applicable to Appellant’s appeal, he would not be entitled to relief because, pursuant to the United States Supreme Court’s directives in Kelly, as we have interpreted them in Baumhammers, Appellant’s future dangerousness was not placed at issue during the trial proceedings. Contrary to Appellant’s assertions, future dangerousness is not placed at issue under Simmons/Kelly merely because the prosecutor sets forth a capital defendant’s history of prior violent offenses, without graphic description of violence and without implying significance for future violent behavior. The prosecutor here did not use epithets suggestive of violence to describe Appellant, nor did he attempt to draw any conclusions about the implications of Appellant’s previous offenses for his future behavior. With regard to Appellant’s mental health, psychologist Dr. Ragusea testified that Appellant had “lots of antisocial features,” “broke the law, broke the rules,” “was perfectly content lying to get whatever he wanted,” “[had] trouble being in contact with reality,” “makes bad decisions,” “does have mental illness[,] is an antisocial personality[, and] is not a nice guy.” N.T. Penalty Phase, 5/16/96, at 1881, 1885, 1895. Dr. Ragusea’s testimony did not imply that Appellant had a propensity for violence or was a risk for violent behavior. We reject Appellant’s assertion, based on Kelly, that the evidence and Commonwealth argument presented at his trial placed his future dangerousness at issue, and accordingly we reject his claim of appellate counsel ineffectiveness for failing to raise these matters on direct appeal.
Finally, in Issue 13, Appellant alleges ineffective assistance of direct appeal counsel for failing to identify and raise additional constitutional theories, independent of future dangerousness and legally distinct from Simmons, as grounds for requesting a parole ineligibility instruction. Appellant’s Brief at 66. Appellant appears to seek a broad and general ruling from this Court that a parole ineligibility instruction is always required when the jury knows that a capital defendant committed the offense while on parole. Appellant baldly asserts, without benefit of accompanying argument or rationale, that the failure to provide such a jury instruction violates either the Eighth Amendment to the United States Constitution or due process, in the following ways: violates the Eighth Amendment because the jury was not permitted to consider all relevant mitigating evidence and was presented with a false choice of sentencing options; violates the Eighth Amendment bar against arbitrary and capricious sentencing; offends evolving standards of decency in violation of the Eighth Amendment; violates due process by imposing a death sentence on the basis of inaccurate, material information which the defendant had no opportunity to rebut; and violates the right to an impartial jury by skewing the weighing of aggravating and mitigating circumstances. Appellant’s Brief at 66-67. Appellant’s “argument” for each of these alleged constitutional violations consists, in its entirety, of footnote lists of United States Supreme Court opinions, devoid of even a parenthetical explanation, much less any development of the relevance or significance of the listed opinions to the relief Appellant seeks. See id.
As we have previously stated, the United States Supreme Court has never ruled that the Eighth Amendment requires a parole ineligibility instruction, nor have we ever made a parole ineligibility instruction mandatory in capital cases. Commonwealth v. Baunhammers, 599 Pa. 1, 960 A.2d 59, 92 (2008); see also Simmons, 512 U.S. at 156, 162 n. 4,114 S.Ct. 2187 (making clear that the Court’s opinion was grounded in the Due Process Clause of the Fourteenth Amendment and specifically clarifying that the Court “expressed] no opinion on the question whether the result [was] also compelled by the Eighth Amendment”). Here, Appellant’s one-sentence, undeveloped assertions of Eighth Amendment violations fail to provide any reviewable argument or rationale for revisiting those precedential decisions.
Appellant’s attempt to recast the lack of a Simmons instruction into an assertion of “inaccurate information” having been imparted to the jury likewise must fail. Appellant’s Brief at 67. No inaccurate information, material or otherwise, was imparted to the jury by the mere fact that a Simmons instruction was not given, and Appellant’s assertions to the contrary have no legal or factual basis.
Finally, Appellant’s assertion that the lack of a parole ineligibility instruction skewed the weighing of aggravating and mitigating evidence and impaired the jury’s ability to follow the law is entirely unsupported. The Commonwealth presented three statutory aggravating factors, and Appellant offered several mitigating factors, including the “catchall” mitigator which includes “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(8). Although, during the penalty phase, evidence may be presented as to any matter that the trial court deems relevant and admissible on the question of the sentence to be imposed, 42 Pa.C.S. § 9711(a)(2), “[c]apital juries are to weigh only the aggravating and mitigating circumstances enumerated in the statute.” Commonwealth v. Robinson, 583 Pa. 358, 877 A.2d 433, 447 (2005) (emphasis added); see also 42 Pa.C.S. § 9711(c)(l)(iv). Appellant neither provides authority for his apparent view that a parole ineligibility instruction somehow implicates a mitigation factor, nor sets forth any support for his view that the jury here was unable to follow the law regarding its duty to weigh the statutory mitigating and aggravating factors that were proffered.
Because there is no arguable merit to any of Appellant’s alternate theories, direct appeal counsel will not be held ineffective for failing to advance them. In sum, for all the reasons discussed above, Appellant is not entitled to relief on any of the numerous sub-issues he raised under Issue 13.
14. Presentation of Mitigating Evidence
In Issue 14, Appellant alleges that trial counsel was ineffective in failing to investigate, develop, and present mitigating evidence during the penalty phase. Specifically, Appellant contends that, because of counsel’s ineffectiveness, the jury did not hear complete evidence of the following: (i) the pervasive and extensive physical and sexual abuse to which Appellant had been subjected, as well as his family history of dysfunction and impairment; (ii) Appellant’s history of drug and alcohol addiction and abuse; (iii) the extensive abuse and violence that Appellant had suffered at the hands of his brother Dustin; (iv) the mental health history of Appellant’s family; and (v) Appellant’s own mental health problems. Appellant alleges that counsel’s investigation and presentation of the above mitigating circumstances were deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he was therefore deprived of his Sixth Amendment right to counsel. We first summarize the relevant general legal principles, and then address each of Appellant’s sub-issues below.
Appellant raised a similar claim in his collateral appeal of his Schuylkill County first-degree murder conviction. In denying this prior claim, we reiterated the following principles regarding counsel’s duty to investigate evidence of a defendant’s mitigating circumstances:
It is well established that capital defense counsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary. In the context of the penalty phase, trial counsel has an obligation to conduct a thorough investigation of the defendant’s background, particularly with respect to the preparation and presentation of mitigation evidence. [T]his obligation includes the duty of penalty phase counsel to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. The reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation. At the same time, counsel’s obligations do not require an investigation into every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.
Spotz V, 896 A.2d at 1225 (internal quotation marks and citations omitted).
In addition, we have made clear the following:
The reasonableness of counsel’s investigation and preparation for the penalty phase, of course, often depends critically upon the information supplied by the defendant. Counsel cannot be found ineffective for failing to introduce information uniquely within the knowledge of the defendant and his family [that] is not provided to counsel.
Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 45—46 (2002) (internal citations omitted); see also Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 944 (2001) (concluding that counsel could not be found ineffective for failing to present evidence of the appellant’s history of abuse where appellant and his family failed to reveal such history during their consultations with counsel).
We have been careful to note that “different light falls upon counsel’s performance depending upon whether [counsel] asked and was not told, or [alternatively, whether counsel] did not ask and therefore was not told.” Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 735 (2000).
Appellant’s first sub-issue in Issue 14 is that counsel was ineffective for failing to investigate and present sufficiently detailed and corroborating evidence of the pervasive sexual and physical abuse that Appellant had suffered, as well as his family history of dysfunction and impairment. Appellant’s Brief at 44-48, 50-51. During the penalty phase, numerous family witnesses testified as to the chaotic, abusive, violent, deprived, and dysfunctional environment in which Appellant was raised; in addition, Dr. Ragusea, a psychologist expert witness who had conducted a psychological assessment of Appellant, reinforced much of this family testimony. See infra (describing testimony in more detail). Nonetheless, Appellant now contends that, if his physical and sexual abuse and his family history of dysfunction and mental illness had been addressed more extensively and presented in more detail, it would likely have swayed the jury toward mitigation. In support of his contention, Appellant cites, inter alia, the PCRA testimony of his maternal grandmother, J.R., wherein she provided graphic detail of some incidents of sexual abuse inflicted upon Appellant.
The PCRA court recognized the extensive efforts that penalty phase counsel, Mr. Andrews, had taken with regard to mitigation, and determined that neither Appellant nor Ms. R. had ever suggested to counsel the full extent of the family dysfunction or of the physical and sexual abuse to which she testified at the PCRA hearing. The PCRA court cited Bracey, supra, for the principle that counsel cannot be deemed ineffective for failing to present evidence of abuse that a defendant and his family failed to reveal to counsel. PCRA Opinion at 42-43. In addition, the PCRA court concluded that Ms. R.’s PCRA testimony differed from her penalty phase testimony only in “a matter of degree,” and held that Appellant had failed to show how he was prejudiced by the jury’s failure to learn of the entirety of the abuse to which Ms. R. had testified at the PCRA hearing. We conclude that the record supports the PCRA court’s conclusions, as discussed below.
At the PCRA hearing, Attorney Andrews testified as follows regarding the numerous investigative activities relevant to possible mitigation factors that he undertook on behalf of Appellant. The various attorneys for Appellant’s three capital cases shared responsibilities for the investigation of his back- ■ ground for mitigation purposes. N.T. PCRA Hearing, 5/10/07, at 122. Attorney Andrews had responsibility for the investigation of Appellant’s life story, and he hired, as assistants, a local investigator; a retired state trooper; and a forensic psychologist, Dr. Ragusea, who interviewed Appellant, reviewed numerous records, and prepared a forensic psychological assessment. Id. at 123; Forensic Psychological Assessment of Appellant by Stephen A. Ragusea, Psy.D., assessment dates 11/20/95 and 12/12/95. Attorney Andrews met with Appellant as soon as he was able to do so, conducting and recording two long interviews, which focused on Appellant’s life story; with this information, counsel tried to construct Appellant’s life chronology and looked for significant mitigation witnesses. N.T. PCRA Hearing, 5/10/07, at 129; and 5/11/07, at 26. Attorney Andrews also corresponded with Appellant on an ongoing basis. N.T. PCRA Hearing, 5/11/07, at 26-27. In addition, Attorney Andrews sought institutional records. He obtained records from Appellant’s elementary school, which led to a discussion with one of Appellant’s teachers, and from Children and Youth Services (“CYS”), which led to his procurement of mental health records. N.T. PCRA Hearing, 5/10/07, at 129-30,138-42.
With regard to Ms. R., Attorney Andrews testified during the PCRA hearing that she was “actively participating” and “very helpful [and] anxious to help,” in the investigation of mitigation factors. Id. at 159-60; N.T. PCRA Hearing, 5/11/07, at 38. Although he did not recall if she had told him that Appellant had been sexually abused, he understood her to be quite forthcoming and had no sense that she was withholding information. N.T. PCRA Hearing, 5/10/07, at 159-60; and 5/11/07, at 38-39. Attorney Andrews further testified that he had recorded a “pretty long” interview with Ms. R. at her home and had spoken with her on other occasions; in addition, his investigator also spoke with her as necessary. N.T. PCRA Hearing, 5/11/07, at 38, 75, 77. Attorney Andrews’s testimony concerning his interactions with Ms. R. flatly contradicted Ms. R.’s testimony that counsel had not visited or conversed with her prior to her courtroom testimony. N.T. PCRA Hearing, 1/17/07, at 61.
During the penalty phase of Appellant’s trial, Attorney Andrews presented fourteen witnesses and focused on Appellant’s abysmal upbringing and its effects on his mental state. We summarize the most relevant portions of the penalty phase testimony in the next few paragraphs.
Appellant’s maternal grandmother, Ms. R., testified regarding Appellant’s chaotic upbringing, which was characterized by numerous relocations, in-state and out-of-state; periods of institutionalization at various children’s homes and foster homes; a largely absent, often jailed biological father and two abusive stepfathers; and dilapidated living conditions. N.T. Penalty Phase, 5/16/96, at 1645-80 and 1743-53. When asked why she had not maintained custody of Appellant herself, she testified that “the mother and stepfather wanted the kids with them at certain times. It brought in assistance money.” Id. at 1752. In addition, Ms. R. testified as to the abuse she observed against Appellant, his brother, and mother at the hands of the children’s stepfathers; in particular, she testified that the children had been whipped so severely that they could not sit down or go to school for three days. Id. at 1744-47.
J.N., Appellant’s mother, also testified as to the household environment in which Appellant grew up. She testified that Appellant’s first stepfather, B.B., “stopped associating” with Appellant and his brother Dustin after Mr. B.’s biological son died and Dustin was blamed. Id. at 1802-03. She testified that she and her sons were abused by Mr. B., who hit the children, locked them in their bedrooms after supper and through the night, and burned Dustin’s hand with a book of matches. Id. at 1803-04. She also testified that Appellant’s second stepfather, Darrell N., showed her young sons a marijuana cigarette and had them smoke it. Id. at 1809-10. She testified that Dustin had cut Appellant -with a knife several times, id. at 1815-16, and gave the following further detail as to Dustin’s childhood abuse of Appellant:
Defense Counsel Andrews: Were there other times when there was violence between [Appellant and Dustin]?
Ms. N.: Oh, yeah. Basically, [Appellant’s] whole life Dustin was beating up on him, hurting him. When [Appellant] was — it was in 1974, ... [Appellant] was a little over three, almost four years old, and he had rheumatic fever, and he was trying to slide down the step on — we .lived in a two-story house, and he was trying to slide down the steps on his bottom. And Dustin kicked him down the steps. [Dustin] stabbed [Appellant] in the back with a pencil. He had stabbed him in the arm with pencils. He sat at the dinner table and would pick up his fork, and out of absolutely nowhere, jump up and reach across the table and nail [Appellant] in the back of the arm with a fork, or whatever part of his body he could attack him with, [sic] would poke him with something. Anything he had in his hands really. He used Chinese stars. He used broomsticks.
Defense Counsel Andrews: All right.
Ms. N.: [Dustin] pulled [Appellant] out of a tree the one time. Said — he moved the ladder so [Appellant] couldn’t get down. [Appellant] was short. Dustin was tall. And [Appellant] couldn’t reach the ground. And Dustin says, here, I’ll help you, give me your hand. And he just yanked him right down out of the tree. And [Appellant] landed on his chest with the wind knocked* out of him. And it was just — another time he put [Appellant’s] head under his arm, against his ribs, and rammed his head right into the wall in the living room, and put a great big hole in the wall, with [Appellant’s] head. Another time he picked him up and he pile[-]drived him on the living room floor a couple times.
Id. at 1817-18.
Other family members were also called as defense witnesses. L.P., Appellant’s great-aunt, testified that she and her husband adopted Appellant’s half-sister A. as a toddler. Ms. P. had decided to adopt the child after she visited the household and found the conditions deplorable, with no food and little supervision. Id. at 1753-58. N.D., Appellant’s cousin and babysitter, testified that conditions in the household were “disgusting,” with little food and a poor environment. Id. at 1770-72. C.D., Appellant’s great-aunt, testified that, for a short time when Appellant was a young teenager and his mother did not want him, he lived with her and her family; however, the D. family was unable to maintain Appellant in the household because of his behavioral problems. Id. at 1775-82.
Molly Muir, an administrator for Clearfield County CYS, testified as to the extensive involvement of that agency with Appellant’s family, as revealed through agency records. According to agency reports that Ms. Muir read into the record, Ms. N., Appellant’s mother, was depressed and lonely; had severe emotional problems, including a complete emotional breakdown in 1975 and threats of suicide; and at one time, had invited two young men that she had met at a bar to stay with her in the trailer she shared with her children. The caseworker’s report concluded that it seemed best to take seriously Ms. N.’s suicide threats and the possibility of her being a danger to herself or her children. Id. at 1687-89, 1691. Ms. N. indicated that she had married the father of Appellant and Dustin because he had threatened her and her family. Id. at 1689-90. According to other agency reports, Ms. N. had had a brief and stormy marriage with her sons’ father, did not want or love either of her sons, and did not look at Appellant for two days after he was born. She recognized that both sons had severe behavioral problems, which she attempted to address by yelling at them. Id. at 1690-91. Ms. N.’s second marriage, to B.B., was also stormy. Id. at 1691. Based on continuing agency reports, Ms. Muir further testified to an incident in 1977 in which, because Ms. N. had said that she never wanted to see her sons again, a caseworker had picked up Appellant and his brother Dustin at school and had placed them in a children’s home. Id. at 1693. Shortly thereafter, Ms. N. partially changed her mind, still wanting no contact with her sons, but forbidding adoption and instead wanting her mother to raise them. Id. at 1694-95. The children were released into the care of their grandmother, but subsequently they moved back into their mother’s home. Then, in 1983, as a result of “severe family dysfunction,” Appellant was admitted to the Children’s Aid Society; Appellant claimed that he had been beaten and mentally abused at home, although he also stated that he missed his family and wanted to maintain some contact with them. Id. at 1700-01. Appellant was placed in several foster homes, but because of his severe behavioral problems, the placements were short-term. Ms. Muir also testified as to CYS’s involvement specifically with Appellant’s brother Dustin Spotz. Id. at 1703-06, 1717-20, 1722-25. Dustin consistently made reports of abuse in the home, and he was involuntarily committed to hospital in 1982 after holding Appellant at knife-point. Id. at 1718, 1720.
Dr. David G. Thompson, a licensed psychologist at the Milton Hershey School, where Appellant and his brother Dustin were enrolled for a short time in 1984, testified that, during a pre-admission interview, Appellant reported a psychologically and physically abusive home life. Id. at 1784-88.
Psychologist Dr. Ragusea also testified during the penalty phase as to the deplorable environment in which Appellant had been raised, reinforcing the testimony of the family witnesses. Some excerpts of Dr. Ragusea’s testimony are as follows:
But let me go through some realities here. And that is that [Appellant] had an awful childhood and an awful adolescence .... he lived in something like twenty-three different places, he went to eleven different [ ] public schools and specialized schools before he finally dropped out in eleventh grade. He was abused. At the very least, we have evidence for physical abuse. He also contends he was sexually abused by his brother, by his stepfather, and by others. In addition to all of that, we know that he was neglected for long periods of time. We know that his mother vacillated back and forth, based upon the records, from saying I hate this child, take him away from me, I don’t love him, I have never loved him, I don’t ever want to see him again; to saying, all of you people in the Children’s Services Agency are bad people screwing up my family, stay out of my life and I will take care of my kid. Bring him back to me. And so the kid went back and forth, back and forth, between his mother and something like a dozen different other people and institutions at various times.
N.T. Penalty Phase, 5/16/96, at 1871-72.
[Appellant] was vulnerable from the beginning. From the very beginning, he was vulnerable to violent behavior due to, one, a poor early environment, as we have already described, as you have heard about in this trial, neglect and abuse throughout his life.
Id. at 1877.
Based upon my review of the records, what we have is an incident wherein [Appellant’s] hand was held on a burner of a stove. And his hand was severely burned on that stove.
And then what happened was Children’s Services was brought in to investigate it. The children then said, no, that didn’t happen. That isn’t really what happened. This was some time later.
That is common with children who have been abused. Then what happened was interviews were conducted later on with people who said they had spoken with the perpetrator of the abuse, and he had confirmed that he had indeed done it. So that is what I am looking at in terms of confirmatory evidence of severe abuse.
Id. at 1890-91 (footnote added).
The difficulty in this situation was the kids [Appellant and Dustin] were never returned home because the situation had improved in the home. The kids were returned home because the mother wanted them there.
And even though the Children’s Services Agency knew that those horrible conditions continued to exist, the judge insisted on returning the kid[s] to the home. And that never should have been done. In fact, it was done against the advice of the Children’s Service agencies. And that is a fact.
Id. at 1893.
By offering the extensive mitigation testimony summarized above, Attorney Andrews presented a picture of Appellant’s chaotic, dysfunctional family environment, in which his mentally ill mother and absent or abusive father figures could provide neither life’s basic necessities nor love and emotional support to their children. In the testimony, a home atmosphere not simply of neglect, but also of violence and abuse was apparent. Despite the extensive evidence summarized above, Appellant argues that had his counsel presented even further details and more examples of abuse, of whatever nature, it is likely that the jury would have attributed determinative weight to mitigation circumstances and not imposed the death penalty. We agree with the PCRA court that Appellant’s argument is unconvincing and ultimately unavailing. As he did in Spotz V, 896 A.2d at 1226-30, Appellant simply labors under the mistaken notion that if only the jury had more details and more data regarding his upbringing, it would not have returned a death sentence. In addition, we also agree with the PCRA court that Attorney Andrews cannot be held ineffective for failing to uncover details and instances of abuse that Appellant and his family failed to disclose. Accordingly, Appellant’s allegations of penalty phase counsel’s ineffectiveness for failing to investigate and present sufficient evidence of abuse and family dysfunction and impairment have no merit.
In the second sub-issue under Issue 14, Appellant asserts that counsel was ineffective for failing to develop and present further evidence of Appellant’s drug and alcohol addiction and abuse. Although Dr. Ragusea testified that Appellant suffered from polysubstance abuse, Appellant now argues that counsel was ineffective for failing to present additional evidence of his drug use and addiction, including testimony from family members and other witnesses, CYS and child placement records, and court records of his prior offenses. Appellant’s Brief at 49. The PCRA court rejected Appellant’s claim, noting that Linda Spotz, Appellant’s wife, testified that Appellant had a problem with drugs, smoked marijuana, used LSD and crack, drank beer, and was very different when he was using drugs. PCRA Court Opinion at 39; N.T. Penalty Phase, 5/16/96, at 1847-48.
We agree with the PCRA court that Appellant’s claim has no merit. Dr. Ragusea testified that Appellant’s diagnosis of polysubstance abuse meant that he had “abused a whole lot of different substances, marijuana, cocaine, hashish, alcohol, all those different things.” N.T. Penalty Phase, 5/16/96, at 1879. Dr. Ragusea and Ms. N., Appellant’s mother, both testified that Appellant was introduced to marijuana at the age of seven by his stepfather. Id. at 1809-10, 1877. Dr. Ragusea further testified that Appellant grew up in a home in which drugs were commonly used, bought, and sold. Id. at 1877.
Attorney Andrews was questioned by Appellant’s counsel regarding this issue at the PCRA hearing, which we excerpt, in part, below:
Defense PCRA Counsel: Mr. Andrews, you previously testified that ... you would have wanted to present evidence from lay witnesses that would support Dr. Ragusea’s diagnoses. With respect to Dr. Ragusea’s diagnosis of polysubstance abuse, would you have wanted to present as much evidence as was available of [Appellant’s] history of drug abuse?
Mr. Andrews: There’s limits as to how much you would put on. I mean, once you believe a fact is established you don’t just keep putting on more evidence that’s cumulative in nature. I don’t know that there was any dispute that [Appellant] had a history of substance abuse.
N.T. PCRA Hearing, 5/11/07, at 18.
We will not conclude that Attorney Andrews was ineffective for failing to present additional, cumulative evidence of Appellant’s drug use and addiction. See Spotz V, 896 A.2d at 1231 (holding that Appellant was not prejudiced in one of his other trials by the failure of counsel to present merely cumulative evidence).
In his third sub-issue, Appellant contends that counsel was ineffective for failing to investigate, develop, and present evidence of the lifelong history of violence perpetrated by Dustin Spotz against Appellant and other family members, as revealed in Dustin’s psychiatric records, CYS reports, and criminal history. Appellant’s Brief at 51-52 & n. 65. Appellant argues that if the full extent of Dustin’s violence and its effect on Appellant’s mental state had been presented, the jury would have given mitigating circumstances more weight and not imposed the death penalty. Contrary to Appellant’s assertions, the jury heard considerable evidence as to Dustin’s abuse of and violence toward Appellant.
At least three witnesses testified in the penalty phase regarding Dustin’s abuse of Appellant and/or the effect of Dustin’s violence on Appellant. Ms. N., Appellant’s and Dustin’s mother, testified in detail, with numerous chilling examples, as to Dustin’s gratuitous childhood violence against Appellant. See excerpts of notes of testimony, supra. In addition, during the guilt phase of trial, Ms. N. testified as to the events that took place in her home on the night of Dustin’s death. N.T. Trial, 5/14/96, at 1170-1206. She testified that Dustin was in a rage, had threatened Appellant, and had stabbed him in the back with a steak knife and a butter knife. Id. at 1186. She further testified that Dustin had hurt both her and Appellant numerous times in the past, once stabbing Appellant in the hand so severely that stitches were required. Id. at 1228-29.
Molly Muir, the CYS administrator, also testified during the penalty phase as to Dustin’s violent episodes, including one where he held Appellant at knife-point. N.T. Penalty Phase, 5/16/96 at 1720. In addition, Ms. Muir testified as follows regarding Appellant’s relationship with Dustin and its effects on Appellant:
[Appellant] was torn between his allegiance to his brother, Dustin, and his interest in his family.
[Appellant] also tended to be drawn in by Dustin’s behaviors, being the follower and defender in this sibling relationship.
The last runaway [from a children’s home] took place on October 24, 1983, when [Appellant] left with his roommate and brother.
When Lynn Washburn and Bill Inglefritz were called to St. John’s Lutheran Church to pick up the boys, it was necessary to restrain Dustin because of his aggressive behaviors. This is when [Appellant] most clearly displayed his difficulty in determining allegiance. He kept asking Bill to let Dustin go while [Dustin] was being restrained, but became upset with Dustin because he was telling [Appellant] to kick Lynn, who was pregnant, and, quote, kill the baby. [Appellant] pleaded with Dustin to stop saying such things, and eventually became so angry that he kicked Dustin in the side. During this whole incident, ... [Appellant] fluctuated between support and abhorrence of [Dustin’s] behavior. It seemed that [Appellant] was losing his own identity and values because of his fear of letting [Dustin] down.
N.T. Penalty Phase, 5/16/96, at 1701-02; see also id. at 1706.
Dr. Ragusea suggested that Appellant had been sexually molested by his brother. N.T. Penalty Phase, 5/16/96, at 1872, 1886. In addition, Dr. Ragusea testified that during the fight that culminated in Dustin’s death, Dustin stabbed Appellant in the back two times, leading Appellant to conclude that he was “in a fight to the death.” Id. at 1878.
The testimony presented thus established that the relationship between Appellant and his brother Dustin was, from early childhood, volatile, violent, and abusive. Appellant’s contention that counsel was ineffective for failing to offer yet additional evidence in the form of Dustin’s psychiatric records, CYS reports, and criminal history, is meritless. Such evidence would have been merely cumulative of the testimony presented with regard to the matter of Dustin’s abuse of and violence toward Appellant.
In his fourth sub-issue of Issue 14, Appellant alleges that counsel was ineffective for failing to investigate Appellant’s family history of mental illness, which, Appellant argues, not only was “independently mitigating,” but also directly affected Appellant’s “susceptibility for mental illness.” Appellant’s Brief at 50. Appellant cites in particular the various diagnoses of mental illness given to his biological father; mother, Ms. N.; and brother Dustin as “relevant and material to the jury’s consideration of mitigation.” Id. at 51.
Appellant ignores the substantial penalty phase evidence presented as to the family history of mental illness. Molly Muir, the CYS administrator, testified that Ms. N. had severe emotional problems, including a complete emotional breakdown in 1975, for which she received psychiatric care; had experienced depression over a long period of time; and had threatened suicide. N.T. Penalty Phase, 5/16/96, at 1687-89, 91. Ms. Muir also testified as to Dustin’s mental health problems, including his uncontrollable behavior, anger and resentment, aggression, and threats of self-harm. Id. at 1703-06, 1717-18; see also swpm, excerpts of Ms. Muir’s testimony. Dustin’s violent behavior was well documented before the jury. The reports Ms. Muir read into the record indicated that Dustin asked the caseworkers to hit him instead of talking to him. Id. at 1705. On several occasions, Dustin had grabbed a sharp object and threatened to slit his wrist or hurt someone else, requiring crisis intervention and physical restraint. Id. at 1723-25. In addition, Dustin had been involuntarily committed to a hospital in 1982 on a crisis basis. Id. at 1719-20. Dr. Thompson, the director of psychological services at the Milton Hershey School, testified that Dustin was subjected to psychiatric evaluation and discharged from the school because of his aggressive, extremely difficult behavior. Id. at 1789-90. Dr. Ragusea testified that, at the time of Appellant’s conception, his father was using “very heavy kinds of drugs,” which research has suggested can affect the genetic material in sperm and result in offspring with neurological syndromes. Id. at 1875.
Appellant provides no argument as to how or why additional evidence as to his family history of mental illness would not have been merely cumulative. In addition, he provides no argument as to how or why additional evidence of his family history of mental illness could possibly have been determinative in the jury’s balance of mitigating and aggravating factors. There is no merit to his assertion that Attorney Andrews was ineffective for failing to present such additional evidence.
Finally, in the fifth and last, and somewhat redundant, sub-issue of Issue 14, Appellant asserts that counsel was ineffective for failing to obtain and consider all available records and evidence of his mental health problems, which incorporated the effects of abuse, neglect, abandonment, drug addiction, and family history of mental illness. More specifically, Appellant asserts that, because his expert witness, Dr. Ragusea, did not have access to all of the records and information regarding Appellant’s background, Dr. Ragusea provided merely “a drop in an ocean of background and collateral data,” and accordingly, presented a “materially inaccurate” picture of Appellant’s life and mental health to the jury. Appellant’s Brief at 52-53. Relying on the PCRA hearing testimony of two psychiatrists, Dr. Neil Blumberg and Dr. Robert A. Fox, Jr., as well as Dr. Ragusea, Appellant argues that, had all the evidence relevant to his background and history been considered, “additional, more significant mental health diagnoses” would have been rendered. Id. at 54. These “more significant mental health diagnoses” would, Appellant argues, have tipped the balance in favor of mitigating circumstances during the jury’s deliberations. Id. at 54-55.
The PCRA court denied relief. First, the PCRA court pointed out that, to the extent the records challenged in this issue were allegedly incomplete and inadequate CYS institutional records regarding Appellant and his immediate family, the matter had also been raised in the collateral appeal of Appellant’s Schuylkill County first-degree murder conviction. See Spotz V, 896 A.2d at 1230-31. In Spotz V, this Court concluded that Appellant had not been prejudiced by the allegedly incomplete records, because any additional records would have been merely cumulative and redundant. Id. at 1231. Similarly, in the instant case, the PCRA court concluded that Appellant was not prejudiced by Dr. Ragusea’s lack of access to all the records and other evidence relevant to Appellant’s background. The PCRA court carefully compared the various mental health diagnoses that Appellant had received, both at the time of trial and for purposes of collateral review, when the additional records were brought forth. The PCRA court determined that the differences in the diagnoses were not prejudicial and would not have altered the outcome of the penalty phase, particularly in light of the substantial evidence supporting the three aggravating factors found. See PCRA Court Opinion at 45-46. The PCRA court’s conclusions are supported by the record, and we will not disturb them, as explained below.
At the PCRA hearing, Dr. Ragusea explained in general terms the significance of the additional records and other evidence regarding Appellant’s background as follows:
[We now] have much more information in general both from [Appellant] and collateral sources about his condition and the condition of the family for many years, and as a result, there’s a greater level of specificity that I didn’t have [at trial].
In addition, the information that is derived from all that more specific information is more profoundly disturbing and suggests more severe family dysfunction, more severe abuse, more severe inappropriate sexual activity.
N.T. PCRA Hearing, 1/18/07, at 142.
Thus, by Dr. Ragusea’s own words, the additional records and information merely allowed him to be more specific about Appellant’s condition and suggested a greater degree of dysfunction and abuse; however, there is no indication from Dr. Ragusea’s testimony that the additional records and information led to any substantially new insights or qualitative change in his opinions.
Dr. Ragusea then explained more specifically how he had modified his diagnoses of Appellant based on the additional records and information. At the time of trial, Dr. Ragusea testified that he had diagnosed Appellant with the following mental health disorders: attention deficit hyperactivity disorder; polysubstance abuse, involving marijuana, cocaine, hashish, alcohol; post-traumatic stress disorder, from the trauma of Dustin’s killing; and mixed personality disorder, with features of borderline personality, antisocial behavior, and schizotypal personality. PCRA Court Opinion at 34-35; N.T. Penalty Phase, 5/16/96, at 1877-81 and 83-84. After reviewing additional records and other evidence regarding Appellant’s background at the request of PCRA counsel, Dr. Ragusea modified his diagnoses in two ways: (1) the old diagnosis of mixed personality disorder with features of borderline personality, antisocial behavior, and schizotypal personality was replaced with “a specific personality disorder, such as schizotypal personality disorder, simply because [there] now is some evidence that [Appellant] was hallucinating and delusional at various points and that that also occurred in family members.” N.T. PCRA Hearing, 1/18/07, at 142; and (2) the old diagnosis of post-traumatic stress disorder was replaced with chronic posttraumatic stress disorder, of many years’ duration, and induced, not just by Dustin’s killing, but more generally by the violence and abuse Appellant had habitually suffered in his family life. Id. at 145-46.
While we do not minimize the potential significance of the revised diagnoses to trained psychologists or psychiatrists involved in mental health treatment, we can locate nothing in the record to suggest that the revisions would have been determinative in the deliberations of the jury. We agree with the PCRA court that Dr. Ragusea’s revised diagnoses on collateral appeal constitute no prejudice to Appellant because he has not established that the revisions would have caused the jury to weigh differently the mitigating versus aggravating circumstances. See PCRA Court Opinion at 45.
Dr. Ragusea also testified both at trial and at the PCRA hearing as to the statutory mitigators, 42 Pa.C.S. §§ 9711(e)(2) and (e)(3). With regard to subsection (e)(2) (“The defendant was under the influence of extreme mental or emotional disturbance”), Dr. Ragusea testified at trial that Appellant met this mitigating circumstance. N.T. Penalty Phase, 5/16/96, at 1882. At the post-conviction hearing, Dr. Ragusea testified that, based on the additional information he had received, he could testify to this mitigating circumstance “with a much greater degree of certainty now because the emotional disturbance was far greater and far bigger than that was — that was related to that single incident with his brother. [Appellant’s] level of emotional disturbance was broader, deeper, more severe than I had an appreciation for based upon the evidence that I had available to me at the time [of trial].” N.T. PCRA Hearing, 1/18/07, at 149-50.
With regard to subsection (e)(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”), Dr. Ragusea testified at trial as follows:
Dr. Ragusea: I believe that [Appellant] could have conformed his conduct to the law if he chose to. I think, but I am not certain.
And the reason for that has to do with the fact that [Appellant] told me that he did not commit these murders. And, therefore, anytime I asked him what was it like at the time of the murder, what were you thinking, he said, I was unconscious behind the driver, and I was lying in the back seat of the car. So, as far as I was concerned, I couldn’t explore that area really at all. But, in general, my answer is I couldn’t tell.
Defense Counsel: Let me just get back to ... the ability to conform his conduct to the law, and you said you really don’t have an opinion on that because he had always told you — he didn’t give you enough information that you could make a determination?
Dr. Ragusea: That is correct.
Defense Counsel: If you assume as a hypothetical that [Appellant] committed this offense in the fashion that he is charged, are you able to say whether your findings on the first mitigating circumstance, about being subject to an extreme mental or emotional disturbance, would bear upon his ability to conform his conduct to the law?
Dr. Ragusea: Yes, it might have. It could have impacted him adequately so he would have trouble doing it.
N.T. Penalty Phase, 5/16/96, at 1882-84.
At the PCRA hearing, Dr. Ragusea testified regarding the subsection (e)(3) mitigator as follows:
Dr. Ragusea: The other issues involved include the fact that one of the things these additional records do is they show me that this then-young man was brought up in a home in which he was taught abhorrent behavioral standards. He was taught that violence, degradation, humiliation, life-threatening actions were all normal. It was part of every day family life.
Now, within that context, I don’t know if he understood how wrong it was to do the things that he was doing within the framework of our sense of morality and our understanding of the law.
Defense Counsel: So then let me refer you to the first clause of [mitigator (e)(3) ], the capacity of the defendant to appreciate the criminality of his conduct,....
Based on what we know with the augmented records and the extent of[,] as you characterized^] abuse and degradation and humiliation];,] and the fact that it continued throughout his entire life, can you today render an opinion to a reasonable degree of psychological certainty as to that first clause there?
Dr. Ragusea: Given that it is impossible for us to be inside somebody’s head, there are limits to what we can conclude. But to the degree that psychologists can make such a determination, yes, within a reasonable degree of psychological certainty I can say that [Appellant] did not have the capacity to appreciate the criminality of his conduct.
N.T. PCRA Hearing, 1/18/07, at 152.
Appellant has failed to establish that it was prejudicial for the jury not to hear Dr. Ragusea’s modified opinions regarding the two statutory mitigating factors of subsections 9711(e)(2) and (e)(3). The modifications in Dr. Ragusea’s opinions are subtle, largely a matter of degree or emphasis. As with the revised mental health diagnoses, nothing in the record suggests that the subtle modifications in Dr. Ragusea’s opinions as to the statutory mitigators would have led the jury to give determinative weight to mitigating circumstances and thus spare Appellant the death penalty.
Because none of Appellant’s multiple claims of ineffective assistance in issue 14 has any merit, Appellant is entitled to no relief.
15. Department of Corrections Mental Health Reports
In Issue 15, Appellant asserts a violation of Brady v. Maryland and ineffective assistance of counsel, both grounded in the failure of the Department of Corrections to provide two reports of a mental health evaluation of Appellant conducted by prison health care personnel in January 1996. Appellant contends that one of these documents constituted mitigation evidence because it indicated that he would adjust well to prison life; in addition, Appellant contends that the documents provided support for a “diminished capacity/emotional disturbance defense,” as well as for a finding that Appellant was not competent to waive counsel. Appellant’s Brief at 57-59.
The PCRA court made the following findings of fact with regard to this matter. See PCRA Court Opinion at 46. When defense counsel Andrews sought Appellant’s mental health records from the Department of Corrections, the Department informed him that such records would not be released without a court order. See N.T. PCRA Hearing, 5/10/07, at 160-64; Letter to Mr. Andrews from Ben Livingood, Corrections Superintendent Assistant, dated 11/13/95 (Petitioner’s Exhibit 82). Knowing that the Office of the Public Defender in York County was seeking the same records, Attorney Andrews deferred to that office. The Department of Corrections sent Appellant’s psychological/psychiatric records, noting that they were compiled prior to his incarceration for murder, to the York County public defender on February 21, 1996. These records, which dated from Appellant’s 1990 incarceration for robbery, simple assault, burglary, and conspiracy, were forwarded from York County to Attorney Andrews on February 23, 1996. Subsequently, PCRA counsel discovered two additional documents, which summarized Appellant’s mental health evaluation by prison personnel on January 31, 1996, but which apparently had not been sent to counsel.
The PCRA court concluded that counsel was not ineffective for not re-requesting Department of Correction records immediately before trial; in addition, the PCRA court noted that there was no evidence that Appellant had told counsel that he had been evaluated by prison mental health professionals. Finally, the PCRA court recognized that Appellant had raised, and this Court had rejected, a similar issue in the collateral appeal of Appellant’s first-degree murder conviction in Schuylkill County. PCRA Court Opinion at 47 (citing Spotz V, 896 A.2d at 1237). In Spotz V, we denied relief on this issue, based on the speculative nature of the documents’ assessment of Appellant’s future adjustment to prison life and on Appellant’s failure to demonstrate prejudice. Spotz V, 896 A.2d at 1237. The same conclusion applies here, and thus we affirm the PCRA court’s ruling on this issue.
We consider first the content of the two documents at issue. The first document is a psychological evaluation of Appellant, conducted by Franklin P. Ryan, Ph.D., the chief psychologist for the Department of Corrections, on January 31,1996, which was a year after Appellant’s crime spree and shortly before his murder trials. Psychological Evaluation, conducted by Dr. Ryan, dated 1/31/96 (Petitioner’s Exhibit 84) (hereinafter “Ryan Report”). The evaluation was apparently prompted by Appellant’s complaints to prison personnel of decreased sleep, hallucinations, and depression. Psychiatry Department Referral Form, referred by Cynthia M. Crowell, dated 1/29/96 (Petitioner’s Exhibit 34). The Ryan Report included, inter alia, the following findings: Appellant had a verbal IQ in the “bright normal range;” he had a “markedly deviant” Minnesota Multiphasic Personality Inventory profile; he described his family as “critical, quarrelsome, lacking in love, understanding] or support;” he was isolated, alienated, lonely, unhappy, generally obnoxious, and immature, and viewed himself as misunderstood and a failure; he had demonstrated aggression towards others and admitted to having impulses to do something harmful and shocking. Ryan Report at 1-2. The report also suggested the following “Diagnostic Impressions”: (1) adjustment disorder with anxious mood; (2) personality disorder, severe, mixed, with features of passive-aggressive, passive dependent, narcissistic, antisocial; (3) polysubstance abuse/dependence, in remission; (4) problems with legal system. Id. at 2-3. Finally, under “Recommendations,” the report stated the following: “[Appellant] eventually will adjust well to prison life. It provides him with a structure, limits, and guidelines. It will meet his dependency strivings, and won’t tolerate his acts of aggression. He is bright and can be trained at a prison trade. During the next year, however, while his cases are being heard and decided, he must be held in closer custody for the safety of those around him.” Id. at 3.
The second document, authored by Department of Corrections psychiatrist Frederick R. Maue, and also dated January 31, 1996, is extremely short and informal, comprising only a few handwritten notations. According to the notations, Dr. Maue saw Appellant, who claimed to have felt better after meeting with Dr. Ryan, slept well, and had fewer flashbacks and nightmares. Psychiatry Department Referral Form, completed by Frederick R. Maue, M.D., dated 1/31/96 (Petitioner’s Exhibit 34) (hereinafter “Maue Notes”). The Maue Notes do not mention any diagnosis or potential for adjustment to prison life.
For his argument as to the relevance of these documents to the penalty phase of trial, Appellant relies on Skipper v. South Carolina, 476 U.S. 1, 4, 7 & n. 2, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Skipper, the United States Supreme Court held that the state court had committed constitutional error by excluding, from a capital sentencing hearing, testimony proffered by the defendant regarding his good behavior in prison during the time between his arrest and trial. The high Court concluded that it was a “not undesirable element of criminal sentencing” for the jury to consider “a defendant’s past conduct as indicative of his probable future behavior.” Id. at 5, 106 S.Ct. 1669. Relying on its prior holding that a sentencing court “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” the high Court concluded that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.” Id. at 4, 106 S.Ct. 1669 (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (emphasis in original)) and 7, respectively.
In the instant case, Appellant submits that his counsel was ineffective for not proffering, as mitigation evidence under Skipper, the projection in the Ryan Report that Appellant “eventually will adjust well to prison life.” Ryan Report at 3. Appellant has failed to establish that, had the Ryan Report and/or the Maue Notes been offered as additional mitigation evidence, there is a reasonable probability that the jury would have decided upon life imprisonment, not the death penalty. Appellant totally ignores the fact that the documents present a far from uniformly positive picture of his personal characteristics, interpersonal relations, and likely future conduct. Although Appellant had been imprisoned for nearly a year when the documents were written, they give little, if any, insight as to his conduct in and adjustment to prison during that time. While the Ryan Report does indeed speculate that Appellant “eventually will adjust well to prison life,” it also mentions several times his aggressive tendencies toward others, and notes the need to maintain him in “closer custody for the safety of those around him” while his cases were being decided. Ryan Report at 3 (emphasis added). There is no reasonable probability that' the jury would have chosen not to sentence Appellant to death based upon the speculative — and largely negative — assessments in the documents at issue. Accordingly, we will not hold counsel ineffective for failing to proffer these documents as mitigation evidence.
Furthermore, we will not hold counsel ineffective for failing to proffer these documents as guilt phase evidence in support of a diminished capacity defense or of Appellant’s incompetence to waive counsel. The documents provide absolutely no insight as to Appellant’s mental state at the time of the offense, the only relevant time for a diminished capacity defense. See Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 237 (2007) (requiring a defendant advancing a defense of diminished capacity based on mental defect to “establish [that he or she] had a mental defect at the time of [the] murder that affected his [or her] cognitive abilities of deliberation and premeditation necessary to formulate specific intent to kill.”). Furthermore, nothing in the documents remotely implies that Appellant did not have the mental capacity to understand the legal proceedings, and thus was not competent to stand trial or to waive counsel. See Starr, 664 A.2d at 1339; Puksar, 951 A.2d at 288. In fact, the Ryan Report constitutes evidence to the contrary, noting that Appellant exhibited a verbal IQ of 118, which placed him in the bright normal range of mental ability. Thus, far from supporting a diminished capacity defense, the documents more logically support Appellant’s competence to stand trial and waive counsel. Accordingly, there is no arguable merit to Appellant’s assertions that counsel was ineffective for failing to offer these documents as evidence during the guilt phase of trial.
Finally, in Issue 15, Appellant asserts a violation of Brady v. Maryland grounded in the failure of the Department of Corrections to produce the documents at issue. Appellant neglects to accompany his assertion with any argument, but it is meritless on its face. To establish a Brady violation, an accused must prove, inter alia, that the evidence allegedly withheld was “material evidence that deprived the defendant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). “Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). For the reasons discussed supra, neither the Ryan Report nor the Maue Notes constitutes “material evidence.” Appellant’s assertions to the contrary are entirely meritless and he is entitled to no relief on his fifteenth issue.
16. Amenability to and Availability of Mental Health Treatment as a Mitigating Factor
In Issue 16, Appellant asserts that penalty phase counsel was ineffective for failing to proffer, as a mitigating circumstance, evidence that Appellant’s mental disorders, including PTSD, were amenable to treatment, and that appropriate treatment for his mental disorders was available to inmates serving a life sentence. Appellant relies on the Department of Corrections mental health documents discussed supra in Issue 15 to support these assertions. Furthermore, he contends that his amenability to and the availability of appropriate mental health treatment should have been considered as additional evidence supporting his favorable prognosis for adjustment to prison life. Appellant’s Brief at 60-61.
Our review of the record reveals no indication that this matter was presented to the PCRA court in a timely enough fashion to preserve it for appeal, and Appellant fails to provide a citation to the record to establish the contrary. See Pa.R.App.P. 2117(c)(4) (requiring “specific reference to the places in the record where the matter appears ... as will show that the question was timely and properly raised below so as to preserve the question on appeal”); see also Pa. R.App.P. 2119(e). The matter was first raised in Appellant’s motion for reconsideration, which was filed on July 21, 2008, nearly a month after the PCRA court had issued its opinion and order denying all of Appellant’s claims for relief. There is also no indication from the record that the PCRA court addressed the matter. We conclude that the matter has been waived. See Pa.R.App.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”)
17. Cumulative Effects of Alleged Errors and Ineffective Assistance
Appellant next contends that the cumulative effect of the alleged errors and ineffective assistance warrants a grant of relief, summarily asserting “cumulative prejudice from the combination of court error, improper actions by the prosecution, and deficient performance by counsel at both the trial and appellate stages.” Appellant’s Brief at 92. Comprising only six sentences in total, this claim does not develop any specific, reasoned argument for cumulative prejudice. Appellant merely cites Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009), and Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 670-71 (2008), for the principle that a claim of error based on cumulative prejudice may be viable. The PCRA court denied Appellant’s claim of cumulative effect based on its findings that none of Appellant’s individual claims warrant relief. PCRA Court Opinion at 25, 58.
We have often held that “no number of failed [ ] claims may collectively warrant relief if they fail to do so individually.” Johnson, supra at 532 (quoting Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 617 (2007)). However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit. Sattazahn, supra at 671. When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed. Id.; Johnson, supra at 532 (citing Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705, 709 (1994), for the principle that a new trial may be awarded due to cumulative prejudice accrued through multiple instances of trial counsel’s ineffective representation).
We have denied most of Appellant’s claims based on lack of merit, and there is no basis for a claim of cumulative error with regard to these claims. With regard to the few claims that we have denied based on lack of prejudice, see one sub-claim in Issue 9, two sub-claims in Issue 11, and Issue 15, we are satisfied that there is no cumulative prejudice warranting relief. These claims are independent factually and legally, with no reasonable and logical connection that would have caused the jury to assess them cumulatively.
PCRA PROCEEDING
18. DNA Testing of Blood Sample
In Issue 18, Appellant asserts that the PCRA court erred by denying discovery related to the Commonwealth’s handling of a blood sample obtained from Appellant’s right sneaker. At trial, Appellant and the Commonwealth stipulated to a report by Cellmark Diagnostics, a DNA laboratory in Maryland that performed DNA analysis on the blood obtained from the sneaker, as well as on blood obtained from Appellant and his four victims. The DNA analysis excluded Appellant and the first three victims as sources of the blood; however, Betty Amstutz could not be excluded. N.T. Trial, 5/14/96, at 1133-35. Appellant now alleges that the Commonwealth did not employ an independent lab for analysis of the blood from the sneaker, but rather relied on a police lab, which used out-of-date and less reliable testing methods. Appellant further states that, when he sought to re-test the blood from the sneaker, he learned that it had been destroyed, and he alleges that the Commonwealth exercised bad faith in failing to preserve the sample. Appellant’s Brief at 92.
Appellant’s motion for discovery related to these allegations was denied by the PCRA court based on failure to show good cause, particularly in light of the fact that he had stipulated to the DNA report from Cellmark Diagnostics. PCRA Court Opinion at 62. The PCRA court also concluded that no evidence had been offered during the PCRA proceedings to support the allegations that the entire sample had been consumed, or, if it had been consumed, that there had been any way to preserve a portion of the sample. In addition, the PCRA court concluded that there was no evidence of bad faith on the part of the Commonwealth, and no evidence that retesting of the sample could possibly have exculpated Appellant. PCRA Court Supplemental Opinion, dated 8/7/08, at 5-6.
Discovery requests in the context of a PCRA petition in a death penalty case are addressed in Pennsylvania Rule of Criminal Procedure 902(E)(2), which provides as follows:
(2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.
Pa.R.Crim.P. 902(E)(2).
We review the denial of a discovery request in post-conviction proceedings for abuse of discretion. Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 749-50 (2004).
We agree with the PCRA court that Appellant has not come close to making a showing of good cause with respect to his discovery requests related to the analysis of the blood obtained from the sneaker. Appellant fails to mention, much less discuss, Cellmark Diagnostics’ DNA analysis and his stipulation to the resulting report. His assertions of out-dated methods of analysis, destruction of the sample, bad faith on the part of the Commonwealth, and exculpatory nature of the evidence are barely explained and entirely unsupported. Bald assertions, unaccompanied by any supporting evidence, do not constitute a showing of good cause, and we hold that the PCRA court did not abuse its discretion in denying Appellant’s discovery motion. See Bryant, supra at 750 (stating that mere speculation as to possible errors or potentially exculpatory evidence does not constitute good cause under Rule 902(E)(2)).
19. PCRA Court Rulings
In Issue 19, Appellant raises numerous allegations of PCRA court error, including (1) failure to transmit the entire record to this Court for review; (2) preclusion of his proffers of testimony during the PCRA hearing, thereby allegedly preventing him from developing the record; (3) preclusion of much material and relevant evidence, particularly testimony that supported his constitutional claims, and (4) denial of his motion for reconsideration. We address each sub-claim in turn.
In his first sub-claim, Appellant asserts that the PCRA court “transmitted only those PCRA exhibits that were admitted into evidence, but did not transmit other exhibits [that the PCRA court] ruled inadmissible, even though those exhibits relate to issues that are the subject of this appeal.” Appellant’s Brief at 94. Appellant contends that it was error for the PCRA court not to forward to this Court the nineteen exhibits not admitted into evidence. Notably, Appellant does not specifically challenge the PCRA court’s rulings with regard to the admissibility of any of the exhibits at issue, and he does not even explain how any of the exhibits are relevant or material to the issues raised in this appeal. He merely complains that the inadmissible exhibits were not sent to this Court.
It is the duty of the clerk of court to transmit to this Court the record on appeal, including the transcript and exhibits necessary for the determination of the appeal. Pa. R.A.P. 1931(a)(1), (c). As an appellate court, we are “limited to considering only those facts that have been duly certified in the record on appeal.” Commonwealth v. Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). Appellant cites no authority for his implied assertion that inadmissible exhibits properly constitute part of the record on appeal. Furthermore, Appellant was free to challenge on appeal the PCRA court’s evidentiary rulings with regard to the admissibility of any of the exhibits. He has not done so. Indeed, he has not set forth a single argument or citation to authority or legal principle to support the admissibility of any of the exhibits at issue. Appellant’s bald assertion of error in the transmission of the record to this Court is entirely without merit. To remedy the non-existent problem in transmission of the record, Appellant seeks remand — to what end, we have no idea, as no explanation is offered. This sub-claim is frivolous in the extreme.
In his second sub-claim, which comprises three sentences and a footnote, Appellant asserts that he was precluded from preserving and developing the record because the PCRA court precluded his proffers of testimony throughout the PCRA hearing. Appellant’s Brief at 94-95. During the hearing, the PCRA court made clear the reasons for its rulings with regard to the proffers of testimony. Appellant could certainly have challenged these rulings on appeal with proper argument and citations to relevant authority, but for whatever reason, he chose not to do so. Instead, Appellant merely lists, in a footnote, seven citations to the record where the PCRA court allegedly precluded counsel’s proffer of testimony; each citation to the record is accompanied only by a phrase, which purports to summarize the proffer precluded, but which includes no argument as to the court’s alleged error. Id. at n. 124. This sub-claim is completely undeveloped and unreviewable, and, accordingly, it is waived.
In his next sub-claim, Appellant similarly asserts that he was precluded from presenting material and relevant evidence in support of his constitutional claims by the PCRA court’s evidentiary rulings during the hearing. As in the prior sub-claim, no argument and no citations to relevant authority accompany Appellant’s bald assertions of PCRA court error. Appellant merely lists ten general areas in which he contends the PCRA court “precluded” evidence, and adds lengthy footnotes listing citations to the notes of testimony, with each cite accompanied by a parenthetical stating only a short summary of the testimony “precluded.” Appellant’s Brief at 95-98.
Examples are necessary to appreciate the manner in which Appellant has set forth this sub-claim. In the following paragraphs, two of the ten general areas of evidence listed by Appellant, and their accompanying footnotes, are reproduced verbatim:
The PCRA Court precluded ...
evidence regarding the Clearfield incident that counsel should have developed and presented at trial and during the penalty hearing that would have supported Appellant’s mental state defenses for this incident and challenged the prosecution’s aggravation;
Appellant’s Brief at 95-96.
The footnote at the end of this claim is as follows:
See, e.g., PC 1/18/07, 57 (precluding expert testimony about the impact of the Clearfield incident on Appellant’s preexisting impairments; PC 2/22/07, 120-21 (precluding expert testimony about Appellant’s mental state at the time of the Clearfield incident; the decedent’s mental state; and the impact of the Clearfield incident on Appellant’s preexisting impairments).
Id. at 96 n. 127.
Similarly, another general area of evidence cited by Appellant is as follows:
The PCRA Court precluded ...
evidence of Dustin Spotz’s history of violence and abuse both against Appellant and others that was relevant and material to both Appellant’s mental state at, and following, the incident in Clearfield County that counsel was constitutionally obligated to investigate and develop in support of guilt-phase mental state defenses; in order to challenge the prosecution’s aggravation; and in support of penalty-phase mitigation and that counsel was obligated to present to his mental health expert in order to ensure that Appellant received competent, constitutionally required mental health assistance at trial and during the penalty hearing.
Appellant’s Brief at 96-97.
The footnote at the end of this claim is as follows:
See, e.g., PC 1/17/07, 40 (counsel prevented from eliciting evidence of Dustin Spotz’s rages); id. at 176, 181 (precluding Dr. Blumberg from testifying regarding Dustin Spotz’s history); PC 1/18/07, 96-98 (precluding Dr. Fox from testifying regarding Dustin Spotz’s history of sexual abuse and the impact that history had on corroborating Appellant’s allegations that Dustin sexually abused him).
Id. at 97 n. 129.
We emphasize that the above paragraphs from Appellant’s brief are only two examples of Appellant’s ten areas of “evidence” and ten footnotes, which in total fist 51 citations to the notes of testimony. In each of Appellant’s areas of “evidence,” the format is the same as the examples above, which constitute the entirety of Appellant’s “argument.” In no case does Appellant provide the slightest explanation or rationale to support his general claim that he was precluded from presenting evidence.
These are generalized assertions; they are not arguments, much less reasoned and developed arguments supported with citations to relevant legal authority. Appellant’s assertions are not reviewable, and this sub-claim is waived for utter lack of development.
In the fourth sub-claim of Issue 19, Appellant asserts that remand is required in order to permit him to amend his PCRA petition to include certain additional issues raised in his motion for reconsideration. The procedural background of this sub-claim is as follows. On June 26, 2008, the PCRA court filed an opinion and order denying all of Appellant’s claims. On or about July 4, 2008, Appellant, acting pro se, sent a “Letter to the Court,” in which he alleged ineffective assistance of PCRA counsel, sought to remove PCRA counsel and represent himself, requested rescission of the PCRA court’s order denying his petition, and set forth several issues that he wanted the PCRA court to consider. These issues were the following: (1) Appellant’s competency to waive counsel at the time of trial; (2) ineffective assistance of penalty phase counsel based on failure to elicit testimony that there was treatment available in prison for Appellant’s psychiatric disorders, were he to be sentenced to a life term; (3) inconsistent verdict, grounded in the jury’s finding of the subsection 9711(d)(6) aggravating circumstance (murder committed in the course of a felony), but not of second-degree murder; and (4) unnamed statutory deficiencies in the subsection 9711(d)(6) aggravating circumstance.
On July 21, 2008, Appellant’s PCRA counsel filed a motion for reconsideration, seeking to vacate the PCRA court’s order; requesting consideration or reconsideration of the four issues raised by Appellant in his pro se Letter to the Court; and stating that “to the extent that counsel failed to [present any issue of merit or any available evidence in support of a meritorious issue], those failures would have been ineffective.” Motion for Reconsideration, filed 7/21/08, at 3. Notably, PCRA counsel did not unequivocally aver that they provided ineffective assistance with regard to any specific matter, nor did they provide any insight as to the form that their potential ineffectiveness might have taken. Nonetheless, the motion for reconsideration averred that “[t]he appropriate remedy to enforce [Appellant’s] right to effective assistance would be for [the PCRA court] to address the issues presented in [Appellant’s pro se ] ‘Letter to the Court.’ ” Id. On July 25, 2008, days after filing his motion for reconsideration with the PCRA court, Appellant filed the instant counseled appeal to this Court.
There is no indication from the record that the PCRA court specifically addressed Appellant’s motion for reconsideration. However, the PCRA court had already considered and rejected Appellant’s claim that he was not competent to waive counsel at trial. See PCRA Court Opinion at 5-8; see also text, supra (discussion of Issue 2). In addition, the PCRA court, in a supplemental opinion, had considered and rejected Appellant’s claim of an inconsistent verdict based on the jury’s finding of both first-degree murder and the subsection 9711(d)(6) aggravating factor. See PCRA Court’s Supplemental Opinion Pursuant to Pennsylvania Rule of Appellate Procedure 1925, dated 8/7/08, at 1-4; see also text, supra (discussion of Issue 10).
In this appeal, Appellant now seeks remand to “amend” his PCRA petition to include the issues raised in his Letter to the Court and motion for reconsideration, and to allow the PCRA court to consider or reconsider the merits of those issues. Appellant’s Brief at 99. In essence, Appellant seeks to file a second — and untimely — PCRA petition, raising four more issues, at least two of which have already been addressed by the PCRA court. Appellant cites no provision in the PCRA or other statutory or decisional law — undoubtedly because there is no such basis — upon which this Court can grant him the relief he seeks. See Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 524 (2001) (explaining that the practical effect of the legislative scheme of the PCRA as interpreted by this Court is to limit the opportunity for collateral relief in most cases to a single, counseled petition); Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988) (concluding that a second or any subsequent post-conviction request for relief “may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate”). Appellant’s fourth sub-claim is frivolous.
There is no merit to any of Appellant’s numerous claims in Issue 19, and, accordingly, no relief is warranted.
20. Deductions from Appellant’s Prison Account
In his final issue, Appellant contends that deductions by the Department of Corrections from his inmate account were unlawful and unconstitutional because the trial court’s sentencing order did not include an order directing him to pay the costs of prosecution. Appellant now agrees with the Commonwealth that this issue has been resolved and requires no further judicial consideration. See Spotz v. Commonwealth, 972 A.2d 125 (Pa.Cmwlth.2009); Appellant’s Reply Brief at 21.
Having reviewed all of Appellant’s issues and concluding that none has any merit, we affirm the order of the PCRA court denying Appellant’s petition.
Justice EAKIN did not participate in the consideration or decision of this case.
Chief Justice CASTILLE, Justices BAER, TODD, and ORIE MELVIN join the opinion.
Chief Justice CASTILLE files a concurring opinion, joined by Justice McCAFFERY and Part II of which Justice ORIE MELVIN joins.
Justice SAYLOR files a concurring opinion.
[OPINION BY Chief Justice CASTILLE, type=concurrence]
Chief Justice CASTILLE,
concurring.
I join the Majority Opinion in its entirety. I write separately to note and address broader issues implicated by the role and performance of federal counsel in purely state court collateral proceedings in capital cases, such as this one.
Although the sources of the Federal Defender’s funding are not entirely clear or easily ascertainable, the federal courts apparently play a central role in financing these activities in state court through the Administrative Office of Federal Courts. To my knowledge, this policy has been determined and implemented without the consultation and involvement of this Court, or of any other Commonwealth authority. The federal courts — as well as other federal authorities and the Pennsylvania citizenry generally (who may not even be aware of this unusual federal activity in state courts) — may not be aware of just how global, strategic, and abusive these forays have become. The federal judicial policy has raised issues that should be known to the federal authorities financing and authorizing the incursions; to Pennsylvania’s Senators and House members; and to the taxpayers who ultimately foot that bill. This is an appropriate case to highlight those issues.
I write to these global issues in this case because the cumulative effect of the Defender’s strategy has taken a substantial and unwarranted toll on state courts; and also because the Defender has begun to complain, both in this Court and in federal court, about delays in state court decision-making, claiming that the delays violate various federal rights and even, in one intemperate federal pleading, asserting that this Court is indifferent to, and incapable of managing, its capital docket. The pleadings do not disclose or focus upon the primary cause of the delays, which very often is the prolix and abusive pleadings filed by the Defender in their many cases, as well as the Defender’s ethically dubious strategies and activities in other Pennsylvania capital cases — cases involving both initial and serial PCRA petitions — all of which bog down Pennsylvania courts. If the Defender is to be taken at its word respecting actionable delay and the Court’s supposed incapacity, then it is time for this Court to take affirmative measures to address the most obvious causes of delay, which are well known to this Court, and which to a great extent involve the Defender. To that end, this Court should immediately eliminate its existing page-limitation briefing indulgence in capital PCRA matters, and should begin regulating the rampant briefing abuses found in briefs such as the improper one the Defender has filed in this case. I also believe it is time to take more seriously requests by the Commonwealth to order removal of the Defender in cases where, as is becoming distressingly frequent, their lawyers act inappropriately. There are other measures I would refer to our Rules Committees for suggested remedial measures in the face of the Defender’s abuses, which I will discuss in Section II below.
-I-
I appreciate the Majority’s yeoman effort in the face of the Defender’s abusive appellate briefing, which brings me to my main point. This is not a federal case; a later, civil and collateral iteration of it may be federal if appellant ultimately pursues federal habeas corpus relief, at which point the federal district court will be free to appoint whichever counsel it pleases. But, there is no proper role of the federal courts at this point; and, it is not clear that the courts of this Commonwealth are obliged to suffer continued abuses by federal “volunteer” counsel paid by the federal courts. The capital PCRA petitioner, if indigent, is entitled under our Rules to the appointment of PCRA counsel, at state expense. But, the Defender has decided that federal tax dollars should be deployed to conduct appellant’s state collateral attacks; and, the federal authorities who finance their state litigation strategy apparently approve the tactic. The resources the Defender was able to bring to bear in litigating this state collateral attack border on the perverse, and this fact, combined with the tactics employed, and the obvious global efforts of the Defender to obstruct capital punishment in Pennsylvania at all costs, strongly suggests that there is more at work here than non-political, professionally responsible, “zealous advocacy.”
There are members of the private bar who continue to litigate capital PCRA appeals in our Court responsibly and effectively, proving (as if proof were needed) that abusive briefing is not a necessary component of competent and zealous advocacy. Capital PCRA appeals are inherently important — because the ultimate penalty is involved. They are time-consuming- — because we permit longer briefs, the review encompasses lengthy capital trials, lengthy collateral pleadings, exhibits, and (oftentimes) hearings, and both the procedural and substantive law at issue may encompass an intersection of federal and state law. They are difficult — because, in virtually all of these cases, there are a few troublesome issues, of substance and procedure, which often divide the seven-member Court.
However, the inherent difficulties, and the inherent time commitment required, has been made needlessly more burdensome by the Defender’s litigation strategy, which is conducted on multiple fronts. New litigants, much less taxpayer-financed litigants, could afford to mount such strategic campaigns. This case presents a typical example of the myriad abuses of the Defender; but, there are examples of worse conduct I outline later. Indeed, I write in this case in part because of its typicality, as it raises the question of the propriety of the current, partisan federal role in Pennsylvania capital collateral proceedings.
The Defender “volunteered” itself here before direct review was completed: Robert Brett Dunham, Esquire, filed appellant’s unsuccessful direct appeal certiorari petition in the U.S. Supreme Court. See Spotz v. Pennsylvania, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002). The Defender then initiated state collateral proceedings on December 4, 2002, by filing a 275-page document in the Court of Common Pleas of Cumberland County, which the court properly construed as a PCRA petition. This petition, filed by Attorneys Dunham and Anne Saunders, also of the Federal Defender, encompassed 622 paragraphs, setting forth 18 primary claims, most of which included various sub-claims. After the Defender’s initial filings, the proceedings evidently were put on hold by agreement of the parties pending disposition of the PCRA appeal of appellant’s manslaughter conviction in Clearfield County for killing his brother, a conviction that was ultimately reinstated. On January 11, 2007, the Defender filed a supplemental PCRA petition, prepared by four attorneys: Dunham, Mary Hanssens, Michael Gonzales, and David L. Zuckerman. Five days later, Dunham filed yet another supplemental petition seeking to amend prior filings to add another new claim.
On January 17-18, 2007, the first two days of PCRA hearings were conducted. Dunham, Hanssens, and Zuckerman represented appellant. Among other witnesses, the Defender called a proffered expert in forensic psychiatry, a Defender investigator, two Defender “mitigation specialists,” a proffered expert in clinical psychology, and a Clearfield County Children and Youth Services caseworker. On February 12, 2007, Dunham, Hanssens, Gonzales, and Zuckerman filed another supplemental petition asserting yet additional claims or arguments. On February 22-23, 2007, two more days of hearings were conducted, with Dunham, Zuckerman, and Gonzales representing appellant. Among other witnesses, the Defender presented another proffered expert in psychiatry. Another full-day hearing was held on May 10, 2007, where four lawyers — Dunham, Hanssens, Zuckerman, and Gonzales — appeared for appellant. The sixth and final full day of PCRA hearings was held on May 11, 2007, featuring Dunham, Zuckerman, and Gonzales.
On June 26, 2008, the PCRA court issued its order and opinion denying all of appellant’s claims. Appellant’s motion for reconsideration, filed by Dunham and Gonzales, was denied and appellant’s notice of appeal followed in July 2008.
Of course, there is a federal constitutional right to counsel at trial, and I suppose the federal government could decide to help finance the states in providing such assistance to vindicate the right, to ensure fairer trials. But, the scope and resources deployed here, not to ensure a fair trial, but to try to prove that a presumptively competent trial lawyer was incompetent is simply perverse. This is a state collateral proceeding. The Defender devoted, at a minimum, five lawyers, an investigator, multiple mitigation specialists, and multiple experts to the project. It inundated the PCRA court with prolix pleadings, including trivial and frivolous claims intermixed with more serious issues; it deployed multiple lawyers at hearings, who then attempted to conduct multiple and redundant examinations.
The overwhelming majority of appellant’s claims sound in ineffective assistance of counsel, implicating the Sixth Amendment and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland claims involve not mere errors or mistakes at trial, but lapses of constitutional magnitude, a circumstance where it is as if the defendant did not have a lawyer at all. Proper examination of such claims requires deference to counsel, avoiding hindsight, recognizing the art in lawyering, and accepting that mere errors by counsel are not enough to prove prejudice. To warrant relief, a Strickland claim has to involve some kind of readily apparent, undeniable lapse by counsel of obvious and serious prejudicial effect. It is not a law school test of “spot the foregone objection.” And, it takes a team of five federal lawyers and a supporting group of untold size comprising investigators and experts to prove the Strickland violation in this case?
Laying aside the overtly obstructionist aspect of the Defender’s performance here, the commitment of federal manpower alone is beyond remarkable, something one would expect in major litigation involving large law firms. It is perverse to think that the federal judiciary knowingly makes this sort of financial commitment in Pennsylvania capital cases at the collateral review level. The individual counties in Pennsylvania, which typically pursue capital murder prosecutions, lack the resources to provide this sort of representation at the main event — for the prosecution or the defense. And, equally perverse, the federal commitment of resources, on collateral review, is apparently partisan, assisting only capital defendants in attempting to undo their final state judgments.
The Defender’s briefing in this Court is similarly abusive. The product of officers of the Court, it was not a good faith effort to abide by our already-lax briefing restrictions, and it borders on a contemptuous flouting of those Rules. The manner of briefing is designed to exhaust as much of this Court’s time and resources as possible. The incentive for such conduct in capital cases is obvious: each day of delay the abuse generates is another delay of the day of eventual reckoning. But, this is not a legitimate justification for burdening the Court with abusive pleadings.
The “Initial Brief’ bears the names of four Defenders: Dunham, Zuckerman, Gonzales, and Eric Montroy. The Brief runs exactly 100 pages. By Rule, principal briefs in this Court are limited to 70 pages; by custom, however, we have routinely indulged 100-page principal briefs in capital cases. The Rules of Appellate Procedure dictate that the brief “shall” include a Statement of the Case, Pa.R.A.P. 2111(a)(5); and that the Statement “shall” contain, inter alia, “A closely condensed chronological statement, in narrative form, of all of the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied upon may be found.” Pa.R.A.P. 2117. The purpose and importance of the requirement is obvious to any lawyer who has drafted an appellate brief.
The Defender deliberately omitted a Statement of the Case, so that it could raise more claims and thereby evade the 100-page briefing limit. In an endnote to a truncated one-page procedural summary that it inaccurately calls the “Statement of Facts,” the Defender says: “Because of the number, and fact-intensive nature, of the claims presented in this appeal, and so as to both preserve all issues and keep this brief to a reasonable size” — seriously, the Defender says this — “the facts material to the individual claims are set forth in connection with the discussion of each claim.” Initial Brief of Appellant at 4 n. 1. Our briefing rules are not bizarre Pennsylvania procedural requirements. Notably, the Federal Rules of Appellate Procedure limit principal briefs to (a) a mere 30 pages, or (b) 14,000 words, or (c) no more than 1,300 lines of text if the brief employs a “monospaced face.” Headings, footnotes, and quotations count toward the word and fine limitations. Fed. R.App. P. 32(a)(7). The Federal Rules also mandate that the Appellant’s Brief “must contain” both a statement of the case (addressing procedural matters) and a “statement of facts relevant to the issues submitted for review with appropriate references to the record.” Fed. R.App. P. 28(a)(6), (7).
In a case where the appellant files a maximum brief, as here, this particular deliberate violation both hampers the Court’s review and burdens the Court with however many additional claims the Defender squeezes into the pages it has improperly gained by the violation. And, squeeze the Defender did. The Brief pretends to raise “only” 20 issues, which would be burdensome enough. But, within those twenty claims are multitudes of additional claims or sub-claims. My conservative count of the total number of distinct “claims” presented in the Defender’s Brief, including both derivative and subsidiary allegations, exceeds 70. How does the Defender manage to “litigate” 70 claims in a 100-page brief? It employs a number of additional tricks.
For example, in 100 pages of Brief, the Defender includes no less than 136 single-spaced footnotes, many of extreme length, and then routinely advances distinct substantive arguments in those footnotes. See, e.g., Initial Brief of Appellant, nn. 15, 18, 20-29, 32-33, 37-39, 43-51, 53, 59, 61-70, 72-77, 79-85, 94-95, 103, 107-18, 123-25, 127-34. The Defender also seizes more briefing space by single-spacing, and not indenting, its Statement of Questions Presented, making them virtually unreadable in the process. See, e.g., id. at 2 (containing 40 single-spaced lines of text running margin to margin). Another common Defender abuse, immediately recognizable to those of us charged with attempting to read their Briefs, is to list distinct claims or sub-claims by single-spaced bullet point in text, essentially doubling the number of points to be made. To make the abuse worse, these bullet points often simply declare the sub-claims without development or legal support; other times, the Defender will append footnotes, which may contain factual support or substantive argument, or may provide no meaningful development or explanation of the relevance of bald citations. See, e.g., id. at 29-30 & nn. 27-29; 47-48 & nn. 53-57; 53; 64-65 & nn. 82-83; 66-67 & nn. 86-92; 71-72 & nn. 96-101: 75-76: 83: 95-98 & nn. 125-34. The time-consuming burden is then placed on the Court to attempt to decipher the arguments. Query: does the Defender do this in federal district court? In the U.S. Supreme Court? Or is the federal abuse reserved for state courts?
For a particularly egregious example — and, it is but a single example — of this abusive briefing, take Issue # 19, third sub-argument. The “argument” consists of a declaration that the PCRA court erred in “Precluding Appellant from Presenting Material Evidence” during the six days of collateral review hearings the court held. What follows are ten, single-spaced bullet point claims spanning over two pages of the Brief, all accompanied by footnotes, and none accompanied by legal citation or developed argument. The Majority gives a sense of just how frivolous these single-spaced claims are, discussing some examples. See Majority Op. at 149-54 & nn. 46-50, 18 A.3d at 322-325 & nn. 46-50.
This is not a good faith effort by officers of the Court to abide by perfectly reasonable briefing restrictions. What is next: framing the entire argument section of the brief as a giant single-spaced footnote? What legitimate purpose explains such briefing tactics? And, is it appropriate, given principles of federalism, for the federal courts to finance abusive litigation in state courts that places such a burden on this Court?
A capital defendant, like any litigant, has the right to raise and pursue viable claims. And, of course, capital cases are different. This Court’s commitment to affording more than sufficient opportunity to raise colorable, non-frivolous claims is reflected in the fact that this Court, to date, has permitted capital appellants to file briefs that are 43% longer than other litigants’ briefs — both on direct appeal and on PCRA appeal. The Brief here is a thorough and deliberate abuse of that indulgence. Moreover, as the Majority correctly points out, many of appellant’s claims here are frivolous as stated, oftentimes unsupported by recourse to case law or the record. See also Majority Op. at 154 n. 50,18 A.3d at 325 n. 50 (“Appellant is attempting to compensate for a lack of overall merit with an overwhelming number of assertions of error.”). Other claims are obviously makeweight: for example, as if every other word out of a trial prosecutor’s mouth both violates due process, and represents a test of the constitutional competence of trial counsel.
There is no legitimate, ethical, good faith basis for this obstreperous briefing. The Defender’s lawyers, who are officers of this Court, have no right to jam as many undeveloped and frivolous claims into their briefs as possible, employing footnotes and single-spaced blocking to sabotage briefing restrictions, in pursuit of an agenda that maximizes the burden on this Court’s resources and time, so as to create delay. If this Court had the time, I would recommend striking the Brief and ordering a professional, appropriate brief; but that would only delay the matter, and I will suggest we address the problem by specifically altering our briefing rules.
It did not have to come to this. The provision of federally-financed lawyers for state capital PCRA petitioners appears benign on its face and welcome; it spares Pennsylvania taxpayers the direct expense of state-appointed counsel. But, that veneer ignores the reality of the time lost and the expenses generated in the face of the resources and litigation agenda of the Defender. Capital cases, like criminal cases generally, are highly individualized. Each case is invariably about one defendant and one primary capital crime; and the defense lawyer has a duty of zealous advocacy in advancing his client’s cause, within the ethical limits that govern all Pennsylvania lawyers, whether they are paid by the federal government or not. But, the Defender has the resources and the luxury to pursue a more global agenda, and its conduct to date strongly suggests that, if it once engaged in mere legitimate zealous defense of particular clients, it has progressed to the zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania. It is not difficult to understand the motivation: indeed, there are persons of good faith and integrity who sincerely oppose capital punishment and are willing to contribute their time and talents to its defeat, whether by one stroke politically, or incrementally, case by case.
But, this is not the political realm, lawyers must act ethically, and obstructionist tactics and agendas in litigation are inappropriate. Assuming the courts of Pennsylvania must abide the participation of the Defender at all in purely state collateral proceedings, it is only because they are officers of this Court. Whether lawyer death penalty abolitionists like it or not, the people of Pennsylvania, like the people of 83 other states and the nation as a whole, have spoken on capital punishment, and the death penalty is lawful; this Court is not obliged to indulge political tactics that seek to dismantle or impede governing law. The difference of death does not mean that any and all tactics in pursuit of the defeat of a capital judgment are legitimate.
I am sure our federal judicial brethren are unaware of the extent of the abuses, nor can they fully appreciate the effect of these abuses, so I will attempt to illustrate. The Defender strategy, as revealed in this case, attempts to overwhelm the state courts with volumes of claims and pleadings, many simply frivolous, a strategy which burdens prosecutors and can shut down a trial court for weeks. It is also a strategy which requires this Court to devote an increasing portion of its docket and time to consideration and decision of the Defender’s cases. Our Court, like the U.S. Supreme Court and unlike the Third Circuit, is the highest court in its jurisdiction. Like the U.S. Supreme Court, we have finite manpower, and one of our most important functions is determining which cases on our discretionary dockets warrant review. Like the U.S. Supreme Court, we do not have the resources to grant review in every case: we look for cases posing new questions, close questions, questions affecting a wide range of cases, questions which have divided courts, cases posing supervisory questions, cases with apparent egregious errors, etc. Also like the U.S. Supreme Court, the cases we accept typically pose a very limited number of discrete issues. But, unlike the High Court, we also have a capital appeal docket, which governs multiple rounds of intensive direct review. We have no statutory discretion over the capital docket, and, so far, it has been the capital appellant who determines the number and types of claims we will review.
Our Opinions in first petition capital PCRA cases where the Defender participated are far and away the most time-consuming of the cases on our appeal docket. Certainly, they generate many of our longest opinions. Take this case, where the Slip Opinion exceeds 125 pages, as the Court painstakingly slogs through the pleadings below, the record, and the morass that is the Defender’s brief. See also, e.g., Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345 (2011). As a very conservative estimate, it is fair to say that the practical consequence of the expenditure of resources necessary to decide a typical Defender appeal in these cases is to render this Court unable to accept and review about five discretionary appeals. As a result, for example, this Court rarely accepts review of cases (via direct appeal or PCRA) where convicted murderers are sentenced to life in prison, without possibility of parole. Though those sentences are not as “different” as death, they are certainly different from criminal cases where the defendant has the prospect of release; and they are of importance to the defendants serving them.
Of course, the objection will be that all claims must be raised in a capital case. But, that simply is not so, and particularly on collateral review. Abusive briefing does not increase the chance of prevailing; what it increases is the delay in briefing (both sides, in capital cases, require multiple extensions of time to file briefs) and in decision-making. Moreover, the notion that all of the claims in these abusive briefs are colorable is a canard. Many are deliberately undeveloped. Consider, also, the theoretical last stage of collateral review of state capital convictions, which is the defendant’s federal habeas appeal to the federal Circuit Court. How many federal issues in those cases ultimately qualify under the certificate of appealability requirements attending federal habeas review? See 28 U.S.C. § 2253 (state prisoners cannot appeal final orders unless a certificate of appealability issues; “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.”). The bulk of the issues raised in the PCRA petitions in this case, and renewed in this appeal, are pure makeweight, designed only to bog the state courts down and induce delay.
Does it comport with principles of federalism for lawyers financed by the federal courts to so affect a state Supreme Court’s docket? Does it comport with principles of federalism for the federal courts to finance a group to enter state capital cases at will and pursue an agenda that inundates the PCRA courts and this Court with abusive pleadings and frivolous claims, with the apparent ultimate aim of attempting to bypass the state courts?
These questions are not theoretical. In a number of recent instances involving pending cases with typically prolix briefing by the Defender, capital PCRA defendants have complained in this Court or in federal court about the delay in the decisions of their PCRA appeals, complaining that this Court has not dropped all other business to decide their cases in a time-frame acceptable to them. See, e.g., Commonwealth v. Dougherty, 585 CAP (Motion to Reactivate Habeas Proceedings filed in federal district court, premised upon this Court’s failure to decide appeal within eleven months); Commonwealth v. Hutchinson, 517 CAP (Motion to Expedite filed in this Court, consisting of boilerplate assertion that delay in decision violates various federal rights, none of which address circumstance at issue); Commonwealth v. Douglas, 495 CAP (alleging, without supporting documentation, recent diagnosis of potentially fatal cancer, and arguing that diagnosis warrants preferential expedition of decision). Notably, none of the motions mention the length of the Defender’s briefs in the appeals, or the number of prolix claims, or the complexity of the proceedings and maneuverings below, or the overall and collective burden the Defender has imposed on this Court.
The federal motion in Dougherty is revealing. In Dougherty, the capital appellant is represented by four lawyers: two from the Defender (Robert Dunham and Renee Edelman) and two “pro bono ” partners from the law firm Ballard Spahr (David Fryman and Shannon Farmer). The subject of the Motion is the alleged lassitude of this Court in disposing of the pending PCRA appeal, but the Defender and Ballard did not favor this Court with a copy of the Motion. The federal motion, dated November 9, 2010, states that this Court “refused” to expedite appellant’s appeal, inaccurately represents the time that had then passed, and declares that “no action” had been taken on the case. In fact, counsel have no idea what actions have been undertaken by this Court in its deliberations. The Defender and Ballard then go on to attack this Court’s entire handling of its capital docket. The Defender and Ballard contemptuously declare that, “Based on the Pennsylvania Supreme Court’s track record of deciding capital appeals, [appellant’s] opportunity for any substantive state court review of his case is still years away.” The Defender and Ballard then declare that they face “continued inordinate delay before a state court that has proven itself incapable of managing its capital docket,” later accusing the Court of “leaving [the appeal] to languish” and falsely alleging that it has been held “in suspense.” The Defender and Ballard declare that “judicial delays in the determination of initial PCRA appeals have become routine.” The Defender and Ballard then complain of the undecided “active” cases on our docket, making no attempt to account for: the record and briefing status of cases; whether there have been remands; whether they are serial PCRA petition appeals (appeals, frequently time-barred and frivolous, most often filed by the Defender, which generate automatic delay in the disposition of pending federal habeas petitions); and the role of individual circumstances — such as delays requested by or chargeable to the Defender itself. The aim of the federal motion, of course, is to convince the federal habeas court to forgive the Defender’s clients the necessity of exhausting their claims in state court, so that they may proceed de novo in the court system that finances them.
These are grievous accusations made by members of the bar of this Court. If these accusations were true, and if candor were part of the Defender armamentarium, the federal pleading would have stated that “the Defender has succeeded in causing such delay in the decision of capital cases that [fill in the outrage]. We have succeeded in exhausting the state courts; so now, please forgive us the federal habeas exhaustion requirement.” But, the accusations are not true; indeed, they are beyond disingenuous. And the Defender knows it. Whatever the response of the federal courts to such unethical conduct, it will not be fashioned with a first-hand awareness of the burden that their decision to finance defense-side collateral capital litigation has imposed on Pennsylvania’s courts. Does it comport with principles of federalism to finance lawyers who pursue an agenda in state court designed to bottle up the state courts? Does it comport with federalism when those lawyers undertake an agenda designed to maximize the power of federal courts to ignore state court decisions, or to authorize bypassing state courts?
Notably, with respect to the specific issue of delay in the decision of capital PCRA appeals, the local federal Circuit Court must have some sense of the difficulty. In its Motion to Lodge the Defender’s federal pleading in Dougherty, the Commonwealth notes the substantial delay in the resolution of numerous appeals involving various state capital defendants. See, e.g., Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir.2008) (initial habeas appeal filed in Third Circuit in December 2001; final order issued by Third Circuit in March 2008; on petition by Commonwealth, U.S. Supreme Court granted certiorari and remanded to Third Circuit in January 2010; on April 26, 2011, Third Circuit issued opinion reinstating its previous order affirming district court’s grant of habeas penalty phase relief on a claim involving Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). And those appeals, of course, are limited to but a few substantive issues. Furthermore, I suspect the Federal Defender is more circumspect, and less contemptuous, when it appears before the Third Circuit.
I say none of this lightly. The Defender, as I have outlined, pursues a complex and legally questionable global strategy in Pennsylvania capital cases. But, just as the Defender stares at this Court, we have no choice but to stare back at it. And, this case is merely a typical case of Defender abuses. We have had circumstances where the conduct of the Defender is not even this benign.
On multiple occasions, the Defender has taken unauthorized appeals in capital PCRA matters against its former clients’ wishes. See Commonwealth v. Ali, 10 A.3d 282, 290 (Pa.2010); Commonwealth v. Saranchak, 570 Pa. 521, 810 A.2d 1197, 1198 (2002). Accord Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565 (2008) (noting that Robert Dunham initiated PCRA proceeding by filing PCRA without authorization from petitioner, claiming he was doing so on petitioner’s “behalf’). Each such unauthorized appeal, of course, exhausts the time and resources of the Commonwealth and the state judiciary. The Defender has employed the same strategy involving unauthorized litigation in at least one reported federal habeas case involving a Pennsylvania capital defendant. See Michael v. Horn, 459 F.3d 411 (3d Cir.2006). As Judge Greenberg explained, in concurrence:
It is highly significant, indeed remarkable, with respect to the tenuous nature of these proceedings, that Michael [the capital defendant] did not decide to take an appeal in this case in the first place and, in fact, this case never should have reached this court. Thus, the actual question before us is whether a defendant may cause an appeal filed in his name without his authority by someone else to be dismissed. In this case, the Capital Habeas Corpus Unit of the Defender Association of Philadelphia, without Michael’s authorization, filed the appeal from the district court’s order of March 10, 2004, granting Michael’s motion to dismiss the habeas corpus petition. Thus, this case truly is extraordinary because the Capital Habeas Corpus Unit filed this unauthorized appeal in the name of an appellant whom the district court had found to be competent, from an order that the appellant had sought and obtained and from which, quite naturally, he did not want to appeal.
Moreover, there is yet another extraordinary fact about this appeal. The Capital Habeas Corpus Unit filed the appeal even though the district court in its March 10, 2004 order dismissing the petition for habeas corpus also dismissed the Capital Habeas Corpus Unit and all its attorneys as counsel for Michael, Michael v. Horn, 2004 WL 438678, at *24 (M.D.Pa. Mar. 10, 2004), and neither we nor the district court ever has stayed that order. Accordingly, the Capital Habeas Corpus Unit acted without authority when it filed this appeal in an attempt to frustrate Michael’s wishes. The reality of the situation could not be clearer. The Capital Habeas Corpus Unit, rather than representing Michael, its supposed client, was representing itself and advancing its own agenda when it filed this appeal.
459 F.3d at 421-22 (Greenberg, J., concurring) (italics added; footnote omitted).
In other instances, the Defender’s conduct has been so inexplicable (inexplicable when measured by professional ethical standards), that the Commonwealth has moved for the Defender’s removal, colorably suggesting that the Defender’s strategy is aimed not at fairly raising and exhausting federal claims in state court, but at positioning the case in such a way that Pennsylvania courts would deem them defaulted, while laying the groundwork to attempt to proceed de novo in federal court. For example, in Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (2009), the Defender, per Billy Ñolas, Esquire, filed a serial PCRA petition, asserting a claim under the then-new decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In litigating the claim below, the Defender argued that the petitioner had a constitutional right for the Atkins claim to be decided by a jury. The PCRA court, per the Honorable C. Darnell Jones, II, scheduled an Atkins bench hearing, but shortly before that could take place, the Defender wrote to the court asserting that if the court declined,to put the serial collateral claim before a jury, the Defender and Bracey would refuse to participate in a bench hearing, but instead would rely on the evidence of record — evidence that was not produced with an eye toward the requirements of Atkins.
The PCRA court ultimately held that the Defender’s refusal to present any relevant evidence in support of Bracey’s Atkins claim rendered it meritless and that fact, in turn, rendered the request for a jury trial moot. On appeal to this Court, the Defender, predictably enough, argued that if we rejected the request for a collateral attack Atkins jury, the case should be remanded for the bench hearing the PCRA judge offered him, but which the Defender had refused. The Commonwealth responded with a critique of the Defender’s gamesmanship. Our summary of the Commonwealth’s description of the tactic was as follows:
As to the question of mandate ... the Commonwealth requests a remand for a bench determination of Atkins mental retardation.... The Commonwealth asserts that any other result might ultimately reward appellant’s federal counsel for their gamesmanship, which the Commonwealth submits was a strategy to bypass the state courts on the substantive Atkins question. Thus, the Commonwealth avers that refusing to remand the matter would reward appellant’s “contumacy by enabling him to raise the claim anew in a federal habeas petition, without the burden of fact-finding by the state courts.” Brief of the Commonwealth at 17. The Commonwealth argues that appellant’s stated rationale for refusing to introduce relevant evidence before the PCRA judge of his supposed mental retardation — a professed fear of thereby waiving his claim of an existing “right” to a jury determination — is “nonsense,” since appellant made an objection before the PCRA court, which the court specifically noted that the objection preserved the jury question for this Court’s review. The Commonwealth hypothesizes that such a facially risky position suggests that appellant and his counsel have their strategic sights set on de novo habeas corpus review in the local federal courts, which appellant’s federal lawyers view as a more sympathetic forum in capital matters. Luring this Court into finding the Atkins claim waived, the Commonwealth argues, “would offer them their best long-term prospect for relief,” since “if no Atkins hearing is held in state court, defense counsel will argue on habeas review that defendant is entitled to such a hearing in federal court. And, since it has been decades since the federal courts have upheld a sentence of death with respect to any Philadelphia prisoner who did not consent to be executed, they will find themselves in a remarkably favorable forum for that argument.” See Brief of the Commonwealth at 19-20. The Commonwealth argues that this Court should reject this illegitimate strategy, and order a bench hearing on the mental retardation claim.
Bracey, 986 A.2d at 137-38 (italics added; footnote omitted).
This Court ultimately sustained the PCRA court’s unassailable finding that there was no constitutional right to a collateral attack Atkins jury. Like the Commonwealth, we recognized the Defender’s gambit for what it was, describing the refusal to participate in the Atkins hearing it had requested as lacking any legitimate justification. We noted that the Defender’s disagreement with the PCRA court’s ruling that the Atkins claim was properly for the court, and not a jury, to decide, “was not a legitimate ground to refuse to abide by the ruling and decline thereafter to present evidence, as if a matter of this import invites some game of capital ‘chicken.’ ” Id. at 138. We added that:
The presumptive outcome of appellant’s refusal to present his Atkins case would be that the Atkins claim would fail on the merits — the very result that occurred here. Most parties do not risk defeat of the merits of their claims with these sorts of manipulations. But this Court recognizes that the calculations by experienced federal capital counsel are more sophisticated. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 836-38 (2008) (Castille, C.J., joined by McCaffery, J., concurring). The ... Defender’s position below was obviously risky and tenuous: both the notion that appellant would somehow waive the claim of a right to a jury, or would somehow be prejudiced by presentation of his case to a judicial factfinder, as well as the substantive claim of an Atkins jury trial “right” of constitutional import which, as we explain below, finds no support in any existing, governing authority. Indeed, this is so much the case that it lends some credence to the Commonwealth’s position that the strategy below was designed to ensure that no state court judge would pass upon the merits of the Atkins claim (or if it did, it would only be after the substantial delay occasioned by an incomplete record and appeal to this Court, seeking remand).
Notably, however, the Commonwealth has not pressed a waiver argument here, or even set forth an argument that appellant’s Atkins claim fails on the merits----Instead, it suggests that this Court overlook this logical conclusion and remand this matter so that a bench Atkins hearing can be held, thus ensuring that the state court serves its primary role as the initial forum for constitutional claims, and avoiding the initial federal determination of Atkins that appellant seems to prefer.
If the defense strategy and obduracy were all we had here, we might be inclined to deny remand. After all, salutary Pennsylvania procedural doctrine should not be defeated by attorney manipulations or even by concerns with subsequent federal habeas corpus review.... Unfortunately, the PCRA court did not take this bull by the horns, and did not put appellant to the appropriate, explicit choice.... In these circumstances, we will not hold that appellant has waived any entitlement to an Atkins remand for the bench evidentiary hearing he refused below. Our holding in this regard should not be read as approval of the defense tactics below; rather, it should serve as a caution to PCRA courts in capital cases to be aware of the potential manipulations that may be forwarded in these high stakes cases, and to take clear control of the proceedings before them.
Id. at 139-40.
A more recent case where the assigned Defender’s conduct, rather than the merits of the client’s cause, became the focus of the appeal is Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (2011). The capital PCRA appellant in that case was also represented by Ñolas, and was awarded a new penalty hearing in the trial court, but was denied guilt phase relief. She appealed, but the Defender inexplicably failed to file a Rule 1925(b) statement as ordered by the PCRA court. The Defender then filed a brief in this Court raising no less than fifteen principal guilt-phase claims.
The Commonwealth preliminarily argued that, by his conduct, and under settled law concerning Rule 1925, Ñolas had defaulted Hill’s claims and was per se ineffective. Recognizing that Nolas’s default may have been strategic, however, the Commonwealth did not argue for affirmance, but instead urged the Court to remove the Defender and remand to appoint new counsel to comply with the Rule 1925 directive. The Commonwealth also argued that the Defender’s conduct raised serious questions concerning the proper use of federal tax dollars because, while the Federal Defender is funded by the Administrative Office of Federal Courts, they routinely appear in state court appeals at a time when state and municipal services are being curtailed because of budget shortfalls in the current economic recession. In that light, the Commonwealth suggested that this Court exercise its supervisory authority over the practice of law in Pennsylvania and require the Defender to address these concerns before being permitted to proceed in Pennsylvania appeals. Id. at 418-20, 16 A.3d at 488-89.
The Defender replied that it had substantially complied with Rule 1925 because Ñolas had assured the PCRA court in a series of ex parte communications of the issues he intended to raise. The Defender did not acknowledge or discuss the governing cases under Rule 1925, instead focusing on Hill’s alleged “right” to have Ñolas continue to represent her. The Defender also argued that, to the extent Nolas’s conduct had impeded this Court’s review, a remand (and attendant delay) was appropriate.
On the particular point of the Commonwealth’s argument concerning removal of the Defender, we recounted the Defender’s argument as follows:
Appellant also asserts that the Federal Defender is the counsel of her choice and its removal would be contrary to what she claims is a “right” to taxpayer-financed counsel of her choice. Appellant contends that the Federal Defender has protected her interests and advocated ably on her behalf, and that given its experience and competence in Pennsylvania state death penalty proceedings, it should be permitted to continue to represent her in Pennsylvania courts. Finally, with respect to the Commonwealth’s concerns regarding the federal funding sources for the Federal Defender’s forays into state court, appellant asserts that the Federal Defender is in full compliance with applicable federal administrative rules and regulations and has a separate source of funding to support its elective excursions into state court. Appellant does not attach or cite those rules and regulations.
Id. at 421-22,16 A.3d at 490.
Ultimately, this Court held that, under our settled jurisprudence, we could not grant the Commonwealth’s request to remove counsel and remand the matter; instead, the Defender’s default had waived Hill’s issues. Id. at 427-29, 16 A.3d at 494-95. We also noted that:
[I]n considering the Commonwealth’s request to recalibrate our Rule 1925(b) jurisprudence, we are mindful of the significant potential for resulting mischief in capital cases. Delay can be an end in itself for some capital defendants. See, e.g., Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565, 577 (2008), cert. denied, — U.S. -, 130 S.Ct. 50, 175 L.Ed.2d 42 (2009). Manufacturing the requested exception would serve as an invitation to delay-minded counsel to deliberately flout the Rule, knowing that it would trigger the time-consuming process of remand, appointment of new counsel, filing a Rule 1925(b) statement, and preparation of a lower court opinion.
Id. Since all claims were waived and there was no basis to remand, there was no need for the Court to pass upon the Commonwealth’s request to order the removal of the Defender, or its broader concern with federal judicial funding for these questionable endeavors.
A competent appellate lawyer without a global agenda, intent on having his client’s issues actually heard on appeal, would never deliberately ignore a Rule 1925 order. But, the Defender is financed and positioned to strategize differently and globally. In Pennsylvania capital cases, the Defender routinely argues in federal habeas court that various Pennsylvania procedural default rules are arbitrarily applied, and therefore should be ignored. The reward, if the federal court accepts the argument, is de novo federal review, unimpeded by state court findings, and unimpeded by the federal habeas standard of review requiring deference to state court decisions. The result of this perverse system of incentives for professional capital counsel who ping-pong back and forth between state and federal courts, and who have seemingly inexhaustible federal resources and ample cases to choose from, is an opportunity and incentive to feign that they do not know how to comply with state procedural rules, see Steele, 961 A.2d at 834-38 (Castille, C.J., joined by McCaffery, J., concurring); and in the process attempt to generate “uneven” procedural default rulings by the state courts. Then, counsel will proceed to argue in federal court that the particular default rule should be ignored in all cases. The state response, faced with continuing federal criticism that our procedural rules have.too much discretionary flexibility to be considered legitimate expressions of state sovereignty, is to adopt less flexible rules. Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1150 (2008) (Castille, C.J., joined by McCaffery, J., concurring) (“The threat of dismissive federal responses to flexible state procedural rules can lead to state legislatures and courts adopting ever-more inflexible rules.”).
But, for those with the luxury to pursue a global agenda, this refinement does not end the incentive to create disruption in state court; it just requires a shift in strategy. Faced with a clear, simple, and known rule such as Appellate Rule 1925, counsel can ratchet up the stakes by deliberately engaging in the most overt of defaults, daring the state court to apply its “inflexible” Rule. If the state devises an exception, the Defender will then proceed to federal court, in all cases involving Rule 1925 waivers and say; “Aha, they do not always follow the default; you may ignore it and consider my claims de novo”
Recently, and thankfully, the U.S. Supreme Court has issued unanimous decisions in cases which operate to reduce the incentive for counsel such as the Defender to pursue this ploy. As I explained in my recent concurrence in Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 439 n. 1 (2011):
Significantly, since Steele was decided, the U.S. Supreme Court has issued unanimous decisions in two federal habeas corpus cases involving state prisoners, including Beard v. Kindler, 558 U.S. -, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009), a Pennsylvania capital case, which should significantly diminish the incentive for counsel to try to sow inconsistencies and confusion in state court procedural rulings, in an effort to lay the groundwork for a later federal habeas claim that state court procedural defaults should not be honored. “In a recent decision, Beard v. Kindler, 558 U.S. ——, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009), this Court clarified that a state procedural bar may count as an adequate and independent ground for denying a federal habeas petition even if the state court had discretion to reach the merits despite the default.” Walker v. Martin, — U.S.-, -, 131 S.Ct. 1120, 1125, 179 L.Ed.2d 62 (2011). The Walker decision built upon and significantly expanded Kindler, making it clear that a state procedural default rule need not be invoked in every case in order for the rule to be deemed adequate.
These corrective decisions came too late to spare this Court the time and energy that was expended in cases like Steele, Hill, and Paddy.
The Defender has also burdened this Court with improper appeals in serial capital PCRA appeals, thereby building in delay in cases which should be proceeding to resolution in federal court. For example, in Commonwealth v. Abdul-Salaam, 606 Pa. 214, 996 A.2d 482 (2010), a case, like Bracey, involving the murderer of a police officer, the defendant had already litigated his direct appeal and two PCRA appeals and was currently litigating a federal habeas petition. The Defender then filed a facially untimely, third PCRA petition, but deceptively labeled it, leading to the lower court taking no action. The Defender attempted a procedural maneuver, filing a “Praecipe for Entry of Adverse Order Pursuant to Pennsylvania Rule of Appellate Procedure 301 D & E” and a contemporaneous Notice of Appeal (from the praecipe) to this Court. These pleadings feigned outrage with the PCRA court’s “inexplicable delay” and “inaction” with regard to Abdul-Salaam’s disguised claims. The maneuver was improper and disingenuous: no adverse order had ever been issued (as the Defender well knew) that could be formally “entered;” the contemporaneous notice of appeal denied the PCRA court of jurisdiction to issue and enter any such order; and the Defender never made a request for a ruling before filing its improper snap judgment.
This Court quashed the bogus Defender appeal, deeming it improper because the PCRA court had no opportunity to address the merits and issue a final and appealable order; we recognized that “the Appellant’s praecipe and appeal are not remotely supported by the terms of the rule he invoked, or the facts of this case. There was no basis or justification for this transparent procedural maneuver.” Id. at 485-88. More to the point, we added:
This Court is not naive. We do not discount the possibility that appellant’s misleading characterization of his serial PCRA petition was designed to create confusion, and to set the stage for the very maneuvering and inherent delay that followed. It is also not lost upon this Court that appellant’s maneuvering purported to deprive the court below of jurisdiction at the very moment he first forwarded his supposed complaint about the matter not being decided promptly. Although appellant cited [Appellate] Rule 801(d), he obviously had no intention of permitting the court or the Commonwealth to address his supposed concern, since he took his “appeal” immediately. Appellant’s maneuvering has succeeded in building-in a year’s delay in the disposition of his serial PCRA petition. We do not condone the tactic.
Id. at 488. The decision in Abdul^Salaam required more time and effort, expended by this Commonwealth’s highest Court, occasioned by deceptive, unprofessional, and frivolous conduct by the Defender.
Another dubious appeal in a case involving a serial PCRA petition is currently pending before the Court in Commonwealth v. Porter, 557 CAP. Following submission of that case on the briefs, we directed the parties to file supplemental briefs because there was an obvious jurisdictional issue. Our order reads as follows:
AND NOW, this 13th day of October, 2010, it appearing that a colorable issue of jurisdiction is implicated in this appeal, which has not been addressed by the parties, the parties are directed to file supplemental briefs addressing the following:
Whether the lower court’s order dismissing appellant’s present serial PCRA claim under Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), without also disposing of appellant’s long-pending serial PCRA claim
under Atkins v. Virginia, 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] (2002), was an appealable final order? In briefing the jurisdictional question, the parties should address these necessarily included points:
(a) whether a PCRA petitioner may “amend” a pending serial petition to add an entirely new serial claim;
(b) whether, instead, a new serial claim comprises a new and separate petition under the terms of the PCRA;
(c) whether a PCRA court has authority to pass upon a new serial claim where a prior PCRA petition has been held in stasis; and
(d) whether a serial PCRA petition may properly be held in stasis to allow for federal review of different claims already litigated in state court.
The Defender, per Billy Ñolas, has responded that the lower court’s order was not an appealable final order. And yet, the Defender took the appeal. But, what is more remarkable is the record in Porter, which reveals the federal/state logjam the Defender’s litigation strategy has created in that case. At the September 25, 2007 hearing on appellant’s 2006 Brady “amendment” petition, Ñolas stated that the PCRA court was holding appellant’s 2002 Atkins serial petition “in abeyance,” awaiting the outcome of the federal habeas cross-appeals by Porter and the Commonwealth, which were pending in the Third Circuit. Commonwealth v. Porter, N.T., 9/25/07, at 12. The following exchange occurred among the court, Ñolas, and the assistant district attorney (“ADA”), after the court announced its intention to dismiss the new Brady petition:
Court: I am denying the PCRA petition on the grounds that it is not timely and it does not meet the requirements for Brady material.... Are there any other reasons?
Ñolas: This is a separate issue before the Court pertaining to Atkins[ ] in our submission that [appellant] has mental retardation.
Court: I didn’t deal with that.
Ñolas: That’s before the Court. If you don’t deny that today, what’s wrong with taking [Mr. Gentile’s] deposition [in furtherance of the Brady claim]?
Court: The two don’t mix together....
Court: Is that issue [Atkins ] before the Third Circuit?
Ñolas: It is not before the Third Circuit.
Court: So that’s squarely with me?
Ñolas: Yes, Your Honor. I know Your Honor held it in abeyance because the Third Circuit reversed the death sentence and the Commonwealth is appealing that and [appellant is] appealing the denial of relief of the guilt phase from the Third Circuit. So I think the reasoning before was holding in [ ] abeyance to see what the Third [C]ircuit would do because if there’s no death sentence then there’s no point in us doing an Atkins.
Court: So there is no death sentence. All it is is an appeal?
ADA: Yeah, exactly. So I was going to suggest that you send 907[] notice [dismissing without a hearing] just on the after discovered evidence slash Brady claim. And we’ll specify that that’s the claim that you are denying today and then we’ll leave in abeyance to the Atkins to hear from the Third Circuit.
Court: Let me see if I understand this. The Third Circuit has already taken the death penalty off the table.
Ñolas: No, Your Honor. The District Court granted relief to [appellant] on an instructional error in the penalty phase. The Commonwealth appealed that to the Third Circuit. That appeal is pending [sic] the Third Circuit along with an appeal from us arguing [other issues].
Court: So the death penalty is still on the table?
Ñolas: It’s still on the [t]able potentially, yes.
* * *
ADA: I misspoke.
Ñolas: And that’s why we asked Your Honor to look at the Atkins issue.
Court: It appears that from what I read he won on the death penalty issue.
Ñolas: He just won a new penalty phase from the District Court which is subject to the Commonwealth’s appeal and may be subject to resentencing down the road. They didn’t take the death penalty off the table.
Court: When will that issue be resolved?
ADA: They are waiting for us.
Ñolas: They were waiting for Your Honor to decide on the [new Brady ] issue____
Court: Okay. That’s all. They [the Third Circuit] are not counting on me to deal with the Atkins issue? [Both counsel respond in the negative.]
Court: So I just need to do a 907 with respect to the Brady claim and timeliness issue surrounding the [filing].
Ñolas: And I think I have to object to that because that’s strange. You have a proceeding before the Court with two claims that are being raised. And I guess with a 907 notice we’d restate our objections and file a notice of appeal and then you have no jurisdiction, so it’s a non-process.
Court: What are you suggesting I do?
Ñolas: I suggest you let us do [Mr. Gentile’s] deposition [i.e., drag out the disposition of the time-barred Brady claim].
Court: We are beyond that. What are you suggesting that I do, rule on Atkins ?
Ñolas: I don’t think you can rule on Atkins. I don’t know I haven’t seen that process before, so I think I have to object.
N.T., 9/25/07, at 12-15 (emphasis supplied).
Nolas’s argument respecting the PCRA court’s power to decide was straight out of “Catch-22.” He argued that the PCRA court: (a) could not dismiss the serial Brady claim (a new PCRA claim that led Ñolas to secure a federal stay of the habeas appeals pending in the Third Circuit) without also ruling on the pending Atkins petition; and (b) could not rule on the Atkins claim, because the court somehow lacked authority to do so, and Ñolas would have to object. So, according to Ñolas, the PCRA court could act on neither “claim,” and counsel had already succeeded in having the federal habeas appeals held until the PCRA court acted on the Brady claim. Then, Ñolas appealed the non-final order. This Defender strategy assured a de facto, perpetual stay of execution.
It bears mentioning that the argument advanced by Ñolas that the PCRA court in Porter lacked power to rule on Atkins was frivolous. There is no basis in the PCRA or any other governing rules or law to hold serial PCRA petitions in abeyance; and there most certainly is no basis in law to hold a PCRA petition in stasis merely to permit the petitioner to seek federal habeas relief. Likewise, Nolas’s earlier argument that there was “no point” in deciding the serial Atkins issue until the Third Circuit decided other, already-exhausted, non-Atkins claims is baseless. The appeals before the Third Circuit in Porter will not eliminate the Atkins claim. If the district court’s grant of relief on a perceived penalty phase instructional error is reversed, Porter’s death sentence will stand. If the determination is affirmed, the Commonwealth is free to seek the death penalty in a new proceeding. Either way, it is a capital case and the Atkins issue must be decided.
Not once, by the way, did Ñolas forward the Defender’s new-found concern with delay while ensuring delay in both judicial systems in Porter, instead telling each court it could not act. The very same group — the Defender — engaged in these shenanigans in Porter and then forwarded the “court can’t manage its docket” complaint in Dougherty. These are the sorts of abuses that keep us from addressing all of the Defender’s over-maximum briefs simultaneously in their other cases, and rendering decisions according to their schedule.
But, there is more. Another case cited by the Defender in the Dougherty federal pleading as an example of this Court’s incapacity is Commonwealth v. Banks, Nos. 461, 505, and 578 CAP, which also prominently features Billy Ñolas. Banks concerns narrow issues of competency to be executed, and is a case in this Court’s plenary jurisdiction. This Court is well familiar with the record in Banks. Nolas’s strategic maneuverings in Banks, including but not limited to forwarding unauthorized motions before our masters to impede the Commonwealth’s expert’s examinations of Banks, caused numerous, lengthy periods of delay; and in addition, required this Court to step in on multiple occasions and assure that the fair hearing we had ordered would be held, consistent with our directive. Commonwealth v. Banks, 596 Pa. 297, 943 A.2d 230, 239 (2007) (per curiam) (“[W]ith the exception of scheduling and logistical matters, the trial court is not to be diverted by tangential motions and assertions by counsel: this Court retains jurisdiction over such matters. The trial court is to act expeditiously in conducting the rehearing.”); Commonwealth v. Banks, 603 Pa. 435, 984 A.2d 937 (2009) (per curiam) (“AND NOW, this 10th day of December 2009, the Motion for Notice of Evaluations by Commonwealth Experts [filed by Ñolas] is DENIED. The Commonwealth’s mental health evaluations and the competency hearing ordered by this Court are to be conducted as expeditiously as possible. No extraneous delays shall be permitted.”). To put an end to the abuse, we finally directed that: “This matter, involving a necessary hearing to pass upon a single important issue, and remanded for an expeditious determination, once again has inexplicably been delayed. The significant delay has continued to hamper this Court’s ultimate disposition regarding petitioner’s competency to be executed, a question over which we continue to retain plenary jurisdiction.... Any motion or argument from either party, that seeks or would occasion further delay, is to be made directly to this Court; and the pendency of any such motion is not to be forwarded, referenced, or accepted as a ground for delaying the proceedings below.” Commonwealth v. Banks, 605 Pa. 322, 989 A.2d 881, 882-83 (2010) (per curiam).
The foregoing is but a sampling. Much of this Court’s time has been taken up with the Defender’s strategic diversions. The Defender obviously has no fixed position on delay. When delay advances their global litigation strategy, they do their best to grind state courts to a halt, as with their prolix pleadings and abusive briefing in this case, and their more extreme conduct and/or misconduct in cases like Banks, Abdul-Salaam, and Bracey. When faux outrage about the delays their overall strategy necessarily induces serves their purpose, they forward that claim, accusing Pennsylvania courts of incompetence or laziness, their argument unencumbered by concerns for accuracy, honesty, and candor.
This is what federal judicial financing of the Defender’s state court litigation strategy has wrought in Pennsylvania. When the families of murder victims, and other concerned citizens, ask why there is no effective death penalty in Pennsylvania, the dirty secret answer is: ask the federal court. And if the federal court fails to reply, you may want to ask your U.S. Senators and Representatives.
-II-
Given the Defender’s recent rolling out of the back-end of its global litigation strategy — claiming that the decisional delays that their abusive tactics necessarily induce give rise to some right to preferential decisional time-frames and/or a right to immediate de novo review in federal court — it is time for this Court to take formal measures to ensure quicker decisions in capital PCRA appeals. To curb the rampant abuses in this case and other cases, I would:
(1) Direct the Supreme Court Prothonotary to immediately reinstate a briefing limit of 70 pages in capital PCRA appeals, with no exceptions absent: (a) a showing of extraordinary circumstances; and (b) the explicit concurrence of the Commonwealth.
(2) Direct the Supreme Court Prothonotary to amend briefing notices to advise parties that: (a) substantive arguments and sub-arguments are not to be set forth in footnotes or other compressed texts, such as block quotes or single-spaced bullet points, since such practices facilitate violation of the restrictions on the length of briefs; and (b) arguments set forth in such fashion will not be considered. I would also refer the matter to the Appellate Procedural Rules Committee to recommend changes to our Rules to curb these abuses, including: (a) limitations on the number of words in a brief, such as are found in the Federal Rules, and (b) required certification from counsel that the brief is compliant.
(3) Make referrals to the Criminal Procedural Rules Committee and the Appellate Procedural Rules Committee to consider measures that will lead to the more efficient disposition of capital PCRA appeals including, but not limited to: (a) whether procedural rules can and should be adopted to provide for the operation of unitary review as envisioned by the General Assembly in the Capital Unitary Review Act (“CURA”), 42 Pa.C.S. §§ 9570-9579, consistent with the concerns outlined in In re Suspension of Capital Unitary Review Act, 554 Pa. 625, 722 A.2d 676 (1999) (explaining suspension of CURA); (b) whether it is possible and advisable to adopt a limited issue certification process in capital PCRA appeals, similar to the provision in the federal habeas corpus statute, see 28 U.S.C. § 2253, which should curtail the pursuit of frivolous and implausible claims, without impeding the federal habeas exhaustion requirement. See In Re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (per curiam) (May 9, 2000); and (c) whether the current role of volunteer federal counsel is appropriate, and whether such counsel may properly be precluded from participation in state collateral proceedings.
Justice McCAFFERY joins this opinion and Justice ORIE MELVIN joins Part II of this opinion.
[OPINION BY Justice SAYLOR, type=concurrence]
Justice SAYLOR,
concurring.
I join Sections 6, 7, 8, 10, 12, 14, 17, 18, and 20 of the majority opinion, concur in the result with regard to the balance of the opinion, and offer the following comments arranged in conformity with the designated sections of the majority opinion.
Guilt Phase
2. Waiver of Right to Counsel
As to the waiver of right to counsel, a main thrust of Appellant’s claim is that his counsel failed to conduct an adequate guilt-phase investigation and, therefore, left him with a Hobson’s choice of proceeding with unprepared counsel or representing himself. See Brief for Appellant at 13-15.
At the outset, on review of this record, it appears to me that the attorney put a great deal of time, effort, and thought into the representation of his client, particularly with regard to the penalty phase. See Majority Opinion, at 122-29, 18 A.3d at 306-11. It seems equally clear, however, that he conducted a very limited guilt-phase investigation. For example, the following interchanges with the attorney occurred in the post-conviction proceedings:
Q. [B]ased upon the Commonwealth’s discovery, you did not conduct an independent investigation?
A. I think there’s some truth to that, yes.
Q. You said that you considered the evidence of the Commonwealth to advise the defendant to plead guilty. Is that all you considered in giving your advice to Mr. Spotz?
A. No.
Q. What else did you consider in giving that?
A. I though he was an unpersuasive witness.
Q. [D]o you recall why or why not you may have [decided against representing Appellant at trial through separate attorneys at the guilt and penalty phases of trial]?
A. Because I think the major effort, frankly, was at the penalty phase.
Q. When it came time for — when you were in the pretrial stage, did there come a time in which you indicated to Mr. Spotz what defense you wanted to present at the guilt phase?
A. No. My counsel to Mr. Spotz was to plead guilty, not to put forward a defense at the guilt phase. It was not a position that he appreciated.
Q. Was it after that that he indicated that he wanted to represent himself?
A. Yes.
N.T., May 10, 2007, at 280; N.T., May 11, 2007, at 31; id. at 28-29; N.T., May 10, 2007, at 175.
Moreover, counsel confirmed that there was no investigation relative to an intoxication/diminished capacity defense and, had there been evidence of drug intoxication, such an investigation should have been pursued. See N.T., May 10, 2007, at 229. The attorney’s decision not to pursue the line of inquiry was in tension with his testimony that he understood that Appellant’s extensive drug use on the day of his Cumberland County offenses was well established. See N.T., May 11, 2007, at 20.
Counsel’s explanation for foregoing a guilt-phase investigation into the possibility of diminished culpability was:
I guess I was persuaded by the Commonwealth’s evidence of Mr. Spotz’s behavior starting in Harrisburg with the apparent abduction and withdrawal of money from a bank, the driving of a car from there to Carlisle, the shopping at a sporting goods store. In all of that, I was not receiving any information of impairment.
You asked me yesterday whether I pursued an intoxication defense, ... and I did not. So either as a defense or in mitigation the fact that he was flying high on drugs on the day of the event, I did not put that forward.
I’m not certain that that would have a mitigating effect to the jury, and I’m not certain insofar as the question you asked me yesterday that being high on cocaine has the same intoxication effect as to be an intoxication defense. I suspect that’s why that was not investigated at the guilt phase.
N.T., May 10, 2007, at 280; N.T., May 11, 2007, at 20.
I appreciate that — in light of the multiple murders committed during Appellant’s crime spree, as well as the brutal calculation apparent in the kidnapping and killing of Ms. Amstutz — the attorney’s task relative to both guilt and penalty was daunting. Nevertheless, given the limited options and the strong evidence of contemporaneous drug use, it does seem to me that the possibility of an intoxication defense should have been investigated. While I agree with counsel’s reservations about the likelihood that a jury would consider voluntary intoxication as reducing Appellant’s culpability in the circumstances, counsel very plainly was faced with a limited range of options in any event.
I join the majority’s holding on this point, primarily because I agree that Appellant has not established that a further investigation concerning the degree of his intoxication would have impacted his own decision-making as to his waiver. See Majority Opinion, at 53-54,18 A.3d at 264-66.
I also believe counsel should have investigated the allegations regarding C.C.’ potential involvement in the killing of Ms. Amstutz. See Majority Opinion, at 59-61,18 A.3d at 268-70 (setting out the background and allegations relative to C.’ involvement with Appellant in the relevant time frame). I am persuaded, however, that counsel’s assessment that the hearsay evidence produced from fellow prisoners implicating C. in the killing was not sufficiently trustworthy to warrant admissibility. See N.T., May 10, 2007, at 230-39. Furthermore, it would appear to me that, much like the evidence of voluntary intoxication, the evidence of C.’ involvement was a two-edged sword in any event. For example, one of the prisoners testified on post-conviction that, before she was killed, Ms. Amstutz had been placed in the trunk of her car while Appellant and C. were “riding around” and “getting high.” See id. at 98. These were appalling details which the jurors did not hear but could very well have encountered had the prisoners testimony been admitted into evidence at trial. Moreover, the other prisoner’s accounts were internally inconsistent in material respects. For instance, while in some accounts the prisoner implied that C. said Appellant was incapacitated when Ms. Amstutz was killed, in another he had said he “heard C. saying how he and Spotz pulled [Ms. Amstutz] out of the car and dumped her along the side of the road[.]” Id. at 32 (quoting the prisoner’s statement dated April 3, 1996).
In light of Appellant’s involvement in two previous calculated killings of female victims whose vehicles he had also seized within the past two days, it seems to me to be very unlikely that jurors would have believed that it would have been his intention to ever release Ms. Amstutz.
Finally, I respectfully disagree with the majority to the degree it suggests that a defendant’s reasons for exercising a right to self-representation are irrelevant in a waiver colloquy. See Majority Opinion, at 53 n. 12, 18 A.3d at 265 n. 12. The Starr decision, cited by the majority, strongly confirms that a trial court may not substitute its own judgment for that of the defendant. See Commonwealth v. Starr, 541 Pa. 564, 583-85, 664 A.2d 1326, 1336-37 (1995). I do not read Starr, however, as preventing the court from probing the defendant’s reasons to evaluate the rationality of the decision and to determine, for example, whether some dereliction on the part of counsel has contributed to it. Cf. James v. Brigano, 470 F.3d 636, 644 (6th Cir.2006) (explaining that “the choice between unprepared counsel and self-representation is no choice at all”); United States v. Silkwood, 893 F.2d 245, 248 (10th Cir.1989) (establishing a rule prevailing in the Tenth Circuit that, “[f]or the waiver to be voluntary, the trial court must inquire into the reasons for the defendant’s dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se ”). While I am aware of no federal constitutional requirement that a court inquire into a defendant’s reasons, accord United States v. Robinson, 913 F.2d 712, 716 (9th Cir.1990), I see no reason to dissuade such inquiry.
4. Prosecutor Misconduct During Guilt Phase Closing Argument
I differ with the majority’s decision that Appellant’s claims in this category are “trivial” and “frivolous.” Majority Opinion, at 76, 77-78, 18 A.3d at 278, 279. In particular, understanding the prosecutor’s justifiable frustration with Appellant’s performance in his self-representation, I do not believe it was proper for him to relate such performance to Appellant’s crimes or to personalize the matter with the jury by asserting an attempt on the part of a pro se litigant to “fool you.” N.T., May 15, 1996, at 94. I also differ with the majority’s speculation that “[tjhere is no question that, if appellate counsel had invoked the relaxed waiver doctrine in an attempt to obtain review of the above comments, we would have declined to grant such review.” Majority Opinion, at 77, 18 A.3d at 279. In this regard, I do not believe, in the relevant time period, the Court was widely exercising its discretion to deny relaxed-waiver review on direct review in capital cases.
In the end, however, in light of the trial court’s instructions concerning the remarks of counsel, and although I would disapprove some of the prosecutor’s comments, I find that Appellant has not established that they “had the unavoidable effect of undermining the neutrality of the jury so as to preclude the rendering of a true verdict.” Commonwealth v. Kennedy, 598 Pa. 621, 634, 959 A.2d 916, 923-24 (2008) (setting forth the prevailing standard of review relative to claims of prosecutorial misconduct).
6. Prior Criminal Acts Evidence and Jury Instructions
As noted, I join the majority’s reasoning and disposition on this claim. I would only add that I strongly agree with the wide majority of other jurisdictions which have concluded that a contemporaneous instruction on the limited use of prior-bad-acts evidence is the preferred practice. See, e.g., Lesko v. Owens, 881 F.2d 44, 56 (3d Cir.1989); United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir.1988); People v. Heard, 187 Ill.2d 36, 240 Ill.Dec. 577, 718 N.E.2d 58, 72 (1999); People v. Abernathy, 402 Ill.App.3d 736, 341 Ill.Dec. 737, 931 N.E.2d 345, 361 (2010); State v. Angoy, 329 N.J.Super. 79, 746 A.2d 1046, 1052-53 (App.Div.2000) (“[A] prompt delivery of limiting instructions, either before, simultaneously with, or immediately after, the admission of other crimes evidence is preferable, and-unless there is some compelling reason to do otherwise-should be standard procedure followed by trial courts in all cases.”); cf. Lott v. State, 98 P.3d 318, 335 (Okla.Crim.App. 2004) (indicating that a trial court “must issue contemporaneous and final limiting instructions”).
Penalty Phase
9. Burglary Convictions as an Aggravating Factor
I support the majority’s holding on this question, as I have in and since Commonwealth v. King, 554 Pa. 331, 369-70, 721 A.2d 763, 782-83 (1998), based on precedent. I note only that Appellant’s references to the substantially more lenient approach reflected in the two-strikes sentencing law, see Majority Opinion, at 86-87, 18 A.3d at 285 n. 25, demonstrate that this Court does not always apply a narrowing construction to aggravating circumstances in death-penalty cases. Cf. Commonwealth v. Mitchell, 588 Pa. 19, 84, 902 A.2d 430, 469 (2006) (Saylor, J., concurring) (“I believe that an unnecessarily broad construction of provisions of the death penalty statute renders the statute vulnerable to constitutional attack.”).
11. Prosecutorial Comments During the Penalty Phase
Although I support the PCRA court’s conclusion that “[njothing stated by the prosecutor was so prejudicial that the jury was incapable of rendering a true verdict,” Commonwealth v. Spotz, CP-21-CR-0794-1995, slip op. at 54 (C.P. Cumberland, June 26, 2008), I have reservations about the majority’s categorical dismissal of Appellant’s concerns here. While it is true that this Court has indicated that it is permissible for a prosecutor to “disparage” mitigation evidence proffered by a defendant, see Majority Opinion, at 97-OS, 18 A.3d at 291-92, certainly a prosecutor may not deny there is some mitigating effect of the circumstances the Legislature expressly has denominated as mitigating, nor may he inject unfair prejudice into the proceedings. Thus, as with many other issues, assessment of these types of claims involves matters of degree and not mere categorization. Notably, moreover, some other jurisdictions have taken a more restrictive approach to overt denigration of a mitigation case. See, e.g., Williamson v. State, 994 So.2d 1000, 1014 (Fla.2008) (highlighting that the Florida high court has “long recognized that a prosecutor cannot improperly denigrate mitigation during a closing argument”). To the degree we continue to see prosecutorial arguments implying that no weight should be afforded by jurors to statutorily-prescribed mitigators and/or approaching the boundaries of fairness, it seems to me advisable to consider a similar approach.
13. Simmons “Life Means Life” Instruction
I support the majority’s holding on this claim solely in light of this Court’s holding that Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), is to be applied only prospectively. See Spotz, 587 Pa. at 92-93, 896 A.2d at 1245-46. I specifically disassociate myself from the dictum concerning Kelly’s application to this pre-Kelly case, see Majority Opinion, at 115-17, 18 A.3d at 302-03, with which I have material differences.
Finally, in light of the assertions in Mr. Chief Justice Castille’s concurrence, some of which I have previously supported, I believe that a referral to our lawyer disciplinary apparatus is warranted. This would permit the named attorneys to respond, and it would provide a foundation for the imposition of any appropriate sanctions.
42 Pa.C.S. §§ 9541-46.
We dismissed Appellant's claims of ineffective assistance of counsel in his manslaughter conviction without prejudice to his right to pursue those claims under the PCRA. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822, 837 (2005) ("Spotz IV").
Appellant’s appeal from the denial of collateral relief from his murder conviction in York County is pending in this Court.
Appellant represents that, in mid-2003, the instant PCRA proceedings were held in suspense pending this Court's decision in the appeal of his Clearfield County manslaughter conviction. See Appellant’s Brief at 3.
The issues, reproduced verbatim but reordered for ease of disposition, are as follows: 1. Did the failure to consolidate Appellant's three capital trials violate double jeopardy and due process when the Commonwealth was afforded a third opportunity to take Appellant’s life; did the determination that the facts were the same for purposes of admitting other crimes evidence but different for purposes of multiple trials violate due process; did the inconsistent resolution of Appellant's and C.N.'s claims under 18 Pa.C.S. § 110 violate equal protection; was the resulting prosecution arbitrary and capricious under the Eighth Amendment; and was counsel ineffective in failing to litigate these claims or in the manner in which the claims were litigated in the trial court and on appeal? 2. Was Appellant incompetent to waive his right to counsel at trial, and was that waiver invalid because it was not knowing, intelligent, and voluntary? 3. Was Appellant denied a full and fair opportunity to present a defense because of trial court error, ineffective assistance of counsel, and suppression of exculpatory evidence and was prior counsel ineffective in failing to litigate this claim? 4. Did the trial prosecutor make improper comments and arguments at trial that, individually and collectively, entitle Appellant to a new trial and was prior counsel ineffective in failing to object at trial and raise the issues in post-trial motions and on appeal? 5. Was the trial court’s instruction that the jury could draw an inference of intent to kill from the use of a deadly weapon against a vital portion of the deceased’s body unconstitutional when the court failed to require that the jury conclude that the defendant had intended to hit a vital part of the deceased’s body; and was prior counsel ineffective in failing to raise and litigate this claim? 6. Did the presentation of extensive evidence of Appellant's prior criminal acts, the trial court's failure to provide an advance cautionary instruction, and its subsequent provision of an instruction that stressed the value of the "other crimes” evidence that had been admitted violate Pennsylvania law and tire Sixth, Eighth, and Fourteenth Amendments, and was counsel ineffective in raising this issue solely as a matter of state law and in the manner he presented that claim at trial and on appeal? 7. Did the trial court's instructions improperly describe the nature and use of aggravating and mitigating factors and was prior counsel ineffective in failing to raise this issue at trial and on appeal? 8. Should Appellant’s convictions and death sentence be reversed because the prosecution presented extensive unreliable evidence in guilt and sentencing relating to the circumstances of his invalid convictions for manslaughter, aggravated assault, and murder in three other counties? 9. Was the aggravating circumstance that the defendant had a significant history of felony convictions involving the use or threat of violence to the person unconstitutionally applied in this case; did the prosecution falsely imply based upon facts not of record that Appellant's burglaiy convictions involved the use of a gun in circumstances that put him in conflict with burglary victims; was prior counsel ineffective in failing to challenge the (d)(9) aggravating circumstance as applied, to move pretrial to preclude or limit the evidence and argument in support of this circumstance, and for failing to litigate these issues on appeal? 10. Did the jury's guilt-stage verdict rejecting a finding that the murder occurred during the commission of a felony preclude the application of the (d)(6) aggravating circumstance that Appellant committed the killing during the perpetration of a felony? 11. Must Appellant's death penalty be reversed because of numerous improper prosecutorial comments during the penalty phase? 12. Did the trial court’s instructions to the jury that it must reject the death penalty before it could impose a life sentence, and the erroneous arguments of both counsel that a life sentence required mitigating circumstances to outweigh aggravating circumstances, improperly shift the penalty-phase burden of persuasion and violated the sentencing-stage presumption of life; was prior counsel ineffective in failing to litigate this issue at trial and on appeal? 13. Must Appellant’s death sentence be reversed because the trial court failed to instruct the jury that he would be ineligible for parole if sentenced to life; was prior counsel ineffective at trial for failing to seek a life without parole instruction and on appeal for failing to raise this issue under all available theories? 14. Was trial counsel ineffective in failing to investigate, develop, and present reasonably available mitigating evidence, failing to obtain and employ available institutional records, adequately interview available witnesses, and fully present the mitigating evidence that was available from the witnesses he did present? 15. Did the Commonwealth's failure to produce Department of Corrections mental health records material to guilt, mitigation, and the determination of the validity of Appellant's waiver of counsel violate Brady v. Maryland, and was counsel ineffective for failing to independently obtain these records, provide them to a mental health expert, present them as part of a mental health defense in mitigation, and to seek a competency evaluation? 16. Was counsel ineffective for failing to investigate and present mitigating evidence that Appellant's mental health disorders were treatable in prison? 17. Is Appellant entitled to relief from his conviction and sentence because of the cumulative effects of the individual errors in this case? 18. Did the Commonwealth violate due process in consuming an entire blood sample that could have exculpated Appellant; and did the PCRA court err in denying discovery? 19. Was Appellant denied full and fair review in the PCRA court; did the PCRA court improperly limit the record and prevent Appellant from presenting or proffering material facts? 20. Were monies improperly deducted from Appellant’s prison account? Appellant's Brief at 1-3.
Appellant's direct appeal was decided in October 2000, at which time the prevailing law required that a petitioner raise claims of trial counsel ineffectiveness upon obtaining new counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), overruled by Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The record indicates that Appellant acted pro se during the guilt phase of his trial, and was represented by public defender Taylor Andrews during the penalty phase as well as on direct appeal. This PCRA petition thus constitutes the first opportunity for Appellant to raise claims of ineffectiveness of trial or direct appeal counsel.
We further note that Appellant has previously raised very similar claims in connection with his other murder convictions, and we have consistently rejected those claims as well. In his direct appeal of his York County conviction for the first-degree murder of Penny Gunnet, Appellant argued that his trial should have been consolidated with his prior two trials for the voluntary manslaughter of his brother and for the first-degree murder of June Ohlinger, respectively in Clearfield County and Schuylkill County. Based on the compulsory joinder provision of 18 Pa.C.S. § 110, Appellant asserted that the trial court erred by denying his motion to quash the charges against him. Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1157-59 (2000) (“Spotz II ”). We rejected this claim, relying on the same factual and legal rationale as in the instant case. Compare id. and Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1285-86 (2000) (“Spotz III’’). Similarly, in his petition for collateral relief from his Schuylkill County conviction for the first-degree murder of June Ohlinger, Appellant asserted that his trial should have been consolidated with his trial for voluntary manslaughter in Clearfield County, and that counsel was ineffective for failing to preserve the issue. Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1207-11 (2006) (“Spotz V"). We concluded that the Clearfield County and Schuylkill County homicides were not part of the same criminal episode, so there was no arguable merit to Appellant’s underlying claim of error. Id. at 1210. We further noted that our rationale in the York County and Cumberland County cases was instructive to the Schuylkill County case. Id. Thus, the instant PCRA constitutes the fourth time that Appellant has raised some permutation of the issue of consolidation of his multiple homicide trials. We have consistently rejected these claims, concluding that Appellant's four killings, however they might be cataloged, grouped, or arranged, were not part of a single criminal episode.
The PCRA court did not address this sub-claim, but rather made only a generalized conclusion that Issue 1 had been previously litigated. See PCRA Court Opinion at 25. We reiterate here that a claim of ineffectiveness of counsel is distinct from the underlying claim of trial court error. Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 573 (2005) (holding that "a Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under § 9544(a)(2) ... [and] a PCRA court should recognize ineffectiveness claims as distinct issues and review them under the three-prong ineffectiveness standard announced in [Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) ]”). Thus, although Appellant's claim of trial court error for failing to consolidate his trials has been previously litigated, his claim of ineffective assistance of counsel in litigating this underlying claim has not.
Appellant has also alleged a third constitutional violation, grounded in equal protection and based on the state's prosecution of Appellant’s co-conspirator, C.N. Appellant asserts, without benefit of supporting argument, that he and Ms. N. were "similarly situated," although he was tried for the killing of four individuals, and she was tried for conspiracy and was a cooperating government witness at his trial. This sub-claim has not been developed factually or legally, and it is not supported with citations to relevant decisional or statutory law. In fact, it is impossible to discern exactly what error Appellant is alleging here. The sub-claim is unreviewable, and it is waived for lack of development.
This Court has held that the question of a defendant’s competency to stand trial is an exception to the waiver rule on direct appeal. See, e.g., Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139 (2005) (plurality) (providing citations). However, application of this principle in the context of the PCRA has been more divisive. In Brown’s plurality opinion, authored by then-Chief Justice Cappy, we held that the exception did apply in the context of the PCRA. Id. at 1155-56 (”[T]he failure to raise on direct appeal a claim that the appellant was incompetent at the time of trial does not constitute a waiver of that claim for purposes of the PCRA.)” In a concurring and dissenting opinion, Justice Nigro specifically noted his agreement with this principle. Thus, a majority of the Court has agreed that competency claims are not subject to the waiver provision of the PCRA. But see, id. at 1158 (Castille, J., concurring) (disagreeing with this principle as a judicial relaxed waiver rule inconsistent with the plain text of the PCRA); see also Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682 (2004) (Castille, J., concurring) (same).
With respect to the totality of the circumstances, we note that Appellant had already represented himself at his second capital murder trial, for the killing of Penny Gunnet in York County. See Spotz II, 756 A.2d at 1149.
As another part of this sub-claim, Appellant asserts that the trial court should have inquired into Appellant’s reason for wanting to waive his right to counsel. Such questioning is certainly not required in order to establish that a waiver is voluntary, knowing, and intelligent. In fact, a court’s disagreement with a defendant’s reason for proceeding pro se does not constitute grounds for denial of this constitutional right. See Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1336-37 (1995) (concluding that a trial court erred when it refused to permit a defendant to represent himself, based partially on the defendant's failure to provide what the court considered to be an adequate reason for seeking to waive his constitutional right to counsel). Consideration of a defendant's best interests, e.g., by evaluating his reasons for exercising his right to self-representation, is simply irrelevant to an assessment of whether a waiver of the right to counsel has been made knowingly, voluntarily, and intelligently. A court may not substitute its own judgment for that of a defendant who knowingly, voluntarily, and intelligently waives his right to counsel.
In Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), the United States Supreme Court considered whether there was a legally meaningful distinction between competency to stand trial and competency to represent oneself at trial. The high Court held that “the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial ... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.’’ Id. at 178, 128 S.Ct. at 2388 (emphasis added). In Edwards, the defendant, who suffered from schizophrenia, sought to represent himself, but the trial court refused this request, concluding that he was competent to stand trial but not competent to defend himself. The high Court held that the Constitution did not require the trial court to allow the Edwards defendant to represent himself at trial. This Court has not addressed Edwards or its implications for established state law as delineated in Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1334-39 (1995). In the instant case, Appellant has not cited or attempted to rely on Edwards for his competency argument. Thus, the Edwards distinction is not relevant to this case.
Specifically, the statement represented that Mr. W. overheard Mr. C. say the following: “I am going to let the white mother f-take it — let him fry;" and "I shot the old bitch in the head, but you might as well let him take it.” Mr. W. then stated that he did not remember if Mr. C. had said "head” or not. In his statement, Mr. W. also claimed that he had overheard Mr. C. say that he and Appellant had pulled Ms. Amstutz out of the car and dumped her along the side of the road. Statement of T.W., dated 4/3/96.
The PCRA court, in the interest of judicial economy, addressed the admissibility of Mr. W.’s proffered testimony in the event that Mr. C. was determined to be unavailable. Citing Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514 (2002) and focusing on the question of reliability, the PCRA court concluded that the circumstances surrounding the making of the statement did not clearly indicate its trustworthiness. Therefore, even if Mr. C. were unavailable, W.’s proffered testimony as to Mr. C.'s alleged confession was not admissible under the hearsay exception for statements against interest. PCRA Court Opinion at 15-20. We have no disagreement with the PCRA court’s analysis. We simply conclude that it is not necessary to reach the question of the trustworthiness of Mr. C.'s alleged confession because C. was not unavailable, and hence, regardless of how many indicia of reliability were or were not extant, the statement was not admissible under the hearsay exception for statements against interest.
Under Mississippi’s common law "voucher rule,” a party may not impeach his own witness. See Chambers, supra at 295, 93 S.Ct. 1038.
Appellant also alleges that the Commonwealth violated Brady by withholding evidence of Mr. W.’s reliability and prior cooperation with the Commonwealth as an informant. We see no indication that this issue was presented to the PCRA court, and Appellant has failed to direct us to any portion of the record that would show otherwise. Therefore, this issue has been waived. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”) We also fail to see how the Commonwealth's opinion of Mr. W.'s reliability can be Brady material, not least because it is neither material nor exculpatory.
Appellant tacks on an ineffective assistance of counsel claim to his Brady claim, asserting only that counsel’s performance was deficient "to the extent that counsel could have obtained this evidence despite the prosecution’s suppression.” Appellant’s Brief at 26. As we have discussed in the text, supra, any claims of ineffective assistance of counsel during the guilt phase of trial are precluded by Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 736-38 (2004), because Appellant was acting pro se. Furthermore, because Appellant’s underlying Brady claim is frivolous, there can be no arguable merit to any ineffectiveness claim grounded in counsel’s failure to seek the alleged Brady material, whether at trial or on direct appeal.
In addition to challenging the above-quoted four comments from the prosecutor's guilt phase closing argument, Appellant also challenges one aspect of the prosecutor's cross-examination of Dr. Stephen Anthony Ragusea, a clinical psychologist who testified on Appellant's behalf in the penalty phase. During direct examination, Dr. Ragusea opined that Appellant has made bad decisions throughout his lifetime. N.T. Penalty Phase, 5/17/96, at 1885. As an example of Appellant’s poor decision-making, Dr. Ragusea cited Appellant’s decision to represent himself at trial, as follows: The most recent bad decision, not as terrible as some of them, is, of course, representing himself at trial, which is a pretty preposterous thing to do. Id. at 1885-86 Subsequently, on cross-examination, the prosecutor questioned Dr. Ragusea as to his interpretation of the significance of Appellant’s self-representation: Prosecutor: And you talk about some of these things about [sic] you indicate, well, gee, it is pretty preposterous that he would represent himself. Now, he is of average intelligence, right? Dr. Ragusea: Yes. Prosecutor: First case you were at he had a lawyer, correct? Dr. Ragusea: Yes. Prosecutor: He didn't win? Dr. Ragusea: That is correct. Prosecutor: Okay. Now, suppose you put in a few other factors that I pose to you of an average intelligence, [sic] who has been through the system, who now sees that if he represents himself he can have a lot more visitors in prison, he can be in front of the jury and talk and question and everything else, but not have to testify, or be subject to cross-examination, if you add those factors in, that could be a pretty smart decision, couldn’t it? Dr. Ragusea: I don't think. Prosecutor: No? Dr. Ragusea: I don't think you would represent yourself in this case. I don’t think your assistant would represent himself in this case. I don't think the Judge would. I think you would all be wise enough and think clearly enough to know that it is better to put it in someone else's hands. Id. at 1889-90 (emphasis added to indicate the phrase cited and relied upon by Appellant; see Appellant's Brief at 29). This is the context in which the eleven-word phrase challenged by Appellant appears. Based on those eleven words, taken out of context, Appellant asserts that penalty phase counsel was ineffective for failing to object because the words "demeaned [Appellant’s] right to present a defense, his right to self-representation, and his privilege against self-incrimination,” implicating his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Appellant’s Brief at 29. We see no indication that this issue was raised before the PCRA court. It is not included in Appellant’s PCRA petition or supplemental petitions or even in his statement of questions on appeal to this Court. The PCRA court does not address the issue in its comprehensive opinions. Appellant has failed to provide any citation to the record where this issue is raised. The issue is waived. See Pa.R.A.P. 302(a). Further, the issue is entirely meritless. Dr. Ragusea, a defense witness — not a Commonwealth witness — initially raised the matter of Appellant's choice to represent himself as an example of his bad decision-making. On cross-examination, the Commonwealth was entitled to question Dr. Ragusea concerning his interpretation of the significance of Appellant's decision to represent himself and to offer an alternative view, i.e., that Appellant, who had represented himself in a previous trial and thus had experience with the judicial system, had made an informed and strategic decision. Although the Fifth Amendment affords protection against compulsory self-incrimination, "where as in this case the prosecutor's reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege.” United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); see also Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 248-49 (2000) (citing Robinson’s "fair response” doctrine in concluding that the prosecutor's request to the jury to "decide the case based on the evidence that came from that chair up there” was not improper). Here, a defense witness opened the line of inquiry as to the significance of Appellant’s self-representation, and the prosecution properly responded. Finally, we cannot see any way that the above comment could have “demeaned [Appellant’s] right to present a defense, his right to self-representation, and his privilege against self-incrimination.” Appellant's Brief at 29. The guilt phase of trial was over, Appellant’s period of self-representation was over, and the jury had found him guilty of first-degree murder. The only question remaining was the penalty to be imposed. Appellant fails to suggest how the prosecutor’s question could possibly have "demeaned” his right to present a defense to the death penalty or to any other right. There is no merit to this claim.
This issue is waived. See text infra. However, we cannot fail to note that Appellant’s underlying contention directly conflicts with the law in this Commonwealth. As we have stated, "the critical inquiry is the use of a deadly weapon on a vital part of the body, not the intentional aiming of the weapon at a vital part of the body.” Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 607 (2007) (emphasis in original).
Appellant also appears to be asserting some version of relaxed waiver with the following sentence in Issue 5: "Nor was this constitutional error waived by virtue of the failure to preserve it at trial. Freeman, 827 A.2d at 400.” Appellant's Brief at 32. We stress that this one sentence is the entirety of Appellant's argument against waiver of this issue. This one sentence does not constitute a developed, reasoned, supported, or even intelligible argument. The matter is waived for lack of development.
The PCRA court further indicates that the instruction was modified in 2005 to eliminate use of the word "terrible” for purposes of clarity and accuracy, and also out of fear of the prejudicial nature of this term. PCRA Court Opinion at 57.
Appellant's Clearfield County voluntary manslaughter and aggravated assault convictions were introduced pursuant to subsection 9711(d)(9), a significant history of violent felony convictions. Appellant’s first-degree murder convictions in Schuylkill and York Counties were introduced pursuant to subsection 971 l(d)(l 1), conviction of another murder, which was committed prior to or at the time of the offense at issue. N.T. Penalty Phase, 5/16/96, at 1635-36, 1639, 1641— 42; 5/17/96, at 154-55, 158 (Closing Argument).
As Appellant acknowledges, he raised a similar claim, invoking only his prior Clearfield County voluntary manslaughter conviction, in his collateral appeal of his Schuylkill County murder conviction. Spotz V, 896 A.2d at 1224-25. We held that Appellant’s voluntary manslaughter conviction was properly considered by the jury in finding the aggravating circumstance set forth in 42 Pa.C.S. § 9711(d)(12), conviction of voluntary manslaughter, committed either prior to or at the time of the offense at issue. Appellant submits that he has presented the claim here "to preserve it for possible federal habeas review and so as not to waive it in the event that one or more of these convictions are later overturned.” Appellant’s Brief at 9-10.
Appellant insists that because his burglaries involved “unoccupied vacation cabins,” they were "self-evidently nonviolent.” Appellant’s Brief at 78 n. 109, 79. To support this view, Appellant attempts to rely on 42 Pa.C.S. § 9714, in which the General Assembly determined that burglary is a crime of violence for purposes of Pennsylvania's two-strikes sentencing law only if a person is present at the time of the offense. Appellant’s reliance on Section 9714 affords him no relief. The General Assembly has indeed deemed burglary as a crime of violence for purposes of two and three strikes mandatory punishment only when the burglary is "of a structure adapted for overnight accommodation in which at the time of the offense any person is present.” Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 580 (2009) (Castille, C.J., concurring) (quoting 42 Pa.C.S. § 9714(g)). However, as Chief Justice Castille has explained, the General Assembly is free to define burglary or any other offense differently for different purposes. The fact that the General Assembly has limited the applicability of burglary for setting punishment under the two-strikes/three-strikes scenario does not alter established law regarding the use of burglary convictions to support the subsection 9711(d)(9) aggravator. Id.
Also in Issue 9, in one sentence containing no explication, Appellant claims that the aggravating circumstance of subsection 9711(d)(9) is unconstitutionally vague and overbroad as applied in this case, because the trial court failed to instruct the jury as to the definition of three elements, i.e., "significant history,” "use or threat of violence,” and "the person.” Appellant’s Brief at 75. Appellant raised exactly the same issue in Spotz V, 896 A.2d at 1240. We rejected his claim in Spotz V, and we do so again here on the same grounds.
First-degree murder is "an intentional killing.” Second-degree murder is a killing "committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. §§ 2502(a) and (b), respectively.
Toward the end of its instructions to the jury, the trial court also made this point in no uncertain terms: Remember that your verdict is not merely a recommendation. It actually fixes the punishment at death or life imprisonment. N.T. Penalty Phase, 5/17/96, at 1915 (Jury Instructions).
Also as part of this sub-issue, Appellant again contends that the prosecutor improperly commented on Appellant's exercise of his right to self-representation and his right not to testify. Appellant raised the same claim in Issue 4, and we have addressed the claim in that issue. See supra n. 19.
The four mitigating circumstances that Appellant proffered were the following: he was under the influence of extreme mental or emotional disturbance, 42 Pa.C.S. §§ 9711(e)(2); he had an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to law, 42 Pa.C.S. §§ 9711(e)(3); he was relatively young, just under 24 years of age, 42 Pa.C.S. §§ 9711(e)(4); and, pursuant to the catchall mitigator, 42 Pa.C.S. §§ 9711(e)(8), he was “neglected during his childhood,” was “physically abused,” had a “poor upbringing by his parents,” and "could have been helpful to others.” Sentencing Verdict Slip, dated May 17, 1996, at 2.
Also in this sub-claim, Appellant alleges that the prosecutor "made sure the jury knew that the York County Victim Coordinator, Jane R., was present to testify for the prosecution.” Appellant’s Brief at 88. This one-sentence sub-claim is unexplained and simply incomprehensible. Ms. R. was in the courtroom to identify Appellant as the convicted defendant in the York County murder of Penny Gunnet. Because Appellant stipulated that he was the defendant in that case, Ms. R. did not take the stand, as the following notes of testimony reveal: Defense Counsel: We will stipulate that the Mark Spotz identified in that [York County] record is the Mark Spotz that is the defendant in this proceeding. Court: Who is here on that one, Mr. Ebert [prosecutor]? Another one of your detectives? Prosecutor: Jane R.. I spell that R-i-es-e. She was present at the time of the conviction, is the York County Victim Coordinator. Court: All right. That has been stipulated to that [Appellant] is one in [sic] the same for the murder conviction, first degree, of Penny Gunnet. So, ma’am, you may be excused if you wish. N.T. Penalty Phase, 5/16/96, at 1642. Appellant fails to offer any argument or rationale as to how this exchange could possibly constitute prosecutorial misconduct. His claim is nothing short of nonsense.
Marinetti was an Opinion Announcing the Judgment of the Court, authored by Justice Newman and joined by Justices Eakin and Baldwin. Justice Saylor joined the majority’s holding and reasoning with regard to the issue of penalty phase jury instructions. Marinelli, supra at 690 (Saylor, J., concurring). Chief Justice Cappy, joined by Justice Baer, concurred, raising an issue of waiver. Id. at 689-90 (Cappy, C.J., concurring). Justice Castille concurred in the result without a separate writing.
We note that the jury instructions delivered here closely followed the Pennsylvania Suggested Standard Criminal Jury Instructions §§ 15.2502(F), (H). The language specifically challenged by Appellant, i.e., "rejecting the death penalty,” is suggested by the Subcommittee Note accompanying § 15.2502(H).
The United States Supreme Court has clarified that a capital defendant’s ineligibility for parole may be imparted to the jury either by the trial court’s instruction or by arguments of counsel. Shafer v. South Carolina, 532 U.S. 36, 39, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001). Here, while defense counsel did argue to the jury that its guilty verdict meant that Appellant would die in prison, counsel never explicitly informed the jury that a life sentence would render Appellant ineligible for parole. See N.T. Penalty Phase, 5/17/96, at 157, 182.
In our opinion resolving Appellant's direct appeal, we stated that "Appellant concedes both that the Commonwealth did not argue future dangerousness and that he never requested a Simmons charge.” Spotz III, 759 A.2d at 1291; see also Appellant’s Brief at 69 (acknowledging that, on direct appeal, Appellant's counsel conceded the absence of the two predicates for a Simmons instruction, but arguing that had he raised the issue in "appropriate terms,” a new sentencing proceeding should have been granted).
Spotz V was a plurality decision, authored by Justice Newman and joined by Justice Baer. There were three concurring opinions and one concurring and dissenting opinion, and Justice Eakin did not participate in the case. On the Simmons issue, Chief Justice Cappy and Justice Baldwin joined the Court, generating a majority on this issue.
Appellant suggests that several other pieces of evidence, in addition to his criminal history and his mental health, support his assertion that his future dangerousness was placed at issue. The first of these other pieces of evidence is a bit of the testimony of a defense witness who had served for a very brief time in 1985 as Appellant’s foster parent. The witness offered a lay opinion related to her conclusion that Appellant was an extremely difficult child. Witness: He ... was never given the opportunities, in my opinion, to develop a conscience. He has no conscience. N.T. Penalty Phase, 5/16/96, at 1735 (direct examination). Prosecutor: And you just found him to have no conscience? Witness: That is correct. He stated he didn’t. Id. at 1736 (cross-examination). Second, Appellant cites testimony of his wife that some of the poems he had written had violent-sounding names, specifically, "Media Blood Lust” and "Voices Roared through Lying Lips." N.T. Penalty Phase, 5/16/96, at 1851. The prosecutor did not even mention these excerpts of testimony in his statements to the jury. There is no obvious relevance of this testimony to future dangerousness, and it certainly does not support the issuance of a Simmons instruction, even under Kelly. Third, as additional evidence that allegedly placed Appellant's future dangerousness at issue, Appellant cites “[ejvidence that Appellant had been aware of his parole status at the time of the murder and thought that it was possible that he eventually could be released if sentenced to life." Appellant’s Brief at 65. The specific evidence cited by Appellant to support this assertion is the testimony of Scott Miller, a state trooper who interviewed Appellant shortly after his arrest. Trooper Miller testified that Appellant stated the following to a police officer also conducting the interview: "[D]o you think I will have to do life, plus the remaining years on my parole.” N.T. Trial, 5/13/96, at 982. Appellant objected to the witness's statement regarding parole as prejudicial, out of the presence of the jury, and the court then instructed the jury to disregard the reference to parole. Id. at 982-87. It is far from clear that this testimony implies that Appellant thought he might eventually be released if sentenced to life imprisonment. Furthermore, Appellant presents no argument as to why his speculations to a state trooper, posed well before trial had even started, as to the sentence he might receive, should support the issuance of a Simmons instruction. This sort of "advocacy” neither credits counsel nor benefits his client.
There is some confusion in the record as to whose hand — Appellant’s, Dustin's, or both — a stepfather burned, apparently as punishment.
At the PCRA hearing, Dr. Ragusea testified that Appellant gave an indication that there was sexual abuse in his family, but "he grossly understated it." N.T. PCRA Hearing, 1/18/07, at 138.
The allegedly incomplete or absent records, information, and evidence cited by Appellant includes the following: testimony of Ms. R. as to abuse suffered by Appellant, discussed supra in text; criminal, institutional, and hospital records of Dustin Spotz, see Appellant's Brief at 45 n. 51, 47, 50-51 n. 63; CYS and other institutional records regarding Appellant and his family members, see id. at 47-49
The two psychiatrist expert witnesses offered by the defense at the PCRA hearing also concluded that Appellant suffered from chronic and severe post-traumatic stress disorder, as well as polysubstance abuse. One, Dr. Fox, also diagnosed Appellant with obsessive compulsive disorder. Although, like Dr. Ragusea, both psychiatrists also diagnosed Appellant with a personality disorder, they differed with regard to the type. Dr. Fox's diagnosis was borderline personality disorder, but Dr. Blumberg's diagnosis was personality disorder not otherwise specified, with features from dependent, schizotypal, borderline, and antisocial personality disorders. PCRA Court Opinion at 41 n. 26; N.T. PCRA Hearing, 2/22/07, at 76; and 1/18/07, at 10-11, 17, 26. Dr. Blumberg clarified that personality disorder not otherwise specified is simply the newer term for mixed personality disorder. N.T. PCRA Hearing, 1/18/07, at 10. Thus, it would appear that the type of personality disorder diagnosed by Dr. Blumberg for purposes of collateral appeal is very similar to the type first diagnosed by Dr. Ragusea, i.e., at the time of trial.
The PCRA court found that the Department of Corrections sent Appellant’s psychological/psychiatric records to the York County Office of the Public Defender in November 1995; however, the court's findings in this regard are not consistent with the exhibits of record. The exhibits show that the records at issue were sent on February 21, 1996. See Petitioner's Exhibit 83. This discrepancy is not relevant to our resolution of the matter.
Appellant also asserts that the Ryan Report and Maue Notes "corroborated testimony concerning sexual abuse and neglect,” "described Appellant's personality features consistent with those expected in a person who suffered extreme physical and sexual abuse, neglect, and a severely dysfunctional upbringing," ”demonstrat[ed] that Appellant was suffering from a serious PTSD-related mental and emotional disorder in the days immediately following [the killing of his brother Dustin],” and "established] that Appellant was actively suffering from PTSD at and around the time of trial.” Appellant's Brief at 57-59. These assertions do not accurately reflect the content of the documents at issue. Post-traumatic stress disorder (PTSD) is not included among the "Diagnostic Impressions” of the Ryan Report. In fact, neither the Ryan Report nor the Maue Notes even mentions PTSD.
Appellant asserts that the Maue Notes and the DOC Psychiatry Department Referral Form "evidenc[e] symptoms of Appellant’s Post-traumatic Stress Disorder.” Appellant's Brief at 60. However, there is no mention of PTSD in these writings, only Appellant's self-reported symptoms of decreased sleep, hallucination, and depression. Furthermore, PTSD is not included in the "Diagnostic Impressions” of the Ryan Report.
It appears that Donald Bloser, Jr., a forensic scientist employed by the Pennsylvania State Police Crime Laboratory, initially extracted and then did some preliminary testing of the blood stain on the sneaker. After this testing established that the blood did not belong to Appellant, Mr. Bloser recommended that the sample be forwarded to Cellmark Diagnostics for DNA analysis. N.T. Trial, 1/13/96, at 1012.
In another sub-claim of Issue 19, Appellant reasserts exactly the same issue already addressed and rejected in Issue 18. Appellant’s Brief at 95; see text, supra.
There were approximately 90 defense exhibits in total presented to the PCRA court, of which the Commonwealth objected to 21. N.T. PCRA Hearing, 5/11/07, at 102. We note that one of the exhibits allegedly not transmitted, i.e., Exhibit 39, is in fact included in the record transmitted to this Court and was apparently admitted by the PCRA court. See N.T. PCRA Hearing, 5/11/07, at 108, 115-16. The exhibit is identified by Appellant as "Schuylkill PCRA Hrg. Exh. P-10, handwritten note from Schuylkill prosecutor’s file." Appellant's Brief at 94 n. 123. It was described in the notes of testimony as a handwritten note from the file of the Schuylkill County District Attorney. N.T. PCRA Hearing, 5/11/07, at 107-08. The note, in its entirety, reads as follows: 10/6/95 Re: N. atty Cammarano [N.'s counsel] won’t be here on the 18th for Plea Negos. won’t be able to meet w/ her parents until the 20th Appellant’s Exhibit 39. C.N., who pled guilty to several charges in connection with Appellant’s first three killings but was not charged in the instant Cumberland County crimes, testified against Appellant at trial. See N.T. Trial, 5/10/96, at 261-406. Appellant provides absolutely no insight as to the conceivable relevance or materiality of this note, which apparently concerns the scheduling of Ms. N.'s Schuylkill County plea negotiations, to his instant appeal.
To illustrate the undeveloped nature of Appellant's contentions in this sub-claim, two examples are set forth below, each of which includes the excerpt of the PCRA notes of testimony cited by Appellant and his accompanying but unexplained assertion as to that excerpt. With regard to the first example, Appellant asserts only that the PCRA court "preclud[ed] proffer on the relevance of expert testimony regarding Dustin Spotz's sexual abuse.” Appellant's Brief at 94 n. 124. Defense Counsel: Doctor, in the ... records related to Dustin [Spotz], there is a reference that Dustin propositioned another boy asking him to have oral sex. Is that consistent with the conduct of a child who has been sexually abused and is reenacting that abuse? Commonwealth: Objection. PCRA Court: Sustained. Defeme Counsel: What would the significance of an event like this be? Commonwealth: Objection. PCRA Court: Sustained. Move on to your client. De feme Counsel: Your Honor— PCRA Court: I have made the ruling. You are hammering in the same thing from 50 different angles. Get me information that I have not heard that is relevant. Defense Counsel: Your Honor-I would just ... offer a proffer. PCRA Court: No. I don't want to hear a proffer. You are ahead of the game. N.T. PCRA Hearing, 1/17/07, at 181-82 (cited in Appellant's Brief at 94 n. 124). It is clear from the notes of testimony reproduced above that the PCRA court denied admission of die proffered testimony based on relevance and cumulative effect. Appellant has set forth absolutely no argument that the PCRA court’s ruling was erroneous. With regard to the second example, Appellant asserts only that the PCRA court "preclud[ed] proffer of expected expert testimony regarding Appellant’s state of mind at the time” of the killing of his brother. Appellant’s Brief at 94-95 n. 124. Defense Counsel: Doctor [Blumberg], I would now like to turn your attention to the Clearfield County incident where Dustin attacks [Appellant], [Appellant] kills Dustin. First of all, was [Appellant]— how aware was [Appellant] of Dustin’s violent propensities? Dr. Blumberg: Intimately aware. He had been assaulted by him on numerous occasions. He had been threatened by him on numerous occasions. He had been stabbed by him, you know, on one prior occasion in which he was actually stabbed with a knife and significantly injured by him on, again, other occasions with sharp objects, and he was well aware of Dustin's explosive violent nature. Defense Counsel: When Dustin stabs [Appellant] and there are two knife stabs and threatens — well, first of all, who did Dustin threaten? Commonwealth: Objection, Your Honor. PCRA Court: How is all this relevant? [Appellant] was convicted of what? Defense Counsel: [Voluntary] Manslaughter. PCRA Court: How is this relevant? Defense Counsel: Because there was no mental health evidence that was presented in that case at all, and in terms of rebutting the seriousness of the manslaughter conviction as an aggravating circumstance, Dr. Blumberg is going to give his opinion that — well. Your Honor, may I approach? I don't want to say— PCRA Court: You may not approach. I am going to sustain the objection. I have heard enough. It is not relevant in this case. Defense Counsel: I’m sorry? PCRA Court: We are not getting into the — we know what [Appellant] was guilty of in that case, voluntary manslaughter. It has been determined. Now, how that case was tried and what the circumstances were and what was admitted is not relevant in this case, and I will not allow it period. N.T. PCRA Hearing, 1/18/07, at 34-36 (cited in Appellant’s Brief at 94-95 n. 124). It is clear from the above excerpt that the PCRA court sustained the Commonwealth’s objection based on relevance and the finality of a prior conviction. Again, as in the first example, Appellant has set forth absolutely no argument that the PCRA court's ruling was erroneous. As summarized in the text, supra, Appellant's generalized assertion that the PCRA court’s rulings, such as in the above examples, denied him "the chance to develop a record, in violation of his constitutional rights to meaningful post-conviction review” does not constitute a reasoned argument amenable to review.
One of the ten general areas concerns testimony regarding the circumstances of Ms. N.’s prosecution and guilty plea. Appellant contends that this testimony was relevant and material to his Brady claim. Appellant’s Brief at 97. Appellant raises two Brady claims in this appeal, which we have rejected, supra, in the text. One concerns evidence as to the involvement of Mr. C. in a prior murder, and the other concerns mental health reports from the Department of Corrections. See text, supra, Issues 3 and 15, respectively. Appellant provides absolutely no suggestion as to how the circumstances of Ms. N.’s prosecution and guilty plea could possibly be relevant and material to either of these Brady claims.
The second citation to the notes of testimony in this excerpt of Appellant’s brief is in error. Dr. Fox testified on February 22, 2007, not on January 18, 2007.
We cannot fail to note that Appellant’s parenthetical phrases after his citations to notes of testimony in this issue do not even consistently and accurately describe the circumstances of the excerpt. For exam-pie, Appellant contends that, in the following excerpt, the PCRA court precluded "expert testimony regarding the impact of Appellant's foster-care experience on his emotional, psychological, and mental stability.” Appellant’s Brief at 96 n. 128. A review of the excerpt shows that Appellant has incorrectly characterized the PCRA court’s action. Defense Counsel: If it was devastating — it was the most emotionally devastating day for the caseworkers, what would it have been like for those two young children [Appellant and Dustin Spotz]? Dr. Blumberg: Well— Commonwealth: Objection, assuming facts not in evidence. PCRA Court: What, being told that they weren't going home with their parents? Is that what the question is? Defense Counsel: Yes. PCRA Court: Are or are not? Defense Counsel: Are not going home. PCRA Court: Sustained. I did not come from the moon. Come on. There are no 12 people sitting over here. Get me the facts that I need to resolve the issues on. Defense Counsel: Your Honor, this could have been told to the jury. PCRA Court: Sustained. Next question. Defense Counsel: Doctor [Blumberg], what ldnd of effect would this type of experience have on [Appellant's] emotional development? Dr. Blumberg: Very damaging. Again, this is not just an implied or indirect abandonment but a definite rejection from the parent that they don't want the child. It’s kind of hard to think of anything in terms of an emotional damage that could be more damaging. Defense Counsel: Would that effect be compounded with each additional instance of parental abandonment? Dr. Blumberg: Yes, it would certainly be cumulative. N.T. PCRA Hearing, 1/17/07, at 159-60. Dr. Blumberg then continued to answer several other questions regarding the effect on Appellant of his foster care placements and abandonment by his mother. Contrary to Appellant's assertion, the PCRA court did not preclude testimony as to the effects of his foster care experiences on his emotional and psychological health. In a second example. Appellant asserts that, in the following excerpt of his grandmother's examination, defense “counsel was prevented from eliciting evidence of Dustin Spotz's rages.” Appellant's Brief at 97 n. 129. Again, Appellant has misstated the import of the excerpt. Defense Counsel: ---- [Appellant’s] relationship with his brother, Dustin. Could you describe — was there a difference between the way Dustin responded to the abuse at home and the way [Appellant] responded to the abuse? Ms. R.: When [Appellant] was abused, he was very passive. He did not fight back. He took it and was quiet about it. Dustin, on the other hand, when he was abused, he returned abuse. He would fight with these stepfathers. And their relationship to each other, the two boys — Dustin already had his growth spurt. [Appellant] was small. Dustin was tall and of course stronger than [Appellant], and they would start wrestling. Usually Dustin would initiate, let’s wrestle. Defense Counsel: .... Would it go beyond wrestling? Ms. R.: Yes, yes. He would hurt [Appellant]. He said he didn't do it intentionally, but once he would get started these violent rages Dustin described that— Defense Counsel: Your Honor, I’m going— Ms. R.: —he had a different world inside him. PCRA Court: Next question. Defense Counsel: Did you observe any of these occurrences? Ms. R.: Oh, yes, yes. The time that I intervened was when I was watching them.....I saw where Dustin was really getting rough with [Appellant]..... And finally he was twisting [Appellant] all different directions..... and [Appellant’s] saying, Dustin, you’re hurting me..... Defense Counsel: As they got older ... did this situation improve or get worse? Ms. R.: As Dustin got older, his bipolar, manic depressive condition worsened, and of course he became more violent, although [Appellant] was growing too and he could defend himself a little bit more, but Dustin at that time as he got older he was not just wrestling for fun. He would get these violent spells. N.T. PCRA Hearing, 1/17/07, at 39-41. Contrary to Appellant’s assertions, the PCRA court did not preclude defense counsel from eliciting testimony by Appellant’s grandmother as to Dustin’s violent outbursts, particularly as they were directed against Appellant. Appellant further asserts that he was precluded from eliciting testimony that "the social services system failed [him].” Appellant’s Brief at 97 n. 130. This is entirely false, as the following excerpts of testimony show: Defense Counsel: I want to turn now to the many placements that [Appellant] underwent as a child. My specific question [is] can you form an opinion as to whether Child and Youth Services and other agencies, governmental agencies responsible to insure the well-being of children in this Commonwealth, functioned as well as they could have? Dr. Ragusea: The answer is they functioned far worse than that. This was — in all the years I’ve worked with these agencies, I’ve never seen a worse example of society — individuals that were given the affirmative action to protect children [ — ] fail. I’ve never seen a worse example of a group of individuals who were assigned the task of saving children from pain and suffering fail as badly as this. That’s the answer to that question. Defense Counsel: Were there sufficient red flags for those — for the authority to do something, to remove these children from the home? Dr. Ragusea: Many. Again, you know, various points of severity wasn’t [sic] known, but there was enough information that these children should never have been brought back to their home. Defense Counsel: And was it one specific instance or were there multiple? Dr. Ragusea: No, it was multiple instances. And based upon the record that I looked at, the kids were brought back to the home more because their mother wanted them there at various points, and they were sent out of the home because their mother didn't want them at various points. Defense Counsel: And even reviewing the Child Service records, the minimal ones, even from there there's enough indication that the system failed? Commonwealth: Objection, asked and answered. Court: Sustained. He answered your question before. N.T. PCRA Hearing, 1/18/07, at 168-70. Thus, Appellant's assertion that he was precluded from eliciting testimony that the social services system failed him is completely belied by the record. The Commonwealth's objection, and the sustaining of that objection, were grounded in the cumulative nature of the continuing testimony, nothing more. The sheer number of undeveloped challenges in this sub-claim, and the above excerpts, which are non-exhaustive examples of Appellant's misinterpretation of the record, suggest that Appellant is attempting to compensate for a lack of overall merit with an overwhelming number of assertions of error.
In addition, Appellant also appears to assert, albeit vaguely, that PCRA counsel were ineffective. [] Appellant’s counsel filed a Motion for Reconsideration that, in part, requested that the [PCRA] court permit counsel to amend to include those claims [¿.e., claims raised in Appellant’s pro se Letter to Court], Counsel specifically noted that they had no intent or strategic basis for failing to raise these issues and that, to the extent counsel failed to raise issues, counsel was ineffective. Appellant’s Brief at 99. Other than a few citations to authority for the principle that a person seeking post-conviction relief is entitled to assistance of counsel, the sentences above constitute the entirety of Appellant’s “argument” for his apparent assertion that PCRA counsel was ineffective. We first note that the Defender Association of Philadelphia, Capital Habeas Corpus Unit, has represented Appellant throughout the PCRA proceedings and this appeal. To the extent that Appellant’s PCRA attorneys are asserting their own ineffectiveness, such an assertion violates the general rule that counsel cannot argue his or her own ineffectiveness. See Commonwealth v. Ciptak, 542 Pa. 112, 665 A.2d 1161, 1161-62 (1995) ("As a general rule, a public defender may not argue the ineffectiveness of another member of the same public defender’s office since appellate counsel, in essence, is deemed to have asserted a claim of her or her own ineffectiveness.”) However, because it is impossible to determine exactly what Appellant is arguing from his brief, vague, and qualified assertions, we conclude that the matter is unreviewable and waived for lack of development.
The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S. § 97U(i).
See Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 488-89, 489-90 (Pa.2011).
See Dougherty v. Beard, No. 09-CV-902 (Petitioner’s Motion to Reactivate Habeas Proceedings), lodged on this Court’s docket in Commonwealth v. Dougherty, 585 CAP.
The Defender has also volunteered itself in appellant's two other capital PCRA cases, arising from the separate murders that appellant committed in Schuylkill and York counties in 1995, which are pending on collateral review. Appellant’s petition in this case listed 19 claims the Defender raised in appellant's Schuylkill County PCRA petition, and 33 claims the Defender raised in appellant's York County PCRA petition. In both cases, as here, the claims entail various sub-claims as well as allegations of counsel ineffectiveness at all levels. Appellant’s PCRA Petition, 12/4/02, at 28-39.
The Motion was forwarded by the Commonwealth via a Post-Submission Communication, seeking to lodge the Motion, with the Commonwealth noting that this Court should be made aware of the accusations. We granted the Commonwealth's Motion.
Two examples of Defender delay in cases the Defender calls “active” and “pending” and “languishing” due to this Court's supposed incapability are illustrative of the abusiveness of the federal motion filed in Dougherty. Commonwealth v. Clayton, 573 CAP, involves a serial PCRA petition filed in 2004. That matter was not briefed and submitted to the Court until March 29, 2011. Before filing the underlying serial petition, the Defender had successfully moved to have Clayton’s federal habeas petition held in abeyance so he could ping-pong back to state court to pursue serial claims. State relief was denied in June of 2008 because the serial petition was untimely; yet, the Defender appealed. Thereafter, the matter was delayed because the Defender failed to discharge its duty as appellant to ensure the forwarding of the record. It was only after the Commonwealth filed a Motion to Dismiss in March of 2010 that the logjam broke, and the Defender, in response to the Motion, requested that a briefing schedule issue. The Defender obviously knew these facts when it filed its federal motion in Dougherty. The defendant, and then the Defender, also caused the bulk of the delay in Commonwealth v. Ali, 437 CAP, as detailed in our recent opinion deciding that case. See 10 A.3d 282, 290 (Pa.2010). The PCRA petitioner in Ali sought to represent himself, and we remanded for a hearing on the issue. The Defender opposed its client's wishes every step of the way, which included claiming that Ali must be incompetent if he did not want its services, filing an interlocutory appeal, attempting to add new collateral claims in violation of the limited remand order, and then filing an unauthorized appeal after the PCRA court granted Ali’s request to represent himself. It is debatable whether all of these procedural maneuvers were legitimate; what is not debatable is that it was the defendant's request, and the Defender's ensuing maneuvers, not judicial indifference, that delayed the case. In the text below, I discuss three other cases on the Defender/Ballard list of "languishing cases” resulting from this Court's "incapability” of managing its capital docket: Commonwealth v. Hill, 521 CAP (decided); Commonwealth v. Porter (pending); and Commonwealth v. Banks (pending). In all three cases, the strategic conduct of the Defender was the primary cause of delay. Furthermore, this case, which involves abusive Defender briefing requiring a dispositional opinion in excess of 125 pages, is on the Defender/Ballard list. In addition, eight other capital appeals on the Defender/Ballard list were decided by published opinions of this Court between December 30, 2010 and April 28, 2011: Commonwealth v. Ali (PCRA appeal impeded by Defender as discussed above; 57-page slip opinion); Commonwealth v. Dennis, 491 CAP (PCRA appeal following remand, a fact not accounted for in federal motion and calculation of "delays”); Commonwealth v. Briggs (direct appeal necessitating 76-page slip opinion); Commonwealth v. Lesko, 518-520 CAP (PCRA cross-appeals; 93-page Defender brief on Lesko's appeal raising 22 principal claims and innumerable sub-claims, including in 68 footnotes allowing brief to violate page limitation; 91-page Defender brief as appellee; necessitating 104-page slip opinion); Commonwealth v. Hill (PCRA appeal; Defender representation and conduct the primary issue); Commonwealth v. Paddy, 478 CAP (PCRA appeal; 99-page Defender principal brief raising 17 primary claims; necessitating 57-page slip opinion); and Commonwealth v. Smith, 591 CAP (PCRA appeal following remand, 71-page Defender brief raising 11 principal claims, despite fact that case was limited to guilt phase issues; necessitating 62-page slip opinion). Decisions in another two capital cases on the Defender/Ballard list are being issued contemporaneously with the decision in this case: Commonwealth v. Dougherty itself; and Commonwealth v. Houser, 541 CAP. In addition, two other cases involving time-barred, serial PCRA petitions were decided by this Court via per curiam affirmance: Commonwealth v. Fisher, 607 CAP (third PCRA petition; Defender brief); and Commonwealth v. Bridges, 609 CAP. These capital cases — largely courtesy of the Defender — represent a small part of the workload of this Court. Such is the supposed lassitude of our approach to our capital docket.
The Commonwealth may still seek rehearing en banc or petition the U.S. Supreme Court for certiorari review of the Third Circuit's recent decision.
Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848 (2005), involving a non-Defender client, details a distinct form of unauthorized Defender (mis)conduct. See id. at 853 (noting finding of supervising judge of criminal division of Philadelphia Court of Common Pleas, who concluded that Defender illegally abused subpoena power to circumvent PCRA discovery rules and obtain archived police files in approximately 25 capital cases, including Lambert’s, leading to disciplinary referral).
Pa.R.Crim.P. 907.
See Joseph Heller, Catch-22 (1961).
47 A.3d 63
COMMONWEALTH of Pennsylvania, Appellee v. Mark Newton SPOTZ, Appellant.
Supreme Court of Pennsylvania.
Submitted Aug. 29, 2011.
Decided June 26, 2012.
See also 610 Pa. 17, 18 A.3d 244 and 587 Pa. 1, 896 A.2d 1191.
Michael Hugh Gonzales, Defender Association of Philadelphia, Eric John Montroy, Federal Community Defender Office, Eastern District of PA, David Lee Zuckerman, Defender Association of Philadelphia, Philadelphia, for Mark Newton Spotz.
Kelly M. Sekula, Amy Zapp, Harrisburg, PA Office of Attorney General, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
[OPINION BY Justice McCAFFERY. type=majority]
OPINION
Justice McCAFFERY.
Mark Newton Spotz (“Appellant”) has appealed from the denial of his petition for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), following his conviction in York County for first-degree murder and the imposition of a sentence of death. Concluding that there is no merit to any of the numerous issues that Appellant has raised on appeal, we affirm the order of the PCRA court.
To begin, we set forth the relevant facts of the case, summarized primarily from this Court’s opinion on direct appeal. See Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1147-48 (2000) (“Spotz II ”). At 6:20 a.m. on February 2, 1995, in York County, Appellant approached Penny Gunnet’s vehicle on the pretense of asking her for directions. He forced her into the passenger seat of her car at gunpoint and then drove to an isolated area. C.N., Appellant’s then-girlfriend, followed him, driving a car they had stolen the previous day in Schuylkill County. While both cars were stopped on an isolated road, N. heard three gunshots. Appellant then sped off in Ms. Gunnet’s car, with N. in unsuccessful pursuit in the other stolen car. Ms. Gunnet’s body was found later that morning under the wheels of her abandoned car. Hours after the murder, Appellant tried to sell some of Ms. Gunnet’s jewelry, and he later gave her rings to his ex-wife, M.R.
Police apprehended Appellant in a motel room in Carlisle, Blair County, the day after Ms. Gunnet’s murder. When Appellant opened the door to the room and surrendered, he discarded a silver nine-millimeter semiautomatic pistol that was subsequently identified as the weapon that had fired at least two of the three nine-millimeter bullets recovered from Ms. Gunnet’s car. In the motel room, police found Appellant’s bloodstained jeans, a knife, nine-millimeter “full metal jacket” ammunition, five credit cards issued in Ms. Gunnet’s name, and one credit card issued in her husband’s name.
The abduction and murder of Ms. Gunnet was part of a three-day crime spree, during which Appellant committed four homicides in four counties. Two days before Ms. Gunnet’s murder, on January 31, 1995, Appellant shot and killed his brother, Dustin Spotz, in Clearfield County and then fled with Ms. N.. The next day, in need of money and a vehicle, Appellant abducted June Ohlinger at gunpoint in Schuylkill County, drove her car to a remote area, and then shot her in the head. After a brief trip to Rehoboth Beach, Delaware, where Appellant and Ms. N. attempted to alter their appearances, they drove to York County in search of another vehicle to steal. This was the point at which they came upon Ms. Gunnet. Following the abduction and murder of Ms. Gunnet, Ms. N. went to Altoona in Blair County, where she surrendered to police, and Appellant went to Cumberland County, where he abducted and murdered his fourth victim, Betty Amstutz, and stole her car and her money.
Appellant was tried separately for each homicide. He was ultimately convicted of voluntary manslaughter in the death of Dustin Spotz in Clearfield County, and of first-degree murder in the deaths of Ms. Ohlinger, Ms. Gunnet, and Ms. Amstutz, in, respectively, Schuylkill, York, and Cumberland Counties. During the guilt phase of his trials in York and Cumberland Counties, Appellant proceeded pro se. Although the Superior Court overturned Appellant’s voluntary manslaughter conviction and granted him a new trial, this Court reversed and reinstated the conviction. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005) (“Spotz IV”). On direct appeal, this Court affirmed each of Appellant’s three first-degree murder convictions and sentences of death. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) (Schuylkill County) (“Spotz I ”); Spotz II, 756 A.2d at 1139 (York County); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000) (Cumberland County) (“Spotz III ”). In addition, we subsequently affirmed the orders of the PCRA courts denying Appellant collateral relief from his Schuylkill County and Cumberland County first-degree murder convictions. See, respectively, Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006) (“Spotz V”) and Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244 (2011) (“Spotz VI ”). Here, Appellant seeks review of the order of the PCRA court denying his petition for collateral relief from his York County first-degree murder conviction.
Appellant filed a pro se PCRA petition challenging his York County conviction as well as a request for appointment of counsel in April 2001. On August 20, 2001, the Defender Association of Philadelphia filed a PCRA petition on Appellant’s behalf. See Amended Petition for Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and for Statutory Post-Conviction Relief under the PCRA, filed 8/20/01. Subsequently, the Defender Association filed two supplements, on May 20, 2002, and May 31, 2007, respectively. With all of these filings, Appellant raised 34 issues before the PCRA court. PCRA Court Opinion, dated March 25, 2010, at 4. The court held a PCRA hearing from September 17 through September 19, 2007. After Appellant’s competency was placed into question, the PCRA court continued the hearing, pending completion of competency evaluations. The PCRA court subsequently determined that Appellant was competent, and then resumed the PCRA hearing from June 9 through June 13, 2008. Appellant appeared via videoconference. Id. at 5. The PCRA court filed an opinion and order on March 25, 2010, denying all of Appellant’s claims.
Appellant filed a timely notice of appeal to this Court, raising 11 issues for review, most of which include several sub-issues, for an approximate total of 37 claims. Before addressing the issues raised, we set forth our standard of review, the relevant statutory requirements under the PCRA, and the relevant legal principles controlling claims of ineffective assistance of counsel. See Spotz VI, 18 A.3d at 259-60.
Under the applicable standard of review, we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 284 (2011). The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions. Id.
To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a constitutional violation or ineffectiveness of counsel, either of which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been waived “if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post[-]conviction proceeding.” 42 Pa.C.S. § 9544(b). An issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2); see Hutchinson, supra at 284-85; Spotz VI, supra at 259.
With respect to claims of ineffective assistance of counsel, we begin with the presumption that counsel is effective. Hutchinson, supra at 285. To prevail on an ineffectiveness claim, a petitioner must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because of counsel’s action or inaction. Id. (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the second, i.e., the “reasonable basis” prong, we will conclude that counsel’s chosen strategy lacked a reasonable basis only if the petitioner proves that “an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Id. (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). To establish the third, i.e., the prejudice prong, the petitioner must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s action or inaction. Id.
Issue 1: Waiver of Counsel
In Issue 1, Appellant claims that his guilt-phase waiver of counsel was constitutionally invalid because of four alleged circumstances: (a) counsel’s conflict of interest; (b) counsel’s failure to investigate or prepare a guilt-phase defense; (c) Appellant’s mental incapacity; and (d) the trial court’s improper restrictions on standby counsel. Just prior to trial, Appellant indicated to the court that he wanted to proceed pro se because of alleged conflicts with his counsel, assistant public defenders Bruce Blocher and Suzanne Smith. After an extensive colloquy, the trial court granted Appellant’s request to represent himself, and appointed Mr. Blocher and Ms. Smith as standby counsel. Notes of Testimony (“N.T.”) Trial, 4/8/96, at 12, and 4/12/96, at 32-36. Appellant does not challenge the colloquy; rather, he asserts that his “purported waiver [of the right to counsel] was an incompetent and invalid by-product” of the factors listed above. Appellant’s Brief at 18.
The PCRA court denied relief, citing the trial court’s two thorough and proper colloquies; crediting defense counsel’s PCRA testimony that Appellant understood what was happening at trial and the nature of his offense; and recognizing that this Court had concluded on direct appeal that the trial court did not abuse its discretion in denying Appellant’s pretrial request for appointment of new counsel. PCRA Court Opinion, dated 3/25/10, at 8-11 (citing Spotz II, 756 A.2d at 1150). We address the four circumstances identified by Appellant in turn, recognizing that each constitutes a separate sub-issue.
With regard to sub-issue (a), Appellant alleges that defense counsel had three conflicts of interest, rendering Appellant’s waiver of counsel involuntary. The first alleged conflict was Mr. Blocher’s representation of another defendant, whose interests conflicted with Appellant’s interests. The potential conflict was addressed in a pretrial hearing held on June 30,1995. At that time, Mr. Blocher informed the trial court that two individuals, Russell B. and Tyrone L., who were imprisoned with Appellant, had made statements to officials from Cumberland County to the effect that they had heard Appellant admit his involvement in the Schuylkill, York, and Clearfield County homicides. N.T. Pretrial Hearing, 6/30/95, at 2. Mr. Blocher was representing Mr. B. at the time he made the statements, although Mr. Blocher was not present when Mr. B. spoke with the officials. Mr. L. was represented by another attorney in the public defender’s office. At the June 30, 1995 hearing, the prosecutor stated that he did not intend to call B. or L. as witnesses at Appellant’s trial. Id. at 2-3. Appellant stated that he did not have a problem with Mr. Blocher’s representation so long as the public defenders were not “prejudiced” against him. Id. at 3. Mr. Blocher stated on the record that he had no prejudice toward Appellant because he had no idea of the circumstances precipitating the B./L. statements or their validity. Id. at 3-4. The trial court issued an order permitting Mr. Blocher to remain as Appellant’s counsel and finding no conflict of interest so long as the B./L. information was not used by the Commonwealth. Neither Mr. B. nor Mr. L. was called as a witness at Appellant’s trial.
The entire matter was raised at the PCRA hearing. During Appellant’s direct examination, he confirmed that, at the time of the June 30, 1995 hearing, he was not concerned about the B./L. statements, was satisfied with the resolution of the issue, and had no further conversations with counsel concerning this issue. N.T. PCRA Hearing, 6/13/2008, at 790-97. Nonetheless, on cross-examination, Appellant asserted that the B./L. statements “prejudiced” his counsel against him. Id. at 884. Appellant has not provided the slightest explanation, rationale, or argument as to how or why his view of counsel’s response to the statements and attitude toward him changed between the time of the June 30, 1995 pretrial hearing and the time of his trial in April of 1996, creating “one of the big issues” of which he complains. Id.
Appellant fails to acknowledge the standard for establishment of a conflict of interest, to wit, that “counsel actively represented conflicting interests, and the actual conflict adversely affected counsel’s performance.” Spotz VI, 18 A.3d at 268 (citation omitted). Appellant proffers only speculation on top of speculation, which cannot come close to meeting this standard. Appellant provides absolutely no indication, much less evidence, that the B./L. statements were ever raised again or used in any way by anyone, either in the multiple prosecutions against Appellant or in bargaining for favorable treatment of Mr. B. or Mr. L.. We have no idea when Mr. Blocher’s representation of Mr. B. started and when it ceased. Appellant cites no evidence whatsoever that his counsel’s performance was in any way affected by the B./L. statements. Appellant merely asserts that, because of the alleged conflict, “counsel did not investigate whether the prosecution had been enlisting prisoners to obtain information about [Appellant], evidence which would have undermined the credibility of C.N. and C.C. [and would have] reveal[ed] the extent to which the Commonwealth was willing to go to encourage witnesses to fabricate events and reward versions ‘favorable’ to its theories.” Appellant’s Brief at 19. Appellant’s allegation is nothing short of wild speculation, unsupported by any facts of record whatsoever. Thus, Appellant has failed to make any showing that his counsel had a conflict of interest with regard to the B./L. statements.
Appellant’s second and third allegations of conflicts with his counsel relate to Mr. Blocher’s pretrial notifications to the trial court of Appellant’s threats to Ms. N. and to defense counsel on, respectively, March 14, 1996, and April 3, 1996. Based on this information, the trial court arranged for additional security measures in the courtroom. On direct appeal, Appellant raised a very similar issue, claiming that the trial court abused its discretion in denying his request to appoint new counsel and new standby counsel, based on the same threats and the same alleged conflicts of interest that Appellant asserts here. See Spotz II, 756 A.2d at 1149-50. In concluding on direct appeal that the trial court had acted properly in addressing the threats, we recognized that the court had thoroughly evaluated the “potential conflict” and had been assured by Appellant’s counsel that they were able to advocate zealously on his behalf. Id. at 1150. We then held as follows:
[T]he “conflict” here resulted from [A]ppellant’s own conduct, and the security measures that his purported conduct required. Even if new counsel were appointed, the security concern ... would remain. In response to [Appellant’s threats and attempts to manipulate, the court took appropriate measures to ensure the safety of counsel and [Appellant’s right to effective, conflict-free representation. There was no abuse of discretion by the trial court in refusing to appoint new counsel or new standby counsel for [A]ppellant.
Id. at 1150.
Despite our holding on direct appeal, Appellant asserted at the PCRA hearing and maintains here that the same alleged “conflict” due to the same threats rendered his waiver of counsel involuntary. See N.T. PCRA Hearing, 6/13/2008, at 809^9; Appellant’s Brief at 19-20. As we held on direct appeal, any conflict resulted from Appellant’s own conduct, and the trial court responded appropriately to ensure both a safe environment in and around the courtroom, as well as Appellant’s right to counsel. Appellant’s argument that his waiver of counsel was involuntary because of a conflict with counsel — a “conflict” that Appellant created — is circular, self-defeating, and meritless.
Therefore, because none of Appellant’s claims as to alleged conflicts with his counsel has any merit, his assertion that his waiver of counsel was involuntary due to conflicts with counsel must fail.
With regard. to sub-issue (b), Appellant alleges that his counsel failed to prepare any defense at all, specifically a diminished capacity defense, which “forced” Appellant to proceed pro se. Appellant neither presents evidence nor develops an argument to support this contention; he merely directs us to Issue 4. See Appellant’s Brief at 20-21. Accordingly, we have addressed this claim, and determined it to be meritless, under Issue 4
With regard to sub-issue (c), Appellant asserts that his waiver of counsel was involuntary because he was suffering from a variety of mental disorders, including chronic, severe, post-traumatic stress disorder; borderline personality disorder; polysubstance abuse, in remission; and obsessive-compulsive disorder, which were exacerbated by “the extreme stress of a gauntlet of capital trials.” Appellant’s Brief at 21. Relying primarily on the PCRA testimony of his two mental health experts, Appellant asserts that he lacked the mental capacity to waive his right to counsel.
We have recently explained the competency standard for waiving the right to counsel as follows.
[T]he competency standard for waiving the right to counsel is precisely the same as the competency standard for standing trial, and is not a higher standard. We have formulated this standard as follows: whether the defendant has the ability to consult with counsel with a reasonable degree of understanding and whether the defendant has a rational understanding of the nature of the proceedings. The focus is properly on the defendant’s mental capacity, i.e., whether he or she has the ability to understand the proceedings. If a court finds a defendant incapable of waiving the right to counsel, then the court must also conclude that the defendant is incapable of standing trial. Finally, it is important to recognize that a defendant is presumed to be competent to stand trial, and the burden is on the appellant to prove that he was incompetent.
Spotz VI, 18 A.3d at 266 (internal citations, quotation marks, and footnote omitted) (emphasis in original).
In denying relief on this sub-issue, the PCRA court applied the proper legal standard, cited the lengthy colloquies conducted by the trial court, and particularly credited the testimony of Appellant’s counsel. PCRA Court Opinion at 8-10. We conclude that the PCRA court’s ruling is supported by the record and is free of legal error, as we discuss in detail below, starting with a summary of the relevant testimony presented at Appellant’s PCRA hearing.
Assistant public defender Smith testified that “[tjhere did not appear to be a competency issue” with respect to Appellant at the time of trial, as he understood why he was in court, what he was doing, what was going on in court, and the nature of the murder with which he was charged. N.T. PCRA Hearing, 6/9/08, at 298-300. Ms. Smith’s testimony was reinforced by that of Appellant himself, who testified that, at the time of trial, he understood the colloquy, he knew where he was, and he knew what was going on around him. Id., 6/13/08, at 876-77.
Stephen Ragusea, Ph.D., a clinical psychologist who interviewed Appellant a few months prior to trial, testified on Appellant’s behalf both at the penalty phase of trial and at the PCRA hearing. At the penalty phase, Dr. Ragusea testified that he had been retained by defense counsel to do “a general psychological evaluation [of Appellant] to determine, first of all, whether or not he was competent to stand trial; ... whether or not there was any evidence that he was insane at the time the crime was committed; and ... whether or not there were any possible conditions that might relate to mitigating circumstances.” N.T. Penalty Phase, 4/24/96, at 326. Regarding the competency issue, Dr. Ragusea concluded as follows during his penalty phase testimony:
[Appellant] was clearly competent to stand trial. There are criteria that we use to evaluate that, and he was clearly competent to stand trial.
Id. at 349.
However, at the PCRA hearing, Dr. Ragusea testified that, if he had known that Appellant was reporting flashbacks to prison mental health professionals just before the trial, he would have suggested a competency evaluation and would have performed such an evaluation if the court had asked him to do so. N.T. PCRA Hearing, 6/12/08, at 645. Neither he nor anyone else suggested how such a competency evaluation would have differed from the evaluation for competency that Dr. Ragusea conducted prior to trial and discussed during his penalty phase testimony. Furthermore, Dr. Ragusea did not testify at any time that Appellant was unable either to understand the trial proceedings or to consult with his counsel regarding his defense.
Also at the PCRA hearing, Appellant presented the testimony of two psychiatrists, Robert Fox, Jr., M.D., and Neil Blumberg, M.D., both of whom were retained by PCRA counsel, and both of whom interviewed and evaluated Appellant, and reviewed his records, years after trial. Dr. Fox, who evaluated Appellant in 2000 and 2007 (respectively four and eleven years after Appellant’s trial), testified that Appellant suffered from multiple severe psychiatric disorders. N.T. PCRA Hearing, 6/9/08, at 35-40. In Dr. Fox’s view, because of Appellant’s mental illness, he might easily change his behavior “on a moment[’]s notice” from working with his counsel in a reasonable way to turning against them and wanting to fire them. Id. at 146. Dr. Fox opined that Appellant “was driven to make the decision to go pro se by his personality and the way he was feeling[,] and it was triggered by some actual events.” Id. at 150. A bit later in his testimony, Dr. Fox opined that Appellant’s decision to represent himself was “a product of his mental illness[,] the full totality of it.” Id. at 152.
Dr. Blumberg, who interviewed Appellant several times in 2006, testified extensively as to Appellant’s mental illnesses, opining that Appellant suffered from three different psychiatric conditions; had severely impaired self-esteem; viewed the world in a threatening way; had a hypervigilance deeply ingrained in his personality structure; demonstrated emotional liability and instability and was easily excited or upset; was prone to depression, anger, and quickly shifting emotions; tended to be moody and irritable; overresponded to stressful events; and had longstanding difficulties with impulse control. N.T. PCRA Hearing, 9/18/07, at 315, 409-12. Notably, Dr. Blumberg was not questioned about Appellant’s competency to stand trial or waive counsel.
Importantly, not a single witness opined that Appellant did not have the ability to understand the nature of the proceedings against him, to consult with counsel, or to participate in his own defense. Appellant bears the burden of proving that he was not competent to stand trial or to waive the right to counsel, the standard for which is one and the same. See Spotz VI, supra, at 266; Commonwealth v. Brawn, 582 Pa. 461, 872 A.2d 1139, 1156 (2005). Appellant has not come close to satisfying this standard, and thus we conclude that there is no merit to Appellant’s claim that he was not competent to waive counsel.
With regard to sub-issue (d), Appellant asserts that “the [trial] court placed such severe limitations on what [standby] counsel could do that it rendered the appointment of standby counsel meaningless.” Appellant’s Brief at 24. In particular, Appellant cites the trial court’s preclusion of counsel from taking notes, from instigating communications with Appellant, or from offering any arguments on his behalf. Id. Appellant asserts that these restrictions “prevented Appellant from adequately presenting proper and viable defenses, legal arguments, and objections;” however, Appellant fails to cite a single specific defense, argument, or objection that he did not proffer or make due to the trial court’s limitations on standby counsel. Id.
Prior to Appellant’s final decision to proceed pro se, the trial court clearly delineated standby counsel’s role, specifically informing Appellant that standby counsel is not the same as counsel; that if Appellant chose to represent himself, he, not his counsel, would be trying the case; that any mistakes he made during his self-representation could not be raised subsequently, as ineffectiveness of counsel was not a legal option on appeal in such circumstances; and that standby counsel cannot “sit there and go over the stuff with you as if they are really counsel but you are asking the questions.” N.T. Trial, 4/12/96, at 25-30. The trial court’s exhaustive instructions concerning standby counsel’s role also included the following excerpts:
Court: [Standby counsel] will advise you [Appellant] as to any legal matters that come up. That’s it. They are not trying the case, you [Appellant] are.
Id. at 32.
Court: Just so that we understand and you understand, I’ve given some thought with regard to assistance by [standby] counsel. They can only advise you as to legal matters. Since they are familiar with the exhibits and so forth, they may help you. If you ask for an exhibit, they will give you the exhibit, but that’s it, they won’t discuss it with you. They won’t read through it or tell you to look on [sic] the exhibit. They won’t be able to sit and take notes. You’ll have to do that on your own.
Id. at 36; see also id. at 39 (giving in essence the same instructions in shorter form).
This matter of the trial court’s limitations on the role of standby counsel was addressed at the PCRA hearing. Mr. Blocher and Ms. Smith both testified that, as standby counsel, their role was limited to answering Appellant’s legal questions, and they were not permitted to take notes concerning the trial testimony. N.T. PCRA Hearing, 9/17/07, at 91-92; id., 6/9/08, at 213-17. They were also not permitted to volunteer instructions to Appellant as to what to do next or to volunteer a suggestion that an objection might be warranted. Id., 9/17/07, at 92; id., 6/9/08, at 215-16. Ms. Smith further testified that the court’s restriction on note-taking limited her ability to recall guilt-phase testimony and its potential relevance to evidence of mitigation during the penalty phase; however, she did not specify any particular instance in which her inability to recall the testimony affected her performance during the penalty phase or at any other time. Id., 6/9/08, at 217.
The PCRA court concluded that there was no merit to Appellant’s claim that the trial court improperly limited standby counsel’s role. PCRA Court Opinion at 11. Noting that Appellant cited no supporting legal authority for his assertions of trial court error, the PCRA court relied on Pennsylvania Rule of Criminal Procedure 121(D) to conclude that the trial court had properly instructed standby counsel. Furthermore, the PCRA court determined that standby counsel offered assistance when Appellant asked, provided him with documents, and discussed trial strategy, all of which were in accord with the proper role of standby counsel. Id. (citing N.T. PCRA Hearing, 6/9/07, at 292-94 (cross-examination of Ms. Smith)).
As the Commonwealth correctly points out, Appellant has waived this sub-issue of trial court error. Our review of the record reveals no instance — and Appellant fails to indicate any instance — where any objection was made to the trial court’s delineation of standby counsel’s role. Nor was this issue raised on direct appeal. As the claim of trial court error has been waived, the only cognizable claim in this matter is a claim of ineffective assistance of counsel for failing to object to the trial court’s limitations on standby counsel’s role. After thorough review, we conclude that there is no arguable merit to Appellant’s ineffectiveness claim, because the trial court acted within its discretion in restricting standby counsel’s role, and counsel is not ineffective for failing to raise a meritless objection.
In Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court determined that a state “may ... appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of [his or her] self-representation is necessary.” This Commonwealth’s Rules of Criminal Procedure provide for the appointment of standby counsel as follows:
(D) Standby Counsel. When the defendant’s waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultation and advice.
Pa.R.Crim.P. 121(D).
Although neither the United States Supreme Court nor our Rules of Criminal Procedure mandate the appointment of standby counsel, a comment to Rule 121 suggests the advisability of appointing standby counsel to attend the proceedings and be available to the defendant for consultation and advice when the defendant has waived his right to counsel for a trial, especially in long or complicated cases. See also Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365, 1376-77 (1984), abrogated on other grounds, Commonwealth v. Lucarelli, 601 Pa. 185, 971 A.2d 1173, 1179 (2009), (noting that it is “strongly advisable, especially in a potential death penalty case, that the trial judge appoint ‘standby’ counsel”).
Most relevant here, the appointment of standby counsel does not imply or authorize some sort of hybrid representation. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1138-39 (1993) (agreeing with the Superior Court that “there is no right of self-representation together with counseled representation (‘hybrid representation’) ... although standby counsel may be appointed to give the defendant legal advice.”). When a defendant elects to proceed at trial pro se, the defendant — and not standby counsel — is in fact counsel of record and is responsible for trying the case. This understanding of the limited role of standby counsel is essential to satisfy the United States Supreme Court’s directive that a defendant’s choice to proceed pro se “must be honored out of ‘that respect for the individual which is the lifeblood of the law’ ” even when the defendant acts to his or her own detriment. Faretta, supra at 834, 95 S.Ct. 2525. This understanding also underlies our prior holding that a defendant who chooses to represent himself cannot obtain relief by raising a claim of ineffectiveness of counsel or standby counsel. Spotz VI, supra at 270 (citing Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 774 (2009)).
The trial court’s directives as to the role of standby counsel in the instant case reflected a proper understanding of these principles. Consistently -with the PCRA court, we conclude that the trial court did not err or abuse its discretion in setting forth its restrictions on standby counsel’s role. Accordingly, there is no arguable merit to Appellant’s claim of ineffective assistance of counsel for failing to object to those restrictions, and he is entitled to no relief.
In sum, with regard to Issue 1, Appellant’s multi-pronged challenge to his waiver of the right to counsel, we conclude that there is no merit to any of Appellant’s allegations or arguments. After careful review, we affirm the rulings of the PCRA court because they are supported by the record and are free of legal error.
Issue 2: Disclosure of Impeachment Evidence against Ms. N.
In Issue 2, Appellant asserts that his due process rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated when the Commonwealth failed to disclose the terms of an alleged agreement reached with Ms. N. whereby, in exchange for her trial testimony against Appellant, the charges against her would be reduced and she would receive lenient sentences. Appellant’s Brief at 26 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 153-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The Commonwealth disputes the existence of such an agreement, and the PCRA court concluded that Appellant had proffered no evidence to establish its existence. PCRA Court Opinion at 11-13.
Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. See, e.g., Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1171 & n. 5 (2000). To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue is favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005). We stress that the burden rests with the appellant to “prove, by reference to the record, that evidence was withheld or suppressed by the prosecution.” Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999). The evidence at issue must have been “material evidence that deprived the defendant of a fair trial.” Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). “Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995))
Brady evidence encompasses information as to any potential understanding between the prosecution and a witness because such information is relevant to the witness’s credibility and may be used for impeachment. Spotz V, supra at 1214; Strong, supra at 1171-72. “Impeachment evidence which goes to the credibility of a primary witness against the accused is critical evidence and it is material to the case [even when] that evidence is merely a promise or an understanding between the prosecution and the witness.” Id. (quoting Strong, supra at 1175). Thus, to qualify as Brady evidence, an agreement between the prosecution and a witness need not be a formal, signed document, but may be simply a promise or an understanding that the prosecution will extend leniency and favorable treatment in exchange for a witness’s testimony. Strong, supra at 1175.
For Appellant to obtain collateral relief on this Brady claim, he must prove by a preponderance of the evidence that an agreement between the Commonwealth and Ms. N. existed and that the failure to disclose the agreement so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Strong, supra at 1171; 42 Pa.C.S. § 9543(a)(2)(f).
To resolve the specific claim that Appellant raises here, we must first set forth the relevant facts in detail. In February 1995, Ms. N. was charged by the York County District Attorney with first-degree murder, second-degree murder, kidnapping, robbery of motor vehicle, unlawful restraint, theft by unlawful taking, receiving stolen property, and criminal conspiracy. The Commonwealth filed notice to consolidate Ms. N.’s trial and Appellant’s trial. However, Ms. N. became a Commonwealth witness and testified against Appellant. Just prior to Ms. N.’s testimony at Appellant’s trial, the following comments were made to the jury.
Court: Before the next witness [N.] is called, ladies and gentlemen, I’ll advise you that I’ve been advised by the Commonwealth that this witness, they [sic] will not be seeking either first degree or second degree murder. They will not be seeking a jury to convict her of either first or second degree murder.
Prosecutor: I think the record should reflect otherwise there is no agreement as to sentence as to the other offenses if she is convicted. But as to second and first degree murder, there is an agreement that the Commonwealth will not pursue those two charges.
N.T. Trial, 4/13/96, at 208 (emphasis added).
Immediately after these comments, Ms. N. testified extensively as to her three-day crime spree with Appellant, directly impheating him as the one who shot and killed Ms. Gunnet. During cross-examination, Appellant repeatedly asked Ms. N. if she was testifying in order to get “some kind of deal” with the Commonwealth, but she consistently denied any deal. Id. at 313-19. The essence of Appellant’s defense was an attempt to place blame for the murder on Ms. N.. Id. at 393. In his closing argument, Appellant returned to the matter of a “deal” between Ms. N. and the Commonwealth with the following comments:
You heard testimony which was a stipulation from the District Attorney’s Office themselves that C.N. was never subjected to face the death penalties. That she was charged with criminal homicide which included first-, second-, and third-degree murder.
The [District [Attorney told you that they have dropped first-degree murder. They have dropped second-degree murder. The very most she can get is third-degree murder. C.N. doesn’t have to worry about facing the death penalty or face spending the rest of her life in prison with no parole. She knows she is going to go home someday.
* * *
The defense position is that the evidence shows C.N.’s testimony isn’t the truth. She testified so that she would not do life in exchange for gifts and favoritism from the [District [AJttorney. Despite the minor things, sneakers, necklaces, and going out to eat, the major deal was no death penalty, no life, no first-degree, no second-degree murder.
The testimony — her testimony is given so she can stay alive. The defense’s position is that it’s not hard to believe C.N. is putting this all on me so she can say this a[sic] — so she can stay alive or not do life in prison.
N.T. Trial, 4/22/96, at 1926,1928-29 (footnotes added).
Appellant was found guilty of first-degree murder in York County on April 22,1996. On June 20,1996, Ms. N. pled guilty to kidnapping, robbery, and conspiracy to commit murder. Sentencing was set for August 12, 1996, but prior to sentencing, she sought to withdraw her guilty plea. The trial court granted her motion on April 28, 1997, and the Superior Court affirmed. Commonwealth v. N., 718 A.2d 346 (Pa.Super.1998).
The Commonwealth then restarted its efforts to bring Ms. N. to trial, including on capital murder charges. See Commonwealth’s Petition to File Notice of Aggravating Circumstances, dated 12/11/98 (Defendant’s PCRA Exhibit 41). In this petition, the Commonwealth explained that it had not previously filed a notice of aggravating circumstances against Ms. N. because of an agreement with her. The Commonwealth set forth the terms of this agreement as follows: “That in consideration of [Ms. N.’s] commitment to cooperate and testify against her co-defendant [Appellant], the Commonwealth did not seek the death penalty [against her] and agreed to accept pleas of guilty to lesser charges.” Id. at ¶ 7.
From the facts of record summarized above, we conclude the following. (1) There was an agreement between the Commonwealth and Ms. N.. (2) Pursuant to that agreement, the Commonwealth agreed not to prosecute Ms. N. for first- or second-degree murder; and Ms. N. agreed to testify against Appellant and plead guilty to lesser charges. (3) The prosecutor explicitly advised the jury of the Commonwealth’s agreement not to pursue first- or second-degree murder charges. (4) The prosecutor also advised the jury that there was no agreement as to Ms. N.’s sentence for the other offenses with which she was charged. (5) Emphasizing the Commonwealth’s agreement not to pursue first- or second-degree murder charges against Ms. N., Appellant strenuously argued that her testimony was given solely so that she could stay alive, not be subject to the death penalty, and not spend the rest of her life in prison.
In his brief to this Court, Appellant now asserts the following concerning the agreement between Ms. N. and the Commonwealth: “The jury was never told that N. had agreed to plead to lesser charges in exchange for her testimony. The clear implication left with the jury was that the prosecution had determined that these higher degrees of murder were not sustainable against N..” Appellant’s Brief at 26 (emphasis in original). With these assertions, Appellant misconstrues the record in at least two ways.
First, Appellant simply ignores the prosecutor’s clear statement to the jury that there was an agreement with Ms. N. as to first- and second-degree murder charges: See N.T. Trial, 4/13/96, at 208 (“But as to second and first degree murder, there is an agreement that the Commonwealth will not pursue those two charges.”) (emphasis added). The record thus completely belies Appellant’s assertion that the jury was not clearly informed of the existence of an agreement between the Commonwealth and Ms. N.. Appellant’s claim that the prosecutor implied to the jury that murder charges were not sustainable against Ms. N. is completely refuted by the prosecutor’s statement of record.
Second, Appellant’s focus on Ms. N.’s subsequent guilty pleas to lesser charges is misplaced, and his additional claim that the Commonwealth had agreed to seek lenient sentences for these lesser charges is completely unsupported by any evidence whatsoever. The only benefit accruing to Ms. N. from her agreement with the Commonwealth was freedom from prosecution for first- or second-degree murder. In return, she agreed to testify against Appellant and to enter guilty pleas to lesser charges. The agreement between the Commonwealth and Ms. N. encompassed the lesser charges only insofar as she agreed to plead guilty to them rather than be subject to trial. There is no evidence whatsoever that the Commonwealth ever agreed to forego prosecution of Ms. N. for the lesser charges or had promised her a lenient sentence. Following Ms. N.’s trial testimony against Appellant, her guilty plea to lesser charges, and the court’s grant of her request to withdraw those guilty pleas, the Commonwealth restarted its efforts to bring her to trial, including on capital murder charges. Appellant’s convoluted and unsupported argument focusing on the significance of the lesser charges and the sentence for those charges is meritless.
Thus, in sum, we conclude as follows. There was an agreement between the Commonwealth and Ms. N., and the relevant terms of this agreement were announced in court in the presence of the jury. Furthermore, Appellant used the terms of the agreement in an attempt to impeach Ms. N.. There is absolutely no merit to Appellant’s claim of a Brady violation with regard to the agreement between the Commonwealth and Ms. N..
Issue 3: Disclosure of Impeachment Evidence against Carlos/C.C.
In Issue 3, Appellant raises a second Brady claim, this one concerning an alleged agreement between the Commonwealth and another witness for the prosecution, Carlos/C.C. The factual background to this claim is as follows. Mr. C. testified at Appellant’s trial that he and Appellant met in Carlisle, in Cumberland County, early in the morning of February 3, 1995, the day after Ms. Gunnet was murdered. At that time, Mr. C. testified, Appellant stated that he “had shot his brother and killed these other ladies,” and “threw one lady off a bridge, and the other lady he ran over with her car and she got stuck under it.” N.T. Trial, 4/16/96, at 1031. In addition, C. testified about a gun, ammunition, credit cards, rings, clothing, and cash in Appellant’s possession, and about a wound on Appellant’s leg. Id. at 1031-36,1039-40.
The prosecutor questioned Mr. C. about any possible plea deal as follows:
Prosecutor: Am I correct, Mr. C., that you are currently incarcerated in Cumberland County Prison for a charge of possession of drugs with intent to deliver?
C.: Delivery charge.
Prosecutor: Delivery of drugs?
C.: Yes.
Prosecutor: Are you testifying today pursuant to the terms of any kind of plea agreement that you have with the County of York or the County of Cumberland?
C.: No.
Prosecutor: Nobody has offered to give you any kind of deal in return for your testimony?
C.: No.
Id. at 1038-39.
Appellant claims that the above testimony was false, and that Mr. C. had made a “deal” with the Commonwealth to avoid prosecution for two other murders, to wit, the murder of Betty Amstutz in Cumberland County, for which Appellant was ultimately convicted; and the unrelated murder of one Samuel “Doc” Thompson, for which another individual had been convicted two years before Appellant’s arrest.,, Appellant’s Brief at 30-31. To support these assertions, Appellant relies on Mr. C.’s testimony at Appellant’s PCRA hearing, during which C. recalled that when a detective investigating Appellant’s case made reference at one point to the Thompson murder, it made him “feel nervous.” N.T. PCRA Hearing, 6/11/08, at 483-84. However, Mr. C. also testified that he “wasn’t really concerned about [the Thompson murder case, which] was over and done with” and for which he already had “a deal in place.” Id. at 485. Mr. C. also testified that the prosecutor in Appellant’s case told him that if he was “truthful,” then he would have “nothing to worry about.” Id. at 486. PCRA counsel pursued this line of questioning as follows:
PCRA Counsel: Well, I am saying as long as you cooperate and tell us what you know, we won’t bring any charges, is that how you understood?
C.: I am not sure if the word was cooperation, but just to be forthcoming and honest maybe.
Id. at 486.
Appellant also cites a document entitled Declaration of Charles Lee C., Jr., dated 2/1/07, (Defense PCRA Exhibit 75) (hereinafter “C. Declaration”), as further support for his claim. This declaration was prepared by Appellant’s PCRA counsel when he visited Mr. C. in prison, and it was signed by Mr. C.. N.T. PCRA Hearing, 6/11/08, at 481-82, 489-90. The declaration states that C. was nervous when the detectives mentioned the Thompson murder because C. “took it as a warning to cooperate in the Spotz case.” C. Declaration at 2. In addition, the declaration states that the York County prosecutor told C. that so long as he cooperated and told the prosecutor what he knew, he would not be charged. Id. In his PCRA testimony, C. stated that he did not believe that he read the declaration before signing it. N.T. PCRA Hearing, 6/11/08, at 490. In addition, C. testified as follows with regard to the declaration.
I don’t remember actually reading [it]. I remember you [Appellant’s PCRA counsel] asking me to sign it. I was under the impression that what you wanted me here for was to simply, you know, tell that [Appellant] was getting high. I didn’t realize you were going to try to distort it or twist it to turn it, once again, back at me. So, I didn’t think it was necessary to read what you wrote.
Id.
Mr. C.’s testimony and the C. Declaration are the sum total of support that Appellant cites for his claim that the Commonwealth failed to disclose a “deal” with Mr. C., in violation of Brady. This evidence does not come close to establishing that there was an agreement between Mr. C. and the Commonwealth whereby C. agreed to testify against Appellant at trial and the Commonwealth agreed not to prosecute C.. Appellant’s assertions of a deal are speculative and focus on relatively small inconsistencies between C.’s testimony at the PCRA hearing and the C. Declaration, which C. signed but apparently did not read. Appellant has proffered no evidence that the Commonwealth entered into an agreement or made a deal in exchange for C.’s testimony against Appellant. Because Appellant has not met his burden to establish that an agreement existed, his Brady claim based on the existence of such an agreement has no merit.
Issue 4: Diminished Capacity Guilt-Phase Defenses
In Issue 4, Appellant asserts that his counsel were ineffective for failing to investigate and develop the guilt-phase defense of diminished capacity due to mental defect or voluntary intoxication. In addition, as we discussed briefly under sub-issue 1(b), Appellant contends that his counsel’s alleged failure to prepare this defense “forced” him to proceed pro se. Appellant’s Brief at 20-21, 82-34. The PCRA court denied relief, crediting the testimony of trial counsel at the PCRA hearing and holding that there was no evidence to support a diminished capacity defense. PCRA Court Opinion at 13-14. The PCRA court specifically noted trial counsel’s testimony that they did not recall Appellant informing them that he had used any drugs during the time of Ms. Gunnet’s murder. Finally, the PCRA court recognized that a diminished capacity defense was not available to Appellant because he maintained his innocence of the murder of Ms. Gunnet throughout trial. Id.
We have recently summarized the law relevant to the defense of diminished capacity due to mental defect or voluntary intoxication as follows:
A defense of diminished capacity, whether grounded in mental defect or voluntary intoxication, is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill. Absent an admission from the defendant that he had shot and killed the victim, trial counsel could not have presented a diminished capacity defense. If a defendant does not admit that he killed the victim, but rather advances an innocence defense, then evidence on diminished capacity is inadmissible.
A diminished capacity defense does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent. For a defendant who proves a diminished capacity defense, first-degree murder is mitigated to third-degree murder. To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. The mere fact of intoxication does not give rise to a diminished capacity defense. [Rather, a defendant must] show that he was overwhelmed to the point of losing his faculties and sensibilities to prove a voluntary intoxication defense. Evidence that the defendant lacked the ability to control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Furthermore, diagnosis with a personality disorder does not suffice to establish diminished capacity.
In numerous prior cases before this Court, defendants who had maintained their innocence during trial have subsequently raised post-conviction claims of ineffective assistance of trial counsel for failure to present and/or to investigate a defense of diminished capacity. We have consistently declined to hold that trial counsel was ineffective for failing to advance a defense that directly and irreconcilably conflicted with the accused’s claims of innocence..... [Furthermore, as we have recently stated,] whether addressing a claim of counsel’s failure to investigate or failure to present a diminished capacity defense, this Court has employed the same analysis.
Finally, we have held that the authority to concede criminal liability and to authorize the presentation of a diminished capacity defense rests solely with the accused. [E]ven if diminished capacity [were] the only viable defense, trial counsel would be deemed ineffective for presenting this defense without the consent of the defendant ].
Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 312-13 (2011) (internal citations and quotation marks omitted) (emphasis in original).
In the instant case, this issue was the subject of extensive testimony at Appellant’s PCRA hearing. To support his claim that trial counsel were ineffective for failing to investigate and develop a defense of diminished capacity due to voluntary intoxication, Appellant cites the PCRA testimony of numerous witnesses who presented evidence concerning his chronic and acute drug use, as we summarize in the paragraph below. It is important to emphasize that none of the witnesses who testified at the PCRA hearing actually saw Appellant or had information as to his drug use at the time of Ms. Gunnet’s murder, which is the only time that is relevant.
For example, Cindy Queen, the mother of one of Appellant’s children, testified that Appellant was a chronic user of a variety of drugs, which left him irritable, moody, anxious, and changed from the caring and kind person that she knew; however, the last time she saw Appellant was three to four days prior to Ms. Gunnet’s murder. N.T. PCRA Hearing, 9/17/07, at 242-47, 252. Another witness, Sheldon B., testified that he saw Appellant, whom he did not know at the time, using cocaine at a “crack house” in Carlisle beginning around 8:00 or 9:00 p.m. on the day of Ms. Gunnet’s murder. Id., 6/10/08, at 366-72. In Mr. B.’s opinion, Appellant was “really strung out” that evening. Id. at 368. However, as we mentioned above, Ms. Gunnet was murdered early in the morning of February 2, 1995, so B.’s observations were made at least thirteen or fourteen hours after the murder. Similarly, C.C. testified that he saw Appellant use cocaine repeatedly to get “high” during the evening of February 2, 1995, and into the early morning hours of the next day. Id., 6/11/08, at 462-66, 493. Finally, J.M., an acquaintance of Appellant’s, testified that Appellant came to the parking lot where Mr. M. worked in Harrisburg, “about 9:15 in the morning [-] sometime in the morning” of February 2,1995. Id., 6/12/08, at 691-92, 694-95. Mr. M. opined that Appellant appeared from his demeanor to be high on drugs; however, M. had considerable difficulty explaining exactly what aspects of Appellant’s demeanor or behavior led him to this conclusion. Mr. M. did recall that Appellant was talking and walking; was able to climb over a seven-foot fence with M., even though he had wounds on the leg and shoulder; had M. look at and help clean his shoulder wounds; and eventually departed by walking down the street. Id. at 696-97, 702-04. In addition, Mr. M. testified that Appellant stated that he was wanted in Schuylkill County for murder and he showed M. a gun, which, Appellant commented, was “dropping them like flies.” Id. at 704-05. Finally, Mr. M. testified that Appellant also showed him some women’s rings and credit cards that he was attempting to sell; M. recalled that Appellant asked if M. could find someone who could “use” a woman’s credit cards. Id. at 702-03.
None of this testimony remotely suggests that Appellant was at all intoxicated by drugs or alcohol at the time of Ms. Gunnet’s murder, much less that he was so intoxicated as to be overwhelmed to the point of losing his faculties and sensibilities and unable to formulate a specific intent to kill. See Hutchinson, supra. In fact, the testimony of Mr. M., who apparently saw Appellant a few hours after Ms. Gunnet’s murder, indicates that Appellant was sufficiently in control of his faculties and sensibilities to seek out and speak with M. at his workplace; to get around on foot and climb over a seven-foot fence, despite his injuries; to try to get his wounds cleaned with M.’s help; to recall that he was wanted in Schuylkill County for murder via the use of a gun in his possession; to make a crude comment about how the gun had been used; and to attempt to sell women’s rings and credit cards. Thus, the witnesses’ testimony summarized above either is not relevant to a voluntary intoxication defense or actually refutes such a defense.
Both of Appellant’s trial counsel, i.e., Mr. Blocher and Ms. Smith, testified at the PCRA hearing concerning their consideration of a diminished capacity defense, and nothing in their testimony suggests that they failed to investigate Appellant’s drug use or possible mental defect as potential support for such a defense. When Ms. Smith was questioned as to whether she had taken statements concerning Appellant’s drug use from the witnesses whose PCRA testimony is summarized sv/pra, she replied as follows:
Unfortunately, these individuals were not all with him during the course of th[e] time frame [of the murder]. And so, we were limited on what they could actually say about the time frame of the shooting....
N.T. PCRA Hearing, 6/10/08, at 305-06.
Although Ms. Smith and Mr. Blocher did not have a precise or completely consistent recollection as to what Appellant himself had told them about his drug and alcohol use during the time frame of the murders, see id. at 289-91; id., 9/17/07, at 196-97, 199, 216, their testimony indicates that they investigated the possibility of an involuntary intoxication defense sufficiently to realize that there was no evidentiary support for such a defense.
Prior to trial, defense counsel had retained Dr. Ragusea as a psychologist expert witness, and Mr. Blocher testified that Appellant’s possible mental health defects or diseases were “the kinds of things [that] we were looking for.” N.T. PCRA Hearing, 9/17/07, at 104, 235. Ms. Smith testified that conversations with Dr. Ragusea indicated that there was insufficient evidence to raise diminished capacity even as a mitigating factor, much less as a guilt-phase defense. Id., 6/9/08, at 209-10; id., 6/10/08, at 286-87. In addition, Ms. Smith did not recall any time at which Appellant had indicated that he suffered from any kind of hallucinations or flashbacks, or that he had any untreated mental illness. Id., 6/10/08, at 295-96.
Defense counsel testified that they had discussed possible defenses with Appellant, including a diminished capacity defense, and that Appellant supported the decision to try to shift blame for the murder onto C.N., a defense that Appellant ultimately employed during his self-representation. Id. at 287-91; id., 9/17/07, at 196-97, 216. Thus, defense counsel’s testimony lends no support to Appellant’s assertion of counsel ineffectiveness for failing to investigate a diminished capacity defense.
Finally, Appellant attempts to rely on the testimony of two psychiatrists, Dr. Fox and Dr. Blumberg, who were retained by PCRA counsel to evaluate Appellant. Dr. Fox, who evaluated Appellant in 2000 and 2007, respectively five and twelve years after the murders, opined that, at the time of the murders, Appellant was unable to formulate a specific intent to kill due to a combination of his post-traumatic stress disorder and his substance abuse. N.T. PCRA Hearing, 6/9/08, at 112-14. Dr. Blumberg, who evaluated Appellant in 2006, eleven years after the murders, did not testify specifically as to Appellant’s ability to formulate intent. Dr. Blumberg set forth the abusive circumstances of Appellant’s childhood, and opined that, at the time of Ms. Gunnet’s murder, Appellant was suffering from three psychiatric conditions, to wit, post-traumatic stress disorder, chronic/severe; personality disorder not otherwise specified with dependent schizotypal borderline and antisocial features; and polysubstance abuse, including marijuana, LSD, cocaine, and methamphetamine. Id., 9/17/07, at 315-16. However, Dr. Blumberg did not opine that, at the time of Ms. Gunnet’s murder or any other time, Appellant was unable to formulate the specific intent to kill or was overwhelmed to the point of losing his faculties and sensibilities. In fact, on cross-examination, Dr. Blumberg testified as follows:
I’m not specifically correlating [Appellant’s] significant impairment and judgment, impulse, control, mood and affect necessarily to the three other killings [i.e., of Ms. Ohlinger, Ms. Gunnet, and Ms. Amstutz]. I don’t know what the impact — you know, what impact that might or might not have had.
Id. at 462.
With regard to Appellant’s mental state at the time of the murders, Dr. Blumberg opined only as follows: “... in my opinion, the combination of [Appellant’s mental] disorders represents an extreme mental or emotional disturbance that was present at the time [of Ms. Gunnet’s murder].” Id. at 440. An “extreme mental or emotional disturbance” does not in any factual or legal sense equate to an inability to formulate intent, and thus cannot support the advancement of a diminished capacity defense.
• After thorough review of all the evidence proffered by Appellant to support his claim that counsel was ineffective for failing to investigate and develop a defense of diminished capacity, we conclude that the PCRA court did not abuse its discretion in declining to grant relief on this claim. The only evidence cited by Appellant that actually supports the viability of a defense grounded in diminished capacity due to mental defect is one excerpt of the testimony of Dr. Fox, a psychiatrist who evaluated Appellant years after the murders. See text, supra. The testimony of Dr. Blumberg lends no support to such a defense, nor does the testimony of any other witness relied upon by Appellant, as we have explained. Furthermore, Appellant fails to recognize or contemplate that the evidence presented at trial strongly indicates that, at the time of Ms. Gunnet’s murder, Appellant was able to formulate the intent to evade the authorities, who he knew were seeking him in connection with a prior homicide; to steal a car from Ms. Gunnet and drive to a remote area with her as a passenger; to take Ms. Gunnet’s cash, as well as her credit cards and rings, which he attempted to sell; to drive away rapidly in her vehicle after firing three shots; and, within hours after the murder, to seek out and find an acquaintance for assistance with his wounds. Finally, Appellant has never admitted that he killed Ms. Gunnet, not at trial, where he attempted to shift blame for the murder onto Ms. N., nor in this collateral appeal, where he continues to attempt to implicate Ms. N.. All of this evidence of Appellant’s directed, intentional, goal-oriented activity at or near the time of the murder argues strongly against his current assertion that diminished capacity would have been a viable guilt-phase defense had counsel only done further investigation.
Thus, after thorough review of the entire record, we conclude that Appellant’s claim of counsel ineffectiveness for failing to investigate or develop a defense of diminished capacity due to voluntary intoxication or mental defect has no arguable merit. Accordingly, Appellant is entitled to no relief on his fourth issue.
Issue 5: Guilt-Phase Jury Instructions
Appellant asserts that the trial court erred with respect to its guilt-phase jury instructions in the following two ways: (a) by informing the jury of the maximum possible sentences for first-, second-, and third-degree murder; and (b) by failing to instruct the jury that evidence of prior bad acts can be used only for a limited purpose. Appellant’s Brief at 34-37. The PCRA court denied relief, concluding these claims of trial court error had been waived or previously litigated. PCRA Court Opinion at 5-6 (citing 42 Pa.C.S. §§ 9544(b) and 9543(a)(3)). We address each sub-issue in turn.
With regard to sub-issue (a), the alleged trial court error has been waived pursuant to subsection 9544(b), because Appellant did not raise a timely objection. However, waiver does not totally resolve this sub-issue because Appellant also asserts that counsel was ineffective for not objecting to the jury instruction and for not raising the matter on direct appeal. Appellant’s Brief at 34-37. In raising this ineffectiveness claim, Appellant has not fully appreciated the consequences of his self-representation during the guilt phase of his trial. As this Court has held on several occasions, when an appellant knowingly, voluntarily, and intelligently has chosen to exercise his right to self-representation, he cannot obtain relief by raising his own ineffectiveness or that of standby counsel. Spotz VI, 18 A.3d at 270; Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 774, 778 (2009) (“Fletcher III ”); Commonwealth v. Fletcher, 586 Pa. 527, 896 A.2d 508, 522 n. 13 (2006) (“Fletcher II ”); Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 736-38 (2004). Here, Appellant chose to represent himself during the guilt phase of trial; accordingly, pursuant to our established precedent, we will not entertain his claim of ineffectiveness of standby counsel for failure to object to the guilt-phase jury instructions.
With regard to sub-issue (b), the alleged trial court error was raised on direct appeal, at which time this Court concluded as follows:
[T]he trial court properly instructed the jury that it could only consider the other crimes evidence for its relevant limited purposes and not merely as evidence of [A]ppellant’s propensity to commit crimes. For this additional reason, no relief is due.
Spotz II, 756 A.2d at 1153. Thus, the trial court error alleged in sub-issue (b) has been previously litigated and, as such, is not cognizable under the PCRA, pursuant to subsection 9543(a)(3). Because we have previously concluded that Appellant’s claim of trial court error in sub-issue (b) is meritless, his derivative claim of counsel ineffectiveness is also meritless.
In sum, Appellant is entitled to no relief on either of his sub-issues in Issue 5.
Issue 6: Prosecutorial Misconduct
In Issue 6, Appellant raises the following eight allegations of prosecutorial misconduct: (a) the prosecutor physically touched and verbally harassed Appellant during the trial; (b) the prosecutor used biblical references to support the death penalty and minimize mitigation factors; (c) the prosecutor improperly argued that the jury had a duty to return a death sentence; (d) the prosecutor injected emotion, passion, and prejudice into the jury’s sentencing determination by referring to the family of the victim; (e) the prosecutor misrepresented facts of Appellant’s prior burglary convictions and elicited testimony concerning other burglaries for which Appellant had been investigated but not arrested; (f) the prosecutor improperly stated that the jury’s guilt-phase verdict had proven the 42 Pa.C.S. § 9711(d)(6) aggravating factor (killing committed during the perpetration of a felony); (g) the prosecutor injected his personal opinion as to the severity of abuse and dysfunction in Appellant’s childhood home; and (h) the prosecutor improperly argued that a death sentence was appropriate as retaliation for women in general, as well as for the victim. In addition, Appellant asserts a generalized claim of ineffective assistance of counsel for failing to object to the prosecutor’s alleged misconduct and/or to raise it on direct appeal. Appellant’s Brief at 37-45.
The PCRA court did not specifically address most of Appellant’s claims of prosecutorial misconduct, apparently finding them waived or previously litigated. See PCRA Court Opinion at 5-6. One exception is Appellant’s claim of verbal and physical intimidation by the prosecutor, which the PCRA court expressly found meritless, although with little explanation other than the determination that Appellant had received a fair trial. The PCRA court also summarily rejected Appellant’s claim as to burglary convictions as an aggravating factor, citing the decision from this Court denying Appellant’s Schuylkill County collateral appeal. Id. at 20 (citing Spotz V, 896 A.2d at 1240-42).
Before addressing each of Appellant’s specific claims of prosecutorial misconduct and his derivative claims of ineffective assistance, we set forth the legal principles relevant to our review:
[A] claim of ineffective assistance grounded in counsel’s failure to object to a prosecutor’s comments may succeed when the petitioner demonstrates that the prosecutor’s comments violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self-incrimination or the Sixth Amendment right to a fair trial, or a constitutional interest such as due process. Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 685 (2009) (quoting Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 29 (2008)). To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial. Cox, supra at 685 (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). The touchstone is the fairness of the trial, not the culpability of the prosecutor. Id.
A prosecutor may make fair comment on the admitted evidence and may provide fair rebuttal to defense arguments. Id. at 687. Even an otherwise improper comment may be appropriate if it is in fair response to defense counsel’s remarks. Id. Any challenge to a prosecutor’s comment must be evaluated in the context in which the comment was made. Id. During closing argument in the penalty phase, a prosecutor must be afforded reasonable latitude, and permitted to employ oratorical flair when arguing in favor of the death penalty. Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 231-32 (2003). It is not improper for the prosecutor to urge the jury to view the defense’s mitigation evidence with disfavor and thus to impose the death penalty. Id. at 233.
Not every unwise, intemperate, or improper remark made by a prosecutor mandates the grant of a new trial[.] Reversible error occurs only when the unavoidable effect of the challenged comments would prejudice the jurors and form in their minds a fixed bias and hostility toward the defendant such that the jurors could not weigh the evidence and render a true verdict. Cox, supra at 687 (citation omitted); see also Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 242 (2006).
Spotz VI, 18 A.3d at 288 (internal quotation marks omitted).
In sub-issue 6(a), Appellant asserts that H. Stanley Rebert, who was the York County District Attorney and primary prosecutor at Appellant’s trial, intimidated him verbally and physically, allegedly denying Appellant his rights to a fair trial and to self-representation. Appellant cites the following three incidents in support of this claim, all of which took place during the guilt phase of trial when Appellant was acting pro se. First, during a discussion of trial exhibits, conducted outside the presence of the jury near the beginning of the trial, Mr. Rebert apparently touched Appellant. Second, six days later, immediately after the court, on its own initiative, conferred with a juror as to her ability to continue to pay attention to the testimony, Appellant complained to the court about the prosecutor’s aggressive behavior as follows:
Appellant: I’d like to state Mr. Rebert has been aggressive to me. All these security measures are because of my aggressiveness to him. He put his hand on me, tried to push me. He’s putting his hands in my face and hollering at me.
Court: Let the record show they are not in the presence of the jury. So what the two of you want to do is up to you.
Mr. Rebert: Your Honor, the reason that I have reacted in the manner that I did was because [Appellant] made a comment to me asking me if I was the one that asked [the questioned juror] in for this conference. My reaction to that was, he was simply trying to put out to the jury that was the case and in some way affect the juror. That was the reason for my reaction. I suspect he will not deny he said that as the juror was walking by. I want the record to reflect that.
Appellant: Let the record reflect the woman was sitting in the seat beside Mr. Rebert. I simply asked, did you call her in? It’s bizarre to even suggest that I did it to prejudice the jury against the Commonwealth.
Court: The answer to the question, Mr. Rebert, would have been [ ] no, [the court] did. And I would have been happy to tell the juror that, so we don’t run into any problems with regard to that.
N.T. Trial, 4/18/96, at 1335-36.
Third, on the same day, just after one of the defense witnesses invoked her Fifth Amendment right not to testify, Appellant stated the following:
Appellant: You got one more chance to do some stupid shit to me, Mr. Rebert. Just so you know, I’m not going to keep going with all the bullshit. I’ve been doing something — I’m going to keep trying to be cool. I’m not going for no more of this throwing things at me, pushing me, screaming in my face one more time. I’m not going for it one more time, one more time.
Court: Just so the record will reflect, the jury is not present to hear the statement of [Appellant].
Id. at 1449-50. There is no indication from the record as to what specific action by Mr. Rebert prompted Appellant’s above-quoted statement.
Appellant relies on the PCRA testimony of his trial counsel, Ms. Smith, who testified that she heard Mr. Rebert and Appellant arguing in the courtroom and that Mr. Rebert touched or pushed Appellant, in violation of the rules set forth by the sheriff who was responsible for security. N.T. PCRA, 6/9/08, at 203-05. Appellant then simply asserts, without argument or any development, that “[t]he prosecutor’s misconduct was clearly designed to deny Appellant [ ] his right to a fair trial and his right to self-representation and violated Appellant’s Sixth, Eighth and Fourteenth Amendment rights.” Appellant’s Brief at 38. Appellant has failed to set forth any evidence that his right to a fair trial, his right to self-representation, or any other Sixth or Eighth Amendment right was compromised by the prosecutor’s conduct. Our focus is on the fairness of Appellant’s trial, not on the culpability of the prosecutor. See, e.g., Spotz VI, supra at 288 (citing Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 685 (2009)). The incidents that Appellant cites, all of which we have set forth verbatim from the record, see supra, were brief and out of the presence of the jury. We fail to see how they might have affected Appellant’s right to a fair trial or his right to self-representation. There is no merit to Appellant’s first claim of prosecutorial misconduct, and thus appellate counsel was not ineffective for failing to raise this claim on direct appeal.
In sub-issue 6(b), Appellant claims that the prosecutor improperly used two biblical references to argue during the penalty phase for a sentence of death and to minimize mitigation factors. First, Appellant cites the following excerpt of his mother’s cross-examination by the prosecutor, which took place shortly after she had testified on direct examination that Appellant “always believed in God [and] has always had great respect for Christianity.” N.T. Penalty Phase, 4/23/96, at 138.
Mr. Rebert: You indicated that ... one of your son Mark’s characteristics was great respect for Christianity?
Mother: Yes.
Mr. Rebert: Are you at all familiar with the Ten Commandments?
Mother: Yes.
Defense Counsel: Your Honor, I’m going to object.
Court: Sustained.
Mr. Rebert: Your Honor, cross examination. She talks about Christianity. There are certain things you’re supposed to do and not supposed to do. If he’s so familiar—
Court: The objection is sustained, Mr. Rebert. Continue.
Id. at 146.
Based on this exchange, Appellant asserts that his Sixth, Eighth, and Fourteenth Amendment rights were violated, relying on this Court’s decision in Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 643^4 (1991), which, as we discuss immediately below, was decided based on state law. In Chambers, supra at 643, the prosecutor included the following statement in his closing argument: “Karl Chambers has taken a life. As the Bible says, ‘and the murderer shall be put to death.’ ” We concluded that the prosecutor had interjected religious law .as an additional, improper factor for the jury’s consideration, leading to the possibility that the death sentence imposed was the product of passion, prejudice, or other arbitrary factor. Therefore, based on this Commonwealth’s capital sentencing statute, which carefully and specifically delineates all the factors that a jury must consider when determining whether the death penalty is appropriate, we vacated the appellant’s sentence of death and remanded for a new sentencing hearing. Id. at 644. Chambers also included a strong admonition that “reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se. ” Id.
However, our holding in Chambers does not preclude a prosecutor from making fair response when the defense raises arguments of a religious nature. For example, in Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 457-58 (1998), wherein we discussed and applied the holding in Chambers, we explicitly considered whether the fair response doctrine was applicable. Although we concluded that the prosecutor’s unmistakable reference to specific biblical passages necessitated a new sentencing hearing, we also noted that our review of the entire record led us to conclude that the biblical reference at issue in Brown could not be considered a fair response to a defense argument. Brown, supra at 458 n. 11. We contrasted Brown’s circumstances with those in Commonwealth v. Whitney, 511 Pa. 282, 512 A.2d 1152, 1159-60 (1986), wherein we held that a prosecutor’s biblical invocation of the “Prince of Darkness” was permissible because it was responsive to the arguments of defense counsel. Brown, supra at 456 (discussing Whitney, supra). Thus, we do not interpret Chambers or Brown to bar a prosecutor from making fair response to the defense’s religious arguments.
Here, the defense opened the matter of Appellant’s religious philosophy by eliciting testimony that Appellant had “great respect for Christianity.” N.T. Penalty Phase, 4/23/96, at 138. Pursuant to the fair response doctrine, the prosecutor could properly probe the depths of Appellant’s respect for and understanding of that religious tradition. However, the defense objected to the line of questioning, and the trial court granted the objection. The prosecutor did not commit any misconduct, and Appellant’s undeveloped derivative claim that counsel was somehow ineffective in raising this matter is likewise meritless.
The second biblical reference cited by Appellant was made by the prosecutor in his closing argument. Specifically, after acknowledging that Appellant had a troubled childhood, the prosecutor then commented that Appellant “became a man and put away childish things” long before the murders. N.T. Penalty Phase, 4/24/96, at 371. Appellant challenged this same statement on direct appeal, and argued there, as he does here, that the prosecutor was invoking a specific biblical passage, to wit, I Corinthians 13:11, to argue against Appellant’s proffered mitigating factor of a troubled childhood. Spotz II, 756 A.2d at 1164-65. We rejected Appellant’s challenge on direct appeal, distinguishing it from Chambers and Brown. Here, Appellant merely re-raises the same claim, which is not cognizable under the PCRA because it has been previously litigated. Thus, Appellant is entitled to no relief.
In sub-issues 6(c) and (d), Appellant challenges portions of the prosecutor’s penalty-phase closing argument in which he argued in favor of sentencing Appellant to death. The relevant excerpt, with the challenged portions emphasized, is as follows.
We spent a lot of time on this case----I’d like to think that you’ve seen the best York County has to offer. I’d like to thank Mrs. Fawcett [the other prosecutor]. I’d like to thank the police officers. I’d like to thank this entire county for their help in prosecuting [Appellant].
It’s been difficult for us and difficult for [Appellant]. It’s been difficult for you, but the most difficult task is yet to be accomplished and that is for you to sit in judgment on the fate of [Appellant]. His life is quite literally in your hands.
The Commonwealth submits that [Appellant] deserves to die. The law permits it, the Commonwealth seeks it, Penny Gurnet’s family demands it.
The [c]ourt will instruct you as to what standards are to be used in this determination. You are sworn as jurors and you took an oath[;] and when you were asked questions during the voir dire process[] you indicated that you could impose the death penalty[J and you would impose the death penalty if the circumstances warranted and the Commonwealth met its burden of proof. The Commonwealth will be holding you to that oath, ladies and gentlemen. The task before you, as I also said when we talked earlier, is awesome indeed and one that will not likely be shared by any of us and very few other people.
[Here follows brief general remarks about aggravating and mitigating circumstances]
The Commonwealth will be presenting a number of aggravating circumstances.
A life for a life is not the law in Pennsylvania. It is only when the Commonwealth can establish certain aggravating circumstances that we can even request that the death penalty be imposed.
N.T. Penalty Phase, 4/24/96, at 363-65 (emphasis added to the challenged portions, as cited in Appellant’s Brief at 40-41).
In sub-issue 6(c), Appellant asserts that the prosecutor violated the Sixth, Eighth, and Fourteenth Amendments by arguing that the community supported the imposition of a death sentence and that it was the jury’s duty to impose such a sentence. Appellant’s Brief at 40. Taking the prosecutor’s comments here as a whole and in context, as we must, it is clear that Appellant’s assertions of misconduct are meritless. The prosecutor’s comments emphasize that the jury — and the jury alone — must decide whether Appellant should be sentenced to death. Thanking those who aided Appellant’s prosecution does not in any way imply a diminution of the jury’s responsibility in this regard. Nor is the prosecutor’s clear statement of the jury’s responsibility diminished or qualified by the unremarkable and obvious oratorical assertion that the Commonwealth seeks the death penalty. (Appellant’s claims as to the prosecutor’s statement that the victim’s family demands death are addressed in the next sub-issue.) The prosecutor’s harkening back to voir dire merely recalls for the jurors their oath to apply the law of this Commonwealth. Appellant’s assertions of misconduct are grounded in a reading of the above-reproduced excerpt that is unreasonable based on the plain text of the argument. No relief is due.
In sub-issue (d), Appellant asserts that the prosecutor injected emotion, passion, and prejudice into the jury’s sentencing determination by stating that “[the victim’s] family demands [a death sentence].” N.T. Penalty Phase, 4/24/96, at 363 (quoted in context in the text immediately above).
As this Court has often stated, “[c]omments by a prosecutor do not constitute reversible error unless their unavoidable effect was to prejudice the jury, forming in [the jurors’] minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a true penalty determination.” Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 458 (2011) (citation omitted); see also Spotz VI, 18 A.3d at 288 (expressing same principle). During closing argument of a capital sentencing hearing, the prosecutor is permitted by statute to present argument in favor of the sentence of death. Paddy, supra at 459; Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 49 (2008) (citing 42 Pa.C.S. § 9711(a)(3)). This Court has recognized that some part of the rationale for a death sentence involves retribution, and we have declined to hold that a prosecutor’s comments were improper merely because he suggested in an exercise of rhetorical flair the appropriateness of this rationale. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152, 1157-59 (1986).
Here, Appellant challenges one sentence in a string of three short sentences obviously put together for rhetorical flair: “The law permits it [sentencing Appellant to death]; the Commonwealth seeks it; Penny Gunnet’s family demands it.” N.T. Penalty Phase, 4/24/96, at 363 (emphasis added to portion cited by Appellant in his Brief at 40). While it is obvious that the “demands” of a victim’s family would be an improper sentencing consideration, it cannot be considered surprising — to the court or to the jury — that a murder victim’s family might want to see their loved one’s killer suffer the ultimate punishment. The jury here was told repeatedly and graphically that it and it alone bore the responsibility to determine Appellant’s sentence. See, e.g., N.T. Penalty Phase, 4/24/96, at 363 (where the prosecutor told the jury that “[Appellant’s] life is quite literally in your hands”); id. at 397 (where the court instructed the jury that “[y]ou are the ones who decide the sentence of either death or life imprisonment”). We cannot conclude that the four-word sentence challenged by Appellant, which was added for rhetorical flair, so prejudiced the jurors that they formed in their minds a fixed bias and hostility toward the defendant and were unable to weigh the evidence and render a fair verdict. See Spotz VI, supra at 288, and citations therein. Hence, Appellant’s claim of prosecutorial misconduct and his derivative claim of counsel ineffectiveness for failing to object to this statement fail.
In sub-issue 6(e), Appellant claims that the prosecutor misrepresented facts of Appellant’s prior burglary convictions during closing argument in support of the aggravating circumstance of significant history of violent felony convictions. 42 Pa.C.S. § 9711(d)(9). Appellant asserts, without benefit of argument, that the prosecutor’s comments violated Appellant’s Sixth, Eighth, and Fourteenth Amendment rights.
We first note the following relevant legal principles. Burglary is a crime of violence as a matter of law, and a defendant’s prior burglary convictions are properly admitted as evidence of a significant history of violent felony convictions pursuant to subsection 9711(d)(9). Spotz VI, 18 A.3d at 284-85 (citing Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 576-77 (2009); Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062,1075 n. 15 (1995); Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553, 559 (1988)); Spotz V, 896 A.2d at 1241. The fact that a defendant’s specific burglaries did not involve violence does not preclude their use to satisfy aggravating circumstance 9711(d)(9). Spotz VI, supra at 284-85; Spotz V, supra at 1241.
Here, at the beginning of the penalty phase of Appellant’s trial, the Commonwealth introduced Appellant’s three 1990 Cumberland County burglary convictions to support the subsection 9711(d)(9) aggravating factor. N.T. Penalty Phase, 4/23/96, at 16-17. Then, during closing argument, while discussing this aggravating factor, the following exchange took place:
Prosecutor: The second aggravating circumstance, ladies and gentlemen, is that [Appellant] has a significant history of felony convictions involving violence or the threat of violence to the person.... The record reflected during the course of the testimony that [Appellant] was convicted of robbery in Cumberland County, conspiracy to commit robbery in Cumberland County, robbery in Cumberland County, three counts of burglary in Cumberland County.
* * %
Burglary----Burglary is a crime of violence. Perhaps the most frightening thing that can happen ... one of the most frightening things that can happen is a man intruding or a woman intruding into your house.
Defense Counsel: Your Honor, I’m going to object at this point. There was no testimony about the nature of the burglaries at all.
Prosecutor: Burglary is a burglary.
Defense Counsel: Was it a home? Was it a building?
Prosecutor: It was a home. It was a building.
Defense Counsel: It was never testified there was anyone’s home [sic]—
Court: That’s true. Burglary is, as you know, under the law[,] entering a building without lawful right or being invited to commit a crime in the building, but no one needs to be there for burglary. Just so the jury understands that. As far as commenting as to the evidence or the factual circumstances surrounding the offenses, I would suggest counsel not refer to those since that wasn’t given to the jury nor will it be given.
Prosecutor: Your Honor, may I say that the burglary is considered a crime of violence as it’s defined by the law?
Court: Yes, you can. That is the law.
N.T. Penalty Phase, 4/24/96, at 365-68.
The trial court correctly determined that burglary is a crime of violence as a matter of law, and that a defendant’s prior burglary convictions are properly admitted as evidence of a significant history of violent felony convictions pursuant to subsection 9711(d)(9). In addition, following defense counsel’s objection, the trial court properly cautioned the prosecutor not to argue factual details of Appellant’s burglary convictions that had not been presented to the jury. From our review of the notes of testimony, we conclude that there was nothing in the prosecutor’s brief and general comments about the crime of burglary that could have so prejudiced the jury against Appellant that it was unable to weigh the evidence and reach a fair verdict. See Spotz VI, supra at 288, and citations therein. Accordingly, we conclude that there was no prosecutorial misconduct.
In the second part of this sub-issue, Appellant alleges that the prosecutor “elicited testimony that Appellant had been investigated — but not arrested or convicted — for 53 additional burglaries.” Appellant’s Brief at 42. Appellant refers specifically to the following portion of the penalty-phase examination of Commonwealth witness Gerald H., a retired state trooper who had investigated the burglaries that led to Appellant’s 1990 convictions. The Commonwealth called Mr. H. to identify Appellant as the individual who had been convicted of those burglaries, and started its examination of Mr. H. as follows.
Prosecutor: In 1989, did you conduct an investigation that resulted in three charges of burglary being filed against [Appellant] ... ?
Witness: Yes, Ma’am. I conducted 53 investigations.
Defense Counsel: Your Honor, I’m going to object to that.
Court: Just stick to the responses to the questions, Officer.
Witness: Yes, sir.
N.T. Penalty Phase, 4/23/96, at 21-22.
The record, including the above excerpts from the notes of testimony, lends no support to Appellant’s assertion that the prosecutor “elicited” testimony that Appellant had been investigated in 53 additional burglaries. When asked if he had conducted the investigation that led to three burglary charges being filed against Appellant, the witness volunteered that he had conducted 53 investigations, although it remained unclear whether all these investigations were related or involved Appellant. We conclude that nothing about this brief and vague exchange could have so prejudiced the jury that it was unable to weigh the evidence and reach a fair verdict. Thus, there was no prosecutorial misconduct.
While Appellant recognizes that trial counsel objected to both of the prosecutor’s statements challenged in this sub-issue, Appellant contends that trial counsel was ineffective for not seeking a curative instruction in each case. We cannot conclude that Appellant was prejudiced by counsel’s failure to request curative instructions with respect to the brief, vague, and general statements challenged here, particularly in the context of Appellant’s lengthy history of violent felony convictions. The Commonwealth presented undisputed evidence that Appellant’s history of violent felony convictions included the following: in Cumberland County, three burglary convictions, two robbery convictions, and one criminal conspiracy conviction, all in mid-1990; in Franklin County, one robbery conviction, in July 1990; in Clearfield County, one voluntary manslaughter conviction, in the death of Dustin Spotz, in 1995; in Schuylkill County, a first-degree murder conviction, as well as convictions for kidnapping, robbery, aggravated assault, and robbery of a motor vehicle, in March 1996. See N.T. Penalty Phase, 4/23/96, at 16-59. Given this undisputed lengthy history of violent felonies, there is no reasonable probability that the outcome of the proceedings would have been different but for counsel’s failure to request curative instructions with respect to the brief, vague, and general comments of which Appellant complains. See Spotz VI, 18 A.3d at 284-87 (citing Appellant’s lengthy record of violent felony convictions in holding that he did not suffer prejudice from counsel’s failure to object to a brief remark by the prosecutor about Appellant’s burglary convictions). Counsel was not ineffective, and Appellant is entitled to no relief.
In sub-issue 6(f), Appellant asserts that the prosecutor improperly told the jury that its guilt-phase verdict constituted proof of aggravating circumstance 42 Pa.C.S. § 9711(d)(6), killing committed during the perpetration of a felony. Specifically, Appellant challenges the following statements by the prosecutor during his penalty phase closing argument.
First aggravating circumstance that the Commonwealth submits for your consideration is the fact that the killing was committed in the perpetration of a felony.
Your burden is to find that circumstance beyond a reasonable doubt. And to a degree, to a large degree, to the ultimate degree, you have already made that determination. You have found [Appellant] guilty of murder in the first degree, kidnapping, robbery of a motor vehicle, and robbery. That determination is in the bank.
N.T. Penalty Phase, 4/24/96, at 365.
Appellant contends that, with this argument, the Commonwealth relieved itself of its obligation to prove every element of this aggravating circumstance. Appellant’s assertion is entirely untenable. The prosecutor stated that the aggravating circumstance was submitted for the jury’s “consideration” and that the standard of “beyond a reasonable doubt” was applicable. The prosecutor then argued in favor of this aggravating factor based on the jury’s guilt-phase verdict, using rhetorical flair that remained well within acceptable boundaries. There was no prosecutorial misconduct.
Furthermore, the trial court gave clear instructions to the jury regarding the proof of aggravating factors in general and factor 9711(d)(6) in particular.
With regard again to the aggravating circumstances, they must be proved to your satisfaction beyond a reasonable doubt.
In this case, the Commonwealth has set forth for your consideration the following aggravating circumstances: [Appellant] committed a killing while in the perpetration of a felony. A felony under the law could be kidnapping or robbery either of personal property or an automobile. You would have to be satisfied from the evidence that you have already heard that the killing did occur while [Appellant] was committing such an offense.
N.T. Penalty Phase, 4/24/96, at 398-99.
We presume that the jury follows the court’s instructions, and the instructions here were clear. Appellant’s derivative claim of ineffectiveness of counsel in this sub-issue has no arguable merit.
In sub-issue 6(g), Appellant asserts that Mr. Rebert, the chief prosecutor, injected his personal opinion as to the severity of the abuse and dysfunction in Appellant’s childhood home, thereby violating Appellant’s Sixth, Eighth, and Fourteenth Amendment rights. Appellant’s Brief at 42-43. Appellant specifically cites the following excerpt of the penalty phase cross-examination of Molly Muir, the Clearfield County Children and Youth Services (“CYS”) administrator who had been called to testify as to the agency’s contact with Appellant and his family.
Mr. Rebert: But I mean as far as the N. residence [Appellant’s childhood home] was concerned[,] there was never a time that Children and Youth exercised one of their emergency orders to get those kids out of the N. residence?
Witness: Correct.
Mr. Rebert: So it wasn’t so bad that you had to file one of those emergency petitions, correct?
Witness: It would appear that way.
Mr. Rebert: You work with a lot of kids, don’t you?
Witness: Yes. And the reason that I’m having difficulty answering that is because standards have changed through the years. So what might be different now — how we might deal with something differently now than what was dealt with back then, but the Agency didn’t take any of those kinds of actions back then.
Mr. Rebert: Well, I was solicitor for that Agency about the same time you’re talking about so how have they changed?
Witness: Community standards.... [C]ommunity standards kind of dictate how often an agency is going to take some actions with different families.
N.T. Penalty Phase, 4/23/96, at 212-13.
Contrary to Appellant’s assertion, these excerpts of testimony do not indicate that Mr. Rebert injected his personal opinion and experience to challenge Ms. Muir’s testimony. The prosecutor was certainly trying to probe the severity of the dysfunction and abuse in Appellant’s childhood home by focusing on the agency’s apparent failure to remove the children via an emergency order. This was a proper line of questioning, and the prosecutor did not inject his opinion into Ms. Muir’s answers, including her response that standards had changed over the years. The prosecutor’s passing comment that he was solicitor for the agency may have been unnecessary, but it does not constitute an opinion. There is no merit to Appellant’s assertion of prosecutorial misconduct or his derivative claim of counsel ineffectiveness.
In sub-issue 6(h), the final sub-issue in Issue 6, Appellant claims that the prosecutor improperly argued that a death sentence was appropriate as retaliation both for the victim and for women in general, in violation of Appellant’s Sixth, Eighth, and Fourteenth Amendment rights. Appellant specifically cites the following comments by the prosecutor, which we have placed in context, from his penalty-phase closing argument.
We are calling Mark Spotz to account. Mark Spotz deserves a fair trial. That he has received. This is his day in court. We are calling him to account for his offenses, for his crimes. He deserves that fair trial, and that’s what he got.
What we are asking you to do is to show him the same respect for women 'that he showed to Penny Gunnet. We are asking you to put him to death. Thank you.
N.T. Penalty Phase, 4/24/96, at 371-72 (emphasis added to portion quoted in Appellant’s Brief at 43).
Appellant asserts that, with the above comment, the prosecutor improperly invoked the gender of the victim and issued “a blatant cry for vengeance calculated to appeal to the prejudices of the jury [and to] divert the jury from its duty to decide the case on the evidence.” Appellant’s Brief at 43 (internal quotation marks and citation omitted). We disagree, and consistent with our precedent, we conclude that the challenged remarks were within the bounds of oratorical license that is permissible when the prosecutor is arguing for the death penalty.
As we recently summarized in Paddy, 15 A.3d at 461, this Court has consistently held that a prosecutor does not exceed the permissible bounds of oratorical license when he or she asks the jury to show a defendant the same mercy and/or sympathy that the defendant showed to the victim. Here, the prosecutor was expressing much the same sentiment when he asked the jury to show Appellant the same “respect” that he showed for Ms. Gunnet. We see no logical reason to distinguish the prosecutor’s statement here from our allowed precedents, as summarized in Paddy, supra. Furthermore, although the prosecutor’s statement is somewhat oddly constructed and not entirely comprehensible, we do not conclude that his addition of the words “for women” transformed the argument for imposition of the death penalty into one based on gender. There is no merit to Appellant’s assertion of prosecutorial misconduct, and, accordingly, no arguable merit to his derivative claim of ineffective assistance of counsel.
Following thorough review of all of Appellant’s sub-issues in Issue 6, we conclude that he is entitled to no relief.
Issue 7: Investigation, Development, and Presentation of Mitigating Evidence
In Issue 7, Appellant claims that counsel were ineffective for failing to investigate, develop, and present all the available evidence of mitigation. In Appellant’s view, “counsel only did the most superficial of investigations and failed to uncover voluminous records,” resulting in the presentation of “only a shell of the mitigation that could have been presented.” Appellant’s Brief at 45, 56. More specifically, Appellant asserts that counsel failed to present dispositive evidence of the childhood abuse and violence suffered by Appellant, the sadistic and perverted home environment in which he grew up, his true psychiatric diagnoses, the severity of and reasons behind his substance abuse, and his family history of mental illness. Id.
Following an extensive hearing, the PCRA court rejected this claim, first pointing out that, during the penalty phase of Appellant’s trial, testimony in mitigation was received from numerous witnesses, including J.R., Appellant’s grandmother; J.N., his mother; Molly Muir, his family’s caseworker and CYS administrator; and Stephen Ragusea, Ph.D., a forensic psychologist who was retained by defense counsel to evaluate Appellant. See PCRA Court Opinion at 15-16. Based on the penalty-phase testimony, the jury found two mitigating circumstances, to wit, 9711(e)(2), under the influence of extreme mental or emotional disturbance; and 9711(e)(8), character of the defendant and circumstances of his offense, including a bad childhood. See Spotz II, 756 A.2d at 1147 n. 9. The PCRA court compared the penalty-phase testimony of Ms. R., Ms. Muir, and Dr. Ragusea to their respective PCRA hearing testimony, and determined that the PCRA testimony was cumulative of the evidence presented at trial. See PCRA Court Opinion at 16-20. In addition, the PCRA court expressly found portions of Ms. R.’s PCRA hearing testimony “incredible and not convincing.” Id. at 16. The PCRA court also recognized that Appellant had raised similar claims in his collateral appeals of his first-degree murder convictions in Cumberland and Schuylkill Counties. Id. at 17-19 (citing Spotz V, 896 A.2d at 1225-35; Commonwealth v. Spotz, No. 794 Criminal 1995, Opinion, dated 6/28/08, at 42-46 (Cumberland County Court of Common Pleas) (Bayley, J.)). The PCRA court determined that the decisions of this Court in Spotz V and of the Cumberland County Court of Common Pleas were applicable to the claims raised by Appellant here. Id. In conclusion, the PCRA court determined that the outcome of the penalty phase would not have been different had the cumulative evidence been presented, and, accordingly, held that there was no merit to Appellant’s claim of ineffective assistance of counsel for failing to investigate, develop, and present additional evidence of mitigation. Id. at 20.
Before reviewing Appellant’s multiple claims in this issue, we emphasize that Appellant raised similar, if not identical, claims before this Court in his unsuccessful Cumberland County and Schuylkill County PCRA appeals. See Spotz VI, supra at 305-20; Spotz V, supra at 1225-37. As we explained in those prior cases, Appellant’s defense counsel in his three capital murder trials in three counties organized and carried out a joint investigative effort, with shared responsibility for investigation of his background for mitigation purposes. Spotz VI, supra at 306; Spotz V, supra at 1230-33. Appellant’s institutional records were collected as part of this tricounty cooperative defense effort. Spotz V, supra at 1233. At the PCRA hearing in the instant case, Mr. Blocher, Appellant’s trial counsel, confirmed the tri-county collaborative effort with regard to mitigation efforts, including the collection and sharing of institutional records and the sharing of the psychologist expert witness, Dr. Ragusea, as well as of an investigator.
Our review of Appellant’s claims is guided by well-established legal principles regarding counsel’s duty to investigate evidence of mitigating circumstances.
It is well established that capital defense counsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary. In the context of the penalty phase, trial counsel has an obligation to conduct a thorough investigation of the defendant’s background, particularly with respect to the preparation and presentation of mitigation evidence. This obligation includes the duty of penalty phase counsel to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. The reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation. At the same time, counsel’s obligations do not require an investigation into every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.
The reasonableness of counsel’s investigation and preparation for the penalty phase, of course, often depends critically upon the information supplied by the defendant. Counsel cannot be found ineffective for failing to introduce information uniquely within the knowledge of the defendant and his family [that] is not provided to counsel____[Different light falls upon counsel’s performance depending upon whether counsel asked and was not told, or alternatively, whether counsel did not ask and therefore was not told.
Spotz VI, 18 A.3d at 305-06 (internal citations omitted).
Finally, we have consistently held that counsel cannot be deemed ineffective for failing to present mitigating evidence that would have been merely cumulative of evidence presented during the penalty phase. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1161 (2011); Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638, 667 (2009); Spotz V, supra at 1231, 1232. We proceed now to consider each of the six sub-issues that Appellant raises within Issue 7.
In his first sub-issue, Appellant asserts that, because of counsel’s allegedly deficient investigation, the jury did not hear “powerful, corroborating evidence of ongoing physical and sexual abuse of [Appellant].” Appellant’s Brief at 46. Appellant offers several lines of evidence in this regard that counsel allegedly did not investigate or develop, and hence did not present. First, Appellant proffers CYS and hospital records that, he claims, document the following: (1) medical treatments that Appellant received for injuries consistent with abuse and neglect; (2) assaultive conduct against Appellant and other family members by his brother Dustin; and (3) multiple reports of family abuse, neglect, and mental illness. Id. Appellant fails to identify or discuss any particular documerits in these voluminous records; he merely avers, without benefit of argument or explanation, that the records in total constitute “compelling” and “highly mitigating” evidence that allegedly verified the abuse suffered by Appellant, explained the origins of his mental impairments, and would have undermined the weight the jury attached to Appellant’s killing of his brother. Id. at 47. Our review of these records proffered by Appellant indicates, consistent with the conclusion of the PCRA court, that they are merely cumulative of the evidence proffered by defense counsel and admitted during the penalty phase of Appellant’s trial. This Court reached the same conclusion with respect to the similar, if not identical, claims that Appellant raised in his PCRA appeals in Cumberland and Schuylkill Counties. See Spotz VI, supra at 306-12; Spotz V, supra at 1230-1233.
Appellant also attempts to rely on the PCRA testimony of Ms. R., his grandmother. To place her PCRA testimony in proper perspective, it is important to recognize that Ms. R. had provided extensive mitigation testimony during the penalty phase of Appellant’s trial. Specifically, she described Appellant’s unstable and dysfunctional childhood home environment, where one of his stepfathers taught him to smoke marijuana as a young child, drugs and alcohol were purchased instead of food, finances were dire, and Appellant and his brother Dustin were frequently hungry. N.T. Penalty Phase, 4/23/96, at 61-73. During her penalty-phase testimony, Ms. R. also relayed how Appellant and his brother had come to live with her for approximately two years after CYS became involved with the family. Id. at 73-74. She testified that both children were “emotionally upset” and embarrassed, with Appellant exhibiting loss of bowel control that required medication, and Dustin unable to control urination. Id. at 75-76. In addition, she recalled that when he was very young, Appellant had “counseling and ... was put on some kind of emotional medication.” Id. at 88. She also testified that both children told her that their stepfather hit them with what he called “the enforcer,” a thick, wide, long piece of leather; Dustin showed her his naked buttocks, which were “streaked.” Id. at 80-81. Appellant’s biological father was also abusive toward him, and Dustin would wrestle with Appellant and hurt him. Id. at 82, 90. With regard to sexual abuse, Ms. R.’s penalty-phase testimony described an incident where Appellant, at five years old, told her that Dustin had started to “touch” him. Id. at 81.
Much of Ms. R.’s PCRA testimony was duplicative of her penalty-phase testimony. The primary difference was that in her PCRA testimony Ms. R. explicitly and graphically described several instances of sexual abuse suffered by Appellant in his home at the hands of his mother, stepfather, and brother. N.T. PCRA Hearing, 9/17/07, at 22, 24-27. When PCRA counsel asked Ms. R. if she would have talked about these incidents of sexual abuse at Appellant’s penalty hearing, she testified that she would have, but that “sexual abuse was never an issue” at the penalty hearing and that “there was never any occasion [on which she] was asked to testify on anything but physical abuse.” Id. at 46. Ms. R.’s assertion is belied by the transcript of the penalty-phase hearing, which reveals that defense counsel asked Ms. R. if Appellant had told her “of any sexual abuse that might have occurred in the home.” N.T. Penalty Phase, 4/23/96, at 81. It was in response to this question that Ms. R. testified concerning Dustin’s “touching” of Appellant, as summarized supra, but she did not mention the graphic episodes of sexual abuse that she described during the PCRA hearing. The PCRA court expressly found Ms. R.’s PCRA hearing testimony “incredible and not convincing.” PCRA Court Opinion at 16. We defer to the PCRA court’s credibility determination, noting only that, in this case, the PCRA court’s credibility determination is very strongly supported by the certified record. We decline to conclude that defense counsel was ineffective for failing to present, at the penalty phase, the graphic examples of sexual abuse presented at the PCRA hearing, when counsel did in fact ask the witness during the penalty phase about incidents of sexual abuse in the home, but was not informed of any, and the PCRA court found the PCRA testimony incredible. See Spotz VI at 305-06 and citations therein.
Finally, Appellant attempts to rely on the PCRA hearing testimony of Dr. Blumberg, who testified that Appellant had reported sexual abuse by his mother and stepfather, which was consistent with some of his behavior as well as the reports by his grandmother. N.T. PCRA Hearing, 9/18/07, at 334, 350-55. Appellant fails to consider the substantial evidence that defense counsel presented during the penalty phase concerning the abuse suffered by Appellant as a child. We have already summarized his grandmother’s penalty-phase testimony, which was largely focused on the abuse suffered by Appellant and Dustin. See text supra. In addition, Appellant’s mother, J.N., testified at the penalty-phase hearing as to the abuse perpetrated upon her sons in her home. For example, she testified that Darrall N., their stepfather, had burned Dustin’s hand with a book of matches, had required Appellant to play “bartender,” and had showed the boys how to smoke marijuana when they were respectively eight and nine years of age. N.T. Penalty Phase, 4/23/96, at 110-13, 118-19. Mr. N. confirmed that he had smoked marijuana with Appellant as a child in order to “let him know ... what it was like to do drugs,” but “it didn’t quite work out.” Id., 4/24/96, at 254. Ms. N. further testified that the children observed drug and alcohol parties in her home. Id., 4/23/96, at 143-44, 150. In addition, according to Ms. N., a woman who lived with the family for some time “was constantly flashing different body parts” at Appellant when he was 13 years old. Id. at 121-22. Ms. N. also testified as to Dustin’s violent episodes, fits of rage, and brutal attacks on Appellant with a variety of different weapons. Id. at 128-29,134-36,140-41, 145.
Several extended family members testified during the penalty phase as to the abusive, unsuitable conditions in Appellant’s childhood home, including L.P., Appellant’s great-aunt, who eventually adopted Appellant’s younger half-sister; and N.D., Appellant’s second cousin and babysitter, who brought food to Appellant and Dustin in their home, and testified that they had appeared at her house late one night, wanting to come in because their stepfather had punished them by putting their hands on the furnace. Id. at 96, 98-100, 179-82. Two of Appellant’s cousins by marriage, Anna Miller and Tonya Oakes, testified that Dustin had sexually molested them and their sisters, but Appellant had helped them. Id., at 163-64; id., 4/24/96, at 225-26.
Molly Muir, an administrator for CYS and a caseworker for Appellant’s family, testified as to the continuing instability, dysfunction, aggressive physical discipline, and lack of life’s necessities in Appellant’s childhood home. CYS contact with the family began in 1977, when Appellant’s mother indicated that she was unable and unwilling to care for her sons and requested placement. N.T. Penalty Phase, 4/23/96, at 186-87. CYS’s records indicated that Ms. N. did not feel any love toward her sons, and that severe family dysfunction was ongoing. Id. at 187,194,197. Although Appellant and Dustin were placed with Ms. R., the case file was closed in 1979, after Ms. N. moved out of state with her sons. Id. at 188,193. In 1982, CYS again became involved with the family following an emergency room report that Appellant had been injured by his stepfather. Id. at 194. Ms. Muir testified that CYS’s records continued to indicate that Appellant and Dustin “were essentially incorrigible, that [Ms. N.] wasn’t able to manage their behavior, was unable to care for them, didn’t want to care for them.” Id. In January 1985, both boys ran away because they were being beaten. Id. at 198. At that point, there was a private agreement that custody of Appellant would be transferred to other relatives, to wit, Mr. and Ms. D.; however, the D.s were unable to manage Appellant’s behavior. Id. at 199. CYS again became involved with Appellant after an “abandonment,” i.e., after Ms. N. refused to retrieve him from the D.s’ home. Id. at 199-200. Appellant then proceeded through a series of foster homes. Id. at 200-02. In August 1985, Appellant’s guardian ad litem petitioned the court to have him returned home, which action was taken, even though the requirements of CYS’s service plan had not been accomplished and despite CYS’s objection. Id. at 203-05, 213-14.
Dr. Ragusea, the forensic psychologist who evaluated Appellant in the fall of 1995, testified during the penalty phase that Appellant’s family was “full of violence [and the] children were frequently abused.” N.T. Penalty Phase, 4/24/96, at 293. In his PCRA testimony, Dr. Ragusea testified in general terms that the abuse suffered by Appellant was “more severe” than he had thought at the time of trial. N.T. PCRA Hearing, 6/11/08, at 559.
Having reviewed all of the evidence presented at the penalty phase and the PCRA hearing, we conclude that the certified record supports the PCRA court’s conclusion that the additional evidence and testimony presented at the PCRA hearing are merely cumulative of the evidence of abuse presented at the penalty-phase hearing. Accordingly, there is no merit to Appellant’s assertion that counsel was ineffective for failing to preserve, develop, and present additional mitigation evidence of physical and sexual abuse. See Miller, 987 A.2d at 667 (reiterating that counsel is not ineffective for failing to present mitigating evidence that is merely cumulative); Spotz V, supra at 1231,1232.
In his second sub-issue of Issue 7, Appellant asserts that counsel did not investigate, develop, and present evidence of Dustin’s mental illness and violent behavior toward Appellant. Appellant argues that such evidence would have diminished the impact of Appellant’s voluntary manslaughter conviction as an aggravating circumstance. Appellant’s Brief at 48.
Appellant ignores the considerable evidence that was admitted at trial concerning Dustin’s mental health problems and violent behavior, particularly toward Appellant. Ms. R. testified that Appellant was “scared to death of bigger kids because of his brother” Dustin, who was larger than Appellant and who wrestled with Appellant and hurt him. N.T. Penalty Phase, 4/23/96, at 82. Ms. N., the mother of both Appellant and Dustin, testified extensively about Dustin’s violent outbursts, relating in detail several incidents involving Appellant. In one incident in 1989, Dustin walked into their house; flew into a rage, accusing Appellant of some minor slight; grabbed and twisted his mother’s arm and threatened to break it; and then stabbed Appellant in the hand with a knife when he tried to intervene. Id. at 128-29. Appellant required stitches for the wound. Id. at 129. Describing another incident, she testified as follows:
Next thing you know Dustin gets mad because Dustin would go into fits of rages for no reason in particular. He would just flip out. He would start kicking, punching, biting, pulling his hair — pulling [Appellant’s] hair, scratching him, pick him up upside down and let his feet fly out from underneath him with [Appellant’s] head between his knees and drop [Appellant] on his head on the floor and stovepipe his neck. It’s called a pile driver. The television says don’t practice this at home it could be dangerous.
Id. at 135.
Ms. N. testified that Dustin “brutalized” Appellant, explaining that Dustin physically attacked him, using a variety of weapons, including a knife, a baseball bat, or rocks, sometimes doing so under the guise of helping him. Id. at 133-34, 141. Ms. N. made clear that such behavior was not unusual for Dustin, who consistently was the aggressor. Id. at 129, 135-36; see also id. at 145 (on cross-examination, testifying that Dustin “beat up on [Appellant] on a regular basis[,] not occasionally”). When asked if Dustin had any religious beliefs, her answer was “Satanic.” Id. at 137. She described Dustin’s personality as “schizophrenic,” explaining as follows:
An example is he [Dustin] could hug me, mom, I love you so much, push me away, you G-D bitch, and slap me across the face. He had instant mood swings. It was like different personality [sic]. One second he could be so sweet and loving and nice[,] and the next second he was making statements, I’ll tear your heart out and eat it in front of you.
Id.
Dustin’s violence toward other members of the extended family was established by two of Appellant’s cousins by marriage, who testified that Dustin had sexually molested them and their sisters. Id. at 163-64; Id., 4/24/96, at 225-26.
It was also clear from penalty-phase testimony that numerous attempts had been made, via the intervention of CYS and other institutions, to help Dustin and his family with his mental health issues. Ms. N. testified that Dustin had been in a home for delinquent boys. Id., 4/23/96, at 123. Ms. Muir testified that, through her duties as a caseworker for CYS, she had “very frequent” contact with Dustin, who “was verbally threatening [and] angry most of the time.” Id. at 196, 215. In addition, Ms. N. described the following incident involving a different, unidentified caseworker from youth services.
Youth services had a caseworker with us because Dustin was a chronic runaway. The young lady came over, very very petite, right out of college. I do not recall her name. Something was said and Dustin looks at the girl and says, I’ll show you how crazy I can be. And he went out and got a butcher knife and started running around the house with it and chased [Appellant] upstairs with the knife. [Appellant] locked himself in the bathroom. Came back downstairs and the girl is screaming, take it away, take it away, get it away from him. My husband had to pin Dustin on the floor on his stomach with a knee in the middle of his back to wrestle the knife out of his hand before somebody got hurt, and she just — this young lady threw up her hands and said this is not a textbook case, I can’t handle it, and she never came back.
Id. at 140-41.
In light of all of this testimony, Appellant’s assertion that counsel was ineffective for failing to present even more evidence of Dustin’s violent behavior and mental health problems has no arguable merit. The additional evidence relied upon by Appellant in this sub-issue is merely cumulative of the testimony presented during the penalty phase, and counsel is not ineffective for failing to present cumulative evidence.
In Appellant’s third sub-issue of Issue 7, he asserts that CYS responded “with varying degrees of inadequacy” to numerous allegations of abuse and neglect in the N. household. Appellant’s Brief at 49. In Appellant’s view, “[t]he systemic failure of [CYS] to address [his] needs ... and the resulting impact on his psychological, psychiatric and emotional development, ... constitute[ ] compelling mitigation evidence.” Id. As support for this assertion, Appellant relies on the opinion of Richard Gelles, Ph.D., the Dean of the School of Social Policy and Practice at the University of Pennsylvania, who was retained by PCRA counsel and prepared a report. With regard to Dr. Gelles’s opinion, Appellant avers as follows: “[Dr. Gelles] concluded the state welfare agencies, including CYS, failed to investigate, rectify, or redress the needs of Appellant throughout critical development periods of his life[,] ... ignored [ ] signs [of severe abuse and neglect in the home,] and continued to place [Appellant] in a dangerous environment.” Id. at 50.
Appellant fails to mention that the Commonwealth objected to Dr. Gelles’s testifying, and the PCRA court sustained the objection, refusing to permit Dr. Gelles to testify. N.T. PCRA Hearing, 6/10/08, at 362-63. Appellant does not challenge this evidentiary ruling of the PCRA court, but merely asserts that Dr. Gelles’s opinion establishes the claims in this sub-issue. We will not review a claim based on testimony that was not admitted by, and thus was not before, the PCRA court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).
In Appellant’s fourth sub-issue of Issue 7, he asserts that counsel was ineffective for failing to present evidence during the penalty phase regarding Appellant’s use of drugs and alcohol, both chronically and at the time of the murders. Specifically, Appellant lists several witnesses “available to counsel [but] not presented,” all of whom could have testified as to Appellant’s heavy drug use and/or alcohol use. Appellant’s Brief at 50. The witnesses listed by Appellant are the same as those he cited in Issue 4, where he claimed that counsel was ineffective for failing to investigate and develop the guilt-phase defense of diminished capacity due to voluntary intoxication. See Issue 4, supra, for a detailed summary of the PCRA testimony of these witnesses. As we discussed in Issue 4, none of these witnesses provided any insight as to Appellant’s state of intoxication at the time of Ms. Gunnet’s murder. Nonetheless, Appellant argues that their testimony regarding his drug and alcohol use would have supported three mitigating circumstances, to wit, subsections 9711(e)(2), under the influence of extreme mental or emotional disturbance; 9711(e)(3), substantial impairment of the capacity to conform conduct to the requirements of the law; and 9711(e)(8), character and record of the defendant and circumstances of the offense (“catchall” mitigator). Appellant’s assertion is without merit, based on our well-established precedent.
In Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997, 1006 (1998), the appellant argued, similarly to Appellant here, that his drug use could be a mitigating factor. In rejecting this argument, we acknowledged that there had been testimony from the appellant’s family members concerning his drug problem; however, we emphasized that there had been no evidence that the appellant was using drugs at the time of the murder. Accordingly, we held that the appellant’s claim that his drug use constituted a mitigating factor lacked any foundation. Id. Consistent with Lester, we have also held that a diagnosis of substance abuse combined with a finding of alcohol consumption on the day of the murder do not alone support mitigating factor 9711(e)(2), because they do not establish that the defendant was under an extreme mental or emotional disturbance at the time of the murder. Commonwealth v. Gibson, 610 Pa. 332, 19 A.3d 512, 527 (2011) (citing Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 305 (2005)); see also Commonwealth v. Rice, 568 Pa. 182, 795 A.2d 340, 354-55 (2002) (holding that the trial court had properly declined to instruct the jury regarding mitigating circumstance 9711(e)(2), because the appellant had failed to present any evidence that he had been suffering from an extreme mental or emotional disturbance at the time of his offense, even though evidence of his abuse of drugs and alcohol at other times had been admitted). With regard to proving that voluntary intoxication was a mitigating factor under subsection 9711(e)(3), we have applied a stringent standard: the defendant must show that, at the time of the murder, he “was overwhelmed or overpowered by alcohol to the point of losing his faculties so as to be incapable of forming a specific intent to kill.” Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 627 n. 7 (2010) (citation omitted); Gibson, supra at 529 (same).
Here, none of the evidence presented at the PCRA hearing supported a finding that Appellant was under the influence of drugs or alcohol at the time of Ms. Gunnet’s murder, much less that he was intoxicated to the point of being under extreme mental or emotional disturbance, or to the point of losing his faculties and sensibilities. Thus, the evidence was not supportive of any mitigating circumstances. Counsel was not ineffective for failing to develop and present irrelevant evidence.
In Appellant’s fifth sub-issue of Issue 7, he asserts that counsel was ineffective for failing to properly investigate, develop, and present mental health mitigating evidence. Appellant focuses on counsel’s failure to obtain, and to forward to Dr. Ragusea, certain documents concerning Appellant and his family, including records from various mental health centers, a school, courts of common pleas, and prisons. Appellant argues that because Dr. Ragusea did not have these records, he was unable at the time of trial “to render critical diagnoses and opinions.” Appellant’s Brief at 51. Appellant raised the same claim in his collateral appeals of his first-degree murder convictions in Cumberland and Schuylkill Counties. Spotz VI, supra at 313-15; Spotz V, supra at 1233-35. In these prior PCRA appeals, we concluded that there was no merit to this claim, and we come to the same conclusion here, as explained below.
We first must emphasize that Dr. Ragusea testified during the penalty-phase proceedings in considerable detail concerning his assessment of Appellant’s mental health. Dr. Ragusea concluded that Appellant is “an individual who is severely disturbed,” although Dr. Ragusea acknowledged that Appellant might have been exaggerating his symptoms somewhat during the psychological testing. N.T. Penalty Phase, 4/24/96, at 279. Dr. Ragusea explained that Appellant had high scores in tests “designed to measure psychotic tendencies; bizarre experiences, unusual ways of thinking, unusual ways of relating to other human beings that are typical of very seriously disturbed individuals.” Id. at 278. Furthermore, Dr. Ragusea explained that his conclusions were supported by Appellant’s background history, specifically by information suggesting that even when Appellant was “a very small child he was extremely paranoid, grossly over suspicious, had a hard time relating with other people.” Id. at 281. One example that Dr. Ragusea gave was an observation by an individual who had cared for Appellant as a child “during one of those episodes when his mother would throw him out of the house.” Id. The caregiver said that it was common for Appellant to hide in the closet with the light on in the middle of the night, looking frightened. Id. Dr. Ragusea also cited “frequent references[, which were confirmed by Appellant,] throughout the record during [Appellant’s] childhood and adolescence of over suspiciousness, of paranoia, of reports of hallucinatory experiences, hearing voices, seeing things that aren’t there.” Id. at 281-82. Dr. Ragusea described Appellant as “an individual who tends to experience difficulties with reality testing [and] doesn’t know what’s real some of the time.” Id. at 292. Dr. Ragusea also indicated that drug usage caused further deterioration of Appellant’s mental state: “So I would say that given [Appellant’s] overall profile[,] traumatic experiences, drug-induced experiences would only keep it more difficult for him to stay glued together.” Id. at 284. Thus, there is no question that, during the penalty-phase of trial, Dr. Ragusea characterized Appellant, using lay terms for a lay jury, as an individual with severe mental and emotional disturbances that strongly affected his ability to function in daily life.
Finally, using more technical language, Dr. Ragusea further testified during the penalty phase that he had diagnosed Appellant with the following mental health disorders: (1) attention deficit hyperactivity disorder; (2) polysubstance abuse; (3) sexual abuse, physical abuse, and neglect; (4) post-traumatic stress disorder and acute stress reaction related to the killing of his brother; and (5) mixed personality disorder “including features of borderline personality, antisocial personality, and schizotypal features.” Id., at 306-11.
At the PCRA hearing, after reviewing the additional records sent to him by PCRA counsel, Dr. Ragusea changed his diagnosis in the following ways: (1) he modified his prior diagnosis of mixed personality disorder, including features of borderline personality, antisocial personality, and schizotypal features, to a diagnosis of borderline personality and schizoaffective disorder; and (2) he changed his diagnosis of post-traumatic stress disorder and acute stress reaction to a diagnosis of preexisting chronic severe post-traumatic stress disorder that was related to the many traumas Appellant had suffered as a child. N.T. PCRA Hearing, 6/11/08, at 552, 566. Dr. Ragusea reported a similar if not identical modification of diagnoses, prompted by his review of additional records, in his testimony during Appellant’s PCRA proceedings in Cumberland and Schuylkill Counties. Spotz VI, supra at 313-15; Spotz V, supra at 1233-35. Our holding in Spotz VI applies equally well here:
While we do not minimize the potential significance of the revised diagnoses to trained psychologists or psychiatrists involved in mental health treatment, we can locate nothing in the record to suggest that the revisions would have been determinative in the deliberations of the jury. We agree with the PCRA court that Dr. Ragusea’s revised diagnoses on collateral appeal constitute no prejudice to Appellant because he has not established that the revisions would have caused the jury to weigh differently the mitigating versus aggravating circumstances.
Spotz VI, supra at 315.
Appellant’s reliance on one part of Dr. Ragusea’s penalty-phase testimony, to wit, his technical diagnoses, igñores the psychologist’s extensive and detailed description of Appellant’s mental disabilities, which was delivered clearly and in lay terms and was not appreciably altered in Dr. Ragusea’s PCRA testimony. Given all the information that the jurors heard concerning Appellant’s mental disturbances, we cannot conclude that, if only the jurors had heard the revised technical diagnoses, there is a reasonable probability that they would have reached a different verdict. Thus, as we held in Spotz VI, we hold here that there is no merit to Appellant’s claim that counsel was ineffective for failing to obtain the additional mental health, criminal, and prison records of Appellant and his family.
In Appellant’s sixth and final sub-issue of Issue 7, he asserts that counsel was ineffective for failing to investigate, develop, and present a psychological evaluation of Appellant prepared by the Department of Corrections’s chief psychologist, Franklin P. Ryan, Ph.D. Appellant maintains that this evaluation supports a finding that Appellant will adjust well to prison life and is therefore mitigating evidence that should have been presented during the penalty phase. Appellant raised precisely the same claim with respect to precisely the same document in Spotz VI, 18 A.3d at 316-19, and Spotz V, 896 A.2d at 1235-37. We held that the claim was meritless in those two prior cases, and for all the reasons described therein, we hold that the claim is meritless here.
Issue 8: Aggravating Factor (d)(6)
Appellant claims that the trial court erred by failing to instruct the jury that the subsection 9711(d)(6) aggravating circumstance (defendant committed the killing while in the perpetration of a felony) does not apply to a defendant who is convicted of first-degree murder as an accomplice or co-conspirator. Appellant’s Brief at 57. During the guilt phase of the trial, the court gave instructions to the jury concerning accomplice liability and co-conspirator liability, reflecting Appellant’s defense that Ms. N. actually shot the victim. N.T. Trial, 4/22/96, at 2052-56. However, the trial court did not instruct the jury that aggravating circumstance 9711(d)(6) is not applicable to a defendant who is convicted under accomplice or co-conspirator liability. Appellant further asserts that counsel was ineffective for failing to object to this omission in the trial court’s instructions.
Appellant raised precisely the same claim in Spotz V, 896 A.2d at 1237-39. In Spotz V, we determined that Appellant’s claim of ineffective assistance had arguable merit, based on this Court’s holding in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 662 (1998) (plurality opinion). However, we ultimately concluded that Appellant was not entitled to relief because Lassiter was decided years after Appellant’s conviction and sentencing. Spotz V, supra at 1238. Because effectiveness of counsel must be evaluated under the standards in effect at the time of performance, and because counsel cannot be deemed ineffective for failing to predict developments or changes in the law, we declined to hold counsel ineffective in Spotz V for failing to request a jury instruction under Lassiter. The same holding applies here. See Spotz V, 896 A.2d at 1237-39.
Issue 9: Ineffectiveness of Counsel during Penalty Phase
In Issue 9, Appellant includes five sub-issues, related only in that the matters complained of all occurred during the penalty phase of trial and involve allegations of counsel ineffectiveness. Specifically, the sub-issues are that counsel was ineffective for the following: (a) not objecting to the introduction of Appellant’s burglary convictions to support aggravating factor 42 Pa.C.S. § 9711(d)(9); (b) not objecting to or raising the trial court’s allegedly unconstitutional restriction on the admission of mitigating evidence from Appellant’s grandmother and mother, including the former’s plea for mercy; (c) not objecting to the use of Appellant’s “constitutionally invalid” convictions in Clearfield and Schuylkill Counties as aggravating circumstances; (d) not objecting to the trial court’s explanation to the jury of aggravating and mitigating circumstances; (e) not objecting to the use of Appellant’s Clearfield and Schuylkill County convictions to support several different aggravating circumstances. Appellant’s Brief at 58-64. We address each sub-issue in turn.
In sub-issue (a), Appellant asserts that counsel was ineffective for failing to object to the admission of Appellant’s three burglary convictions to support aggravating factor 9711(d)(9). Appellant raised this matter in Issue 6(e) as a claim of prosecutorial misconduct. We thoroughly addressed the matter in Issue 6, supra, concluding that the underlying claim is meritless. There is no need to repeat that analysis here. We add only that, because the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit.
In sub-issue (b), Appellant asserts that counsel was ineffective for failing to raise, on direct appeal, claims of trial court error with regard to the limitation of the mitigation testimony of Ms. R. and Ms. N., Appellant’s grandmother and mother, respectively. Admission of evidence is within the sound discretion of the trial court, and we review the trial court’s evidentiary rulings for abuse of discretion. See e.g., Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010). A conclusion that the trial court abused its discretion “requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868, 873-74 (2011) (citation omitted).
Appellant challenges the trial court’s refusal to admit, as hearsay, the following: Ms. R.’s testimony as to what a school principal had told her regarding CYS’s action in taking custody of Appellant and Dustin when they were minors; and Ms. N.’s testimony that she was told by physicians at Harrisburg Hospital that Appellant’s biological father had been mainlining heroin and morphine. N.T. Penalty Phase, 4/23/96, at 74 and 107-08, respectively; see Appellant’s Brief at 60. Appellant’s entire argument with respect to this sub-issue consists of the following single sentence and three citations: “Due process requires the admission of relevant mitigating evidence even if it violates a state law rule against the admission of hearsay. Sears v. Upton [— U.S. -], 130 S.Ct. 3259, 3263 & n. 6 [177 L.Ed.2d 1025] (2010); Green v. Georgia, 442 U.S. 95, 97 [99 S.Ct. 2150, 60 L.Ed.2d 738] (1979); see also Chambers v. Mississippi, 410 U.S. 284, 302 [93 S.Ct. 1038, 35 L.Ed.2d 297] (1973).” Appellant’s Brief at 60. None of the alleged authority for Appellant’s formulation of prevailing law is accompanied by so much as an explanatory parenthetical. Contrary to Appellant’s undeveloped averment, none of the cited cases, or any other precedent of which we are aware, can be interpreted in such a broad, all-encompassing manner.
This Court has recently discussed Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), one of the cases upon which Appellant purports to rely, in the context of Appellant’s collateral challenge to a hearsay ruling during his first-degree murder trial in Cumberland County. See Spotz VI, 18 A.3d at 274-75. As we stated in Spotz VI, the Chambers holding did not “signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.” Id. at 275 (quoting Chambers, supra at 302-03, 93 S.Ct. 1038). “Chambers cannot generally be relied upon to support common, straightforward challenges to hearsay rulings that have correctly applied state criminal procedure.” Id.
In Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam), the Supreme Court, citing Chambers, held that the petitioner was denied a fair trial on the issue of punishment, and vacated his death sentence because the trial court had excluded, as hearsay, testimony regarding his co-conspirator’s confession that he alone had committed the murder with which both co-conspirators were charged. In concluding that “the hearsay rule may not be applied mechanistically to defeat the ends of justice,” the High Court stressed the unique circumstances of the case; the high relevance of the testimony to a critical issue; and the substantial reasons to assume the reliability of the confession, which included ample corroborative evidence, used by the state to obtain a conviction against the petitioner’s co-conspirator in a separate trial, and the fact that the confession was a statement against penal interest made spontaneously to a close friend. Green, supra at 97, 99 S.Ct. 2150 (quoting Chambers, supra at 302, 93 S.Ct. 1038).
Finally, Appellant attempts to rely on Sears v. Upton, — U.S.-, 130 S.Ct. 3259, 3263 & n. 6, 177 L.Ed.2d 1025 (2010) {per curiam), where the High Court cited Green and Chambers as recognizing that “reliable hearsay evidence that is relevant to a capital defendant’s mitigation defense should not be excluded by rote application of a state hearsay rule.” The Sears Court also noted that it took no position as to whether the evidence at issue in that case “would satisfy the considerations [ ] set forth in Green, or would be otherwise admissible under [state] law.” Id.
Here, Appellant fails to acknowledge — much less apply to the circumstances of his case — the full import and the nuances of the High Court’s holdings in Chambers, Green, and Sears. More specifically, Appellant makes no argument that the testimony at issue would satisfy the considerations set forth by the High Court in Green or would be admissible under the law of this Commonwealth. More specifically, Appellant relies on no unique circumstances in his case, declines to explain why the testimony was highly relevant to a specific critical issue, provides absolutely no basis upon which to conclude that the statements at issue were reliable, and offers no potentially applicable hearsay exception. See Green, supra. Our review makes clear that the trial court did not mechanistically apply the hearsay rule to defeat the ends of justice, but rather acted well within its discretion in sustaining the Commonwealth’s hearsay objections. Thus, because the trial court did not abuse its discretion in ruling that the testimony at issue was inadmissible hearsay, there is no arguable merit to Appellant’s derivative claims of ineffectiveness.
Also in sub-issue (b), Appellant asserts that the trial court erred in instructing the jury to disregard Ms. R.’s statement asking that Appellant’s life be spared. Appellant’s Brief at 60; N.T. Penalty Phase, 4/23/96, at 93. Finally, Appellant challenges the trial court’s charge to the jury, asserting that “instead of giving a proper mercy charge, [the trial court] gave essentially an anti-mercy one.” Appellant’s Brief at 60; N.T. Penalty Phase, 4/24/96, at 406-07. Appellant’s claims of trial court error are waived pursuant to 42 Pa.C.S. §§ 9543(a)(3) and 9544(b), but his derivative claims of ineffectiveness for failing to raise the asserted errors are cognizable.
As this Court has previously explained, Pennsylvania’s capital sentencing statute does not permit a jury to consider mercy as a stand-alone factor, unmoored from any evidence admitted in support of a specific statutory mitigator. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 426-27 (2008); see also Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 13 (1992) (relying on our capital sentencing statute to conclude that a jury does not have unbridled discretion to grant mercy or leniency); Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 941 (1990) (explaining that our capital sentencing statute precludes “absolute mercy verdicts,” and requires that a jury’s consideration of mercy or sympathy be based upon the evidence). Pursuant to our statute, a capital defendant is permitted to introduce a broad range of mitigating evidence, which the jury then weighs against the aggravating circumstances. During this weighing process, the jury may give consideration to mercy or sympathy, but the jury may not “exercise its sense of mercy or sympathy in a vacuum.” Powell, supra at 427. We have explained that this rule is essential to avoid arbitrariness in capital sentencing. Id.
We have previously held that the testimony of a victim’s relative regarding her personal opposition to the death penalty was inadmissible under our capital sentencing statute because it did not constitute evidence relevant to any of the mitigating circumstances of 42 Pa.C.S. § 9711(e). Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 852 (2003). In addition, we have rejected outright the assertion that the court is required to give an instruction on mercy. Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871, 876 (1998). However, a trial court may instruct the jury that it is permitted to be swayed by sympathy, but only when the sympathy relates to and is derived from the evidence. Henry, supra at 941.
Here, the trial court did not err in instructing the jury to disregard Ms. R.’s plea that Appellant’s life be spared. Ms. R. made her unsolicited plea at the end of her testimony, not in response to any question, but after she was told by the court to step down from the witness stand. N.T. Penalty Phase, 4/23/96, at 93 (“May I ask that [Appellant’s] life be spared[?]”). Her plea to spare Appellant’s life was not evidence and was not relevant to any mitigating circumstance; it did not concern the character or record of Appellant, nor the circumstances of his offense. 42 Pa.C.S. § 9711(e)(8). As such, Ms. R.’s plea for Appellant’s life was not admissible evidence, and the trial court correctly determined that it should not be considered by the jury.
Furthermore, Appellant’s assertion that the trial court gave an “anti-mercy” charge to the jury, and thus erred, is baseless. The trial court properly instructed the jury to decide the case before it not on the basis of feelings or emotions, but rather on the basis of the aggravating and mitigating circumstances, common sense, and human judgment. N.T. Penalty Phase, 4/24/96, at 406-07. Appellant fails to explain his understanding of “a proper mercy charge,” which, he asserts, should have been given. We have reviewed the charge actually given by the trial court and conclude that it properly directed the jurors to render a decision based on the evidence and the weighing of mitigating and aggravating circumstances. There was no error.
Because there was no trial court error, Appellant’s derivative claims of ineffective assistance have no arguable merit, and he is entitled to no relief on this sub-issue.
In sub-issue (c), Appellant asserts that his voluntary manslaughter and first-degree murder convictions in, respectively, Clearfield and Schuylkill Counties, were unconstitutionally obtained, as evidenced by, apparently, his pending challenges to these convictions. Therefore, Appellant argues, the use of these prior convictions to support aggravating circumstances was improper and erroneous, and counsel was ineffective for failing to challenge their introduction during the penalty phase.
Appellant raised an analogous claim in Spotz VI, 18 A.3d at 283-84 & n. 24, and in Spotz V, 896 A.2d at 1224-25. In these prior cases, we held that the claim had no merit, and we reach the same holding here, based on the same rationale.
This Court has expressly held that the term “conviction” means simply “found guilty” when used in the context of the aggravating circumstances set forth in 42 Pa.C.S. § 9711(d). A collateral murder conviction is not divested of its character as an aggravating circumstance merely because it remains at the appeal stage. Only if the conviction is overturned on appeal could an error ensue.
Spotz VI, 18 A.3d at 284 (internal citations omitted).
This court has upheld all of Appellant’s murder convictions. His voluntary manslaughter conviction remains in appellate proceedings. Thus, Appellant’s underlying assertions in sub-issue (c) are contrary to the prevailing law of this Commonwealth, and accordingly are meritless. Counsel was not ineffective for failing to raise a meritless claim.
In sub-issue (d), Appellant challenges that portion of the trial court’s charge to the jury in which the court instructed that aggravating and mitigating circumstances “are things that make first[-]degree murder either more terrible or less terrible.” Appellant’s Brief at 62 (quoting N.T. Penalty Phase, 4/24/96, at 397). In addition, Appellant claims that counsel was ineffective for failing to object to this portion of the jury instruction.
We have consistently rejected challenges to the inclusion of the concept of “terribleness” in jury instructions regarding aggravating and mitigating circumstances. See, e.g., Spotz VI, 18 A.3d at 282-83, and citations therein. As we recognized in Spotz VI, at 282, at the time of Appellant’s trial in 1996, the “less terrible” versus “more terrible” comparison was part of a Pennsylvania suggested standard criminal jury instruction. Our review of the entire jury instruction reveals that the trial court properly and clearly explained the general concepts behind aggravating and mitigating circumstances, and also explained each individual circumstance relevant to Appellant’s case. Based on the trial court’s entire instruction and this Court’s ample precedent, we conclude that Appellant’s claim of trial court error is meritless, and thus his derivative claim of ineffectiveness has no arguable merit.
In sub-issue (e), Appellant asserts that the trial court improperly permitted the jury to consider his Schuylkill County conviction for first-degree murder as support for three different aggravating circumstances, specifically, 9711(d)(9), significant history of violent felony convictions; 9711(d)(10), convicted of another offense for which a sentence of death or life imprisonment was possible; 9711(d)(ll), convicted of another murder. Appellant argues, without benefit of supporting authority, that such “triple-weighing” of the same offense, same facts, and same conduct violates the Sixth, Eighth, and Fourteenth Amendments. Appellant’s Brief at 63-64.
This Court previously rejected a similar argument in Commonwealth v. Lesko, 553 Pa. 233, 719 A.2d 217, 224 (1998), where the appellant’s prior murder convictions were used to support aggravating factors 9711(d)(9) and (d)(10).
[Subs]ection (d)(10) allows the jury to consider as aggravating circumstances another Federal or State offense for which a sentence of life imprisonment or death was imposable ..., and (d)(9) allows the jury to consider as aggravating circumstances a significant history of felony convictions involving the use of violence. Nothing in the statute provides that a criminal conviction may be considered under only one subsection. [The murders of which the appellant was convicted] fit under both (d)(9) and (d)(10), and were, therefore, properly considered by the jury as presenting aggravating circumstances under both (d)(9) and (d)(10).
Lesko, supra at 224 (emphasis added) (internal quotation marks omitted).
Based on Lesko, we conclude that the trial court committed no error in allowing Appellant’s prior first-degree murder conviction to be used as support for three aggravating circumstances. Accordingly, there is no arguable merit to Appellant’s derivative claim of ineffective assistance.
Having reviewed each of Appellant’s sub-issues in Issue 9, and holding that all are meritless, we conclude that Appellant is not entitled to relief on this issue.
Issue 10: Life Without Parole Instruction
Appellant asserts that the trial court erred by not instructing the jury that a defendant who receives a life sentence for first-degree murder is statutorily ineligible for parole, and that trial counsel was ineffective for not objecting to the trial court’s omission of this instruction. Appellant argues that the lack of the instruction violated his Sixth, Eighth, and Fourteenth Amendment rights. Appellant’s Brief at 66. Appellant relies on Simmons v. South Carolina, 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), in which a plurality of the United States Supreme Court held that “where the defendant’s future dangerousness is at issue and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” It is well established that a Simmons instruction is triggered only when a defendant’s future dangerousness has been placed at issue and the defense has requested an instruction as to parole ineligibility. See, e.g., Spotz VI, supra at 299; Spotz III, 759 A.2d at 1291 & n. 14. In Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), the High Court clarified Simmons’s holding as follows: “[W]here a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.” Shafer, supra at 39, 121 S.Ct. 1263 (internal quotations marks and citation omitted) (emphasis added).
Here, during closing argument, defense counsel made the following argument:
[Appellant’s intelligence] is important because what we’re asking you to do is to impose a life sentence, a sentence whereby [Appellant] would spend the rest of his life with no possibility of parole, incarcerated to sit and to think about all the things that he’s done in his life. This would not be something that would be put aside. This would be something that he could think about every day for the rest of his natural life.
* * #
I would submit to you that [Appellant] can be accountable while serving a life sentence in prison for the rest of his life. N.T. Penalty Phase, 4/24/96, at 390, 392 (emphasis added).
Thus, defense counsel explicitly informed the jury that a life sentence for Appellant meant that he would be imprisoned for the rest of his life with no possibility of parole. Defense counsel’s statement is sufficient to satisfy the requirements of Simmons and Shafer. Because defense counsel informed the jury of Appellant’s ineligibility for parole from a life sentence, there is no arguable merit to Appellant’s claim that counsel was ineffective for failing to request a court instruction to the same effect.
Issue 11: Cumulative Effect of Alleged Errors
In its entirety, Appellant’s final claim is the following:
The cumulative effect of the errors described require relief as they render Appellant’s conviction and death sentence fundamentally unfair. Kyles v. Whitley, 514 U.S. 419, 437-38 [115 S.Ct. 1555, 131 L.Ed.2d 490] (1995); Commonwealth v. Sattazahn [597 Pa. 648], 952 A.2d 640, 670-71 (Pa.2008). Although Appellant is entitled to relief on each of those claims individually, it is unquestionable that the cumulative prejudice from the combination of court error, improper actions by the prosecution, and deficient performance by counsel at both the trial and appellate stages entitle[s] Appellant to relief.
Appellant’s Brief at 69. The PCRA court denied this claim, finding that Appellant’s argument lacked merit. PCRA Court Opinion at 25-26.
Appellant raised a similar claim in Spotz VI, and in that case, we explained the relevant legal principles as follows:
We have often held that no number of failed [ ] claims may collectively warrant relief if they fail to do so individually. However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit. When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed.
Spotz VI, supra at 321 (internal question marks and citations omitted).
However, while cumulative prejudice may properly be assessed with respect to individual claims that have failed due to lack of prejudice, “nothing in our precedent relieves an appellant who claims cumulative prejudice from setting forth a specific, reasoned, and legally and factually supported argument for the claim. A bald averment of cumulative prejudice does not constitute a claim.” Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 319 (2011). Appellant has set forth no renewable claim, and he is entitled to no relief.
In sum, after careful review of all of Appellant’s issues, we conclude that none is meritorious and he is entitled to no relief. In addition, we deny Appellant’s Application Pursuant to Pa.R.A.P. 2501, for Leave to File Post-Submission Communication in the Form of a Motion to Amend Claims and Submit Supplemental Briefing, or Remand to PCRA Court, for the reasons expressed in this opinion. See footnote 49. PCRA court order affirmed.
Justice EAKIN did not participate in the consideration or decision of this case, Justice ORIE MELVIN did not participate in the decision of this case, Chief Justice CASTILLE, Justices BAER, and TODD join the opinion and Justice SAYLOR files a concurring opinion.
[OPINION BY Justice SAYLOR, type=concurrence]
Justice SAYLOR,
concurring.
I concur in the result, as I respectfully differ with the majority’s approach to a number of Appellant’s claims.
For example, in addressing Issue I (waiver of counsel, subsuming an asserted conflict of interest), see Majority Opinion, at 186-201, 47 A.3d at 76-84, the majority indicates that Appellant has not provided any explanation concerning why his view of his counsel’s attitude toward him may have changed between the time of a June 30, 1995, pretrial hearing and the time of his trial in April, 1996. See Majority Opinion, at 188-90, 47 A.3d at 77-78. It seems clear enough from the briefs and the record, however, that Appellant’s view changed materially as a result of his counsel’s decision to report to the trial court, outside of his own presence, that the attorneys had heard indirectly from another public defender client that Appellant was contemplating stabbing one of his attorneys during the forthcoming trial proceedings.
With regard to this alleged threat, Appellant testified at the post-conviction stage that he did not make it, see, e.g., June 13, 2008, at 836, and no express credibility determination was made by the trial or PCRA courts. The asserted threat had been communicated in an extra-judicial report from a prisoner, and there was never any evidentiary hearing to corroborate or debunk the report. Moreover, prior to trial, the trial court explained to Appellant that it simply was not concerned with the truth of the accusations; rather, the court was implementing enhanced security measures to minimize counsel’s safety concerns. See, e.g., N.T., Apr. 3, 1996, at 39. Within this context, I now find the disposition on direct appeal (i.e., that any conflict arose entirely from Appellant’s own conduct, see Majority Opinion, at 190-91, 47 A.3d at 78-79), to be somewhat overstated. In light of the overall circumstances, however, including that nature of the asserted crimes charged as a result of Appellant’s killing spree and some other instances of his behavior in relation to his attorneys, I have little difficulty with the conclusion that counsel acted appropriately and that the security measures considered by the trial court, and those ultimately taken, were within the court’s discretion.
Another example of a difference in my approach to Appellant’s claims occurs in relation to the assertion that the prosecution inappropriately failed to disclose the nature of its agreement with Commonwealth witness C.N. See Majority Opinion, at 198-205, 47 A.3d at 83-87. As to this issue, the majority opinion reflects: the fact of a quid pro quo agreement between the prosecution and N.; that the Commonwealth attorney did not tell the jury of Nolan’s part of the bargain (i.e., that she was testifying in exchange for the Commonwealth’s agreement not to pursue first and second degree murder charges); and that, on cross-examination, N. adamantly denied that she had any agreement whatsoever with the Commonwealth. The majority, however, does not squarely address Appellant’s contentions that the Commonwealth should have disclosed the quid pro quo aspect of the agreement, and that the prosecutor violated his obligations under United States Supreme Court precedent when he sat mute during N.’s false trial testimony that there was no quid pro quo. See Brief for Appellant at 28 (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (explaining that a prosecutor has the obligation to correct false evidence where it appears)). In absence of an effective rejoinder to Appellant’s position in these regards, my own analysis turns on the prejudice criterion. See Giglio, 405 U.S. at 154, 92 S.Ct. at 766.
Finally, consistent with my position in other cases, I would disapprove the prosecutorial practice of urging capital jurors to approach their sentencing decision with the same mindset as the defendant maintained at the time of the killing, see Majority Opinion, at 239, 47 A.3d at 108, and I hold a similar opinion with respect the district attorney’s indication to the jury that the victim’s family demanded Appellant’s execution, see id. at 229-31, 47 A.3d at 102-03. Although I agree with the majority that these remarks employ rhetorical flair, their potent substantive content should not be overlooked. In my view, justice would be better served, and protracted controversies more readily contained, if prosecutors would limit themselves more closely to the facts of the case in the context of the governing law.
42 Pa.C.S. §§ 9541-46.
Appellant also filed a motion for a stay of execution, which was granted on June 21, 2001.
The PCRA court had deferred an evidentiary hearing on Appellant's PCRA petition pending this Court's disposition of Appellant’s challenge to his voluntary manslaughter conviction in the killing of his brother. This manslaughter conviction had been introduced as an aggravating circumstance during the penalty phase of Appellant’s York County trial. As mentioned in the text, supra, the Superior Court had overturned the manslaughter conviction and granted Appellant a new trial, but this Court reversed and reinstated the conviction. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005) (“Spotz IV").
Appellant’s issues, reproduced verbatim from his brief, are the following: 1. Was Appellant entitled to a new trial because his waiver of counsel at the guilt-phase of trial was not voluntary, knowing, and/or intelligent? 2. Was Appellant denied due process and the right to confrontation when the Commonwealth failed to disclose exculpatory evidence that would have impeached the testimony of its key witness, Appellant's co-defendant, and failed to correct her false and misleading testimony? 3. Was Appellant denied due process and the right to confrontation when the Commonwealth failed to disclose exculpatory evidence that would have impeached the testimony of C.C., stood silent when C. misrepresented there was no deal, and in bad faith destroyed its notes of its interview with C. in which the offer had been tendered? 4. Were counsel ineffective for failing to investigate and develop the guilt-phase defenses of voluntary intoxication and diminished capacity? 5. Was Appellant denied his right to a fair trial as a result of court error, prosecutorial misconduct, and ineffective assistance of counsel? 6. Was Appellant entitled to a new sentencing hearing as a result of prosecutorial misconduct in the sentencing phase of trial? 7. Were counsel ineffective for failing to investigate, develop, and present available mitigating evidence and rebut aggravating circumstances? 8. Was Appellant entitled to a new sentencing hearing because the sentencing jury improperly found the aggravating circumstance that the defendant committed the killing during the perpetration of a felony? 9. Was Appellant denied a fair penalty hearing as a result of court error, conflict of interest, and ineffective assistance of counsel? 10. Was Appellant entitled to a new sentencing hearing because the court did not instruct the sentencing jury that a capital defendant who is sentenced to life in prison in ineligible for parole? 11. Was Appellant entitled to relief from his conviction and sentence because of the cumulative effect of the errors committed at trial? Appellant's Brief at 1-2 (Statement of Questions Presented).
This Court decided Appellant’s direct appeal on August 22, 2000, at which time the prevailing law required that a petitioner raise claims of trial counsel ineffectiveness at the first opportunity upon obtaining new counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), overruled by Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The record indicates that Appellant acted pro se during the guilt phase of his trial, and was represented by assistant public defenders Bruce Blocher and Suzanne Smith during the penalty phase of trial as well as on direct appeal. This PCRA petition thus constitutes the first opportunity for Appellant to raise claims of ineffectiveness of penalty phase or direct appeal counsel.
Appellant did not raise this issue on direct appeal. However, in Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1155-56 (2005), a majority of this Court held that "the failure to raise on direct appeal a claim that the appellant was incompetent at the time of trial does not constitute a waiver of that claim for purposes of the PCRA.” See Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 262 n. 10 (2011) ("Spotz VI") (discussing Brown). Pursuant to Brown, as applied in Spotz VI, we shall review Appellant's claim.
However, as this Court has previously recognized and discussed, Dr. Blumberg did offer some insight as to Appellant's competency when he testified as an expert witness on Appellant's behalf at his Cumberland County PCRA hearing in January 2007, approximately eight months prior to Dr. Blumberg’s PCRA testimony in the instant case. See Spotz VI, 18 A.3d at 267. In his Cumberland County PCRA petition, Appellant contended, exactly as he has done here, that he was not competent to waive his right to counsel. Dr. Blumberg, as well as Dr. Fox, testified at both the Cumberland County and York County PCRA hearings, and they relied on the same interviews with Appellant in both proceedings. At the Cumberland County PCRA hearing, Dr. Blumberg testified that he found no evidence to suggest that Appellant was impaired with respect to his ability to understand the questions or the surroundings in the courtroom at the time of trial. Id. at 267. Furthermore, Dr. Blumberg testified that Appellant’s mental disorders "wouldn’t preclude his being able to represent himself and ask direct questions and do cross-examination.” Id. (quoting N.T. PCRA Hearing in Cumberland County, 1/18/07, at 44-45). The Cumberland County PCRA court denied relief, and on appeal, we affirmed. Spotz VI, supra at 266-67.
Appellant also asserts that his right to confrontation of the witness was violated. Appellant’s Brief at 26. Because Appellant does not make a distinct and separate argument for this assertion, we likewise do not address it separately from his other claims in this issue.
The PCRA court also recognized that Appellant had raised, unsuccessfully, a similar claim in his collateral appeal from his Schuylkill County first-degree murder conviction. PCRA Court Opinion at 12-13 (citing Spotz V, 896 A.2d at 1214-17). In Spotz V, supra at 1217, this Court concluded that Appellant had presented no evidence to support his claim that Ms. N. had entered into an agreement with the Commonwealth whereby she would testify against Appellant in his Schuylkill County murder trial in exchange for a more lenient sentence.
Respectively, 18 Pa.C.S. §§ 2502(a), 2502(b); 2901(a)(2), (3); 3702(a); 2902(a)(1); 3921(a); 3925(a); and 903.
Contrary to Appellant's statement, Ms. N. was not charged with third-degree murder in York County.
The prosecutor objected to Appellant’s comment on sentencing, stating that the court had complete discretion with regard to sentencing, and the total maximum sentence for all the crimes with which N. was charged exceeded her lifetime. N.T. Trial, 4/22/96, at 1926-27. In response, the court simply stated that it would charge the jury with regard to the maximum sentences. Id. at 1927.
In granting N.’s motion to withdraw her guilty plea, the trial court concluded as follows: "Here, the Commonwealth chose to try Mark Spotz [Appellant] alone, without having secured a plea of guilty from Defendant N.. In doing so, the Commonwealth must have contemplated the possibility that a separate trial of defendant N. would be necessary if N. did not enter a plea of guilty after the trial of Spotz and the Commonwealth cannot now claim that it is prejudiced by the prospect of that trial.” Commonwealth v. N., No. 1448 CA 1995, Opinion, filed 4/28/97, at 4 (York County Court of Common Pleas) (Defendant’s PCRA Exhibit 42).
In fact, evidence proffered by Appellant in Spotz V, 896 A.2d at 1216-17, his Schuylkill County PCRA appeal, refutes his assertion that the Commonwealth promised Ms. N. a lenient sentence. In Spotz V, Appellant proffered a transcript of Ms. N.’s testimony at a hearing held in York County on October 7, 1996, to consider her petition to withdraw her guilty plea. Id. At that hearing, Ms. N. testified that she had no idea how long her sentence could possibly be at the time she pled guilty, and she confirmed that the prosecutor never made any promises to her about her sentence. Id. As we concluded in Spotz V, supra at 1217, Appellant "has not presented this Court with any evidence that N. and the Commonwealth had entered into an agreement whereby N. would testify against [Appellant] in exchange for a more lenient sentence.”
In the instant York County collateral appeal, Mr. C. is referred to as "C.C.” in the notes of testimony. See N.T. PCRA Hearing, 6/11/08, at 462. However, in the same notes of testimony, reference is made to a declaration that was signed by Mr. C. as “Charles L. C..” Id. at 481-82; Declaration of Charles Lee C., Jr., dated 2/1/07 (Defense PCRA Exhibit 75). At trial, Mr. C. was called "C.C.” N.T. Trial, 4/16/96, at 1021. In Appellant’s Cumberland County collateral appeal, Mr. C. was referred to as "C.C.” See Spotz VI, supra at 269. It is clear from the record that C.C. and C.C. are one and the same person.
In Appellant’s collateral appeal of his first-degree murder conviction in Cumberland County, he also raised a Brady claim concerning the involvement of C. in the murder of Thompson. See Spotz VI, 18 A.3d at 277. On appeal, we held that the involvement of C. in the murder of Thompson was "a matter of pure conjecture!, as C.] was not arrested for, not charged with, not tried for, not convicted of” that murder. Id.
The Amstutz murder and the Thompson murder took place in Cumberland County, where they were prosecuted. Appellant provides no evidence to indicate that the York County District Attorney's Office had any authority to make agreements regarding prosecution or lack thereof in these Cumberland County cases. To the contrary, Christy Fawcett, one of the York County prosecutors in Appellant's case, testified at his PCRA hearing that she had authority to make agreements only with respect to York County charges. N.T. PCRA Hearing, 6/11/08, at 439.
In Appellant's Statement of Questions Presented, see Appellant's Brief at 1, Issue 3, he also avers that the Commonwealth "in bad faith destroyed its notes of its interview with C. in which the offer had been tendered.” Appellant's "development” of this issue consists, in its entirety, of the following two sentences set forth in a footnote: Ms. Fawcett [one of the York County prosecutors in Appellant’s case] testified she could not recall the details of the C. interview. She conceded that she "probably” took notes of the interview, NT [PCRA Hearing] 6/9-13/08, 430, but indicated that the notes were likely destroyed and claimed she had no burden to retain them because they were work-product. [Id.] Appellant’s Brief at 31 n. 19. PCRA counsel referred to the notes several times in his questioning of Ms. Fawcett. See N.T. PCRA Hearing, 6/11/08, at 430-32, 434, 440-41, 445. Ms. Fawcett testified that her notes were likely destroyed when she left the district attorney’s office, but that, in any event, she was not required to disclose them because they were attorney work product. Id. at 430-31. Appellant’s bald assertions that the notes contained information relevant to an alleged offer extended to C. and were destroyed in bad faith by the Commonwealth are nothing short of rank speculation, supported by no evidence whatsoever. Because Appellant fails to present any facts, any argument, or any citation to authority with respect to this sub-claim, it is not reviewable.
Appellant raised similar issues in the collateral appeals of his Cumberland County and Schuylkill County murder convictions. See Spotz VI, 18 A.3d at 264-65, and Spotz V, 896 A.2d at 1217-19, respectively. In both of these cases, the PCRA court rejected Appellant’s claims, and we affirmed.
The Commonwealth argues that Appellant is precluded from raising an ineffectiveness claim related to the failure to present a diminished capacity defense because he represented himself during the guilt phase of trial. However, Appellant's ineffectiveness claim focuses on the investigation of a diminished capacity defense, which would have occurred during the pretrial period, when Appellant was represented by counsel. Accordingly, we do not conclude that this claim is barred by Appellant’s self-representation during the guilt phase of trial.
Mr. M. testified for the Commonwealth at Appellant’s trial, and his testimony at that time was similar in many respects to his PCRA testimony. Specifically, Mr. M. testified that Appellant had in his possession, on the morning of February 2, 1995, women’s rings and credit cards; that Appellant was attempting to find a woman to help him use the credit cards to buy items; that M. had offered to buy the rings, but Appellant did not wish to sell them for less than fifty dollars; that Appellant also had a gun in his possession, regarding which he commented that it was "dropping them like flies;” that Appellant sought M.'s help for a bullet wound in the leg and two stab wounds in the back and shoulder, but would not go to the hospital because he was "wanted” for homicide in Schuylkill County; that, despite his wounds, Appellant "was walking okay;” and that Appellant was clean and shaven. N.T. Trial, 4/16/96, at 991-97. However, in his trial testimony, Mr. M. neither mentioned any drug or alcohol use by Appellant nor suggested that he was mentally impaired or incapacitated in any way. In fact, on cross-examination, when Appellant asked M. if Appellant was unaffected by his wounds, M. answered as follows: You [Appellant] was walking okay. We climbed over that fence, and you shook my hand okay. It didn’t seem to me that you were affected by it [the gunshot and stab wounds]. Id. at 1008. M.’s trial testimony was generally consistent with a statement he made to police on February 17, 1995. See General Investigation Report, Trooper Stephen J. Caruso, dated 2/17/95 (cited in Appellant’s Brief at 33 as Defendant’s Exhibit 98). However, in his statement to police, M. relayed not only Appellant's statement that he was wanted in Schuylkill County for murder, but also another statement that Appellant had " 'emptied a clip’ into another person.” Id. at 1. Thus, Mr. M.’s trial testimony and pretrial statement to police, like his PCRA testimony, did not in any way suggest an image of Appellant as one who was intoxicated such that he was "overwhelmed to the point of losing his faculties and sensibilities.” Hutchinson, 25 A.3d at 312.
Appellant also cites the testimony or statements of four other individuals to support his claim. See Appellant's Brief at 32-33. This evidence is likewise not relevant to a voluntary intoxication defense. At Appellant’s PCRA hearing, Detective Jeffrey Franks testified that he recognized as drug paraphernalia certain items that were recovered from the ceiling of the hotel room where Appellant was apprehended. N.T. PCRA Hearing, 6/10/08, at 309-15. Also at the PCRA hearing, D.H. testified that he regularly used drugs with Appellant and saw Appellant use marijuana, cocaine, acid, and alcohol on multiple occasions; however, H. last saw Appellant either three or four days, or perhaps a couple of weeks, before the murders. Id., 6/13/08, 711-20. Finally, Appellant cites statements of M.C. and L.C., neither of whom testified at the PCRA hearing. Their statements are not included in the record, but from Appellant’s summary, it is clear that neither individual had information as to Appellant's drug or alcohol use at the time of the murders.
Appellant also asserts prosecutorial misconduct in Issue 5. See Appellant’s Brief at 1 (Statement of Questions Presented). However, Appellant presents no argument for, and indeed does not even mention, prosecutorial misconduct in the Argument section of Issue 5. See Appellant’s Brief at 34-37. All of Appellant’s claims of prosecutorial misconduct are addressed in Issue 6. See text, infra.
The PCRA court did not explain its holding, nor individually mention or discuss, the two distinct sub-issues in Issue 5. Appellant notes that sub-issue (a), i.e., the instruction as to possible sentences for murder, was raised in his Amended Petition, claim VIII. See Appellant's Brief at 34 n. 12. However, he does not point out where the second sub-issue was raised, and it is not clear from our review of the voluminous record that this sub-issue was in fact raised before the .PCRA court. See Pa.R.A.P. 2117(c) and 2119(e) (requiring a specific reference to the places in the record where a matter appears in order to show that it was properly raised below and hence is preserved for appeal). As we discuss in the text, infra, sub-issue (b) was litigated on direct appeal and thus is not cognizable under the PCRA.
In an attempt to avoid waiver of this sub-issue, Appellant makes the bald assertion that direct appeal counsel could have raised it under the relaxed waiver rule. Appellant’s Brief at 35. Under relaxed waiver, this Court retained the discretion to review unpreserved issues in capital appeals. See, e.g., Fletcher III, 986 A.2d at 775 n. 18. Although the relaxed waiver doctrine was abrogated with respect to PCRA appeals and direct appeals in, respectively, Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), and Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 403 (2003), at the time of Appellant’s trial, the doctrine was in effect. Appellant fails to develop an argument to support his assertion that this Court would have reviewed, under relaxed waiver, the claim he raises here. Furthermore, Appellant fails to consider this Court’s holding in Fletcher III, where a PCRA appellant sought review of claims of ineffectiveness for failing to raise on direct appeal several unpreserved claims of trial court error that had arisen during a period of the appellant’s self-representation. Id. at 774-79. The Fletcher III appellant argued that his claims were reviewable under the relaxed waiver doctrine that was in effect at the time he waived his right to counsel. We disagreed and declined to review his unpreserved claims under the relaxed waiver doctrine. Id. at 779. With this holding, we reiterated our concern that, were we to permit a pro se defendant to raise his own ineffectiveness, he could guarantee himself a new trial by intentionally being ineffective, thereby making a mockery of the judicial system. Id. (citing Bryant, 855 A.2d at 736-37). We also recognized that allowing the Fletcher III appellant to invoke the relaxed waiver doctrine and thus obtain review of his claim of appellate counsel ineffectiveness would completely undermine our holdings in Bryant, supra, and Fletcher II, supra. See Spotz VI, 18 A.3d at 278 (discussing Fletcher III in the context of a claim raised by Appellant in his collateral appeal from his Cumberland County murder conviction). In relying on Fletcher III to reject Appellant’s invocation of relaxed waiver, we do not ignore our holding in Commonwealth v. Williams, 594 Pa. 366, 936 A.2d 12, 24, 26 (2007), where we concluded that direct appeal counsel was ineffective for failing to invoke relaxed waiver to secure review of a claim that implicated the appellant's actual innocence of a racketeering charge. Here, however, Appellant’s claim does not implicate actual innocence, and we have no difficulty concluding that we would not have accepted it for review under the relaxed waiver doctrine.
Appellant has failed to comply with Pa.R.A.P. 2119(a): "The argument shall be divided into as many parts as there are questions to be argued....” Appellant raises eleven questions in his Statement of Questions Presented. See Appellant’s Brief at 1-2; see also footnote 4, supra (reproducing verbatim Appellant’s eleven issues). However, the argument section of Appellant's brief has twelve parts. Appellant raises allegations of prosecutorial misconduct in part six as well as part seven of his argument section. The misconduct alleged in part six of Appellant’s argument section took place during the guilt phase of trial, and thus is not even encompassed within the statement of Issue 6, where Appellant claims prosecutorial misconduct in the penalty phase. See Appellant’s Brief at 1, Issue 6. We address all of Appellant’s claims of prosecutorial misconduct, whether in the guilt or penalty phase, under Issue 6.
As revealed by the transcript, the incident was as follows: Appellant: ... I request[e]d to use [a photograph of C.N.] as an exhibit and I asked to see it. And I would like to see it now to know if I want to use it. Mr. Rebert: That’s the photograph in the envelope, Your Honor. Court: In the envelope? Where is the envelope? Show it to him. Mr. Rebert: Stay right here, Jack. Appellant: Don’t put your hands on me, Jack. Don't touch me, Mr. Rebert. Hands off. Your Honor, I have attempted to do my best to go through this and be ready for cross-examination. Given the amount of stuff that I have, the best thing I can do would be to go through each — this is one preliminary hearing transcript. There's a few more. There’s other trial testimony, statements..... N.T. Trial, 4/13/96, at 263-64.
We reiterate that the prosecutorial misconduct alleged in this first sub-issue occurred during the guilt phase of trial, when Appellant was acting pro se. Although Appellant did not make a formal motion concerning the prosecutor’s alleged physical and verbal harassment, Appellant did bring the matter to the trial court’s attention. See text, supra (quoting from N.T. Trial, 4/18/96, at 1335). Thus, Appellant arguably preserved the matter for review, and we have therefore addressed Appellant's allegations on the merits. The prosecutorial misconduct alleged in the remaining sub-issues of Issue 6 occurred during the penalty phase, when Appellant was represented by counsel.
Appellant tries to escape the statutory bar to re-review of this claim by invoking the PCRA testimony of Mr. Rebert, wherein he acknowledged that the comment regarding "childish things” was a reference to a verse in the Bible, and was a part of his argument urging the jury to reject the mitigating circumstances proffered by Appellant. N.T. PCRA, 9/18/07, at 535. Mr. Rebert’s PCRA testimony has no effect on our analysis or our decision as set forth on direct appeal with regard to this matter, see Spotz II, 756 A.2d at 1164-65, nor does his testimony alter the characterization of this matter as previously litigated.
Appellant also alleges in this sub-issue that, during voir dire, the prosecutor "repeatedly resorted to fear-mongering, inferring that the increasing crime rate was a permissible basis to find death." Appellant’s Brief at 40. As an example of this alleged "fear-mongering," Appellant cites the following question asked of a potential juror by the prosecutor: [fit’s one thing to be in favor of [the death] penalty. It might be even popular [in] these days of increased crime rates and so forth. It’s yet another thing to stand in a jury box, face the [Appellant], especially when he is representing himself, face the [Appellant] and tell him, I impose the death penalty. Would you be able to do that, sir, if the circumstances were proven to your satisfaction? N.T. Voir Dire, 4/8/96, at 213-14. It is abundantly clear that the prosecutor was asking potential jurors to consider not simply their theoretical views on the death penalty, which may have been influenced by any number of societal factors, but, more importantly, their actual ability to impose a sentence of death on a flesh-and-blood human being standing in front of them. There is nothing improper about such a question. Appellant blatantly misconstrues the prosecutor’s words. In addition, we note that both sides accepted into the jury the prospective juror to whom the above question was addressed. Id. at 214. Furthermore, Appellant again ignores the fact that he proceeded pro se during voir dire, and he has failed to point out a single instance in which he made a timely objection to this line of questioning by the prosecutor. Thus, the claim is waived, and no derivative claim of ineffectiveness is possible because Appellant proceeded pro se. See text, supra, discussion of Issue 5(a).
Appellant also contends in sub-issue (d) that the prosecution elicited inadmissible victim impact evidence, which “repeatedly reminded [the jury] of the [Gunnet] family’s pain." Appellant’s Brief at 40. In support of this contention, Appellant cites only two excerpts of the notes of testimony, both from the testimony of Jeffrey Gunnet, the victim's husband. Id. (citing N.T. Trial, 4/12/96, at 123, 125-26). Appellant’s assertions are entirely meritless for a number of reasons. Appellant ignores the fact that Mr. Gunnet’s testimony was presented during the guilt phase of trial, when Appellant was proceeding pro se. Appellant did not object to the testimony, and thus he did not preserve his challenge for review. Furthermore, because he was proceeding pro se, no derivative ineffectiveness claim is available to him. See text, supra, discussion of Issue 5(a). In addition, we feel compelled to point out that Appellant has incorrectly characterized Mr. Gunnet’s testimony as victim impact evidence. As this Court has made clear, victim impact testimony is testimony as to the impact of the victim's death on the victim's family. Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143, 158 (2001) (Opinion Announcing the Judgment of the Court); see 42 Pa.C.S. § 9711(a)(2) ("In the sentencing hearing [after a first-degree murder conviction], evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible.”). Mr. Gunnet did not testify as to the impact of his wife’s death on him or on their family. Mr. Gunnet testified about his wife's morning routine, which she followed on the morning of her murder, the last time he saw her alive. N.T. Trial, 4/12/96, at 123-25. Mr. Gunnet explained that she always left their house in the early morning hours during tax season to get to her job at an accounting firm; described the route that his wife always drove from home to her workplace; and identified her car in a Commonwealth photo exhibit, as well as some of her other belongings. Mr. Gunnet testified that when he made his daily routine call to his wife's office at approximately 7:15 on the morning of her murder, he was unable to reach her and became concerned. Id. at 125-30. Mr. Gunnet then described the circumstances under which he learned that his wife was dead. Id. at 131. All of this was factual evidence concerning the victim's activities in the hours before her murder and the identification of her relevant belongings. Appellant's assertion that Mr. Gunnet's testimony constitutes victim impact evidence is simply wrong.
In his collateral appeals of his Cumberland County and Schuylkill County first-murder convictions, Appellant raised similar challenges to the Commonwealth's introduction of his prior burglary convictions as evidence in support of aggravating factor 9711(d)(6). See Spotz VI, 18 A.3d at 284-85; Spotz V, 896 A.2d at 1240-41 & n. 41, 42. The respective PCRA courts determined, and we affirmed, that there was no merit to Appellant's claims.
Appellant also argues in this sub-issue that proof of aggravating factor 9711(d)(6) "requires that the Commonwealth prove beyond a reasonable doubt that the defendant actually committed the killing, which cannot be established by a guilt-phase verdict that may, as in this case, rest on a jury finding of accomplice or conspiracy liability.” Appellant’s Brief at 42 (emphasis in original). Appellant further asserts that counsel were ineffective for failing to object to the prosecutor’s statement of law and for not requiring a clarification of the elements of factor 9711(d)(6). The underlying facts and legal premise behind this claim are the same as in Issue 8; accordingly, we have addressed the claim in that issue. See infra.
Appellant also asserts in this sub-issue that the prosecutor offered his personal opinion that the witness was not being truthful and "inject[ed] not-of-record comments” into the proceeding. Appellant’s Brief at 42-43. These assertions are not explained, not developed, and not supported factually or legally. To the extent that these assertions are comprehensible, they are meritless.
J.N. did not testify at the PCRA hearing.
Mr. Blocher testified that he met with Taylor Andrews and Kent Watkins, Appellant's counsel in, respectively, his Cumberland County and Schuylkill County first-degree murder trials. N.T. PCRA Hearing, 9/17/07, at 82. Mr. Blocher also testified that Mr. Andrews found psychologist Dr. Ragusea, who testified as a mitigation expert in all three capital cases. Id. at 86, 95-96. The three defense attorneys also shared an investigator, a retired state trooper who simultaneously investigated both mitigating circumstances and facts relevant to the guilt phase of trial. Id. at 96-97, 101, 105. Finally, Mr. Blocher testified that all institutional records were shared among defense counsel in the three counties as well as with Dr. Ragusea. Id. at 96, 116.
The CYS records (Defense PCRA Exhibit 10) proffered by Appellant are in excess of 1,000 pages and primarily concern his brother, Dustin Spotz. The hospital records proffered by Appellant are from three different hospitals, to wit, Warren State Hospital, Clearfield-Jefferson Community Mental Health Center, and Clearfield Hospital. See, respectively, Defense PCRA Exhibits 11, 12, and 21. The first two of these are Dustin’s records, respectively from his 1990 admission to Warren State Hospital because of suicide threats while in the county jail, and from childhood visits to Clearfield-Jefferson Mental Health Center for various behavioral issues. The records from Clearfield Hospital are Appellant’s childhood medical records from 1974 to 1987. These records are, at the very least, similar to records proffered by Appellant to support similar claims in his previous collateral appeals in Cumberland County and Schuylkill County, respectively. See Spotz VI, 18 A.3d at 313 & n. 40; Spotz V, 896 A.2d at 1230-33.
Defense counsel called a total of 17 witnesses at the penalty-phase hearing.
The Commonwealth objected to Dr. Gelles’s testimony on relevance grounds. The PCRA court sustained the objection, ruling that whether CYS had failed Appellant was a conclusion that a lay person could reach. N.T. PCRA Hearing, 6/10/08, at 362-63. The PCRA court did make Dr. Gelles’s affidavit, as well as his testimony during Appellant's PCRA proceedings in Cumberland County, part of the record, reminding defense counsel that “if you argue that my exclusion of [Dr. Gelles’s testimony] was improper, you have to show the appellate courts he should be permitted to testify.” Id. at 363-64. As mentioned in the text, supra, Appellant does not challenge the PCRA court's evidentiary ruling with regard to Dr. Gelles, but simply fails to mention it at all. In his affidavit, Dr. Gelles criticizes CYS for repeatedly returning Appellant and Dustin from various placements to their home after inadequate assessments and evaluations and with inadequate services and monitoring. Affidavit of Richard J. Gelles, Ph.D., dated 2/19/07 (Defense PCRA Exhibit 58). We note only that Dr. Gelles's affidavit is not entirely consistent with the testimony of Ms. Muir, the administrator of CYS and caseworker for Appellant and his family. At the PCRA hearing and during the penalty phase of trial, Ms. Muir testified that, when Appellant or Dustin was in placement, she never recommended that either child be returned to his home. N.T.' PCRA Hearing, 6/10/08, at 352-53; N.T. Penalty Phase, 4/23/96, at 203-05, 213-14.
Exactly which mitigating factor the Lester appellant invoked with regard to his drug use was not entirely clear.
We recognize that this standard appears logically impossible to meet, because, when a penalty hearing is held, the jury has already established that the defendant acted with specific intent to kill. However, as we recently stated in Gibson, 19 A.3d at 529 n. 18, the jury may consider voluntary intoxication of a lesser degree under mitigating factor 9711(e)(8), the "catchall” mitigator, but consideration of voluntary intoxication under this subsection does not relieve the defendant of proving that he was voluntarily intoxicated at the time of the murder. ., We also note that much of the PCRA testimony concerning Appellant’s drug and alcohol use, upon which he attempts to rely in this sub-issue, was cumulative of evidence presented during the penalty phase. As we discussed supra, in the first sub-issue of this issue, several penalty-phase witnesses, including Appellant’s mother, testified that Appellant was repeatedly exposed as a young child to drug and alcohol use and abuse in his childhood home. See text, supra; see also N.T. Penalty Phase, 4/23/96, at 122, 143-44 (testimony of Ms. N. as to drug and alcohol use in Appellant’s childhood homes and his exposure to such use); id. at 71-72, 85 (testimony of Ms. R. as to Appellant’s exposure to drugs as a child). Appellant’s stepfather even acknowledged smoking marijuana with Appellant when he was nine or ten years old. Id., 4/24/96, at 254-55. Linda Spotz, Appellant’s wife, testified that he abused drugs, including marijuana, LSD, and crack cocaine, and also that he sold drugs to earn money. Id. at 235-36. Although she disapproved of Appellant’s drug use, she acknowledged that Appellant smoked crack, got high, and drank when "things were bad” in order "to cope with life in general.” Id. at 238. She further acknowledged that he was smoking marijuana and using crack cocaine in January 1995. Id. Dr. Ragusea diagnosed Appellant with polysubstance abuse, recognizing his long history of abusing virtually all street drugs. Id. at 306-07. He emphasized Appellant's childhood drug use and exposure, and suggested that these experiences at such an early age made it more likely that Appellant would continue to abuse drugs as an adult and experience behavioral abnormalities. Id. at 304-05. Dr. Ragusea also testified that Appellant reported to him that he had used LSD shortly before the fatal fight with Dustin. Id. at 316-17. The PCRA testimony concerning Appellant’s drug and alcohol usage, as summarized in Issue 4, is largely cumulative of this penalty-phase testimony.
The records that Appellant cites are eleven "family records," as follows. See Appellant's Brief at 51 n. 22. Three of the eleven records are Dustin's hospital records, as follows: from Clearfield-Jefferson Community Mental Health Center, documenting Dustin’s childhood visits for various behavioral issues (Defense PCRA Exhibit 12); from Conemaugh Valley Memorial Hospital, documenting Dustin’s 1986 admission because of suicide ideations and troubles at home and school (Defense PCRA Exhibit 13); and from Warren State Hospital, documenting Dustin’s 1990 admission because of suicide threats while in the county jail (Defense PCRA Exhibit 11). One record, from Harrisburg State Hospital, concerns a brief commitment of Danny Spotz, Appellant's biological father, in 1971, after he was arrested for possession of narcotics and driving while under license suspension. (Defense PCRA Exhibit 15). He was released from the hospital with a diagnostic impression of "an inadequate personality with strong oral needs [who] withdraws from the stresses of life through satisfaction of these needs by drug use [and] feels himself a poor example of a male figure. There is no evidence of any psychotic distortion in his thought processes and as a consequence [he] may be released from this hospital.” (Id. at 14.) One record, from Clearfield Hospital, contains Appellant's childhood medical records from 1974 to 1987. (Defense PCRA Exhibit 21). There is one school record, from the George Junior Republic School, a record which concerns only Dustin. (Defense PCRA Exhibit 19). It includes a psychological evaluation of Dustin from August 1984, which noted his "seething anger,” his depression, his aggression and need for revenge, his emotional instability, his abusive stepfather, and his various placements. The evaluation also concluded that there was no organic impairment evidenced or indicated and Dustin was not felt to be psychotic. (Id., Psychological Evaluation by Carolyn E. Pritchard, Clinical Psychologist, dated 8/6-8/84). The school record also includes a psychiatric evaluation from 1987, in which medication is re-prescribed and structure reinstituted, with the hope that Dustin "can regroup and be successful once again.” (Id., Psychiatric Evaluation by Carol Maurer, M.D., dated 3/24/87). The psychiatric evaluation notes the following "Impression:” "Adjustment reaction of adolescence with disturbance of emotions and conduct[;] Substance abuse, drugs and alcohol);] Has antisocial personality traits.” (Id.) There are three court records, all concerning offenses committed by Dustin, specifically related to assault and related offenses in 1990 in Cumberland County, and to statutory rape and simple assault in 1992 in Adams County. (Respectively, Defense PCRA Exhibits 14 and 18, 17). One record, from 1993 and 1994, concerns Dustin’s imprisonment at SCI-Rockview, and includes reports of his behavioral problems and psychiatric evaluations. (Defense PCRA Exhibit 22). The psychiatric evaluations suggest a diagnosis of adjustment disorder with mixed emotional features, substance abuse, and personality disorder not otherwise specified, with a history of seizure disorder. (Id., Psychiatric Evaluations by Abdollah Nabavi, M.D., dated 10/28/93 and 8/22/94). Finally, one record derives from Appellant’s 1995 incarceration in the Clearfield County Jail following the killings of his brother and the three other victims. (Defense PCRA Exhibit 16). This record consists of numerous medical requests and reports documenting treatment of Appellant’s shoulder and leg injuries sustained in the fight with Dustin as well as treatment for an eye problem. There are no mental health documents in this report. Appellant fails to describe, discuss, or even refer to any of these particular records in his argument. He merely lists them all in a footnote with no explanation as to whom they concern, what they entail, or why they are, in his view, significant and relevant. See Appellant's Brief at 51 n. 22.
As in Spotz VI, Appellant also invokes in this sub-issue the PCRA testimony of two psychiatrists, Dr. Blumberg and Dr. Fox, both of whom evaluated Appellant and reviewed the records after being retained by PCRA counsel. See Appellant’s Brief at 53-55. Appellant’s attempt to rely on the testimony of these experts is unavailing. Dr. Blumberg, who evaluated Appellant eleven years after the murders, opined that, at the time of the murders, Appellant was suffering from three mental conditions: (1) post-traumatic stress disorder, chronic/severe; (2) personality disorder not otherwise specified with dependent, schizotypal, borderline, and antisocial features; and (3) polysubstance abuse, including marijuana, LSD, cocaine, and methamphetamine. N.T. PCRA Hearing, 9/18/07, at 315. Dr. Blumberg’s diagnosis of chronic, severe post-traumatic stress disorder is similar to the revised diagnosis that Dr. Ragusea set forth during Appellant's PCRA proceedings. However, the two experts appeared to differ with respect to their personality disorder diagnoses. As we have previously noted, Dr. Blumberg explained in his testimony during Appellant’s Cumberland County PCRA proceedings that personality disorder not otherwise specified is simply the newer term for mixed personality disorder. See Spotz VI, supra at 315 n. 41. Thus, as we concluded in Spotz VI, "it would appear that the type of personality disorder diagnosed by Dr. Blumberg for purposes of collateral appeal is very similar to the type first diagnosed by Dr. Ragusea, i.e., at the time of trial.” Id. (emphasis in original). Dr. Fox, who interviewed Appellant five years and again twelve years after the murders, diagnosed Appellant as suffering from the following psychiatric conditions: (1) post-traumatic stress disorder; (2) borderline personality disorder; (3) an obsessive compulsive disorder; and (4) polysubstance dependence in remission. N.T. PCRA Hearing, 6/9/08, at 36. When asked on direct examination about the difference between himself and Dr. Blumberg with respect to their personality disorder diagnoses, Dr. Fox testified as follows: “[Tjhere is not a significant difference between Dr. Blumberg’s personality disorder diagnosis and mine. We both consider [Appellant] to suffer from a severe personality disorder. It’s really away [sic] to describe.” Id. at 39. Based on the experts' testimony, we fail to see a legally relevant distinction among the personality disorder diagnoses of any of the three mental health experts who testified on Appellant's behalf, nor a distinction that could possibly have been determinative to a jury. Furthermore, Appellant has failed to explain how or why or what additional records prompted the revised diagnoses. Only the following exchange addresses this question at all. On cross-examination, the prosecutor asked Dr. Fox to explain the reason for the difference in his diagnoses versus Dr. Ragusea's initial diagnoses. The following exchange then took place: Dr. Fox: It [the differing diagnoses reached by him and Dr. Ragusea] was based on additional records and we are different people and, you know, different evaluations. Prosecutor: But you can’t as you sit here recall what records made the difference? Dr. Fox: I had more extensive records of the abuse that [Appellant] received in childhood as we have talked about for hours today. Id. at 156. Thus, although Dr. Fox attributed the differing diagnoses reached by him and Dr. Ragusea at least partially to the additional records, the only specific records that Dr. Fox could recall that led to this difference of opinion were those addressing further the abuse .of Appellant during his childhood. As we have already discussed, Appellant’s childhood abuse was well documented during the penalty phase of his trial.
Appellant also broadly asserts in this sub-claim that the history of mental illness documented for his father, mother, and brother was “important mitigation” evidence and “also had an important environmental effect on [Appellant’s] development.” Appellant's Brief at 52. Appellant neither develops these assertions in any meaningful way nor provides any citations to the record to support them. Appellant offers no rationale or argument to support his apparent belief that if only the jurors had heard more evidence of Appellant's family history of mental illness, they would have returned a different verdict, despite the fact that the jurors heard testimony from multiple witnesses regarding Appellant's chronically abusive and violently dysfunctional family; his mother’s depression, instability, and suicide attempts; his absent father and cruelly abusive stepfather; his brother’s violent rages, and CYS's attempts to intervene. Under these circumstances, we conclude that it is virtually inconceivable that additional evidence as to Appellant’s family history of mental illness would have changed the jury’s verdict. Accordingly, there is no merit to Appellant's claim that counsel was ineffective for failing to present such evidence.
In Issue 9, Appellant also raises a sixth sub-issue, to wit, that penalty-phase counsel were "conflicted.” Appellant's Brief at 65. This claim is merely a repetition of Issue 1(a), which we have already addressed thoroughly. See text, supra, Issue 1(a).
Appellant also challenges two other hearsay rulings by the trial court, specifically Ms. R.’s testimony that Dustin had told her that his stepfather hit him and Appellant with a piece of leather that he called "the enforcer;" and Ms. R.'s testimony as to what she had heard about abuse by Appellant’s biological father. N.T. Penalty Phase, 4/23/96, at 81 and 89-90, respectively; see Appellant's Brief at 60. However, our review of the notes of testimony reveals that Ms. R.'s testimony regarding these matters was admitted when defense counsel asked a follow-up question. Immediately after the trial court’s ruling that what Dustin had told Ms. R. about being beaten by his stepfather was hearsay, Ms. R. further testified that Appellant had "said basically the same thing, that [their stepfather] hit them with the enforcer, which was a thick and wide long piece of leather.” N.T. Penalty Phase, 4/23/96, at 81. This time, the Commonwealth did not object; there was no ruling, hearsay or otherwise; and the testimony was admitted without comment from the prosecutor or the court. Id. at 81. Similarly, immediately after the court sustained the hearsay objection as to what information Ms. R. had heard about abuse by Appellant's biological father, defense counsel asked Ms. R. if Appellant had told her of abuse by his biological father. She answered, without objection, that Appellant said his biological father had punched him in the chest. Id. at 89-90. Thus, contrary to Appellant’s assertion, the testimony by Ms. R. regarding these matters was heard by the jury. There is no arguable merit to his claim that counsel was ineffective for failing to raise an issue of trial court error regarding these matters on direct appeal.
The relevant portion of the trial court’s jury charge is as follows: With regard to your determination, you should set aside any feeling or emotion that clouds your judgment just as you did when you reached the initial verdict in this case. Set aside — Feelings or emotions one way or the other with regard to life or death isn’t [sic] the issue. The issue here is aggravating and mitigating[,] and use your common sense and human judgment in reaching that decision, and emotion is something that you should set aside and use your common sense and your human mind. N.T. Penalty Phase, 4/24/96, at 406-07.
Recently, and well after Appellant filed his PCRA appeal in this Court, a Superior Court panel filed a memorandum opinion vacating his voluntary manslaughter conviction and remanding for a new trial. See Commonwealth v. Spotz, 43 A.3d 518, 770 WDA 2010 (Pa.Super., filed January 13, 2012). Shortly thereafter, the Commonwealth filed an application for reargument in the Superior Court. On March 13, 2012, Appellant filed with this Court an “Application Pursuant to Pa.R.A.P. 2501, for Leave to File Post-Submission Communication in the form of a Motion to Amend Claims and Submit Supplemental Briefing, or Remand to the PCRA Court.” While the Superior Court’s decision is potentially relevant to Appellant’s judgment of sentence in the instant case, there is, as yet, no final disposition of Appellant's challenge to his voluntary manslaughter conviction because his challenge remains in appellate proceedings. In the event that Appellant’s challenge to his voluntary manslaughter conviction is ultimately successful at the close of appellate review, then and only then would consideration of the implications of that successful challenge be appropriate. As this Court has previously stated, [I]f the underlying collateral conviction which forms the basis of an aggravating circumstance found by the jury is ultimately overturned, this Court is not without power to vacate the sentence of death in appropriate circumstances. Nor would we hesitate to stay an execution of sentence pending appellate disposition of the collateral conviction in appropriate circumstances. Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367, 376 (1985). At the present time, because there has not been any final disposition of Appellant’s challenge to his voluntary manslaughter conviction, there is no reason to delay resolution of Appellant's numerous claims presently before this Court, most of which are entirely unrelated to his voluntary manslaughter conviction. Again, Morales, supra, is relevant here: As review of a convicted murder’s sentence of death is one of the most, if not the most, weighty and important appellate tasks this Court is called upon to perform, it would not serve the interests of justice to withhold swift resolution of our review of a sentence of death pending appellate resolution of a collateral conviction. To do so would subject that resolution to the unavoidable delays possible in the appellate process.... Id. If Appellant's challenge to his voluntary manslaughter conviction is ultimately and finally successful, his recourse is to file a second PCRA petition raising a new claim or claims. See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000) (holding that, when an appellant's PCRA appeal is pending, a subsequent PCRA petition cannot be filed until the pending PCRA petition is resolved).
The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S. § 971 l(i).
See, e.g., N.T., April 3, 1996, at 40 (reflecting Appellant’s pretrial explanation that “I don't understand where this is coming from. I feel I have the right to know.... I feel I have a conflict with my counsel and I don’t believe they can represent me adequately if they’re sitting there in fear of their life.”); N.T., Apr. 12, 1996, at 12 (reflecting Appellant’s remarks that his attorneys "are alleging statements I have made of the security issues, what I may do and may not do to counsel or to witnesses. I wasn't present. All I can tell is what I've been told.”). See generally N.T., June 13, 2008, at 809-49 (relating, on post-conviction, Appellant’s perspective that there was a progressive disintegration of his relationship with his attorneys). In this regard, I do not mean in any way to criticize counsel’s conduct in reporting safety concerns. My only purpose is to relate that I see this argument, and several others, in a different light from the majority perspective, and that my thoughts are not as categorical. See, e.g., Brief for Appellant at 3-4.
I acknowledge, nonetheless, that I did not fully appreciate the context at the time of the direct appeal, as I joined the majority opinion outright.
With regard to the trial court’s prohibition on note-taking by standby counsel, see Majority Opinion, at 195-98, 47 A.3d at 81-82, I would generally disapprove such restriction absent specific and substantial justification. The only reason I can conceive which would support such a restriction was the uncorroborated hearsay information that Appellant might be planning to assault counsel with a writing instrument. The court, however, already was planning to take measures short of an outright ban on note taking which would suffice for Appellant, see, e.g., N.T., Apr. 4, 1996, at 50, and there does not appear to be any reason why the same could not be done for counsel.
58 A.3d 748
COMMONWEALTH of Pennsylvania, Petitioner v. Mark Newton SPOTZ, Respondent.
Supreme Court of Pennsylvania.
Nov. 28, 2012.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
AND NOW, this 28th day of November 2012, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner are:
(1) Whether the Superior Court erred when it exceeded its scope of review and rejected the trial court’s credibility finding with respect to trial counsel’s testimony at the PCRA hearing?
(2) Whether the Superior Court erred in finding that the Respondent was unduly prejudiced by counsel’s failure to object to the prosecution’s references to Respondent’s silence?
(3) Whether the Superior Court erred when it failed to review trial counsel’s actions/inactions with regard to the jury instructions and failed to make a determination as to whether counsel had a reasonable basis for his actions/inactions?
(4) Whether the Superior Court erred in finding that the Respondent was unduly prejudiced by trial counsel’s failure to object to the jury instruction as to justification with respect to defense of others and the duty to retreat?
Justice EAKIN did not participate in the consideration or decision of this matter.
84 A.3d 294
COMMONWEALTH of Pennsylvania, Appellant v. Mark Newton SPOTZ, Appellee.
Supreme Court of Pennsylvania.
Submitted Sept. 13, 2013.
Decided Jan. 17, 2014.
Trudy Gale Lumadue, Esq., for Commonwealth of Pennsylvania.
Paul David Boas, Esq., Pittsburgh, for Mark Newton Spotz.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
[OPINION BY Justice STEVENS. type=majority]
OPINION
Justice STEVENS.
The Commonwealth appeals from the order of the Superior Court, which reversed the order denying Appellee’s petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, vacated his judgment of sentence, and remanded for a new trial. We reverse the order of the Superior Court and remand to that court for consideration of Appellee’s PCRA issues that remain in abeyance.
I. Background
The facts underlying Appellee’s conviction and judgment of sentence are discussed more fully in this Court’s prior decision on discretionary review of Appellee’s direct appeal, Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005), cert. denied, 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005) (Spotz I). In order to place the Commonwealth’s current claims in context, some background is required.
The evidence adduced at Appellee’s jury trial established that, on January 31, 1995, Appellee, who was on parole for a robbery conviction at the time, and his brother, Dustin Spotz, engaged in an argument at the home of their mother and stepfather in Clearfield County. The argument began when Dustin’s fiancée’s teenage son placed a pet gerbil in front of Appellee’s face while he was watching television, resulting in Appellee yelling at the child and threatening to physically harm him. This angered Dustin, and the argument escalated into a physical confrontation, during which Dustin stabbed Appellee twice in the upper back with a butter knife, slightly wounding him. In response, Appellee threatened to kill Dustin, and he proceeded upstairs, returning with a handgun. Appellee fired eight shots at Dustin, two of which fatally struck Dustin in the chest. After Dustin fell to the ground, Appellee leaned over him, spit on his face, and stated, “There you go, pussy.”
Dustin’s fiancée tried to call the police; however, Appellee grabbed the phone and declared nobody could call anyone until he escaped the scene. Appellee put the handgun in his pants and attempted to retrieve the spent bullet shells from the kitchen floor. Appellee, along with his paramour, C.N., then fled the house in a vehicle driven by Appellee’s stepfather. Three days later, on February 3, 1995, the police apprehended Appellee at a motel in Carlisle, Pennsylvania.
Following his arrest and return to Clearfield County, Appellee was charged with first degree murder, third degree murder, voluntary manslaughter, aggravated assault, recklessly endangering another person, carrying a firearm without a license, and former convict not to own a firearm. Appellee took the stand at trial, claiming self-defense and defense of others, seeking an outright acquittal of the non-firearms charges. In his version of events, Appellee indicated that, after Dustin said he was going to burn down the house and kill the kids, Dustin went into the kitchen where their stepfather was sitting and began throwing furniture. N.T., Trial, 9/25/1995, at 69-70, 73-74. In response, Appellee rushed into the kitchen, tried to push Dustin into a corner, and exchanged blows with him. N.T., Trial, 9/25/1995, at 75. With Appellee holding him, Dustin reached into the dish strainer, grabbed a butter knife, and stabbed Appellee. N.T., Trial, 9/25/1995, at 76. Appellee ran out of the kitchen, went upstairs to get his coat, which had a gun in the pocket, and returned to the kitchen where Dustin stood holding butter knives. N.T., Trial, 9/25/1995, at 81. Appellee admitted he told his stepfather to “get out of the way,” and he fired two shots at the floor. N.T., Trial, 9/25/1995, at 83. Appellee indicated Dustin looked at him and stated, “You don’t have any fuckin’ hair on your ass to shoot me, Pussy.” N.T., Trial, 9/25/1995, at 83. Appellee claimed Dustin had a butter knife in each hand and was about to attack him, his stepfather, and his mother, and therefore, he shot Dustin in defensive response. N.T., Trial, 9/25/1995, at 84-85.
On cross-examination, the prosecutor questioned Appellee about his failure to assist Dustin after shooting him, his flight, and his subsequent failure to report the shooting to the police on the night in question and to tell the police he was defending himself. The primary focus of the cross-examination was upon Appellee’s conduct immediately after the shooting as demonstrated in the following relevant exchange:
Q: You were bleeding heavily?
A: I said my only concern was if I was going to die. I was bleeding, man. I was bleeding bad. I was hurting. I didn’t know what was happening.
Q: But you didn’t go to the DuBois Hospital; you didn’t go to the Clearfield Hospital. Why?
A: When I was walking across the parking lot, Chris[tine N.] start[ed] filling my head with a lot of stuff that just didn’t make sense. To my knowledge and the way I remember, my brother wasn’t dead when I left. He was still alive. He was on the floor. Everything — I mean, a lot of things I remember now that weren’t clear when this stuff happened. You know. It was traumatic, you know, I was shocked. I didn’t understand a lot of things for a long time.
She told me I killed my brother. I was on the run from parole. And if I went in the hospital, the cops would arrest me. Now, she had me scared. One, I didn’t want to go back to jail for anymore nonsense like getting speeding tickets. And two, she said I killed somebody that I didn’t know I killed, you know. And to me, I didn’t kill him. Q: And you didn’t stick around to help your brother, either; did you?
A: I did what I could do.
Q: You didn’t stay to report this to the authorities that night?
A: I went to the hospital, man. I was stabbed.
Q: You didn’t go into the hospital?
A: I didn’t say I went in. I went.
Q: Did you go back to Chestnut Grove to talk to the police?
A: No.
Q: No.
A: No.
Q: To tell them that you were defending yourself. Did you tell the police that?
A: I just believe I—
Q: Answer my question, sir. Did you tell the police that night that you were defending yourself?
A: I didn’t talk to the police that night.
N.T., Trial, 9/25/1995, at 150-52.
Immediately after this exchange, the prosecutor followed up with two questions, which, although they did not specifically refer to Appellee’s arrest, nevertheless were broadly phrased to encompass pre-arrest and post-arrest periods:
Q: Other than today, did you ever tell the police that you were defending yourself?
A: I never talked to the police to this day. They never asked me questions. They never asked me anything.
Q: The police never talked to you, or attempted to talk to you?
A: They said things to me. They never tried to question me. They put guns in my face and said if I ever walked the street, they’d hunt me down and kill me theirself [sic]. That’s what the cops said to me.
N.T., Trial, 9/25/1995, at 152. Appellee’s trial counsel did not object to either of these questions.
Moreover, during closing argument, the prosecutor argued to the jury the evidence revealed Appellee did not act in self-defense. The prosecutor specifically made reference to Appellee’s conduct after the shooting, including his flight after the shooting and his failure to inform the police he shot Dustin in self-defense. The prosecutor also made the statements:
But, no, he came right back down [the stairs]. He came right back down. Another discrepancy in their claim of self-defense. Testimony was you mother F’n son of a bitch, you’re dead. He said that. Does that sound like somebody in self-defense?
He never told the authorities that he was defending himself. Why? Because he fled. Does that sound like somebody who is defending himself and others, that he fled, didn’t stay there to tell the police what happened? Does that sound like somebody who is defending himself or defending his family? No. Instead, he fled, he took off.
N.T., Trial, 9/26/1995, at 45-46. Appellee’s trial counsel did not object to the prosecutor’s closing argument.
With regard to the trial court’s instruction to the jury regarding justification, the trial court charged the jury, in relevant part, as follows:
Now, justification generally. Conduct which the Defendant reasonably believes to be necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
That means, that a person is permitted to use such force as is necessary, but no more, just as much force as is necessary, to prevent a harm or evil to himself or to another, a harm or evil that he reasonably believes to be necessary, to avoid a harm or evil to himself or to another. That is the general rule of justification.
The use of force upon or toward another person is justifiable when the Defendant reasonably believes that such force is immediately necessary for the purpose of protecting himself or another against the use of unlawful force by the other person on the present occasion, that it is immediately necessary to protect himself or another against the use of unlawful force by the other person on the present occasion.
That is the general rule of justification, members of the jury, or self-defense, the general rule. But this situation involves the use of deadly force. And you’ll recall the Court’s definition of deadly force. The use of deadly force is not justifiable under this, or any other section, unless the Defendant reasonably believes that such force is immediately necessary to protect himself or another against death or serious bodily injury.
Moreover, the Defendant cannot use deadly force if he knows that he can avoid the necessity of using such force with complete safety by retreating. The statute provides that if the Defendant is in his own dwelling, as that has been defined for you, then he does not have to retreat before using deadly force.
If you find that this shooting occurred in the Defendant’s dwelling, then he would be relieved from the necessity of retreating before using deadly force. If he was not in his own dwelling, if you find such, then he must retreat if he can do so safely before he can use deadly force.
Still on this matter of justification, members of the jury, the basic rule, as I said, is that a Defendant is justified in using force against another person if he reasonably believes he is in immediate danger of unlawful force from that person and reasonably believes it is necessary then and there immediately to use the force which he does to protect himself or another.
Again, folks, deadly force is another matter. If a Defendant employs deadly force to protect himself, his use of force must meet the following requirements, as well as the basic rule. The Defendant must reasonably believe that he is in immediate danger of death or serious bodily injury from the person against whom he uses deadly force, and must reasonably believe it is necessary then and there to use deadly force upon that person to protect himself, or another person.
The Defendant must have been free from fault in provoking or continuing the difficulty which led to the use of deadly force, and the Defendant must have violated no duty to retreat.
And, folks, whether or not the Defendant had a duty to retreat here depends upon your determination of whether these events occurred in the Defendant’s dwelling, as that has been defined for you, or not. If it did occur in his dwelling, he had no duty to retreat. If it did not occur in his dwelling, then he did have a duty to retreat if he could do so safely.
Now, the Commonwealth has the burden of disproving the defense of justification. So you cannot find the Defendant guilty of any of these crimes unless you are satisfied beyond a reasonable doubt that the Defendant did not reasonably believe he was in immediate danger of death or serious bodily injury from Dustin Spotz, or that others were not in danger of death or immediate bodily injury from Dustin Spotz, or that the Defendant did not reasonably believe it was necessary then and there immediately to use deadly force upon Dustin Spotz to protect himself or another from death or serious bodily injury, or that the Defendant was not free from fault in provoking or continuing the difficulty which led to his use of deadly force, or that the Defendant violated a duty to retreat, if you find that such duty existed.
N.T., Trial, 9/26/1995, at 58-62. Appellee’s trial counsel did not object to the trial court’s instruction to the jury.
On September 26, 1995, the jury acquitted Appellee of first and third degree murder, but convicted him of voluntary manslaughter (heat of passion), aggravated assault, recklessly endangering another person, and the firearms offenses. On October 17, 1995, the trial court sentenced Appellee to an aggregate term of seventeen and one-half years to thirty-five years in prison. No timely direct appeal followed.
However, on January 16, 1996, Appellee filed a timely petition for PCRA relief in which he claimed ineffective assistance of trial counsel for failing to file a timely appeal from his judgment of sentence and seeking the restoration of his direct appeal rights nunc pro tunc. On November 17, 1998, following a hearing, the PCRA court granted Appellee relief, and he later filed a timely nunc pro tunc appeal. In his subsequent Pa.R.A.P. 1925(b) statement of matters complained of on appeal, Appellee presented several claims of ineffective assistance of counsel and trial court error. The trial court filed an opinion briefly addressing each claim, but noting it was hamstrung in its evaluation of the claims since no evidentiary hearing had been held regarding the ineffectiveness claims.
Appellee’s then counsel was permitted to withdraw his appearance, and new counsel filed an amended Rule 1925(b) statement alleging trial counsel was ineffective in six additional instances and the cumulation of these issues entitled Appellee to relief. In his direct appeal brief before the Superior Court, Appellee raised no claims of trial court error, but instead, listed six claims of ineffective assistance of trial counsel and a derivative seventh claim respecting the cumulative effect of the specific claims. At this point, due to the procedural posture of the case, no evidentiary hearing with respect to the new ineffectiveness claims had been held, and thus, trial counsel had not been heard from and the trial court did not address the claims.
On October 4, 2001, in an unpublished memorandum decision, the Superior Court panel granted Appellee summary relief on his claim trial counsel was ineffective in failing to object to the above referenced portions of the prosecutor’s cross-examination of Appellee, as well as the prosecutor’s closing argument, on the grounds that they included impermissible and inherently prejudicial references to Appellee’s post-arrest silence. Accordingly, deeming it unnecessary to address Appellee’s remaining ineffective assistance of counsel claims, the Superior Court panel reversed Appellee’s judgment of sentence and remanded for a new trial.
The Commonwealth subsequently filed a petition for allowance of appeal challenging the Superior Court’s summary finding trial counsel was ineffective. Appellee filed a protective cross-petition alleging the Superior Court erred in failing to address and resolve his additional ineffective assistance of counsel claims. This Court granted both the petition and cross-petition.
Upon review, in first addressing the Commonwealth’s appeal, we noted the Superior Court did not err in reaching the merits of the ineffectiveness of counsel claims, which were raised for the first time on direct appeal, since its disposition was entered before Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), was decided. Spotz I, supra. Noting the three-prong test to be applied in determining whether trial counsel was ineffective as set forth in Strickland, and adopted by Pierce, we began with an examination of the “arguable merit” prong. Specifically, we indicated this Court has held, as a matter of state constitutional law, that cross-examination of a testifying defendant as to his post-arrest silence is a violation of due process, while both this Court and the United States Supreme Court have held there is no such violation when pre-arrest, pre-Miranda silence is used at trial in a similar fashion. Spotz I, supra. In examining the prosecutor’s closing argument to the jury in light of this Court’s and the High Court’s precedent, we noted that “[i]f the only remark at issue in this case was the prosecutor’s reference in summation to [A]ppellee ‘never’ telling authorities he was defending himself, the question of arguable merit might be close.” Spotz I, 582 Pa. at 223, 870 A.2d at 831. Given the context in which the prosecutor’s remark was made, and the legitimate point being made, we held it “would be difficult to say that counsel was constitutionally obliged to object to this single remark in closing.” Id.
On the other hand, under our precedent, we concluded “the disputed questions posed during the prosecutor’s cross-examination of [Ajppellee arguably were subject to objection.” Id. We concluded “there were grounds for counsel to object to th[e] questioning!, and, therefore, the Superior Court did not err in finding that the claim possesses arguable merit.” Spotz I, 582 Pa. at 223, 870 A.2d at 832.
However, in examining the “reasonable basis” and “prejudice” prongs of the ineffectiveness test as set forth in Strickland and Pierce, we found the Superior Court’s summary resolution thereof “troubling.” With regard to “reasonable basis,” we specifically held this is not a case where it can be said, as a matter of law, that counsel had no reasonable basis for failing to object to the prosecutor’s temporal references during the cross-examination of Appellee, and “this Court has expressed a distinct preference for a hearing on counsel’s strategy before venturing to hold that counsel lacked a reasonable basis for his or her action or inactions.” Spotz I, 582 Pa. at 224, 870 A.2d at 882 (citations omitted). Thus, since there had been no evidentiary hearing, the counsel whose performance was at issue had not been heard from, and there were no factual determinations made by the trial court, we determined that the then existing record could not support the Superior Court’s summary conclusion trial counsel had no reasonable basis for failing to object to the challenged portions of the prosecutor’s cross-examination of Appellee. Spotz I, 582 Pa. at 224, 870 A.2d at 832.
Moreover, with regard to the Strickland/Pierce “prejudice” prong, we noted the Superior Court panel erroneously applied what amounted to a “presumption of prejudice,” thus improperly concluding the references to Appellee’s post-arrest silence were “innately prejudicial.” Spotz I, supra. We held the Superior Court ought to have used the Strickland/Pierce ineffectiveness measurement for assessing actual prejudice, “weighing the precise nature of the references against the strength of the evidence on the point at issue.” Spotz I, 582 Pa. at 227, 870 A.2d at 834 (citations omitted). However, we ultimately concluded that, since the issue of prejudice was not passed upon in the first instance by the trial court after an evidentiary hearing, “we need not and should not decide whether [Ajppellee was prejudiced by counsel’s failure to object to the prosecutor’s line of questioning on cross-examination.” Spotz I, 582 Pa. at 229-30, 870 A.2d at 835. We held “the question is better determined by the trial court in the first instance following an evidentiary hearing.” Spotz I, 582 Pa. at 280, 870 A.2d at 835.
As to the appropriate mandate, having determined that the then existing record could not support the Superior Court’s holding trial counsel was ineffective and a new trial was required, and Grant establishes the preferred forum in which to pursue an ineffectiveness claim is via the PCRA, we dismissed the claim without prejudice to Appellee’s right to pursue it under the PCRA. Spotz I, supra.
With regard to Appellee’s cross-appeal, in which Appellee alleged the Superior Court erred in failing to address four additional claims of trial counsel’s ineffectiveness, which Appellee raised for the first time on appeal, we concluded the Superior Court committed no error in this regard. Spotz I, supra. Consistent with our foregoing analysis, we concluded the appropriate disposition of the collateral claims under Grant was dismissal without prejudice to Appellee’s right to pursue the claims under the PCRA. Spotz I, supra. Thus, we ultimately reversed the Superior Court’s grant of a new trial, reinstated Appellee’s judgment of sentence, and dismissed Appellee’s ineffectiveness claims without prejudice to his rights to pursue the collateral claims under the PCRA. Spotz I, supra.
Thereafter, Appellee filed a timely pro se PCRA petition, the court appointed counsel to represent Appellee, and counsel filed an amended PCRA petition presenting seventeen claims, including the claim trial counsel was ineffective in failing to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee as set forth supra, as well as the trial court’s instruction to the jury regarding justification as set forth supra. The PCRA court held an evidentiary hearing, at which Appellee’s trial counsel testified, acknowledging that, from the outset, it was his plan to handle all of the murder charges filed against Appellee in the four counties. N.T., PCRA Hearing, 2/13/2008, at 101. With regard to the prosecutor’s cross-examination of Appellee at trial, the primary focus at the PCRA hearing as it relates to trial counsel’s failure to object is demonstrated by the following relevant exchange between Appellee’s PCRA counsel and trial counsel:
Q: ... [A]m I right that [Appellee] was cross-examined on
why he didn’t tell the police he was acting in self-defense? A: Yeah. He was asked whether he told the police that he was defending himself at the time he was stabbed.
Q: And you agree there’s no contemporaneous objection on the record at this passage. Is that fair to say?
A: No.
Q: And later, in fact, in closing argument — this is on September 26, 1995, at page 46 — that the prosecutor, in fact, argued this very fact. And I quote, He never told the authorities that he was defending himself.
A: Okay.
Q: And again, there’s no contemporaneous objection by you of that?
A: No. I remember reading that when you sent me the transcript, and it still didn’t refresh my memory that that had even occurred. When I look at it, I’m a little disappointed in myself.
Q: And you agree now that those were improper references?
A: At the time, if I’d have caught it, I would have objected. Q: And that’s my question. Did you have a strategic or tactical reason not to object to the line of cross-examination of [Appellee] as to his post-arrest silence or the exploitation of that by the prosecutor in closing?
A: No.
N.T., PCRA Hearing, 2/13/2008, at 57-58.
The issue was further explored on cross-examination at the PCRA hearing when the following relevant exchange occurred between the prosecutor and trial counsel as it related to trial counsel’s failure to object to the prosecutor’s cross-examination of Appellee at trial:
Q: Okay. Now we’re on to issue no. 1, that is about the prosecutor’s questioning to [Appellee] during cross-examination—
A: Yeah.
Q: —about his post-arrest silence.
A: Right.
Q: Now, [Appellee] testified during the trial; right?
A: Yes.
Q: And he did a pretty good job testifying; didn’t he?
A: I thought so, yeah.
Q: And he’s articulate, came across well to the jury; right? A: Well, he told the truth.
Q: And you said earlier, I think that you said that you missed it and you were disappointed in yourself because you missed it when the prosecutor asked a question; right? A: Yeah.
Q: And if you would have noticed it, it would have been something you would have objected to?
A: Yes.
Q: So the fact that you missed it when you’re sitting right here in the middle of trial, it’s likely that it was a pretty fleeting comment; isn’t it?
A: I can’t say that. I mean, I might have been looking at the notes of the officer, what the statement was, what he was looking at when he was testifying. I couldn’t tell you. I mean, I’ve never tried a perfect case, and I probably never will.
Q: And the Constitution doesn’t allow for a perfect trial; it calls for a fair trial. Right?
A: Yeah, it does call for it, yeah.
Q: Fair, not perfect?
A: Right.
Q: But again, this goes for — you’ve been asked in every single one of these issues whether you had a reasonable or tactical basis for not doing it, and you’re just saying right now you can’t even tell us whether you would have had one or not.
A: What I’m telling you is that I missed it, okay.
Q: I understand—
A: It’s not that I found it proper or improper. It’s just I didn’t catch it at all.
N.T., PCRA Hearing, 2/13/2008, at 122-124,126.
As it related to the trial court’s justification charge, Appellee’s PCRA counsel questioned trial counsel as to whether he objected to the trial court’s failure to inform the jury that a defendant’s duty to retreat is the same duty as the person who is being defended, and, if he did not object, the reasons for failing to do so. The relevant exchange in this regard is as follows:
Q: Now, the defense in this case was not just self-defense, it was also defense of others. Am I correct?
A: Oh, absolutely.
Q: And do you agree, that when assessing the duty to retreat, that it was important for the judge to instruct the jury that, as to defense of others, the applicable duty to retreat is that of a person defending?
A: Right.
Q: And in your review of the charge as to the self-defense and duty to retreat, is it fair to say that this court did not, the trial court did not, so instruct the jury?
A: That’s right.
Q: And did you have a strategic or tactical reason not to object and to insist that the jury be charged that the duty to retreat, the applicable duty to retreat, is naturally the person defending?
A: No. I just — I missed that one.
N.T., PCRA Hearing, 2/13/2008, at 54-56.
Additionally, the prosecutor cross-examined Appellee’s trial counsel at the PCRA hearing as to the reasons he did not object to the trial court’s justification instruction, and he indicated he did not object because he thought, at the time, the instruction was sufficient. N.T., PCRA Hearing, 2/13/2008, at 122. Moreover, trial counsel admitted he “liked” Appellee and he was upset when Appellee was convicted of voluntary manslaughter in Clearfield County. N.T., PCRA Hearing, 2/13/2008, at 127,130.
At the conclusion of the PCRA hearing, by Order and Opinion entered on March 31, 2010, the PCRA court denied Appellee relief under the PCRA. As it relates to Appellee’s claim trial counsel was ineffective in failing to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee, the PCRA court recognized it was bound by this Court’s previous holding in Spotz I, supra, that the claim possessed “arguable merit.” See Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995) (holding, under the “law of the case” doctrine, courts involved in later phases of litigated matters should not reopen issues decided by higher courts in earlier phases of the matter). With regard to the Strickland/Pierce “reasonable basis” prong, the PCRA court held trial counsel had a reasonable basis for not objecting to the prosecutor’s impermissible cross-examination of Appellee. In so holding, the PCRA court specifically stated:
At the time of trial, trial counsel was intending on representing [Appellee] at not only the Clearfield County murder trial, but also the three other murder trials in York, Schuylkill, and Cumberland Counties. See Transcript of Proceedings, PCRA Hearing, February 13, 2008, p. 101. The Court believes that trial counsel allowed the prosecution to make the remarks about Petitioner’s post-arrest silence with full knowledge that this would not only provide a basis for a new trial in Clearfield County, but could also lead to new trials being granted in other counties as well. Trial counsel testified at the PCRA evidentiary hearing that he “liked” [Appellee], and that he was aware that if his appeal was granted he would receive a new trial. Id. at 127-30.
The Court finds trial counsel’s testimony in regards to simply ‘missing’ the prosecutor’s two statements about [Appellee’s] post-arrest silence [during cross-examination] to not be credible. The Court believes that trial counsel strategically allowed said statements to be introduced, without objection, as a means of seeking a new trial if an unfavorable verdict was returned. Therefore, the Court finds trial counsel had a reasonable basis for not objecting to the prosecution’s impermissible references to [Appellee’s] right to remain silent.
Commonwealth v. Spotz, No. CP-17-CR-0000347-1995, slip op. at 14-15 (C.P.Clearfield, Mar. 31, 2010) (footnote in original).
With regard to the Strickland!Pierce “prejudice” prong, the PCRA court concluded the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee, “were not so substantial [so as] to undermine the truth-determining process such that no reliable adjudication of guilt or innocence could have taken place.” Spotz, No. CP-17-CR-0000347-1995, slip op. at 12. That is, viewing all of the evidence before the jury, including the testimony offered by Appellee, the PCRA court held the evidence establishing Appellee’s guilt for voluntary manslaughter, and related offenses, was “overwhelming” and the prejudicial effect of the statements “insignificant” by comparison. Further, the PCRA court noted the challenged cross-examination of Appellee provided “no direct evidentiary linkage between [Appellee’s] post-arrest silence and an inference of guilt arising from that silence.” Id. at 13 (citation omitted). The PCRA court concluded, “[m]ost importantly, the verdict in this case was favorable, as the jury acquitted [Appellee] on the more serious counts of first and third degree murder.” Id. at 13. Thus, finding counsel had a “reasonable basis,” and Appellee did not meet his burden of establishing “actual prejudice,” the PCRA court rejected Appellee’s claim trial counsel was ineffective in failing to object to the challenged portion of the prosecutor’s cross-examination of Appellee.
As it relates to Appellee’s claim trial counsel was ineffective for failing to object to the trial court’s jury instruction regarding justification, the PCRA court began with an examination of the Strickland/Pierce “arguable merit” prong. In so doing, the PCRA court noted Appellee averred, inter alia, he shot Dustin in defense of others, i.e., his mother and stepfather, and, thus, the jury should have been instructed, as a matter of law, Appellee had no duty to retreat since the applicable duty is that of the person being defended. That is, Appellee argued, the trial court’s charge, which did not instruct the jury Appellee’s duty to retreat was the same as the people Appellee was defending, i.e., his mother and stepfather, improperly absolved the Commonwealth of its burden to disprove Appellee’s justification defense of others by a reasonable doubt such that trial counsel should have objected.
In rejecting Appellee’s argument, the PCRA court found the precedent cited by Appellee did not support his argument, and thus, the PCRA court found no “arguable merit” to Appellee’s claim. Furthermore, examining the trial court’s charge as a whole, the PCRA court rejected Appellee’s claim the trial court’s charge relieved the Commonwealth of its burden to disprove Appellee’s justification defense of others by a reasonable doubt.
Having found Appellee did not meet his burden of proving the Strickland/Pierce “arguable merit” prong, the PCRA court further summarily rejected Appellee’s argument regarding the Strickland/Pierce “prejudice” prong. The PCRA court concluded Appellee did not meet his burden of proving the outcome of his trial would have been different had the jury been instructed on the duty to retreat in defense of others in the manner sought by Appellee. Thus, the PCRA court found Appellee was not entitled to relief on his claim trial counsel was ineffective in failing to object to the trial court’s jury instruction as it related to Appellee’s duty to retreat in defense of others.
Appellee filed a counseled appeal and, on January 13, 2012, Judge Ott, authoring an unpublished memorandum for the three judge panel of the Superior Court, reversed the PCRA court, vacated Appellee’s judgment of sentence, and remanded for a new trial. Commonwealth v. Spotz, 43 A.3d 518 (Pa.Super.2012) (table), No. 770 WDA 2010, slip op. Specifically, the panel granted Appellee relief on his claims that trial counsel was ineffective in failing to object to the above-quoted prosecutor’s cross-examination of Appellee, as well as the trial court’s jury instruction regarding justification, including the concepts of “defense of others” and “duty to retreat.”
With regard to trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee, the Superior Court recognized this Court previously held the claim possessed “arguable merit” and the Superior Court was bound by this holding. Starr, supra. Accordingly, the Superior Court proceeded to examine the Strickland/Pierce “reasonable basis” and “prejudice” prongs. As to whether trial counsel had a “reasonable basis” for not objecting to the challenged prosecutorial cross-examination, the Superior Court, at the outset, acknowledged the PCRA court did not find trial counsel to be credible when he testified he simply “missed” the statements regarding post-arrest silence. However, the Superior Court held “[w]hile we cannot change the finding that the PCRA court did not believe counsel’s explanation of missing an issue, our inability to overturn a credibility determination does not require acceptance of the PCRA court’s conclusion that trial counsel possessed a reasonable trial strategy.” Spotz, No. 770 WDA 2010, slip op. at 7. That is, based on its review of the record, including the notes of testimony from the trial and PCRA hearings, the Superior Court concluded the following:
[There is] no support for the PCRA court’s determination that trial counsel intentionally failed to object for the purpose of creating an appellate issue. This determination appears to be grounded upon the PCRA court noting that counsel liked his client and an after-the-fact realization that the conviction for manslaughter was an aggravating factor in the death sentences imposed in his subsequent trials. We note the ‘reasonable trial strategy’ proposed by the PCRA court is not supported by the record and presumes counsel acted unethically.
Id. at 7-8.
Regarding whether Appellee was prejudiced by counsel’s failure to object to the challenged portions of the prosecutor’s cross-examination of Appellee, the Superior Court, rejecting the PCRA court’s conclusion there was no prejudice to Appellee given the overwhelming evidence supporting guilt, held the evidence was not so “overwhelming that it rendered the error harmless.” Id. at 8 (footnote omitted). On this issue, the Superior Court specifically stated:
The record reveals that the references to [Appellee’s] silence went to the heart of his defense. [Appellee] testified he acted in self-defense as well as the defense of his parents. [Appellee] had a right to remain silent after his arrest. The Commonwealth sought to use that silence to demonstrate his claims of self-defense and defense of others were false. There are few situations where a reference to post-arrest silence could be more prejudicial.
Id. at 8. Thus, the Superior Court concluded Appellee satisfied all three prongs of the Strickland/Pierce ineffectiveness test as it relates to trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee.
With regard to Appellee’s claim trial counsel was ineffective for failing to object to the trial court’s jury instruction regarding justification, concluding the claim involved concepts such as “defense of others” and the “duty to retreat,” the Superior Court began with an examination of whether, under the Strickland/Pierce test, the claim possessed “arguable merit.” In so doing, the Superior Court examined the language of the trial court’s justification charge, as set forth supra, in light of the relevant statutory language applicable to “self-defense” under 18 Pa.C.S. § 505, “defense of others” under 18 Pa.C.S. § 506, and “dwelling” under 18 Pa.C.S. § 501. The Superi- or Court concluded the trial court did not properly explain Appellee’s duty to retreat as it related to the defense of others, ie., his mother and stepfather. The Superior Court specifically held:
[Appellee’s] duty to retreat in defense of others was tied to his parents’ duty[.][] [Appellee’s] duty to retreat, in defending his parents, was directly equal to their duty to retreat. That is to say, in defending his parents, who are clearly within their dwelling, [Appellee] had no more duty to retreat than his parents. This concept was not explained to the jury. Instead, the jury was instructed that in defending his parents, if it was not his dwelling, [Appellee] was not entitled to use deadly force if he could safely retreat. This is an incorrect statement of the law that was central to [Appellee’s] defense.
[T]he incorrect jury charge on justification, dwelling, the defense of others, and the duty to retreat, went to the heart of [Appellee’s] defense. The jury charge, as stated, allowed the jury to discount the defense of his parents if the jury determined [Appellee] violated a duty to retreat. Because [Appellee’s parents] had no duty to retreat in their own dwelling and [Appellee’s] duty to retreat in protecting them was identical, the charge improperly allowed the jury to discount the defense and convict upon a false statement of law.
Spotz, No. 770 WDA 2010, slip op. at 16-17 (footnote added). Thus, the Superior Court held Appellee’s claim his trial counsel was ineffective for failing to object to the trial court’s jury instruction regarding justification possessed “arguable merit.”
Turning to the remaining prongs of the Strickland/Pierce test, the Superior Court summarily held:
While there was evidence a jury could rely on to reject the defense of others, that evidence is not so overwhelming to render the errors harmless. Additionally, there is no evidence indicating trial counsel had a reasonable basis for failing to raise a timely objection to the errors. As such, all three prongs of an ineffectiveness claim have been met[.]
Spotz, No. 770 WDA 2010, slip op. at 17.
Thus, finding Appellee met all three prongs of the ineffectiveness test as it relates to trial counsel’s failure to object to the challenged portions of the prosecutor’s cross-examination of Appellee at trial and the challenged portions of the trial court’s justification charge, the Superior Court reversed the PCRA court’s order, vacated Appellee’s judgment of sentence, and remanded for a new trial.
The Commonwealth filed a Petition for Allowance of Appeal with this Court, which was granted on November 28, 2012. We accepted the following four issues, as framed by the Commonwealth, for review:
(1) Whether the Superior Court erred when it exceeded its scope of review and rejected the trial court’s credibility finding with respect to trial counsel’s testimony at the PCRA hearing?
(2) Whether the Superior Court erred in finding that [Appellee] was unduly prejudiced by counsel’s failure to object to the prosecution’s references to [Appellee’s] silence?
(3) Whether the Superior Court erred when it failed to review trial counsel’s actions/inactions with regard to the jury instructions and failed to make a determination as to whether counsel had a reasonable basis for his actions/inactions?
(4) Whether the Superior Court erred in finding that [Appellee] was unduly prejudiced by trial counsel’s failure to object to the jury instruction as to justification with respect to defense of others and the duty to retreat?
Commonwealth v. Spotz, 619 Pa. 167, 58 A.3d 748 (2012) (per curiam).
These issues pose purely legal questions: thus, our review of the Superior Court’s determinations is plenary and de novo. Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686 (2008), cert. denied, 555 U.S. 884, 129 S.Ct. 257, 172 L.Ed.2d 146 (2008). “To the extent review of the PCRA court’s determinations is implicated, an appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error.” Commonwealth v. Colavita, 606 Pa. 1, 21, 993 A.2d 874, 887 (2010). The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565 (2008), cert. denied, 558 U.S. 828, 130 S.Ct. 50, 175 L.Ed.2d 42 (2009).
II. Discussion
The issues presented on appeal involve ineffective assistance of trial counsel, and thus, we begin with a summary of the legal framework governing PCRA petitions raising such claims. As relevant here, a PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]n-effective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” Colavita, 606 Pa. at 21, 993 A.2d at 886 (citing Strickland, supra). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Pierce, supra. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, 620 Pa. 60, 66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. See Ali, supra. Where matters of strategy and tactics are concerned, “[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, quotation marks, and citation omitted). “ ‘[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.’ ” Ali, 608 Pa. at 86-87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)). With this legal framework in mind, we now examine .the issues presented by the Commonwealth for our review.
The Commonwealth’s first and second issues are interrelated in that the issues focus on elements of Appellee’s claim trial counsel was ineffective in failing to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee as set forth supra. Specifically, in its first issue, the Commonwealth questions whether the Superior Court improperly invaded the fact-finding province of the PCRA court by exceeding its authority and rejecting credibility determinations related to the “reasonable basis” prong. In its second issue, the Commonwealth questions the propriety of the Superior Court’s analysis as it relates to the “prejudice” prong.
With regard to the Strickland/Pierce “reasonable basis” prong, which has factual and legal elements, the Commonwealth acknowledges Appellee’s trial counsel testified at the PCRA hearing he failed to object to the references to Appellee’s post-arrest silence, which were elicited during the prosecutor’s cross-examination of Appellee at trial, because he simply “missed” the references. However, the Commonwealth avers, as was within its province, the PCRA court specifically found Appellee’s trial counsel’s PCRA testimony not to be credible. Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009) (“The findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference.”) (quotation and quotation marks omitted). Instead, the Commonwealth argues, the PCRA court concluded Appellee’s trial counsel strategically permitted the challenged cross-examination during trial as a means of seeking a new trial in the event the jury returned a verdict unfavorable to Appellee. That is, the Commonwealth asserts, based on the fact the PCRA court observed Appellee’s trial counsel’s demeanor during the hearing, as well as the fact Appellee’s trial counsel testified he “liked” Appellee, indicated he planned to represent Appellee at his upcoming three murder trials, and suggested he was aware Appellee could receive a new trial due to trial counsel’s ineffectiveness, the PCRA court properly concluded trial counsel’s testimony he simply “missed” the references was not credible. Thus, the Commonwealth contends the Superior Court was bound by the PCRA court’s credibility determination since the determination was supported by the record. Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 284 (2011), cert. denied, — U.S.-, 132 S.Ct. 2711, 183 L.Ed.2d 70 (2012) (appellate court is bound by credibility determination of PCRA court where such determination is supported by the record).
In response, Appellee argues the Superior Court did not improperly overturn the PCRA court’s credibility determination as it relates to trial counsel’s testimony that he “missed” the prosecutor’s references, and in fact, the Superior Court explicitly recognized that it could not “change the finding that the PCRA court did not believe counsel’s explanation of missing an issue[.]” Spotz, No. 770 WDA 2010, slip op. at 7. However, the Superior Court properly concluded -that it was not bound by the PCRA court’s “invented” strategy, i.e., counsel intentionally failed to object with the aim of giving Appellee a potentially viable ineffectiveness claim, since such a determination was not supported by the record. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594 (2008) (suggesting we are not bound by PCRA court’s findings of fact where such are not supported by the record).
We agree with the Commonwealth that the PCRA court was free to reject as incredible Appellee’s trial counsel’s testimony that he simply “missed” the prosecutor’s references to Appellee’s post-arrest silence. This credibility determination was within the PCRA court’s fact-finding authority and is entitled to great deference. Commonwealth v. Philistin, 617 Pa. 358, 53 A.3d 1, 25 (2012) (concluding a “PCRA court’s credibility findings are to be accorded great deference”) (quotations and quotation marks omitted). However, since Strickland/Pierce requires an objective assessment of the reasonableness of counsel’s performance, this deference does not extend so far as to permit the PCRA court to base its decision on speculation derived from the testimony which it finds to be credible. See Spotz I, 582 Pa. at 225, 870 A.2d at 832 (indicating an objectively reasonable basis is required under Strickland/Pierce). Here, the PCRA court engaged in speculation when it concluded trial counsel strategically permitted the challenged cross-examination, without objection, as a means of seeking a new trial if an unfavorable verdict was returned. While the PCRA court explained it arrived at its theory based on the fact it found credible trial counsel’s general testimony (1) he intended to represent Appellee at his three other murder trials, (2) he testified he “liked” Appellee, and (3) he was aware that if Appellee’s appeal was granted he would receive a new trial, these cited facts do not support the PCRA court’s theory under the objective assessment of reasonableness required by Strickland/Pierce. Simply put, while the PCRA court was free to disbelieve trial counsel’s testimony he simply “missed” the challenged prosecutorial references, and we recognize few, if any, lawyers will admit to planting errors, an objective assessment of the record does not support the intentional, nefarious strategy provided by the PCRA court in the case sub judice. As we explained in Spotz I, supra, there are many reasons supporting, and a dearth of incentives for, trial counsel’s decision not to object to the challenged prosecutorial references in this particular case. See Spotz I, 582 Pa. at 224-226, 870 A.2d at 832-833. However, under the circumstances here, inasmuch as the “reasonable basis” theory advanced by the PCRA court is not objectively supported by the record, we conclude, on this basis, the Superior Court did not err in rejecting the theory as it pertains to trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence, which were elicited during the cross-examination of Appellee at trial.
With regard to the Strickland/Pierce “prejudice” prong, the Commonwealth contends the Superior Court erred in concluding Appellee met his burden of demonstrating that, but for his trial counsel’s failure to object to the challenged portion of his cross-examination, the outcome of the trial would have been more favorable for Appellee. See Ali, supra (defining the Strickland/Pierce “prejudice” prong). The Commonwealth submits that, contrary to this Court’s holding and directive in Spotz I, in determining whether Appellee met the “prejudice” prong, the Superior Court did not properly analyze the nature of the prosecutor’s post-arrest references against the strength of the prosecution’s case at trial. See Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005) (indicating mere revelation of silence does not establish innate prejudice for ineffectiveness purposes and, instead, the reference to the defendant’s silence must be weighed against the strength of the evidence). Instead, the Commonwealth argues, the Superior Court applied an incorrect “harmless error” standard and summarily concluded the evidence against Appellee was not “so overwhelming that it rendered the error harmless.” Pointing to the fact the nature of the prosecutor’s references to Appellee’s post-arrest silence was “passing,” and the context of the references did not suggest to the jury that Appellee’s post-arrest silence was equated with a tacit admission of guilt, as well as detailing the evidence refuting Appellee’s claim of self-defense, the Commonwealth submits Appellee did not meet his burden of proving “actual prejudice.” Moreover, the Commonwealth notes the Superior Court’s decision was contradictory in that, on the one hand, the court found prejudice on the basis the prosecutor’s references went to the “heart” of Appellee’s self-defense claim, while, on the other hand, the Superior Court specifically noted the evidence clearly showed Appellee did not act in self-defense since he was not free from fault in continuing the incident. Additionally, the Commonwealth notes, as this Court did in Spotz I, that the verdict in this case, though not an outright acquittal, nevertheless was favorable, as the verdict acquitted Appellee of the more serious counts of first and third degree murder.
In response, Appellee argues the Superior Court properly recognized the prosecutor’s references to Appellee’s post-arrest silence directly attacked Appellee’s credibility on his core defenses of self-defense and defense of others. Appellee submits the prosecutor’s attack on Appellee’s credibility as to this issue undermined Appellee’s credibility as to the rest of his testimony, including Appellee’s testimony establishing he reasonably believed that deadly force was necessary to protect himself and/or his family from Dustin, resulting in the jury convicting him of voluntary manslaughter as opposed to outright acquitting him. That is, Appellee argues the only possible inference the jury could draw from the prosecutor’s references on cross-examination was that Appellee would not have remained silent if he had reasonably believed he had been acting in defense of self or others. As to the strength of the prosecution’s case at trial, Appellee, detailing the testimony and evidence presented by the defense at trial, submits the Superior Court did not err in holding “[wjhile there was evidence that supported the verdict, we cannot agree that the evidence was so overwhelming that it rendered the error harmless.” Spotz, No. 770 WDA 2010, slip op. at 8.
We agree with the Commonwealth that the Superior Court did not utilize the correct standard in concluding Appellee was prejudiced by trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee. The panel applied the “harmless error” standard in determining whether the Strickland/Pierce “prejudice” prong was met. However, as this Court suggested in Spotz I, “the test for prejudice in the ineffectiveness context is more exacting than the test for harmless error, and the burden of proof is on the defendant, not the Commonwealth.” Spotz I, 582 Pa. at 227, 870 A.2d at 834 (citations omitted). As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through the lens of counsel ineffectiveness, rather than as a preserved claim of trial court error. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 472 (2004). This Court has addressed the difference as follows:
[A] defendant [raising a claim of ineffective assistance of counsel] is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it ‘could have reasonably had an adverse effect on the outcome of the proceedings.’ Pierce, 515 Pa. at 162, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this Court in Commonwealth v. Story, 476 Pa. [391], 409, 383 A.2d [155], 164 [ (1978) ] (citations omitted), states that “[w]henever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction,’ the error is not harmless.” This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s Sixth Amendment right to counsel. Pierce, supra.
Gribble, 580 Pa. at 676, 863 A.2d at 472 (emphasis in original).
In light of the distinct review standards applicable to a preserved claim of trial court error versus a claim sounding in ineffective assistance of counsel under the PCRA, the Superior Court plainly erred in utilizing the “harmless” error standard, rather than the higher Strickland/Pierce “prejudice” standard, which required Appellee to show that his trial counsel’s conduct had an actual adverse effect on the outcome of the proceedings. Gribble, supra. In point of fact, “this Court has applied the Strickland/Pierce ineffectiveness measurement for assessing prejudice in reviewing claims of counsel ineffectiveness relating to the introduction of references to the defendant’s silence, weighing the precise nature of the reference against the strength of the evidence on the point at issue.” Spotz I, 582 Pa. at 227, 870 A.2d at 834 (citations omitted).
Viewing the prejudice question under the appropriate standard, as we indicated in Spotz I, as to the precise nature of the reference in this case “the evidentiary result of the prosecutor’s exchange with [AJppellee did not reveal that [A]ppellee was silent in the face of a post-arrest police accusation, thereby implying a tacit admission of guilt; but instead, [A]ppellee testified that police did not even attempt to question him, and, indeed, threatened him.” Spotz I, 582 Pa. at 229, 870 A.2d at 835 (footnote omitted). There was no direct evidentiary link in this brief exchange between Appellee’s post-arrest silence and an inference of guilt arising from that silence. Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471 (1998); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994). “In short, the context was not one in which jurors would equate invocation of Fifth Amendment rights with an implicit admission of guilt.” Crews, 536 Pa. at 528, 640 A.2d at 405. Moreover, any reference to silence was limited to its context and was aimed at refuting Appellee’s claim of self-defense by implying that his flight and other post-incident conduct was inconsistent with such a claim. See Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822 (2009), cert. denied, — U.S.-, 131 S.Ct. 199, 178 L.Ed.2d 120 (2010) (indicating flight may constitute circumstantial evidence of consciousness of guilt). During the challenged cross-examination, the prosecutor made the point that Appellee had ample opportunity before he was arrested to come forward and offer his claim of self-defense; however, he did not do so. It was only the prosecutor’s further reference to whether Appellee “ever” talked to the police that encompassed the post-arrest period. See Spotz I, supra. Therefore, even assuming Appellee’s trial counsel objected to the challenged portions of the prosecutor’s cross-examination of Appellee at trial, the overall effect on the trial would have been minimal since it would have only narrowed the point without eliminating the reference to Appellee’s post-crime conduct.
As to the strength of the evidence on this point, numerous Commonwealth witnesses, including Dustin’s fiancée’s teenage son, Dustin’s fiancée, Appellee’s stepfather, and C.N., gave detailed, eye-witness testimony establishing Appellee’s culpability as to voluntary manslaughter, and related crimes, in the shooting of Dustin and, more specifically, disproving his claim of self-defense. In fact, during his trial testimony, Appellee admitted that, after Dustin stabbed him with a butter knife, he left Dustin in the kitchen, went upstairs, retrieved his gun, returned to the kitchen, confronted Dustin, told his stepfather to “get out of the way,” and shot Dustin. N.T., Trial, 9/25/1995, 75-81. Therefore, as the Superior Court panel noted: “The evidence clearly showed that [Appellee] disengaged from the confrontation and then returned. In order to obtain the benefit of self-defense, the actor must be free from fault in provoking or continuing the difficulty which resulted in the injuries.” Spotz, No. 770 WDA 2010, slip op. at 14 n. 13 (citation and emphasis omitted). Thus, we disagree with the Superior Court that the challenged references made in the prosecutor’s cross-examination of Appellee went to the “heart” of his self-defense claim such that he was “actually prejudiced.” Finally, it bears repeating that, “the verdict in this case, though not the outright acquittal [AJppellee sought, nevertheless was favorable, as the jury acquitted [AJppellee on the more serious counts of first and third degree murder.” Spotz I, 582 Pa. at 229, 870 A.2d at 835. Therefore, when the precise nature of the challenged references is weighed against the overwhelming strength of the evidence on the point at issue, we find the Superior Court erred in concluding Appellee satisfied his burden of proving that trial counsel’s omission had an actual adverse effect on the outcome of the proceedings such that Appellee is entitled to a new trial. Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35 (2012) (where there was overwhelming evidence of guilt, outcome of the trial would not have been different had trial counsel objected to the passing reference that the defendant was “already running from the police in New York.”). Thus, the Superior Court erred in granting Appellee relief under the PCRA as it relates to trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee.
The Commonwealth’s third and fourth issues are interrelated in that the issues focus on elements of Appellee’s claim trial counsel was ineffective in failing to object to the trial court’s jury instruction regarding justification, and in particular, the concepts of “defense of others” and “duty to retreat.” Specifically, in its third issue, the Commonwealth questions whether the Superior Court erred in failing to make any determination related to the “reasonable basis” prong. In its fourth issue, the Commonwealth questions the propriety of the Superior Court’s analysis as it relates to the “prejudice” prong.
With regard to the Strickland/Pierce “reasonable basis” prong, which as stated supra has factual and legal elements, the Commonwealth contends the Superior Court “completely failed” to address or consider the Strickland/Pierce “reasonable basis” prong as it relates to trial counsel’s failure to object to the challenged jury instructions. The Commonwealth suggests the Superior Court found trial counsel ineffective without making any determination as to whether he did or did not have a reasonable basis for his omission. By completely overlooking the “reasonable basis” prong, the Commonwealth asserts, the Superior Court erred in granting Appellee relief on his ineffective assistance of counsel claim.
In response, Appellee initially argues the Commonwealth has mistakenly failed to recognize the Superior Court did, in fact, review and make a determination that Appellee’s trial counsel had no “reasonable basis” for his inaction. That is, in discussing counsel’s deficiency with regard to the jury instruction, the Superior Court specifically held “there is no evidence indicating trial counsel had a reasonable basis for failing to raise a timely objection!.]” Spotz, No. 770 WDA 2010, slip op. at 17. Additionally, Appellee argues the Superior Court’s holding is supported by the record in that Appellee’s trial counsel testified during the PCRA hearing that he “missed” the trial court’s instruction to the jury as it related to Appellee’s duty to retreat in defense of others.
We conclude the Commonwealth is mistaken in its assertion that the Superior Court failed to make any determination as to whether Appellee’s trial counsel had a reasonable basis for failing to object to the trial court’s justification charge. In point of fact, a clear reading of the Superior Court’s decision reveals that, after the Superior Court held the particular ineffectiveness claim possessed “arguable merit,” the Superior Court concluded “there is no evidence indicating trial counsel had a reasonable basis for failing to raise a timely objection!.]” Spotz, No. 770 WDA 2010, slip op. at 17.
The question of whether the Superior Court’s legal conclusion is supported by the record is more problematic. The PCRA court failed to address specifically the “reasonable basis” prong as to this particular ineffectiveness issue. Therefore, the PCRA court made no credibility determinations or factual findings as it relates to whether Appellee’s trial counsel had a “reasonable basis” for failing to object to the justification charge. The Superior Court seemingly overlooked the fact the PCRA court made no express credibility determinations or factual findings as to the “reasonable basis” prong for this particular ineffectiveness claim, and instead, the Superior Court summarily concluded there was no evidence of record supporting a finding of “reasonable basis.”
Our role under the PCRA is one of limited appellate review. Commonwealth v. Johnson, 600 Pa. 329, 345, 966 A.2d 523, 532 (2009) (“Our standard of review in PCRA appeals is limited to determining whether the findings of the PCRA court are supported by the record and free from legal error.”). In fulfilling this role, as indicated supra, we must defer to the PCRA court’s findings of fact and credibility determinations, which are supported by the record. Johnson, 600 Pa. at 345, 966 A.2d at 532 (“The findings of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference.”) (quotation and quotation marks omitted). The PCRA court, and not the appellate courts, has personally observed the demeanor of the witnesses, and as we indicated in Johnson, when a PCRA hearing is held, “we expect the PCRA court to make necessary credibility determinations.” Id. at 358, 966 A.2d at 539. See Commonwealth v. Basemore, 560 Pa. 258, 293-94, 744 A.2d 717, 737 (2000) (offering that particularized assessment of the credibility of testimony is essential to resolution of ineffectiveness claims and that such assessment “is most appropriately accomplished, in the first instance, by the finder of fact”). Indeed, when a PCRA court has failed to make necessary credibility determinations, we have not hesitated to remand for such findings. See, e.g., Johnson, supra (remanding for credibility determinations related to guilt phase claims); Basemore, supra (remanding for credibility determinations related to penalty phase claims). However, remanding for the PCRA court to make factual findings and credibility determinations as to the “reasonable basis” prong will be unnecessary if we determine there is no reasonable probability that an objection to the challenged jury instruction at trial would have led to a more favorable outcome for Appellee. See e.g., Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066 (2003), cert. denied, 540 U.S. 1118, 124 S.Ct. 1065, 157 L.Ed.2d 911 (2004) (remand for reasonable basis hearing unnecessary where it is clear the appellee failed to show prejudice); Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409 (2009) (offering the reviewing court need not determine the propriety of every prong of the Strickland/Pierce test where one prong is not met). Absent a showing of such prejudice, the claim of ineffectiveness fails, regardless of whether counsel lacked a “reasonable basis.” See Spotz I, supra.
With regard to the Strickland/Pierce “prejudice” prong, the Commonwealth contends the Superior Court erred in concluding Appellee met his burden. See Ali, supra. Specifically, the Commonwealth contends the Superior Court summarily found Appellee met the prejudice prong, without sufficient analysis thereof. In fact, the Commonwealth contends, the sum and substance of the Superior Court’s analysis of the “prejudice prong” is its holding that “[w]hile there was evidence a jury could rely on to reject the defense of others, that evidence is not so overwhelming to render the errors harmless.” Spotz, No. 770 WDA 2010, slip op. at 17. The Commonwealth maintains, as it did in its second issue supra, the Superior Court applied an incorrect “harmless error” standard, and moreover, when the appropriate “actual prejudice” Strickland/Pierce standard is utilized, the totality of the evidence reveals the outcome of Appellee’s trial would not have been more favorable to him had his trial counsel objected to the trial court’s justification charge as it related to Appellee’s duty to retreat in defense of others. See Ali, supra. Summarizing the testimony and evidence, the Commonwealth submits that, even if the jury was instructed that Appellee’s duty to retreat was “directly equal” to his mother’s and stepfather’s duty to retreat, there is a reasonable probability the jury would still have convicted Appellee of voluntary manslaughter as opposed to relieving him of all culpability and acquitting him of the non-firearms charges. Gribble, supra. That is, the Commonwealth maintains that, even if instructed in the manner suggested by Appellee, the jury would have found Appellee shot Dustin “under a sudden and intense passion resulting from a serious provocation,” 18 Pa.C.S. § 2503(a)(1), and would have rejected Appellee’s claim of defense of others. Therefore, the Commonwealth asserts, Appellee did not meet his burden of proving, by a preponderance of the evidence, that he suffered “actual prejudice” as a result of the trial court’s justification charge.
In response, Appellee disputes there was evidence from which the jury could have convicted him of voluntary manslaughter under Subsection 2508(a)(1), related to “heat of passion,” and additionally, proffers that, but for the trial court’s failure to charge the jury that Appellee’s duty to retreat was “directly equal” to his mother’s and stepfather’s duty to retreat, the jury would have acquitted him under the theory of defense of others.
Similar to our conclusion with regard to the Commonwealth’s second issue, swpra, we conclude the Superior Court did not utilize the correct standard in analyzing whether Appellee was prejudiced by trial counsel’s omission. The panel applied the lesser “harmless error” standard, rather than the more exacting “actual prejudice” test as required under Strickland/Pierce. See Gribble, supra (explaining the distinction between the “harmless error” standard and the “actual prejudice” test used in evaluating ineffective assistance of counsel claims). In point of fact, this Court has applied the Strickland/Pierce ineffectiveness measurement for assessing prejudice in reviewing claims of counsel ineffectiveness in the context of counsel’s failure to object to presumably erroneous jury instructions. See Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121 (2012) (applying Strickland/Pierce “actual prejudice” measurement to determine whether the PCRA petitioner was prejudiced by his trial counsel’s failure to object to the court’s presumably erroneous jury instruction related to the Commonwealth’s burden to prove elements of first degree murder). Thus, viewing the prejudice question under the appropriate standard, to establish prejudice from trial counsel’s failure to object to the challenged portion of the justification charge, Appellee must show there is a reasonable probability that, but for counsel’s error or omission, the result of the proceeding would have been different. See Koehler, supra.
Here, the trial court specifically charged the jury on voluntary manslaughter under Subsection 2503(a)(1), related to “heat of passion.” N.T., Trial, 9/26/1995, at 54-55. Moreover, the record reveals there was overwhelming evidence presented at trial supporting the verdict of voluntary manslaughter under the theory that, at the time Appellee shot Dustin, he was acting under a sudden and intense passion resulting from serious provocation by Dustin. See Busanet, supra (discussing overwhelming evidence of guilt as it relates to a finding of “actual prejudice” under the Strickland/Pierce standard); Hutchinson, supra (defining “heat of passion” voluntary manslaughter under Subsection 2503(a)(1)). In fact, Appellee’s own version and account of the events leading up to and during the shooting support his conviction under Subsection 2503(a)(1). N.T., Trial, 9/25/1995, at 69-85. Additionally, as indicated supra, there was overwhelming evidence, including Appellee’s own trial testimony, establishing he was not free from fault in continuing the difficulty which resulted in the slaying of Dustin. See Commonwealth v. French, 531 Pa. 42, 611 A.2d 175 (1992) (indicating same rules pertaining to self-defense claim apply to defense of others claim). Therefore, in consideration of the overwhelming evidence establishing Appellee’s culpability for voluntary manslaughter under Subsection 2503(a)(1), and the evidence proving Appellee was not free from fault in continuing the difficulty resulting in Dustin’s death (which necessarily disproves Appellee’s claim of defense of others under which he sought an outright acquittal), we do not find a reasonable probability that the outcome of Appellee’s trial would have been more favorable to Appellee had trial counsel objected to the trial court’s instruction as it related to Appellee’s duty to retreat in defense of others. Simply put, Appellee has failed to demonstrate “actual prejudice” under Strickland/Pierce. Thus, the Superior Court erred in granting Appellee relief under the PCRA as it relates to trial counsel’s failure to object to the justification charge as set forth supra.
III. Conclusion
We conclude the Superior Court erred in vacating Appellee’s judgment of sentence and awarding him a new trial pursuant to the dictates of the PCRA due to trial counsel’s ineffectiveness. Specifically, we find Appellee did not meet his burden of proving, by a preponderance of the evidence, all of the prongs necessary under Strickland/Pierce as it relates to trial counsel’s failure to object to the prosecutor’s references to Appellee’s post-arrest silence during the cross-examination of Appellee or the challenged portions of the trial court’s justification charge. Accordingly, we reverse the order of the Superior Court and remand to that court for consideration of Appellee’s PCRA issues that remain in abeyance. Jurisdiction relinquished.
Justice EAKIN did not participate in the consideration or decision of this ease.
Chief Justice CASTILLE and Justices BAER, TODD and McCAFFERY join the opinion.
Justice SAYLOR concurs in the result.
During a pretrial hearing on Appellee’s motion for change of venue, references were made to three murders, which Appellee was accused of committing in Schuylkill, York, and Cumberland Counties between February 1, 1995, and February 3, 1995, after he fled Clearfield County in connection with the instant case. Appellee was separately tried, convicted, and sentenced to death for the three murders. Each of these death sentences have been upheld by this Court on direct appeal. See Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999) (Schuylkill County); Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139 (2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001) (York County); Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002) (Cumberland County). Moreover, Appellee filed appeals from the denial of PCRA relief in each of these cases, and we affirmed. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006) (Schuylkill County); Commonwealth v. Spotz, 616 Pa. 164, 47 A.3d 63 (2012) (York County); Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244 (2011) (Cumberland County).
18 Pa.C.S. §§ 2502(a), 2502(c), 2503, 2702(a), 2705, 6106, and 6105, respectively.
To establish trial counsel’s ineffectiveness, a petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for the course of action or inaction chosen; and (3) counsel’s action or inaction prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In so doing, we noted that, if Appellee sought PCRA relief of the claim, the PCRA court should look to our Opinion in Spotz /, supra for guidance and must defer to our conclusion as it relates to "arguable merit.” The Court notes that [Appellee's] trial in Clearfield County had significant ramifications in the sentencing phases in the other three trials, especially regarding the death sentence. 'In particular, pursuant to 42 Pa.C.S. § 971 l(d)(12), the jury unanimously found as an aggravating circumstance that [Appellee] had been convicted of a voluntary manslaughter (in connection with the Clearfield County death of Dustin) committed either before or at the time of the present offense.' Spotz. 587 Pa. at 57, 896 A.2d at 1224.
Having concluded Appellee did not meet his burden of proving "arguable merit” and "prejudice,” the PCRA court did not specifically address the Strickland/Pierce "reasonable basis” prong in its analysis of whether trial counsel was ineffective in failing to object to the trial court's justification charge.
Judge Musmanno joined Judge Ott’s majority decision, while Senior Judge Colville authored a separate concurring memorandum in which he highlighted his agreement with the majority that Appellee proved all three prongs of the Strickland/Pierce test as it related to his claim trial counsel was ineffective in failing to object to portions of the prosecutor’s cross-examination of Appellee as set forth supra. Senior Judge Colville suggested he would reverse the PCRA court and remand for a new trial solely on the issue of trial counsel’s ineffectiveness in failing to object to the challenged portions of the prosecutor’s cross-examination of Appellee. Presumably, Senior Judge Colville would not have reached Appellee’s ineffectiveness of counsel claim as it related to counsel’s failure to object to the trial court’s justification charge to the jury.
At the relevant time in question, 18 Pa.C.S. § 505 provided, in pertinent part: § 505. Use of force in self-protection (a) Use of force justifiable for protection of the person. — The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. (b) Limitations on justifying necessity for use of force.— (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating ..., except that: (A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor[.] ... 18 Pa.C.S. § 505(a), (b)(2)(i)-(ii)(A) (bold in original). Effective August 29, 2011, the legislature amended Section 505; however, the amendments are inapplicable here.
At the relevant time in question, 18 Pa.C.S. § 506 provided, in pertinent part: § 506. Use of force for the protection of other persons (a) General rule. — The use of force upon or toward the person of another is justifiable to protect a third person when: (1) the actor would be justified under section 505 (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; (2) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and (3) the actor believes that his intervention is necessary for the protection of such other person. (b) Exceptions— (3) Neither the actor or the person whom he seeks to protect is obliged to retreat when in the dwelling or place of work of the other to any greater extent than in his own. 18 Pa.C.S. § 506(a)(l)-(3), (b)(3) (bold in original). Effective August 29, 2011, the legislature amended Section 506; however, the amendments are inapplicable here.
18 Pa.C.S. § 501, pertaining to definitions, provides that a "Dwelling” is “[ajny building or structure, including any attached porch, deck or patio, though movable or temporary, or a portion thereof, which is for the time being the home or place of lodging of the actor.”
The Superior Court clarified it was not addressing any possible errors in terms of self-defense since the evidence clearly showed Appellee disengaged from the confrontation and then returned. Commonwealth v. Spotz, 770 WDA 2010, slip op. at 14 n. 13.
The Superior Court collectively referred to Appellee’s mother and stepfather as Appellee’s parents.
In light of the holdings indicated supra, the Superior Court found it unnecessary to address Appellee’s remaining appellate claims.
The Commonwealth acknowledges this Court previously found the Superior Court did not err in finding arguable merit to Appellee’s claim trial counsel was ineffective in failing to object to the challenged portion of the prosecutor's cross-examination of Appellee. Starr, supra.
Additionally, citing to Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), the Commonwealth submits the Superior Court improperly concluded the PCRA court’s strategy could not constitute a "reasonable basis” as a matter of law. However, in light of our conclusion the PCRA court’s "invented” strategy is not supported by the record, we decline to address whether the Strickland/Pierce "reasonable basis” prong encompasses trial counsel purposefully permitting error so that a defendant might later have a potentially viable claim of ineffectiveness.
To prevail on a justification defense, the defendant must show (1) he reasonably believed he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (2) he was free from fault in provoking the difficulty; and (3) he did not violate any duty to retreat. Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1124 (2012). Moreover, the Commonwealth sustains its burden of disproving self-defense if it proves any of the following; "that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger.” Id. at 1124 (quotation, quotation marks, footnote omitted).
The Superior Court concluded the prosecutor's references to Appellee’s post-arrest silence during cross-examination also prejudiced Appellee since the references implicated Appellee's claim of defense of others. However, this is based on an inaccurate factual predicate. The challenged portions of the prosecutor’s cross-examination of Appellee make no mention of his claim of defense of others. N.T., Trial, 9/25/1995, at 150-152.
Pointing to trial counsel's testimony at the PCRA hearing that “there was some in camera discussions regarding some of the points for charge,” N.T., PCRA Hearing, 2/13/2008, at 50, the Commonwealth argues it is unclear whether trial counsel, in fact, failed to object to the challenged justification instruction. However, the Commonwealth’s argument ignores the remainder of trial counsel’s testimony on this issue in which trial counsel indicated that, if he had placed an objection off the record in front of this particular trial judge, he would have then ensured it was placed formally on the record for preservation purposes. N.T., PCRA Hearing, 2/13/2008, at 50-51. In any event, no further consideration of this particular argument is necessary since it is undisputed trial counsel did not preserve on the record any objection to the challenged portion of the trial court’s justification instruction. See Pa.R.Crim.P. 647(B) ("No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the judge retires to deliberate____”); Pa.R.A.P. 302(b) ("A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall not be taken to the language or omission complained of.”); Commonwealth v. Fletcher, 604 Pa. 493, 537 n. 37, 986 A.2d 759, 786 n. 37 (2009) (providing that where counsel’s objection does not appear on record, we shall not presume an objection was lodged).
Aside from suggesting Appellee’s trial counsel may have actually objected to the trial court's justification charge, see supra, the Commonwealth made no assertion of error as it relates to the Superior Court’s holding that trial counsel’s failure to object to the trial court’s justification instruction possesses "arguable merit.” In any event, assuming the claim possesses "arguable merit,” for the reasons discussed infra, we conclude the Superior Court otherwise erred in granting Appellee relief on his ineffectiveness claim as it relates to the trial court's justification charge. See DiNicola, supra (indicating if one prong of the Strickland/Pierce test is not met then a petitioner has not met his burden of demonstrating ineffectiveness).
18 Pa.C.S. § 2503 provides, in pertinent part: § 2503. Voluntary manslaughter (a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed[.] 18 Pa.C.S. § 2503(a)(1) (bold in original).
Since the evidence overwhelmingly establishes Appellee was not free from fault, thus disproving his claim of defense of others, we find a similar lack of "actual prejudice” as it relates to Appellee’s convictions for aggravated assault and recklessly endangering another person.
Appellee argues the Superior Court properly suggested trial counsel’s failure to object to the prosecutor’s improper comments on his post-arrest silence, combined with the trial court’s defective justification instruction, resulted in "actual prejudice.” We have often held that “no number of failed [ ] claims may collectively warrant relief if they fail to do so individually.” Johnson, supra, at 532 (quotation omitted). However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 671 (2008), cert. denied, 556 U.S. 1283, 129 S.Ct. 2765, 174 L.Ed.2d 273 (2009). When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed. Id. We are satisfied there is no cumulative prejudice warranting relief. The ineffectiveness claims at issue are independent factually and legally, with no reasonable and logical connection warranting a conclusion that the cumulative effect was of such moment as to establish actual prejudice.
99 A.3d 866
COMMONWEALTH of Pennsylvania, Appellee v. Mark Newton SPOTZ, Appellant.
No. 576 CAP.
Supreme Court of Pennsylvania.
Sept. 3, 2014.
[OPINION BY Chief Justice CASTILLE. type=majority]
SINGLE JUSTICE OPINION ON POSTDECISIONAL MOTIONS
Chief Justice CASTILLE.
I. Introduction
The central ancillary motion pending here asks that I withdraw my Concurring Opinion because I commented on the conduct and agenda of appellant’s counsel, who are affiliated with the Philadelphia-based Federal Community Defender’s Office (“FCDO”). I began my concurrence by noting that the source of the FCDO’s funding for its questionable forays into state court capital proceedings was not clear, though it appeared that the Administrative Office of Federal Courts (hereinafter “AO”) played a central role, and that this federal role in state court capital litigation was implemented without the consultation or involvement of this Court or any other relevant Pennsylvania authority. I noted that:
The federal courts — as well as other federal authorities and the Pennsylvania citizenry generally (who may not even be aware of this unusual federal activity in state courts) — may not be aware of just how global, strategic, and abusive these forays have become. The federal judicial policy has raised issues that should be known to the federal authorities financing and authorizing the incursions; to Pennsylvania’s Senators and House members; and to the taxpayers who ultimately foot that bill. This is an appropriate case to highlight those issues.
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 330 (2011) (Castille, C.J., concurring, joined by McCaffery, J.). I added that I was writing to these global issues involving the FCDO, in part, because the cumulative effect of the FCDO strategy and agenda “has taken a substantial and unwarranted toll on state courts.” Id.
Consideration of the post-decisional motions in this case, and intervening developments in other capital matters involving FCDO appearances in state court, have confirmed and heightened the grounded concern with the conduct of the FCDO in this case, and more importantly, with its global agenda in Pennsylvania capital cases. As I will detail below, the incremental insinuation of the FCDO into Pennsylvania capital cases has been remarkable in its stealth and pervasiveness. The FCDO has designated itself the de facto State Capital Defender’s Office, involving itself not only in virtually all capital PCRA litigation, but also in direct capital appeals, and even, in one instance, as amicus curiae on behalf of a foreign nation, Mexico, in support of a Mexican national who murdered three people. No authority — state or federal— appointed the FCDO to take on this statewide role, and no authority has approved the arrangement. Pennsylvania does not have a statewide capital prosecutor’s office; and notably, in a great many capital cases, the chief law enforcement officer of the Commonwealth, the Attorney General, echoed by county prosecutors, has taken the position that the FCDO should not be permitted to continue in Pennsylvania capital cases without proving its specific federal authorization to do so.
In addition to comprehensively involving itself in state capital litigation without any authorization, the FCDO has established its monopoly through means known only to itself. Remarkably, when directed by this Court to provide simple and modest information confirming a claim that it has not supported its private capital case agenda in Pennsylvania with improperly diverted federal funds, the FCDO response — the response of these officers of the court, to the Court with supervisory authority over the practice of law in Pennsylvania-has been refusal and the removal of cases to federal court, ensuring yet more FCDO delay in those capital matters.
The circumstances and obstructionist effect of the FCDO’s silent takeover of the capital PCRA defense function in Pennsylvania requires that Pennsylvania reassert control over the litigation of state capital matters. Death penalty opponents, such as the FCDO, can then redirect their efforts to the political arena, where they belong. This Court.has a responsibility for the entire Pennsylvania judicial system, to ensure the delivery of swift, fair, and evenhanded justice in all cases. We are not obliged to indulge or countenance a group which manipulates and abuses the judicial process in Pennsylvania in the hopes of achieving a global political result that it has failed to secure through the political process.
This restoration of proper authority will leave a void in the short run. But, the void is an opportunity to return capital case advocacy to principled moorings. The restoration will require that Pennsylvania authorities, including this Court, step up and ensure the provision of the funding, training and resources necessary to ensure that capital defense representation in Pennsylvania fully meets Sixth Amendment standards, with competent, properly compensated and dedicated lawyers who act zealously to advance the cause of their clients, but who act ethically as well, mindful of their duties to the courts and the justice system overall. I believe the Commonwealth is up to the challenge.
I do not in the least criticize principled representation of indigent capital defendants; such a principled endeavor represents lawyering in the best tradition of the bar. But, as I explain below, the FCDO continues to pursue an agenda beyond mere zealous representation, one which routinely pushes, and in frequent instances, as here, far exceeds ethical boundaries. FCDO lawyers appear in Pennsylvania courts only as officers of this Court; consequently, they are answerable to the Court. So long as the organization remains unauthorized to pursue its global agenda by any Pennsylvania authority, and so long as the FCDO refuses to be candid with the Court about its authorization and funding, it cannot be permitted to continue its representation of capital defendants in Pennsylvania, absent a specific federal court order authorizing the specific endeavor in state court in an individual case.
Before proceeding to a discussion of the specific Motions pending before me, and to give a sense of the FCDO’s conduct as viewed from the perspective of other judges not affiliated with this Court, I begin with but two examples. In Abdul-Salaam v. Beard, 16 F.Supp.3d 420, 2014 WL 1653208 (M.D.Pa.2014), the Honorable John E. Jones, III, of the Middle District of Pennsylvania, ended his nearly 200-page memorandum denying habeas corpus relief with the following observation:
Nearly two decades have passed since Officer Willis Cole was murdered. Over nineteen years have elapsed since the trial that resulted in Abdul-Salaam’s conviction. And yet this Memorandum and the Order that follows will not end the legal maneuvering that seeks to overturn both his conviction and resulting sentence of death at the hands of a jury of his peers.
It was not until well after the founding of this nation that the federal writ of habeas corpus was extended to prisoners in state custody. But like a rolling freight train, the use of the Great Writ gathered speed in the ensuing decades. It was adopted by the federal courts, codified by Congress, revised, and to some degree limited in certain respects. But the case at bar amply demonstrates that there is something grievously amiss in both our laws and jurisprudence as they relate to federal habeas practice. For while we admire zealous advocacy and deeply respect the mission and work of the attorneys who have represented Abdul-Salaam in this matter, they are at bottom gaming a system and erecting roadblocks in aid of a singular goal — keeping Abdul-Salaam from being put to death. The result has been the meandering and even bizarre course this case has followed. Its time on our docket has spanned nearly all of our service as a federal judge — almost twelve years. We have given Abdul-Salaam every courtesy and due process, perhaps even beyond what the law affords. And yet for the family of Willis Cole, and indeed for Abdul-Salaam and his family as well, there has been no closure. Rather, they have endured a legal process that is at times as inscrutable as it is incomprehensible. Moreover, it will soon take another turn as the Third Circuit Court of Appeals reviews our determination.
Id. at 511-12, *78 (emphasis supplied).
The PCRA trial court opinion in Commonwealth v. Eichinger, 657 CAP, which is a matter of public record in a capital appeal pursued by the FCDO currently pending before this Court, begins as follows:
In this capital case, Appellant ... appeals from an Order entered April 4, 2012, dismissing his [PCRA] petition----If ever there were a criminal deserving of the death penalty it is John Charles Eichinger. His murders of three women and a three-year-old girl were carefully planned, executed and attempts to conceal the murders were employed. There is no doubt that Appellant is guilty of these killings. There is overwhelming evidence of his guilt, including multiple admissions to police, incriminating journal entries detailing the murders written in Appellant’s own handwriting and DNA evidence.
We recognize that all criminal defendants have the right to zealous advocacy at all stages of their criminal proceedings. A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we all are called upon to promote respect for the law, our profession, and to do public good. Consistent with these guiding principles, the tactics used in this case require the Court to speak with candor. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. This Court had to devote twenty two full and partial days to hearings. To carry out the daily business of this Court visiting Senior Judges were brought in. The District Attorney’s capital litigation budget had to have been impacted. With seemingly unlimited access to funding, the Federal Defender came with two or three attorneys, and usually two assistants. They flew in witnesses from around the Country. Additionally, they raised overlapping issues, issues that were previously litigated, and issues that were contrary to Pennsylvania Supreme Court holdings or otherwise lacked merit.
Opinion, Carpenter, J., July 25, 2012, at 1-2.
In Part VI, infra, I will address the FCDO’s gravely misguided claim that their litigation strategies, including tactics like those displayed in this case, Abdulr-Salaam, and Eichinger, are required elements of the capital defense function.
II. Background
The Court affirmed the denial of PCRA relief in this case and today denies reargument. Disposition of reargument was delayed by ancillary Motions the FCDO filed with the reargument petition, and further pleadings and circumstances occasioned by those Motions. This Opinion and accompanying Order dispose of the FCDO’s initial Motions, the Commonwealth’s responsive Motions, and FCDO responses.
A. Ancillary Post-Decisional Motions and Per Curiam Administrative Orders
Along with appellant’s Reargument Application, the FCDO filed (1) a Motion for my Recusal on Reargument, (2) a Motion for Withdrawal of my Concurring Opinion, and (3) corresponding Motions for Leave to File the Motions as Post-Submission Communications. The FCDO also requested that I refer the primary Motions to the full Court for decision. The FCDO Motions focus solely upon objections to my Concurring Opinion. The Commonwealth responded with an Answer and Motion for Sanctions.
The Court as a whole entered a per curiam administrative Order on July 28, 2011, taking the FCDO Motions under advisement pending compliance with a directive contained in the Order, which was necessary to resolve the Motions. The Order noted that the Motion to Withdraw Concurring Opinion asserted as fact that I was “incorrect” to suggest that the FCDO may have misused federal funds by appearing in capital PCRA proceedings. In fact, the FCDO averred, it was in “full compliance with applicable federal administrative rules and regulations and has a separate source of funding to support” all of its non-appointed litigation activities in Pennsylvania state courts. The Order noted that the FCDO did not “provide or cite to those applicable rules and regulations,” which the FCDO invoked as proof that the Concurring Opinion was “incorrect.” To “properly determine the within Motions,” the Court ordered as follows:
Michael Wiseman, Esquire, is hereby directed, as an officer of this Court, to file with the Office of the Prothonotary of the Supreme Court of Pennsylvania a verified “Statement of the FCDO’s Involvement in Pennsylvania State Court Litigation of Capital Cases,” which shall include the following:
(1) an identification and explanation of all federal authorizations and standards, including statutory and regulatory authority, governing the FCDO’s conduct of capital litigation in Pennsylvania state courts;
(2) a listing of all Pennsylvania capital defendants the FCDO is currently representing, whether as primary counsel or through formal or informal assistance to Pennsylvania counsel of record, in Pennsylvania state courts, and whether by formal court appointment or not;
(3) an explanation of how the FCDO’s representation came about in each case and, if instances of representation did not arise from formal court appointment, an accounting of the authority under which the FCDO undertakes representation in capital cases in Pennsylvania state courts in which it is not court-appointed.
Order, 7/28/11. Attorney Wiseman was directed to file the verified statement within thirty days. Madame Justice Todd filed a Dissenting Statement, which was joined by Mr. Justice Baer.
Attorney Wiseman neither complied with the order nor sought reconsideration or relief from it. Instead, on August 22, 2011, the Chief Federal Defender, Leigh M. Skipper, Esquire, entered his appearance. Attorney Skipper also did not comply with the order or seek reconsideration or relief, but instead filed a 3-page pleading styled as “Appellant’s Withdrawal” of the FCDO ancillary motions (hereinafter “Withdrawal pleading”). Attorney Skipper asserted, among other points, that, “The FCDO represents capital defendants in post-conviction proceedings in Pennsylvania state courts in order to satisfy the exhaustion of state remedies requirement” of the federal habeas statute, and 18 U.S.C. § 3006(A)(c) “permits attorneys to represent clients in ancillary matters ‘appropriate to the proceedings.’ ” The pleading made no reference to whether the FCDO employed “a separate source of funding to support” those “ancillary” activities to exhaust federal claims. Withdrawal pleading, at 1-2 ¶ 3. The Commonwealth filed an Answer and requested a Rule to Show Cause why the FCDO should not be held in contempt for its non-compliance with the July 28 Order. On October 3, 2011, the full Court entered a second administrative order which provided, in relevant part, as follows:
Neither Attorney Wiseman nor the FCDO sought reconsideration or a stay of the [July 28] Order. But, neither has the FCDO complied with the Order. Instead, on August 22, 2011, the Chief Federal Defender of the FCDO, Leigh M. Skipper, Esquire, entered his appearance and concomitantly filed the instant pleading, styled as a “Withdrawal” of the two FCDO Motions the Court had taken under advisement and already acted upon. The Chief Federal Defender asserts that the Order “call[ed] for an office-wide response” and thus he was responding to the Order with this pleading. Notwithstanding the “Withdrawal” styling, the pleading disputes the propriety of the per curiam Order, contains other argument, and requests action by the Court in the form of vacating our July 28 Order as moot.
The Commonwealth has responded to the “Withdrawal” pleading by requesting the Court to issue a Rule to Show Cause upon the FCDO to explain why presently it should not be held in contempt for its noncompliance with our prior Order. The Commonwealth notes, inter alia, that the primary stated reason for the “Withdrawal” is to enable Appellant to secure relief from his conviction in this Court so as to immediately proceed with federal habeas corpus proceedings; however, the Commonwealth further notes, over two months before filing the instant pleading, the FCDO had already filed a 392-page habeas corpus petition in federal district court on Appellant’s behalf. Responding to the argument included in the “Withdrawal,” the Commonwealth also notes that the authority the FCDO cites to support its activities in Pennsylvania state capital matters, such as this one, in fact does not authorize its activities; indeed, existing statutory and decisional authority, including authority from the U.S. Supreme Court, indicates that the FCDO’s state-court activities are not authorized. The Commonwealth adds that, [“i]t is immaterial whether counsel deems withdrawal to be appropriate,” as that decision is for
the Court. Moreover, the Commonwealth notes that its Motion for Sanctions, which was occasioned by the FCDO’s prior two Motions, remains pending and under advisement, and the Commonwealth is not withdrawing that Motion; for that reason alone, the matter cannot be deemed moot even if the FCDO were authorized to unilaterally withdraw its pending Motions rather than respond to the Court’s Order.
Upon consideration of the instant pleadings, it is hereby ORDERED that:
(1) The FCDO’s “Withdrawal” is construed by this Court as an Application for Relief seeking Leave to Withdraw the FCDO’s prior Motions, and the Application so construed is taken under advisement.
(2) Chief Federal Defender Leigh M. Skipper, Esquire, is hereby directed, as an officer of this Court, to file the verified Statement outlined in this Court’s July 28, 2011 Order.
(3) In light of Attorney Skipper’s citation to 18 U.S.C. § 3006A(c) in support of his claim that the FCDO’s representation of Pennsylvania capital defendants in state post-conviction proceedings is lawful, Attorney Skipper is also directed to produce a copy of the federal court order appointing the FCDO to represent Appellant, to which the FCDO’s activities in Pennsylvania state court in this case are “ancillary.”
(4) The verified Statement and federal court order of appointment shall be filed within ten days of the date of this Order. No tangential pleadings from the FCDO are to be accepted by the Prothonotary in advance of the filing of the verified Statement.
(5) The Commonwealth’s request for a Rule to Show Cause why the FCDO should not be held in contempt for its non-compliance with our July 28, 2011 Order is taken under advisement. Attorney Skipper shall file a response to the Commonwealth’s request for a Rule to Show Cause within ten days of the filing of the verified Statement.
Order, 10/3/11. Justice Baer filed a Dissenting Statement, which was joined by Justice Todd.
B. FCDO Response and Subsequent Pleadings
Thereafter, Attorney Skipper filed a “Verified Statement in Response to the Court’s Order of October 3, 2011” as well as a “Response” to the Commonwealth’s Request for a Rule to Show Cause why the FCDO should not be held in contempt.
1. Verified Statement
The Verified Statement first addresses the authority of the FCDO to appear in capital cases in state court. Contrary to the FCDO claim in the Withdrawal pleading, Attorney Skipper no longer verifies that the FCDO’s activities in state court are authorized by federal law as activities ancillary to the federal habeas corpus exhaustion requirement. Instead, Attorney Skipper concedes that the FCDO is authorized to represent state and federal death row inmates in federal court only pursuant to 18 U.S.C. § 3599(a)(2), which governs litigation of federal habeas corpus petitions filed under 28 U.S.C. § 2254 (state prisoners) and § 2255 (federal prisoners). Attorney Skipper next notes the federal habeas requirement that state prisoners fairly exhaust their federal claims in state court before pursuing them in federal court. Attorney Skipper states that 18 U.S.C. §§ 3006A and 3599 empower federal courts to authorize appointed federal habeas counsel to represent capital defendants in state court. Attorney Skipper quotes Section 3599, which states that appointed federal habeas counsel shall represent the defendant at “every subsequent stage of available judicial proceedings.” Id. § 3599(e). The key statutory qualifier is that the activity be “subsequent” to federal habeas review, and indeed, after quoting Section 3599(e), Attorney Skipper cites Harbison v. Bell, 556 U.S. 180, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009), which held that Section 3599 authorizes appointed federal habeas counsel to represent state capital defendants in post-federal habeas state clemency review. Attorney Skipper notes that, in the course of its clemency discussion, the Harbison Court added a footnote observing that federal courts may determine, on a case by case basis, that “it is appropriate for federal counsel to exhaust a claim in the course of her federal representation.” Id. at 1489 n. 7. Attorney Skipper cites no federal authority for the proposition conveyed in the Withdrawal pleading, i.e., that federal habeas counsel is authorized, by virtue of that appointment, to proceed to PCRA litigation and comprehensively exhaust claims in state court before pursuing federal habeas relief.
Attorney Skipper then adverts to — but does not provide — a “policy statement” of “the Judicial Conference Committee on Defender Services” predating Harbison by more than a decade which, he says, would approve of federal defender organizations exhausting state remedies for federal claims, “where authorized by the presiding federal judge.” Attorney Skipper does not identify the authority under which this Committee operated, its composition, or whether the Committee’s opinion had, or now has, actual force and effect; nor does he state whether the policy statement comprises the “applicable federal administrative rules and regulations” to which Attorney Wiseman referred when he declared that the FCDO was in “full compliance” and that I was incorrect to suggest otherwise.
Turning to the other statutory provision invoked to support the FCDO’s state court capital activities, Attorney Skipper notes that 18 U.S.C. § 3006(c) authorizes appointed federal capital habeas counsel to represent capital clients in state court matters “ancillary” to federal habeas proceedings — but again, only when specifically authorized to do so by the federal judge presiding over an active habeas petition.
Attorney Skipper then argues that the restrictions in the federal statutory construct do not apply when the FCDO is “using non-grant [federal grant] funds” to finance its activities. Attorney Skipper states that nothing in federal legislation or AO “policies” prohibits FCDO lawyers from appearing as private lawyers in state court, so long as federal grant money does not finance that FCDO agenda. Attorney Skipper does not address whether the FCDO discloses to Pennsylvania courts when it is acting pursuant to the FCDO’s private budget and agenda, rather than as counsel approved for a limited purpose by a federal judge, supported by federal taxpayer funds.
Further explaining the supposed public/private hybrid status of the FCDO, Attorney Skipper says the FCDO receives private contributions and grants to engage in non-appointed activities through its “Pennsylvania Capital Representation Project.” Attorney Skipper states that the AO is aware of the FCDO’s “nonfederal fund” activities. Attorney Skipper attaches no supporting documentation, nor does he provide an explanation of the manner in which the FCDO’S state court activity in this case — including the commitment of six FCDO lawyers and numerous experts and investigators below, and preparation of the abusive brief filed on appeal — was funded. In addition, he does not suggest the amount of private funding available to support the FCDO’s private capital agenda in state capital proceedings. And, he does not explain the mechanics of the hybrid operation: e.g., are FCDO staff salaried or do they bill (publicly and privately) by the hour; are benefits such as health care, pensions, and leave time allocated between public and private funding, etc. Nor, again, does Attorney Skipper assert that the construct he describes represents the “applicable federal administrative rules and regulations” Attorney Wiseman referred to in asserting the FCDO’s full compliance.
Attorney Skipper next states that the FCDO appears in state court capital proceedings under a “range of circumstances.” In some cases, he says, a federal court has authorized the activity; no examples or copies of such federal court orders are provided. In other cases, he says, the FCDO is appointed by a federal court for federal habeas purposes and then determines to use nonfederal funds to appear privately in state court to exhaust state court remedies in advance of federal review. In other cases, he says, the FCDO makes cost-allocations between private and federal taxpayer funding. Attorney Skipper further declares that in some cases, the FCDO — using exclusively nonfederal funds — appears in state court to “protect” the rights of Pennsylvania capital prisoners who, in its opinion, are likely to be entitled to FCDO representation if the case ever proceeded to federal habeas review. Attorney Skipper adds that, in some instances, the FCDO has been appointed to represent capital PCRA petitioners in state court; he does not state under what authority such appointments were secured; in any event, these activities likewise must fall under the FCDO’s private agenda, since it would be inappropriate to use federal funds for the endeavor.
Following this summary, Attorney Skipper represents that “[t]he FCDO believes we have properly entered appearances” in the PCRA cases he lists in an accompanying summary of then-open Pennsylvania capital cases in which the FCDO was involved. Moving from the question of entry of appearances to the use of federal funds, Attorney Skipper continues that the FCDO, in conjunction with the AO, “takes steps to ensure that the costs of litigation are properly allocated between federal and other funding sources” and, he declares, as of the time of the Verified Statement at least, “such allocations are proper.” No definition of what are deemed to be “costs of litigation” is offered. Nor is any documentation offered in support of this averment, so that its accuracy may be measured here, in the context of the FCDO’s allegation that my Concurring Opinion must be withdrawn because, inter alia, it “incorrectly” suggested that the FCDO misused federal funds to support its private state court capital agenda.
Notably, however, Attorney Skipper states that, to discharge his ethical duties, he now “corrects” Attorney Wiseman’s absolutist assertion of “the FCDO’s ‘full’ compliance with applicable federal administrative rules and regulations.” Attorney Skipper explains that internal reviews of cases “have disclosed situations in the past in which prior allocations of costs were not in full compliance with administrative rules and regulations.” Attorney Skipper does not identify these cases where the FCDO violated federal funding restrictions, as measured by the “administrative rules and regulations” he does not provide and within a system of cost allocation that is not described; nor does he explain how pervasive and longstanding the violations were or whether the extraordinary commitment of resources in this case represented one such violation.
Attorney Skipper next advises that the FCDO, along with the AO, is “taking further measures and adding additional safeguards” to ensure compliance with the undisclosed federal rules and regulations. No specifics or supporting documentation are offered to permit an assessment of the FCDO’s prior claim of “full compliance,” its current position that it was formerly non-compliant, but now is compliant, or its assurance that “new measures” will prevent a continuation or recurrence of the prior violations. Nor, significantly, are any specifics provided that would offer the Court any assurance that, in permitting the FCDO to litigate in Pennsylvania courts where it has not been specifically authorized by federal court order, Pennsylvania courts are not facilitating a continuing, improper diversion of federal taxpayer money to support the FCDO’s private capital case agenda. In this regard, it is notable that the FCDO never indicates in its entries of appearance and its pleadings in Pennsylvania courts whether it is appearing in its capacity as purely-privately-funded counsel, or in its capacity as the federally-financed “federal defender.” The FCDO affiliation by which FCDO lawyers routinely identify themselves gives the impression that the organization’s appearances in state court are sanctioned and supported by the federal government.
The Verified Statement next addresses this Court’s directive to identify the Pennsylvania capital defendants the FCDO was then representing or assisting, whether the involvement was by court appointment, and how and under what authority the FCDO was involved if not by court appointment. Attorney Skipper first seems to suggest that Congress’s restrictions on appointed federal habeas counsel’s appearances in state court does not prevent the FCDO from diverting federal funds to investigate prospective federal claims and provide the fruit of that labor to “clients” who may then present the claims in state court. Parenthetically, this is a strange assertion given Attorney Skipper’s prior averments. Under Attorney Skipper’s own account, federal funds may only be employed in state court with specific federal court authorization. Moreover, the FCDO has no “client” for purposes of federal grant expenditures except when it has been appointed to actively pursue federal habeas corpus relief, which can only occur after the defendant’s state court remedies have been exhausted: that is the statutory sine qua non for court-authorized “ancillary” or “subsequent” state court litigation. Attorney Skipper identifies no statute that permits the diversion of federal tax dollars for advance shadow activity in support of a non-client’s state court capital pleadings. To the extent the FCDO continues to use federal funding for this sort of activity, the “further measures” and “additional safeguards” Attorney Skipper adverts to do not address the problem.
Attorney Skipper also provides a chart with a list of cases— cases in addition to the untold number of “fruits of its labor” cases-in which the FCDO was then providing representation in Pennsylvania state courts to capital defendants, or was consulting with lawyers actually appointed or retained for the purpose. The chart also lists whether the FCDO was appointed and by what court, and if not, how the FCDO became involved.
The chart is a remarkable snapshot of just how thoroughly the FCDO has involved itself in Pennsylvania state capital litigation. According to the chart, FCDO lawyers were then actively providing representation in Pennsylvania state court litigation in 108 relevant cases, 97 of which were capital. (From other notations, it appears that the 11 noncapital matters involve defendants who have or had separate capital convictions; presumably, the litigation was pursued in the hope of generating collateral grounds to attack the capital convictions.)
As a preliminary aside, the increasing frequency with which this Court has seen FCDO involvement in Pennsylvania state court capital matters of course was already suspicious. Moreover, it became difficult to ignore the FCDO’s abusive litigation tactics in individual cases. See Spotz, 18 A.3d at 340-42, 344-45, 348 (Castille, C.J. concurring, joined by McCaffery, J.) (discussing, inter alia, Commonwealth v. Abdul-Salaam, 606 Pa. 214, 996 A.2d 482 (2010); Commonwealth v. Bracey, 604 Pa. 459, 986 A.2d 128 (2009); and Commonwealth v. Banks, Nos. 461, 505 and 578 CAP (series of per curiam orders in response to FCDO delays and obstruction)). But, I admit that I had little idea just how pervasive the FCDO presence, and the consequent potential for its litigation abuses, had become. It is starkly apparent, from the FCDO’s chart and my own review of Pennsylvania capital cases, that a group of federally-financed “private” lawyers has managed to insinuate themselves into virtually every Pennsylvania capital case where they can manage the intrusion. Indeed, the FCDO has proven adept at inserting itself into cases even where the defendant has made clear that he does not want FCDO assistance, or to further the FCDO agenda. And, as my discussion below demonstrates, the FCDO’s effective self-appointment as a sort of statewide defender in capital PCRA matters has been achieved without the input, much less the approval, of any relevant Pennsylvania authority. The propriety of the unapproved arrangement is beyond dubious, given the FCDO’s demonstrated obstructionist private agenda.
The FCDO chart identifies 28 cases from the complement of 108 where FCDO involvement resulted from simply entering its appearance, without appointment or authorization by any court, state or federal. To be lawful, the FCDO’s activity in all 28 of these cases must be supported solely by nonfederal funds.
The FCDO chart lists another 63 cases — including this one — as instances where its involvement is by “entry of appearance and appointed by federal court.” Attorney Skipper does not explain the conjunctive notation. He also does not identify which — if any — of these federal court appointments authorized the FCDO to use federal grant funds to litigate PCRA petitions in state court. The specifics of the appointment orders, and the federal habeas status of the cases, would determine whether the activity was authorized and whether federal grant money properly may be employed.
Attorney Skipper does not specifically address whether the FCDO’s pursuit of appellant’s PCRA petition and appeal was supported exclusively by nonfederal funds. FCDO attorneys here identified themselves exclusively by reference to the FCDO; no suggestion was made that they were appearing in a private “volunteer” capacity, for example, as part of the Philadelphia Defender Association’s “Capital Representation Project.” As I explained in my Concurring Opinion, the FCDO’s commitment of resources in this case was vast, including the deployment of half a dozen FCDO lawyers, numerous experts, investigators, paralegals, etc. in the PCRA court. That commitment of resources was followed by the FCDO’s lengthy and abusive brief in this Court, which was filed only after significant delays occasioned by multiple extension requests detailing the enormity of the FCDO’s task, and only after flouting this Court’s briefing rules.
Notably, in the extension requests, FCDO Attorney Robert Dunham, Esquire, also made reference to his other capital case responsibilities as an FCDO lawyer, drawing no distinction between court-authorized litigation and appearances pursuant to the FCDO’s private agenda. Among the responsibilities related was Attorney Dunham’s preparation of an amicus curiae brief on behalf of the Government of Mexico in support of a Pennsylvania capital defendant. See Commonwealth v. Padilla, 567 CAP, later decision reported at 622 Pa. 449, 80 A.3d 1238 (2013), cert, denied, — U.S. -, 134 S.Ct. 2725, 189 L.Ed.2d 769 (2014). Presumably, the FCDO’s provision of lawyering services on behalf of foreign nations to support their citizens who commit capital murders in Pennsylvania is supported by its private funding stream or by the Mexican government. Also, presumably, the AO was aware of and approved of this “nonfederal fund” activity, which caused delays in other Pennsylvania capital cases the FCDO pursued strictly as part of its private agenda.
Notably, the Padilla case is not listed on Attorney Skipper’s chart of cases where the FCDO was involved. That is because, not coincidentally, Attorney Dunham withdrew his appearance in Padilla the very day before Attorney Skipper filed the Verified Statement. Attorney Dunham’s praecipe in Padilla simply stated: “Kindly withdraw my previously entered appearance as counsel of record for Amicus Curiae, the United Mexican States, in the above-captioned matter and substitute Marc Bookman, who has entered his appearance on this date, as counsel of record for the United Mexican States.” No explanation is given for the substitution or its timing; perhaps the Padilla case was one of the (unidentified) cases where the FCDO’s allocation of costs was “not in full compliance with administrative rules and regulations.” Attorney Bookman’s entry of appearance for Mexico identifies him as affiliated with the “Atlantic Center for Capital Representation.” The website for the ACCR notes that, in fact, “Prior to becoming the Director of ACCR, Marc Bookman was a public defender for 27 years and worked in the Homicide Unit of the Defender Association of Philadelphia since its inception in 1993.” The FCDO, of course, operates under the umbrella of the Defender Association of Philadelphia, which apparently is the ultimate mastermind of this overall capital case agenda.
What is most troubling is that, although Attorney Skipper does not state the fact directly, the necessary implication of the averments in the Verified Statement is that federal tax dollars in fact financed the FCDO’s extensive and abusive litigation activities in this case. The Court’s October 3, 2011 per curiam order stated that, “In light of Attorney Skipper’s citation to 18 U.S.C. § 3006A(c) in support of his claim that the FCDO’s representation of Pennsylvania capital defendants in state post-conviction proceedings is lawful, Attorney Skipper is also directed to produce a copy of the federal court order appointing the FCDO to represent Appellant, to which the FCDO’s activities in Pennsylvania state court in this case are ‘ancillary.’ ” Attorney Skipper’s response does not state that the FCDO’s activities here were supported solely by the FCDO’s private resources, and were not authorized federal expenditures ancillary to a federal court appointment. Instead, Attorney Skipper advised that he was complying with our directive by attaching the relevant “federal court appointment orders.”
The two attached orders, however, reveal that the FCDO was never authorized to prosecute appellant’s PCRA petition and appeal with federal funds, as ancillary to its appointment for federal habeas purposes. The orders were issued by the Honorable James M. Munley of the U.S. District Court for the Middle District of Pennsylvania. The first order, dated April 12, 2002, appointed the FCDO in connection with a stay of execution and directed the FCDO to file a federal habeas corpus petition within 120 days. The second order, dated May 10, 2006, was in connection with a second stay of execution; the order appointed the FCDO “to represent Petitioner in his to-be-filed habeas corpus petition,” and the order directed that the petition be filed within 180 days. Neither order authorized the FCDO to litigate an initial PCRA petition on appellant’s behalf, much less to do so by using federal funds. On November 27, 2002, Judge Munley denied the FCDO request to hold appellant’s federal habeas proceedings in abeyance while the FCDO pursued PCRA relief; dismissed the federal habeas petition; and directed the clerk to close the case.
A week later, on December 4, 2002, the FCDO filed appellant’s PCRA petition, a 275-page “initial” pleading, representing an extensive prior commitment of FCDO resources, all without federal court authorization. The representation that the FCDO’s PCRA agenda here was authorized as ancillary to Judge Munley’s orders — a representation that conveys that the litigation was legitimately financed with federal tax dollars — is contradicted by the attached orders themselves.
The next question, in the context of the FCDO motion claiming that my Concurring Opinion must be withdrawn because it was “incorrect” to question whether the FCDO’s private agenda is supported by a misuse of federal taxpayer dollars, is whether the apparent diversion of funds here was an anomaly among the 63 cases where the FCDO says its state capital case activity was by entry of appearance and federal court appointment. Some of the 63 cases involve serial PCRA petitions, and it is possible that a federal judge authorized the FCDO to exhaust a discrete new claim in a serial PCRA petition, pursuant to footnote 7 of Harbison v. Bell. The FCDO does not identify which of the 63 cases involve serial PCRA petitions and which, if any, involve specific federal court authorization to litigate a serial PCRA petition. In fact, my review reveals that 50 of the cases involve initial PCRA petitions, and at least 3 of the 13 remaining cases, which appear to be serial PCRA matters, involve defendants the FCDO previously represented, or attempted to represent, in first PCRA petitions (Commonwealth v. Emanuel Lester aka Ali; Commonwealth v. Antoine Ligons; and Commonwealth v. Ronald Puksar). Thus, at least 53 of these 63 cases involve FCDO litigation of initial PCRA petitions in advance of federal habeas review. Given the federal statutory scheme and Harbison v. Bell — as the FCDO’s pleading here itself describes those restrictions — the FCDO’s pursuit of its private agenda in the 53 cases cannot lawfully be supported by the diversion of a penny of federal funds.
But, the FCDO’s averments concerning its authorization in this case suggest that it in fact has routinely diverted significant federal resources to support its private agenda. Again, the FCDO did not respond to this Court’s order by claiming that its PCRA activities here were supported solely by its private funds Instead, the FCDO represents — incorrectly— that its abusive activities were “authorized” as “ancillary” to a federal court appointment. The 53 first-PCRA petition capital cases identified by the FCDO no doubt present like circumstances, i.e., the FCDO federal appointment was to file a federal habeas petition, -with no authorization to improperly use federal tax dollars to pursue initial PCRA petitions in state courts. In short, the Verified Statement has neither claimed, nor documented, that the FCDO’s actual litigation of these capital PCRA matters was supported solely by private funds.
While these ancillary matters have been pending, the Court has directed the FCDO to produce its federal court orders of appointment in a number of capital PCRA matters, including first-PCRA petition cases the FCDO chart identifies as instances where it is acting pursuant to federal court appointment. The FCDO responses and/or federal orders produced (and the motions generating the orders) corroborate that either no such order exists, or if there is an appointment order, the appointment is for federal habeas litigation only, and not for litigation of PCRA petitions. E.g., Commonwealth v. Johnson, 532 CAP; Commonwealth v. Mitchell, 617 CAP; Commonwealth v. Tharp, 637 CAP; Commonwealth v. Davido, 638 CAP; Commonwealth v. Montalvo, 639 CAP; Commonwealth v. Powell, 641 CAP. See also Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1151 (2012) (noting that FCDO was appointed by federal court only to prepare federal habeas petition).
The federal PACER system confirms that FCDO appointments in Pennsylvania capital cases typically follow the plain congressional restriction and the even plainer holding in Harbison v. Bell, in that they are for purposes of federal habeas litigation only; the orders, like Judge Munley’s, do not authorize the FCDO to litigate PCRA petitions using federal grant funds. E.g., Commonwealth v. Busanet, 623 CAP (federal appointment order entered 1/20/2004); Commonwealth v. Walker, 480 CAP (federal appointment order entered 3/8/2011 — notably while Walker’s PCRA appeal, litigated by four FCDO lawyers, was pending in state court; in appointing FCDO, court notes FCDO’s representation that its lawyers “have represented Petitioner for many years”). The appointment order the FCDO produced in another case, Commonwealth v. Weiss, 655 CAP, is not an appointment order at all, but an order staying federal habeas review pending exhaustion of state remedies.
The federal court appointment orders in Mitchell and Davido are accompanied by an FCDO acknowledgment that it was appointed only for federal habeas, and not to pursue a PCRA petition. The FCDO in each case then notes that it entered its PCRA appearance pursuant to its private agenda: “[a]s part of a nonprofit organization providing defender services, the FCDO may provide a broader array of defender services than those authorized by a federal appointment as the FCDO’s resources permit.” Accord Commonwealth v. Terrance Williams, 673, 668, and 669 CAP. This general statement does not specifically claim that those “resources” derive strictly from the FCDO’s private funding — although that is certainly the impression conveyed by the reference to the FCDO’s nonprofit status, and its ability to provide a “broader array” of services than those actually authorized by Congress.
Notably, this “broader array” position is in tension with Attorney Skipper’s stance in this case — where the question of the FCDO’s authority is directly at issue, and the Chief Defender entered his appearance so as to provide an “office-wide response.” Attorney Skipper has stated that the FCDO’s extensive PCRA litigation activities here were “ancillary” to a federal court order that, in fact, did not appoint or authorize the FCDO to conduct any ancillary activities, much less to redirect federal grant funds. Although the FCDO’s overall position is elusive and inconsistent, its core position, and its actual conduct, suggests its belief that it is free to redirect federal tax dollars to its private state court agenda whenever it has, or anticipates, a federal court appointment for purposes of federal habeas review. That position, which would apply to all 53 cases in this class, contradicts what the FCDO has admitted are the plain limitations in the federal statutory scheme and Harbison v. Bell.
It may be that Attorney Skipper, like former FCDO Attorney Wiseman, has made an error; that he realizes that the PCRA litigation in this case could not properly be supported with federal funds; that he further realizes that all 53 of the identified first petition capital PCRA matters involving federal court “appointments” can only be privately funded; and that he meant to convey that, in fact, the FCDO’s private activities and agenda in every first petition capital PCRA matter have been funded exclusively with private resources. But, that is not what he has represented in his Verified Statement; and presumably, he did not so represent because he cannot truthfully state that it is so.
Obviously, even aside from Attorney Skipper’s averments, it is highly unlikely that the FCDO has subsidized its massive private agenda in capital PCRA cases with purely private funds. It has been reported that the FCDO operates under a federal grant of some $16-17 million per year. It is difficult to believe that the FCDO has an annual private funding stream anywhere near that size, or indeed a funding stream sufficient to support the extensive litigation in this case alone. By the FCDO’s own reckoning, it would need private resources sufficient to litigate the other 52 first PCRA matters in which it was involved by appearance and supposed federal court “appointment,” the 28 matters where it simply entered an appearance, the 7 additional cases where appointments were made by state court judges, its shadow assistance in the “fruits of its labor” cases, and its activities on behalf of foreign governments in support of their citizens who commit murder in Pennsylvania. And, when the FCDO enters a case, it deploys teams of investigators, paralegals, lawyers and experts, and reams of paper, pleadings, amendments, etc. Notably, on May 15, 2011, immediately after the Court’s decision in this appeal, the Philadelphia Inquirer reported that David Rudovsky, Esquire, the President of the Philadelphia Defender Association, which oversees the FCDO, took the same position Attorney Skipper initially did in his Withdrawal pleading: i.e., that the FCDO diverts federal grant money to support most of its work in capital PCRA litigation, claiming that federal law allows the diversion in advance of federal habeas review, so as to exhaust claims. The same article indicated that the FCDO’s private funding stream was a modest $130,000.
Asked for an explanation of authorization following Attorney Wiseman’s allegation, however, the FCDO has now acknowledged that it may lawfully use federal grant funds to support state capital litigation only when specifically approved by a federal judge, and that power exists in a federal judge only on matters ancillary or subsequent to appointment to pursue federal habeas corpus petitions. The statutory authority cited by both parties here, as well as the decision in Harbison v. Bell, corroborates that these in fact are the controlling congressional restrictions on the use of federal funds. There is, in short, a disconnection between what the FCDO properly can do with its federal funding, as federal law provides plain as day and the FCDO itself understands it, and what the FCDO actually has done and continues to do with that funding in pursuit of its private agenda, as the FCDO tells it. In this case and all cases where the FCDO’s capital PCRA litigation activities were not approved by a federal court in a federal habeas proceeding to which the PCRA litigation was properly ancillary or subsequent — and no first PCRA petition can so qualify — any diversion of federal money to finance the FCDO’s private agenda would appear to violate federal law.
While these Motions have been pending, the FCDO has been given multiple additional opportunities to discharge its duty of candor to Pennsylvania courts concerning the propriety of its extensive private capital case agenda, by which it has secretly managed to assume a monopoly role in capital PCRA defense. As I explain below, the organization ultimately has refused to do so. The organization’s stance reflects its core political orientation: it insinuates itself into the role of defacto statewide defender in capital cases, claiming to this Court that it is acting solely as a privately-funded entity which need not answer to any Pennsylvania authority, and then claims, when put to the proof, that it is effectively a “federal officer” and cannot be asked for an accounting. The FCDO’s contemptuous responses also shed light upon the instant Motions, and in particular, the FCDO’s shifting accounts of its activity, authority, and funding. See discussion at subsection (5), infra.
2. FCDO Response to Commonwealth’s Request for a Rule to Show Cause
The Court’s order of October 3, 2011, quoted earlier, sets forth the Commonwealth’s position on its request for a rule to show cause why the FCDO should not be held in contempt for its non-compliance with the order of July 28. Attorney Skipper responds by stating that the FCDO’s decision not to comply but instead to file its “Withdrawal” pleading was reasonable and made in good faith, and was not in contempt of this Court. I will discuss these pleadings, as necessary, infra.
3. Further Pleadings
The Commonwealth responded to the FCDO’s Verified Statement with a Request for Leave to file a Response, to explain why the Verified Statement is non-responsive. The Commonwealth also filed a Response to the FCDO’s Answer to the Motion for Sanctions. Counsel with the law firm Pepper Hamilton LLP then entered an appearance as counsel for the FCDO and Attorney Skipper, and on November 29, 2011, filed: (1) a Motion to Strike the Commonwealth’s Response to the Answer to the Motion for Sanctions; and (2) a Reply to the Commonwealth’s Request for Leave to Respond to the Verified Statement. None of these pleadings are necessary to a proper decision of the primary matters; accordingly, I will deny the Commonwealth’s request for leave to respond to the Verified Statement, and I will not consider its response to the FCDO Answer to the Motion for Sanctions. Nor will I consider the FCDO’s two responsive pleadings. Finally, I will not burden the Court with a referral of these tangential motions.
4. Tangential Matter at 157 EM 2011, removed to federal court by FCDO
A further complication arose in November of 2011, when the District Attorney of Philadelphia County filed a petition seeking exercise of the Court’s King’s Bench jurisdiction to more broadly consider the propriety of the FCDO’s activities in Pennsylvania state courts. See In Re: Appearance of Federal FCDO In State Criminal Proceedings, 157 EM 2011. The Petition alleged that the FCDO’s appearances in Pennsylvania capital proceedings were illegal; that the Court should enforce federal law as well as its exclusive power to supervise the practice of law and the conduct of the courts in the Unified Judicial System; and that the Court should bar the FCDO from participation in state criminal proceedings, except where the FCDO has specifically been authorized to so litigate by a federal court order. The pleading included an extensive discussion of federal law, and offered examples of FCDO conduct in Pennsylvania cases that, the District Attorney claimed, corroborated the concerns with the FCDO agenda that were addressed in my Concurring Opinion. The FCDO requested and was granted an extension of time to respond, noting it had retained outside counsel.
Rather than provide the response, on December 8, 2011, the FCDO filed a single-paragraph “Notice of Filing of Notice of Removal,” relating that the FCDO that day had removed the King’s Bench matter to the U.S. District Court for the Eastern District of Pennsylvania. The attached federal notice declared that the Commonwealth’s petition “asserts claims against [the FCDO] based on and arising under federal law.” The federal notice did not acknowledge the Commonwealth’s supervisory state law issue involving the practice of law.
Although neither party contemporaneously informed the Court of the development, on December 14, 2011, the Commonwealth filed a notice of dismissal in federal district court per Rule 41(a)(l)(A)(i) of the Federal Rules of Civil Procedure, and the removed federal matter is listed as “terminated.” As a result, the Supreme Court Prothonotary administratively closed the King’s Bench matter listed at 157 EM 2011.
5. Tangential Matters: additional cases involving propriety of FCDO appearances removed to federal court by the FCDO
The Philadelphia District Attorney more recently challenged the propriety of the FCDO’s appearance in a specific capital PCRA appeal, Commonwealth v. Mitchell, 617 CAP. The District Attorney filed a Motion to Remove Federal Counsel on grounds that the FCDO’s activities were not authorized by federal court order. As in 157 EM 2011, the Commonwealth argued that this Court had jurisdiction, had the obligation to enforce federal legislative restrictions on the FCDO, and had separate supervisory authority to determine who may properly appear as counsel in Pennsylvania proceedings.
The FCDO responded, in relevant part, that nothing prevented it from doing more than authorized by a federal court appointment, so long as federal funds were not employed. According to the FCDO, federal law “does not prohibit an attorney from engaging in activities on behalf of a client that fall outside [the governing federal statute] and are not compensable with federal funds.” The FCDO added that it had “nonfederal resources” to support its nonfederal activities, noting that the Defender Association of Philadelphia had established the “Pennsylvania Capital Representation Project,” which “receives private grant funds and contributions to support FCDO activities the federal sustaining grant cannot fund.” The FCDO added that the AO is aware of its activities in state court “and the fact that they are supported through nonfederal resources.” Answer, ¶¶ 24-30.
In light of these representations, on January 10, 2013, this Court remanded Mitchell to the PCRA court for a determination of whether the FCDO could properly continue in the appeal. The per curiam order provided, in relevant part, as follows:
[T]he matter is REMANDED to the PCRA court to determine whether current counsel, the [FCDO] may represent appellant in this state capital PCRA proceeding, or whether other appropriate post-conviction counsel should be appointed. In this regard, the PCRA court must first determine whether the FCDO used any federal grant monies to support its activities in state court in this case. If the FCDO cannot demonstrate that its actions here were all privately financed, and convincingly attest that this will remain the case going forward, it is to be removed. If the PCRA court determines that the actions were privately financed, it should then determine “after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.” See Pa.R.Crim.P. 904(H)(1)(c). We note that the order of appointment produced by the FCDO, issued by the U.S. District Court for the Eastern District of Pennsylvania at No. 2:ll-cv-02063-MAM, and dated April 15, 2011, appointed the FCDO to represent appellant only for purposes of litigating his civil federal habeas corpus action, and the authority of the FCDO to participate in this state capital proceeding is not clear. See 18 U.S.C. § 3599(a)(2) (authorizing appointment of counsel to indigent state defendants actively pursuing federal habeas corpus relief from death sentence).
Order, 1/10/13. Justice Todd filed a Dissenting Statement, which was joined by Justice Baer.
The remand should have been a simple matter: officers of the Court, operating under an ethical duty of candor, could provide the PCRA judge with proof of what they had alleged to this Court. Instead, after a remand hearing had been scheduled, on April 11, 2013, the FCDO, by its outside counsel, filed a Notice of Filing of Notice of Removal with the PCRA court. The FCDO stated that, on April 5, 2013, it had removed the representation question to federal court pursuant to 28 U.S.C. §§ 1442 and 1446(d).
Thereafter, the FCDO removed multiple other Pennsylvania capital cases to federal court where similar inquiries into the lawfulness of its state court capital agenda were being made— thus ensuring delays in every one of those matters. See In re Proceedings Before the Court of Common Pleas of Monroe County, Pa. to Determine Propriety of State Court Representation by Defender Ass’n of Phila. Filed in Com. of Pa. v. Manuel Sepulveda, 2013 WL 4459005, at *1 n. 2 (M.D.Pa. Aug. 16, 2013) (memorandum by Caputo, J.) (collecting cases) (hereinafter “In Re FCDO (Sepulveda) I ”).
The FCDO never notified this Court of its removal action in Mitchell. The federal PACER system reveals three pleadings filed by the FCDO relating to Mitchell, all assigned to the Honorable Mary McLaughlin of the U.S. District Court for the Eastern District of Pennsylvania. I will describe the pleadings in Mitchell (which are representative of the FCDO’s position in all the removed cases) only as they are relevant to assessing the FCDO’s account to this Court of the basis, and the funding, for its extensive private litigation agenda in Pennsylvania capital cases.
First, under the docket number for the dormant federal habeas petition held in abeyance while the FCDO pursued Mitchell’s PCRA petition, the FCDO filed a “Motion to Reactivate Case in Order to Enter an Order Directing Petitioner’s Counsel to Exhaust Claims in State Court.” In short, the FCDO sought retroactive federal authorization for extensive state court actions it had already undertaken and — according to what it told this Court — had supported strictly with its “private” resources. The FCDO related that, after filing the PCRA appeal now pending, it began investigating new claims not pursued by PCRA counsel. (In fact, the brief the FCDO eventually filed in this Court raises 15 claims, many of which are new, nonfederal claims alleging that Mitchell’s PCRA counsel was ineffective.) The federal pleading stated that the FCDO conducted this serial PCRA investigation in “reasonable anticipation” of one day being appointed to serve as Mitchell’s federal habeas counsel. Meanwhile, the FCDO prepared and filed a federal habeas petition on March 25, 2011, which included the new claims it had developed. The FCDO asked to be appointed to represent Mitchell on the federal habeas petition it had already prepared; and then asked that the same petition be held in abeyance. Both requests were granted. The federal court, however, never appointed the FCDO to litigate the PCRA appeal and the new claims the FCDO had developed.
The FCDO then remarkably claimed that both the Commonwealth’s Motion to Remove Counsel and this Court’s order “are part of a broader, ongoing effort on the part of some prosecutors’ offices ... to deprive capital petitioners” of FCDO representation. The FCDO noted instances where this Court remanded for determinations of whether the FCDO should be permitted to remain in a capital case; instances where county prosecutors made challenges to FCDO appearances; and instances where the Pennsylvania Attorney General’s Office sought to disqualify it. In each case, the FCDO said, it had removed or will remove those questions to federal court.
Turning to its legal argument, the FCDO claimed that our remand in Mitchell “directs the PCRA court to take action against the FCDO that is preempted by federal law.” The FCDO alleged that the propriety of its appearance in Mitchell was not “unclear” merely because it acted without authorization. The FCDO further argued that the federal court had the authority to expand the FCDO’s appointment to encompass pre-federal habeas matters under Harbison v. Bell and 18 U.S.C. § 3599, notwithstanding that those authorities speak of state court proceedings subsequent or ancillary to federal habeas review. Finally, the FCDO opined that Mitchell’s claims will never be “properly exhausted” unless the FCDO does the exhausting.
Judge McLaughlin denied the reactivation motion in a memorandum dated August 15, 2013. See Mitchell v. Wetzel, 2013 WL 4194324 (E.D.Pa.2013). Judge McLaughlin noted that the FCDO was requesting her to “expressly authorize the FCDO to pursue Mitchell’s state court proceedings in the scope of its federally funded duties.” Id. at *2. Judge McLaughlin’s reasoning is instructive because it confirms what the federal statute plainly states, what the FCDO was told years ago when it attempted the same diversion of federal funds in Wilson v. Horn, 1997 WL 137343, at *5 (E.D.Pa.1997) (discussed infra), and what Harbison v. Bell reaffirmed more recently: federal funds cannot be diverted to pursue the FCDO’s private agenda of exhausting claims in state court in advance of federal habeas review.
Harbison specifically addressed the situation where federal counsel had been appointed for purposes of a [28 U.S.C.] § 2254 [i.e., state prisoner’s federal habeas ] claim and the petitioner now requests that the federal counsel pursue his state post-conviction claims. The Court held that, although the state court proceeding is technically “subsequent” to a federal appointment, this situation was not contemplated by [18 U.S.C.] § 3599(e). In the “ordinary course of proceedings for capital defendants,” petitioners must exhaust their claims in state court before seeking federal habeas relief. “That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.” [Harbison, 556 U.S.] at 189-90 [129 S.Ct. 1481] (internal citations omitted).
The Supreme Court also provided an exception to its holding. In a footnote, it stated that a district court “may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation.” Id. at 190, n. 7 129 S.Ct. 1481[ ]. The Court made clear that this exception was not encompassed within the statutory meaning of “available post-conviction process;” instead, it was made possible pursuant to § 3599(e)’s provision that counsel may represent her client in “other appropriate motions and procedures.” Id.
In Mitchell’s case, he is litigating a state postconviction proceeding after federal counsel was appointed to pursue his § 2254 claim. The Harbison Court explicitly held that this type of proceeding is not in the ordinary course of “subsequent” available proceedings. The Court’s analysis therefore turns on whether it should grant Mitchell’s motion insofar as it is an “appropriate motion[ ]” as discussed in the Harbison footnote.
Harbison did not clarify the circumstances under which the exception should be applied: it states only that a Court may direct federal counsel to exhaust state claims if it determines, “on a case-by-case basis,” that it is “appropriate.” The Court’s decision must stay consistent with the general purpose and reasoning of the Harbison decision; and, its exercise of discretion may not permit Harbison’s footnote exception to swallow its rule. Guided by this reasoning, the Court denies Mitchell’s motion.
The Court first considers the fact that state law guarantees counsel for purposes of Mitchell’s PCRA appeal.... The Court affords special weight to the fact that, by virtue of state law, Mitchell will be provided court-appointed counsel in his PCRA appeal regardless of this Court’s action.
Mitchell, in contrast [to the habeas petitioner seeking to pursue state clemency proceedings under Tennessee law in Harbison ], would never be “abandoned” by counsel and left to navigate the PCRA appeal process by himself. If the Court were to deny Mitchell’s motion, he would still be entitled, under state law, to counsel who would assist in pursuing his PCRA appeal. It is not “appropriate” for this Court to direct the FCDO to litigate this action in place of a state-appointed counsel....
The Court is also reluctant to order FCDO counsel to pursue Mitchell’s claims in state court in light of the case’s unique federalism concerns. Unlike the state of Tennessee in Harbison, which had taken the position that it held “no real stake in whether an inmate receives federal funding for clemency counsel,” the Commonwealth of Pennsylvania has elected to take an adversarial position and has contended that state PCRA appeals should not be covered under § 3599....
The FCDO currently represents Mitchell in its capacity as a nonprofit public defender organization, independent from its federal authorization under § 3599(a)(2). If the Court were to authorize the FCDO, in the scope of its federally funded representation, to litigate Mitchell’s case in state court, such an order would “put the district court[ ] in the position of overseeing, and thus indirectly managing, counsel’s performance in the state court proceeding.” ... Granting the FCDO’s Authorization Motion thus raises a set of federalism concerns that are not triggered if the FCDO continued to represent Mitchell in its private capacity.
... The Court cannot read Harbison to mean that all petitioners may be excepted out of the Supreme Court’s holding by virtue of their procedural posture and the length of delay in their respective courses of litigation.
The FCDO has not pointed to, and the Court has not independently found, any similarly-situated cases that in-
voked the Harbison footnote exception to expand the scope of available representation under § 3599(e)----
In light of these factors, it would not be appropriate for this Court to exercise its discretion to authorize the FCDO to pursue Mitchell’s state proceedings within the scope of its federally funded duties. To hold otherwise would allow Harbison’s footnote exception to swallow its rule.
Id. at *4-7.
The second federal pleading in Mitchell is the Notice of Removal. See In Re Proceeding in Which the Commonwealth of Pennsylvania Seeks to Compel, No. 2:13-cv-01871. Here, the FCDO stated outright that its Motion to Reactivate was designed to “moot” this Court’s administrative remand Order. The Notice of Removal said that the FCDO removed the counsel representation question from the PCRA court pursuant to 28 U.S.C. §§ 1442(a) and (d)(1) and 1446(g). Section 1442 provides for removal to federal court of any action directed against a person acting under an officer or agency of the U.S. government (“federal officer removal” statute). Section 1446(g) governs the timing of certain removal actions. The FCDO stated that it was removing only the remand proceeding, and not the “underlying action” concerning Mitchell’s “conviction and death sentence.”
The FCDO then argued that although it is a private entity, it concomitantly acts under a federal officer or agency, per the Criminal Justice Act, 18 U.S.C. § 3006A, which governs the appointment and compensation of lawyers to represent indigent defendants in federal proceedings. The FCDO posited that defender organizations are federally funded to assist the federal government in providing representation to indigent defendants in federal criminal proceedings, including habeas proceedings involving state prisoners. The FCDO then bootstrapped from this authorized federal court role the proposition that it acts under an officer or agency of the U.S. government even when it pursues its private agenda by inserting itself into state capital proceedings in advance of federal review.
In square tension with its multiple representations to this Court that it acts solely in its private capacity when appearing in Pennsylvania state court, the FCDO thus claimed that it is always subject to federal control, providing a service the federal government allegedly otherwise would have to perform, and thus the removal statute is operative. The FCDO asserted that the inquiry this Court directed of officers of the Court in its supervisory capacity implicated “the particulars of the funding relationship between the FCDO and the federal government.” The FCDO then argued, in essence, that despite its federal taxpayer subsidy, no entity other than the federal courts has a right to inquire into whether it improperly diverts federal tax money to support a private state court capital agenda: according to the FCDO, the answer to the question of its misappropriation of federal taxpayer funds is a secret.
The third federal motion filed by the FCDO in Mitchell was a Motion to Dismiss with prejudice the proceeding it had removed. The FCDO argued that the only body that can address the question of its diversion of federal funds is the AO, since the enforcement of Section 3599 can only be at the request of the AO. The FCDO claimed that any attempt to enforce the provision by a state court somehow frustrates federal law and is therefore preempted. Alternatively, the FCDO asked the district court to stay the proceeding and refer the matter to the AO, which it said has primary jurisdiction to administer funds under the federal program and statutes at issue.
The Commonwealth responded to the Motion to Dismiss and also requested that the case be remanded to Pennsylvania state court. As noted above, the FCDO removed to federal court a number of other capital cases where similar inquiries were underway, and then moved to dismiss them; and the Commonwealth responded along the same lines as it did in Mitchell, i.e., seeking remand of this Court’s supervisory questions to state court. The federal district courts have split on the appropriate response: the Mitchell case and at least two others filed in the Eastern District resulted in a denial of the Commonwealth’s motion to remand and a grant of the FCDO motion to dismiss the action it removed; while three cases removed to the Middle District, and assigned to Judge A. Richard Caputo, resulted in a grant of the Commonwealth’s motions to remand. Judge Caputo has catalogued the cases in his memorandum opinion denying the FCDO reconsideration request in the Sepulveda removal case, see 2013 WL 5782383, at *1 n. 2 (M.D.Pa. Oct. 25, 2013) (In Re FCDO (Sepulveda) II), and further noting that appeals to the Third Circuit were filed in all of the cases.
Judge Caputo’s analysis in his two memorandum opinions in Sepulveda is of particular interest, since the FCDO’s reconsideration request there was premised upon the FCDO arguments accepted by Judge McLaughlin in the Eastern District cases. In his initial memorandum, Judge Caputo noted that, among other things, the FCDO had to show that it “acts under” a federal officer in order to prove removal jurisdiction under Section 1442(a)(1); and the FCDO’s essential position was that, as a federal grantee/contractor under the Criminal Justice Act, it “acts under” the AO even when acting exclusively pursuant to its private agenda in state capital cases. The Commonwealth rejoined that no federal agency is obliged to appear in state court, or to provide legal representation to criminal defendants in state court, and thus the FCDO is not serving the federal government when it represents indigent criminal defendants in state court proceedings that precede federal habeas review.
After surveying the relevant statutory and decisional law landscape, Judge Caputo rejected the FCDO’s “acting under” federal authority argument, noting:
The FCDO asserts that it assists the Government by representing indigent defendants, which it suggests is bolstered by the fact that the Guidelines for Administering the Criminal Justice Act and Related Statutes require that a Community Defender Organization’s “stated purposes must include implementation of the aims and purposes of the CJA.” However, the FCDO has not identified any federal agency or officer that is tasked with or has a duty to appoint, arrange, or provide legal representation for indigent capital criminal defendants in state post-conviction proceedings to preserve claims for federal habeas review. A necessary condition to invoke the federal officer removal statute, the assistance or carrying out of duties of a federal superior, is therefore absent in this case. As a result, even if the FCDO is “acting under” a federal officer in the course of its representation of clients in federal court, it does not follow that it also “act[s] under” a federal officer in its performance of tasks for which the Government bears no responsibility, such as appearing in state postconviction capital proceedings to exhaust claims for federal habeas review. * * *
Furthermore, [neither] the FCDO’s submissions nor its arguments demonstrate that it is in such an unusually close relationship with the AO or the Federal Government to make the federal officer removal statute applicable to this proceeding. The FCDO ... is subject to guidelines and regulations including the terms of its funding grant. But the FCDO has not suggested that its representation of clients is performed at the direction of the AO, that the AO dictates its litigation strategies or legal theories in individual cases, that the AO reviews its work product, or that the AO otherwise takes an active role in monitoring and/or participating in client representation. Of course, a third-party cannot dictate the FCDO’s legal representation of its clients. ... Nonetheless, it is this lack of monitoring or close supervision that distinguishes the relationship between the FCDO and the AO from cases that have found an unusually close relationship between a private contractor and a federal officer or agency for purposes of § 1442(a)(1)....
Here, ... for the reasons detailed above, the FCDO is not providing a service the Government “needs” when it represents criminal defendants in state post-conviction proceedings prior to federal habeas review. Nor in the absence of the FCDO would the Government be obligated to provide representation itself in such circumstances. Accordingly, there is no unusually close relationship between the FCDO and the Federal Government, and removal of the Disqualification Proceeding was improper.
In Re FCDO (Sepulveda), 2013 WL 4459005 at **12-14 (citations omitted; italics in original).
Judge Caputo elaborated on his reasoning in the memorandum he filed in response to the FCDO’s reconsideration motion in In Re FCDO (Sepulveda) II. Judge Caputo directly responded to an FCDO argument on reconsideration premised upon what the FCDO had successfully argued in the Eastern District, as follows:
[T]he FCDO maintains that “[w]hen in the setting of a PCRA proceeding the FCDO investigates and researches federal claims ... it is surely ‘related to’ the federal habeas representation.” ... The FCDO further contends that “the research and investigation of federal claims undertaken in the PCRA proceeding is work that is essential to the preparation of the eventual federal habeas petition---[Thus,] ‘the aspect of its state court representation that is done in preparation of the federal habeas petition is permitted by § 3599, and is performed ‘under color’ of a federal office.’ ”
First, I find no merit in the FCDO’s claim that its federal contract constitutes an act under a federal officer. The federal contract is the source of the FCDO’s relationship with the Federal Government, not an act under color of office.
Second, I am not convinced that the investigation and research of federal claims in Mr. Sepulveda’s PCRA cases as preparation for federal habeas review occurred “under color” of federal office. Participation in the state proceeding is not necessary to preparation for the federal proceeding. Moreover, if deemed important, the FCDO can review the state filings to determine the issues raised therein and research and prepare in anticipation of them in the federal proceeding. Here again the requirements merge. It is not something the Federal Government provides and to argue it is related because it is the same or similar to the federal proceeding is suggesting too broad an application of “relating to.” Parallel proceedings in federal and state courts while dealing with similar issues does not satisfy the “relating to” and therefore the “under color” of federal office criterion.
A prior submission by the FCDO buttresses this conclusion [i.e., that the FCDO’s state court activities are not derived solely from its official duties]. The FCDO states: “FCDO attorneys also appear on behalf of some of their federal clients in PCRA proceedings in Pennsylvania courts. They do so either on the authority of a federal court order to exhaust their client’s state court remedies or as Pennsylvania-barred lawyers appointed by the PCRA court or retained by the defendant to represent him on a pro bono basis.” ... Here, prior to appearing in the PCRA proceeding, the FCDO did not obtain a federal court order appointing it as counsel to exhaust Mr. Sepulveda’s claims in state court. Essentially, the FCDO, on its own, undertook the representation of Mr. Sepulveda in his PCRA proceeding. As a result, the action the Commonwealth challenges, the FCDO’s representation of a PCRA petitioner in state court, did not naturally “occur[ ] during the performance of [its] government-specified duties,” ... nor result from its execution of its contract____
2013 WL 5782383, at **5-7.
6. Another FCDO Account of its Authority and Funding
In a recent direct capital appeal, Commonwealth v. Sanchez, 623 Pa. 253, 82 A.3d 943 (2013), I filed a concurring opinion which quoted the FCDO’s representations at a remand hearing held to ascertain the FCDO’s authority to continue to represent Sanchez on his direct appeal:
At the hearing, Rebecca Blaskey, the First Assistant to the Federal Defender, explained the FCDO’s authority to represent appellant as follows:
Ms. Blaskey: Your honor, the Federal Community Defender Office is not authorized or permitted to expend federal funds in state court proceedings except under very limited circumstance [sic], and arguably, a direct appeal proceeding such as this one would not qualify. So as the Federal Community Defender, Your Honor, we are not able to accept appointment in Mr. Sanchez’s cases [sic].
The Court: What is the authorization for the Federal Community Defender’s Office? What is their scope of representation?
Ms. Blaskey: Your Honor, we represent persons — as the Capital Habeas Unit, we represent death sentenced prisoners in [18 U.S.C. § ] 2254 proceedings in Federal Court, some ancillary proceedings in State Court, and we also present [sic] some [18 U.S.C. § ] 2255 Federal prisoners. We are funded by a grant from the Administrative Office of the United States Courts in Washington D.C., and as such, it [sic] cannot expend federal money in state court proceedings except under limited authorized circumstances.
The Court: You may continue.
Ms. Blaskey: Thank you, Your Honor.
One of the things that I had explained to Your Honor was that, previously, was that the Defender Association of Philadelphia, which is our umbrella organization, has as part of its entity the Pennsylvania Capital Representation Project, which is a nonprofit project that does not use federal funds, and if Your Honor would like to appoint our lawyers, what we would request is that Your Honor appoint the Pennsylvania Capital Representation Project rather than the Federal Community Defender.
The Court: Are the lawyers one and the same for both?
Ms. Blaskey: They are, Your Honor.
The Court: And what is the funding of the Pennsylvania Capital Representation Project?
Ms. Blaskey: Your Honor, that is a nonprofit 501-C3, and it’s funded by private donations and grants.
The Court: And accepting your statement as an officer of the court, they are authorized to represent capital defendants in state court proceedings?
Ms. Blaskey: Yes, Your Honor.
Primarily, as the name implies, we represent capital defendants in post-conviction proceedings. Since this is a direct appeal proceeding, if Your Honor were to appoint us, we could accept that as the Pennsylvania Capital Representation Project.
82 A.3d at 996-97 (Castille, C.J., concurring), quoting Petition to Withdraw as Counsel/Appointment of New Counsel Hearing, 6/21/2010, at 3-5.
With this background in mind, I proceed to discuss the pending Motions.
III. Motion for Recusal from Reargument
The FCDO argues that my recusal is “required” not because of anything relating to appellant’s cause or appeal, but because my Concurring Opinion commented upon the conduct of FCDO lawyers. The Motion says recusal is required because I “attacked” the “integrity, ethics and methods” of the FCDO. The Motion thus echoes other recusal motions the FCDO has filed, which confuse the dubious conduct of FCDO attorneys with the cause of their clients, and suggest that ethically questionable FCDO conduct, if commented upon by a jurist, requires removal of the jurist rather than, for example, better conduct by, or removal of, the FCDO as counsel. It is a strange position to maintain when the FCDO is neither appointed nor retained, but simply enters Pennsylvania capital cases as part of a pervasive private agenda. I have addressed the central theory before, most recently in my recusal Opinion in Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 29-33 (2012).
The Commonwealth responds by noting that the observations in my Concurring Opinion “were not intemperate, unjustified, indiscriminate or made extrajudicially in the media. Rather they directly reflect the misconduct of counsel for the defendant.” The Commonwealth also notes that the Motion ignores that another member of the Court, Mr. Justice McCaffery, joined my Concurring Opinion; a second Justice joined Part II of the Concurring Opinion, which proposed remedial briefing restrictions in light of the FCDO’s rampant abuses; a third Justice suggested that FCDO counsel be reported to the Disciplinary Board; and a majority of the Court joined Justice McCaffery’s Majority Opinion, which found multiple arguments raised by the FCDO on appeal to be frivolous. The Commonwealth notes that the FCDO “cannot engage in this type of behavior without reasonably expecting observation or consequence by the Court” and the FCDO “should not be rewarded with recusal for engaging in conduct designed to induce a motion for recusal.”
In the subsequent Withdrawal pleading, the FCDO does not address recusal specifically. Instead, the FCDO claims that (1) appellant’s primary concern is with resolution of his reargument application, and (2) “counsel deems withdrawal to be appropriate under all the circumstances.”
The FCDO Withdrawal pleading, construed as an Application for Relief seeking leave to withdraw the prior Motions, is granted as to the Motion for Recusal from Reargument. No recusal Motion remaining before the Court, I have participated in the Court’s unanimous decision to deny reargument.
IV. Motion for Withdrawal of Concurring Opinion
Withdrawal of Motion for Withdrawal of Concurring Opinion
(Construed as Motion for Leave to Withdraw)
The FCDO’s attempt to withdraw its Motion for Withdrawal of the Concurring Opinion is more problematic. As the Court’s per curiam Order of October 3, 2011, noted, the Withdrawal pleading includes argument, disputing the Court’s July 28, 2011 per curiam Order, which the FCDO had simply violated. Specifically, the Withdrawal pleading argues that the FCDO is authorized to engage in state capital PCRA litigation in advance of federal habeas corpus proceedings in order to exhaust federal habeas claims. The pleading further declares that the FCDO’s state court exhaustion activities are authorized under 18 U.S.C. § 3006A(c), which permits appointed federal counsel to represent clients in ancillary matters “appropriate to the proceedings.” As noted above, this interpretation of the governing federal statute is abjectly mistaken, and indeed is contradicted by the FCDO’s later account of the statute in its Verified Statement — ancillary matters cannot precede federal habeas review, and so litigation of a first PCRA petition cannot properly be ancillary to a federal court appointment for habeas purposes.
The Withdrawal pleading next declares that the FCDO disagrees with the Court’s determination that the information the FCDO was directed to provide in the Verified Statement, concerning its activity in Pennsylvania state courts, was necessary to evaluate the FCDO’s ancillary motions. The pleading argues that the attempted withdrawal, without leave of Court, “renders the matter moot.” In support, the FCDO claims that no case or controversy remains and, in a further collateral attack upon the Court’s July 28 Order, cites the minority view in Justice Todd’s Dissenting Statement. Finally, the FCDO collaterally attacks the Court’s July 28 Order by arguing that, even though it was withdrawing its prior Motions, the Court should vacate its order on mootness grounds.
The Commonwealth responds by disputing the FCDO’s predicate assumption that it has the power to unilaterally withdraw Motions this Court took under advisement and addressed in our per curiam Order. The Commonwealth argues that withdrawal of the FCDO’s motion will not put an end to the FCDO’s demonstrated abusive litigation tactics in state courts; withdrawal of the FCDO from unauthorized state court litigation is the only way to eliminate those ongoing abuses. In addition, the Commonwealth notes that the FCDO’s opinion that withdrawal is “appropriate” is immaterial, since that question is for the Court; and, in any event, the Commonwealth does not withdraw its Motion for Sanctions, which is premised upon the FCDO’s two ancillary Motions being frivolous. Respecting the FCDO’s disputation of the propriety of the July 28 order, the Commonwealth notes the FCDO’s failure to request reconsideration or a stay, and its choice instead to violate the Order and file a “Withdrawal” which “stat[ed] that this Honorable Court’s order is wrong and that they do not wish to litigate why.” Respecting the FCDO’s mootness assertion and its request to vacate the Order, the Commonwealth again notes the pendency of its Motion for Sanctions. The Commonwealth adds that the FCDO’s Motions, which are frivolous, nevertheless required the Commonwealth to expend time and money to prepare replies.
The Commonwealth also challenges substantive arguments in the FCDO’s Withdrawal pleading. The Commonwealth’s argument anticipates the view of the federal restrictions eventually acknowledged by Attorney Skipper in his subsequently-filed Verified Statement, because it is the only plausible view: i.e., the FCDO is not authorized, by virtue an appointment in federal habeas matters, to litigate capital PCRA petitions and appeals in advance of federal habeas under a federal statute allowing for appointment to pursue matters “ancillary” to federal habeas proceedings. The Commonwealth, like the FCDO and Judge McLaughlin, also identifies Harbison v. Bell as controlling, since Harbison held that the proper interplay of state collateral review and federal habeas review of state convictions means that federal habeas appointment and representation is appropriate only after state proceedings have concluded. Thus, Section 3599(e) only authorizes “federally funded counsel” to “represent her client in ‘subsequent’ stages of available judicial proceedings.” The Harbison Court emphasized:
State habeas is not a stage “subsequent” to federal habeas. Just the opposite: Petitioners must exhaust their claims in state court before seeking federal habeas relief. See [28 U.S.C.] § 2254(b)(1). That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.
556 U.S. at 189-90 & n. 7,129 S.Ct. 1481.
The Commonwealth adds that the FCDO’s description of a more expansive statutory authority in its Withdrawal pleading — a position the FCDO has now apparently reprised in the cases it removed to federal court — was rejected by the U.S. District Court for the Eastern District of Pennsylvania 17 years ago, in a memorandum decision in Wilson v. Horn, 1997 WL 137343, at *5 (E.D.Pa.1997), which held: “[A] motion for appointment of counsel filed under [the former version of Section 3599], before state habeas proceedings have been completed, does not permit qualified federally appointed counsel to represent a client in state habeas proceedings at federal expense. Federal jurisdiction may not be invoked as a shell to trigger federal funding of state habeas proceedings.” The Commonwealth notes that appellant’s PCRA appeal counsel, FCDO Attorney Dunham, was the lawyer who pursued and lost the shell-game argument in Wilson. In its relief paragraph, the Commonwealth requests a Rule to Show Cause requiring the FCDO to explain why it should not be held in contempt for flouting the Court’s July 28 order.
The FCDO cites no authority for its assumption that it can unilaterally withdraw pending Motions this Court has taken under advisement and acted upon, or for its related assumption that it may ignore the Order of the Court acting upon those Motions. In addition, the Withdrawal pleading contains argument disputing the Court’s authority and addressing the FCDO’s authority to appear in state court, and it requests relief from the Order. Furthermore, according to the FCDO itself (in opposing the Commonwealth’s initial request for sanctions), its Motions “raise legitimate points for consideration.” Answer to Motion for Sanctions, 4.
The question of whether the Court should direct an administrative accounting of the FCDO’s activities in Pennsylvania state courts and its authority to appear in our courts in order to dispose of the FCDO’s initial ancillary Motions was resolved by the July 28 per curiam order, which became final once the FCDO did not seek reconsideration. FCDO counsel was ordered to provide the information necessary to determine the FCDO’s Motions and the Commonwealth’s responsive Motion seeking sanctions. It is not for a litigant or his attorney to say whether a Court order is “necessary” or whether a matter, taken under advisement by the Court, has become moot, or whether counsel’s slant on mootness authorizes and allows counsel to defy an unambiguous Court order. In addition, the FCDO’s mootness argument was mistaken since it ignored the Commonwealth’s responsive Motion for Sanctions.
Under the circumstances, there is no basis to allow the FCDO to withdraw the Motion to Withdraw Concurring Opinion, as of right. Nor, construing the Withdrawal pleading as a request for leave to withdraw, has good cause (or any cause) been shown to grant such a request. The Motion to Withdraw made very serious allegations concerning the propriety and accuracy of my Concurring Opinion, and made definitive material assertions of fact in support of the allegations. As the FCDO itself admitted, the subject concerned an important issue: the propriety of the FCDO’s pervasive conduct and agenda in Pennsylvania capital cases. Notably, the FCDO’s initial allegations went uncorrected in its Withdrawal pleading, and those claims remain uncorrected, except for Attorney Skipper’s non-case-specific admission that Attorney Wiseman’s prior representation that the FCDO was in full compliance with federal rules and regulations was untrue. The Withdrawal pleading served other purposes, while disputing the per curiam Order the FCDO had ignored, and seeking its vacatur.
Furthermore, Attorney Skipper’s Verified Statement validates the Concurring Opinion’s concerns with the propriety of the FCDO’s use of federal taxpayer funding to support its pervasive private agenda in state capital proceedings — including in this case. The Verified Statement also raises concerns with the accuracy of averments in the Withdrawal pleading, since the account of the FCDO’s statutory authority and state court conduct related in the Verified Statement is materially different from the account of the FCDO’s “ancillary” authority and state court conduct alleged in the Withdrawal Motion, and the latest, shifting FCDO account is different still from Attorney’s Wiseman’s initial account respecting the FCDO’s conduct in Pennsylvania capital cases. The Withdrawal pleading also was filed only after a significant commitment of the Court’s resources. Finally, the Commonwealth was put to the time and expense of formulating responses and its resulting Motion for Sanctions was not negated by the FCDO’s violation of the Court’s order and its strategic filing.
For these reasons, the “Withdrawal” pleading of August 22, 2011, construed as an Application for Relief seeking leave to withdraw the prior Motions, is denied as to the Motion to Withdraw Concurring Opinion, and I will now proceed to dispose of that Motion on the merits.
V. Motion to Withdraw Concurring Opinion (FCDO Procedural Claims)
A. Full Court Referral
In the title of its Motion, the FCDO adverts to referral to the full Court, but the FCDO makes no further reference or supporting argument in the actual Motion itself. The request is subject to denial on that ground alone. I will not burden the Court with a referral of my own accord, given both the striking number of frivolous arguments in the Motion, and its overall obvious lack of merit.
B. Supreme Court Internal Operating Procedures (IOPs)
The FCDO first alleges that withdrawal of my Concurring Opinion is required because it “is not a proper concurring opinion” under Section 4(B)(2) of the Court’s IOPs. The FCDO cites the IOP “definition” of a concurring opinion and then alleges that, because my Concurring Opinion joined the Majority Opinion, it must be withdrawn. Motion, 1, 29. The Commonwealth responds that the FCDO misreads the IOPs, which create no substantive or procedural rights; that the Rules of Appellate Procedure do not permit the relief the FCDO seeks; and the FCDO cites no authority supporting the relief it seeks. The Commonwealth is correct; this FCDO argument is frivolous.
The FCDO misapprehends the text and purpose of the IOPs. First, as the Commonwealth notes, the FCDO fails to acknowledge IOP Section 1, which provides: “This manual of internal operating procedures is intended to implement Article V of the Constitution of Pennsylvania, statutory provisions, the Pennsylvania Rules of Appellate Procedure and the customs and traditions of this Court. No substantive or procedural rights are created, nor are any such rights diminished.” The IOPs create no rights. Second, nothing in the customs and traditions reflected in the IOPs purports to discourage, much less ban, joining concurrences. Indeed, Section 4(B) of the IOPs, the only subsection the FCDO cites, addresses only the “labeling” of opinions; it does not address or restrict the filing of opinions. Third, what the FCDO calls a subsection “defining” a “concurring opinion” in fact is a provision that is merely entitled “Concurrences and Dissents.” The subsection discusses and distinguishes the variety of responsive opinions premised upon the positions of the expressions with respect to the overall mandate; the subsection does not purport to ban responsive opinions, much less does it ban joining concurrences. Finally, the FCDO’s argument also misreads the select portion of the IOP it quotes: “An opinion is a ‘concurring opinion’ when it agrees with the result of the lead opinion. A Justice who agrees with the result of the lead opinion, but does not agree with the rationale supporting the lead opinion, in whole or in part, may write a separate ‘concurring opinion.’ ” This provision merely records the Court’s “custom and tradition” that a “concurring opinion” is one that “agrees with the result of the lead opinion,” which my Concurring Opinion expressly did. There are other types of concurrences, which do not agree with the lead opinion’s reasoning — hence the second sentence — but, they are not the only customary concurrences.
The FCDO notion of “banning” joining concurrences is ludicrous; indeed, such opinions are common. Justice Samuel A. Alito’s concurrence to the per curiam opinion in Bobby v. Van Hook, 558 U.S. 4, 13-14, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), respecting the limited relevance of the American Bar Association (“ABA”) guidelines for defense counsel in capital cases, which I further discuss below, was a joining concurrence. Likewise, the Court’s decision two years ago in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), concerning the constitutionality of mandatory life sentences without the possibility of parole for juvenile murderers, included a concurrence by Justice Stephen Breyer, joined by Justice Sonia Sotomayor, which began by stating, as my Concurring Opinion did, that he joined the Court’s opinion “in full.”
The FCDO request to withdraw my Concurring Opinion, based upon a misapprehension and misrepresentation of the Court’s IOPs, is dismissed as frivolous. Under no construction of the IOPs is withdrawal of an opinion required or authorized on the grounds the FCDO states; and nothing in the IOPs can remotely be read as taking the nonsensical position of forbidding a joining concurrence.
VI. The Merits — FCDO Substantive Claims
A. Alleged Unwarranted and Unfounded Accusations in Concurrence
Turning to its “merits” argument, the FCDO claims that my Concurring Opinion should be withdrawn because it makes “unwarranted and unfounded accusations against the FCDO.” The FCDO identifies three sub-points to this claim: (a) the Concurring Opinion allegedly reveals “misperceptions about the role and responsibility of capital post-conviction counsel”; (b) the Concurring Opinion allegedly makes unfounded assertions about particular actions taken by the FCDO; and (c) the Concurring Opinion allegedly was “incorrect” to suggest that the FCDO may be misusing federal funds to support its state court capital agenda because, in fact, “the FCDO ‘is in full compliance with applicable administrative rules and regulations and has a separate source of funding to support its [litigation in] state court.’ ” Motion, 2-3 (citation omitted). I will address the third argument first because the FCDO does so, and because the assertion that my Concurring Opinion was incorrect on this point was the subject of this Court’s Orders of July 28 and October 3, and Attorney Skipper’s Verified Statement. I have already explained the particulars of the FCDO’s claim that I was incorrect and the content of the Court’s responsive Orders; I have explained the Commonwealth’s response; I have summarized and analyzed the contents of the Verified Statement; and I have summarized other matters bearing upon the question of the FCDO’s authorization to pursue its private capital agenda in state court, and the propriety of diverting federal funding to support the agenda.
1. FCDO’s Misuse of Federal Funds to Litigate in State Court
The Verified Statement admits that Attorney Wiseman’s initial, unqualified representation that FCDO activities in state court were in full compliance with federal restrictions was false. The FCDO admits that its “allocation of costs” in unidentified prior cases violated federal administrative rules and regulations. Again, the FCDO does not provide the relevant rules and regulations, identify the cases where the violations occurred, or describe the nature and extent of the violations. In addition, as I have described above, the FCDO has resisted any inquiry into the particulars of its funding, in a series of cases it has removed to federal court, delaying countless Pennsylvania capital matters where its only involvement is as a consequence of its private death penalty agenda, and the delay is a direct product of that agenda.
The FCDO’s war on its ethical duty of candor to the Court aside, the fact remains that, as I have also carefully explained above, the averments in the Verified Statement convey that the FCDO’s diversion of federal grant funds to finance and pursue its private agenda in Pennsylvania state courts in capital cases has been pervasive and continuing, and embraces its commitment of extensive resources to abusively litigate this capital case both at the trial level and on appeal.
It is apparent that the FCDO long ago decided that it would divert federal funds to exhaust claims in initial PCRA petitions in capital cases, in advance of litigation of federal habeas corpus petitions, and without federal court authorization. This activity occurred (and presumably continues to occur, given the averments made in the Verified Statement) notwithstanding the FCDO’s eventual concession that it cannot properly devote federal grant funds to state court litigation absent federal court appointment for that specific purpose, and only in matters subsequent and ancillary to actual litigation of a federal habeas petition. This means that federal funding cannot be employed by a private entity like the FCDO to pursue its private agenda to “exhaust” claims in first capital PCRA petitions, since these are matters which, by definition, are litigated in advance of federal habeas review. Harbison, 556 U.S. at 189-90, 129 S.Ct. 1481. The FCDO’s activity also occurred notwithstanding that, as noted supra, a federal district court long ago specifically rejected its erroneous theory that federal habeas jurisdiction could be employed as a shell to trigger the expenditure of federal funds. Wilson v. Horn, 1997 WL 137343, at *5 (E.D.Pa.1997).
In my Concurring Opinion, I noted that the scope of the federal resources “deployed here, not to ensure a fair trial, but to try to prove that a presumptively competent trial lawyer was incompetent, is simply perverse.” I noted that, in this collateral proceeding (involving but one of the defendant’s three capital murder convictions), the FCDO “devoted, at a minimum, five lawyers, an investigator, multiple mitigation specialists, and multiple experts to the project. It inundated the PCRA court with prolix pleadings, including trivial and frivolous claims intermixed with more serious issues; it deployed multiple lawyers at hearings, who then attempted to conduct multiple and redundant examinations.” I further noted that the commitment of manpower alone was “beyond remarkable.” I also described the heavy burden on this Court arising from the abusive Brief the FCDO filed in this Court. Spotz, 18 A.3d at 332-33 (Castille, C.J., concurring, joined by McCaffery, J.).
As noted, the FCDO initially responded through Attorney Wiseman, claiming that, leaving aside the delay and obstruction arising from its commitment of resources and manner of litigating this case, I was incorrect to suggest that there was an issue respecting federalism because, according to Attorney Wiseman, the FCDO financed this extensive litigation, and indeed financed all of its state court capital PCRA litigation, with purely private funds. The Verified Statement now admits that Attorney Wiseman’s representation was false. In fact, there is nothing in the Verified Statement that calls into question the accuracy of my observations concerning the propriety and effect of the commitment of federal resources, derived from taxpayer revenue, to fund this sort of activity. Indeed, if anything, the situation is far more troubling. This is so because the FCDO’s averment that its activities here were properly ancillary to orders issued by Judge Munley— which implies that it legitimately supported its obstructionist foray here with federal funds — is mistaken. This fact, in turn, places the FCDO’s refusal to show that it has not misused federal funds in this case, or in other capital PCRA matters, in a more revealing light.
As I noted at the outset of this Opinion, the FCDO, obviously employing federal funds, has made itself into the de facto statewide capital defender, involving itself without court appointment or approval in a vast number of capital PCRA matters. In that self-appointing role, it insists, it is answerable to no Pennsylvania authority — not even to this Court, which supervises the practice of law, and has a special role in capital cases. The vast number of first petition capital PCRA matters in which the FCDO has involved itself, the restrictions of federal law concerning the use of federal funding, the FCDO’s initial, mistaken averments respecting what comprises proper activity “ancillary” to federal habeas appointments, and the reported statement of the President of the Defender Association all indicate that the FCDO’s diversion of federal funding has been deliberate, calculated, substantial and longstanding — and all in support of what can only be described as its private “agenda.” Whatever the specifics may be, the FCDO’s claim that my Concurring Opinion should be withdrawn because I was “incorrect” respecting the FCDO’s misuse of federal tax dollars is frivolous.
The FCDO’s latest averments to this Court portray it as a hybrid organization which may appear at will to pursue its private agenda in capital cases in Pennsylvania state courts, so long as it uses only private grant money to do so. In practice, as the Verified Statement admits, the FCDO has not properly managed this supposedly AO-approved hybrid arrangement; instead, its activities here, including the severe negative effects my Concurring Opinion described, were supported by a diversion of federal funding, a diversion not approved by any authority the FCDO has identified, or can identify. Moreover, the FCDO most recently sings a different tune in federal court — one which echoes the claim of the President of the Defender Association and Attorney Skipper’s initial claim that the organization in fact has been subsidizing its private state court anti-death penalty agenda with a diversion of federal grant funds all these years, in order to exhaust the claims of possible, future federal habeas clients. Irrespective of the FCDO song of the day, the tune remains the same: the FCDO’s pervasive activities in Pennsylvania capital cases have advanced the private group’s agenda.
2. Alleged Misperceptions about the Role of Capital PCRA Defense Counsel
The FCDO’s claim that my Concurring Opinion misperceives the role of capital PCRA defense counsel embraces a number of sub-arguments. Specifically, the FCDO takes issue with my comments on: the prolix and frivolous claims raised in its appeal Brief here and the commitment of federal resources to litigate the PCRA matter below; the burden the FCDO’s litigation agenda in capital cases places upon Pennsylvania courts; and the delays caused by the FCDO agenda. Respecting the sheer number of claims raised and its commitment of resources, the FCDO cites primarily to the “Guidelines” of the American Bar Association (“ABA”) as reported in a 2003 law review article. From this purported authority, the FCDO derives the central proposition that capital PCRA counsel on appeal are ethically required to litigate “all issues” counsel deem “arguably meritorious” — even if those claims were “previously presented.” Motion, 5. On the question of the bedrock ethical prohibition against raising frivolous claims, the FCDO cavalierly declares that “ ‘frivolous’ is often in the eye of the beholder.” Respecting this case, the FCDO asserts that the 70-plus claims and sub-claims it raised in its Brief “meet both the ‘arguably meritorious’ standard of the ABA Guidelines, and the standard of the Pennsylvania Rules of Professional Conduct, i.e., that a lawyer not raise a claim ‘unless there is a basis in law or fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.’ ” Motion, 7 (emphasis by FCDO). On the question of delays, the FCDO says that its tactics are not part of a strategy of delay, but rather, always derive from its estimation of the needs of individual clients.
Before turning to these individual objections, it bears noting that any evaluation of these arguments for withdrawal is affected by the fact that the FCDO forwards them in a pleading that claimed that its state court activities were supported exclusively by private funds, a claim the FCDO has since admitted was erroneous. Again, my Concurring Opinion did not merely describe the FCDO’s Brief and its extensive commitment of resources in this case, but did so in the context of a discussion of the propriety of a commitment of federal taxpayer dollars to support the sort of abusive litigation effort and tactics employed here and in other cases where the FCDO acts pursuant to its private agenda. The federalism context for the concerns I addressed remain, therefore, irrespective of the FCDO’s current objections to my commentary on its conduct.
A. - Delays Caused by the FCDO -
Remarkably, the FCDO forwards its objection to my commentary on its role in creating delay in capital PCRA matters without once addressing, or attempting to defend, the global federal motion it filed in Commonwealth v. Dougherty, 495 CAP. That federal motion, among other things, complained of delays in Pennsylvania capital cases, falsely claimed that the “inordinate delays” were the fault of the Pennsylvania Supreme Court, and baselessly accused the Court of being “incapable of managing its capital docket.” The requested relief was to allow Dougherty to bypass the Supreme Court altogether. In forwarding that broad accusation embracing all Pennsylvania capital cases, the FCDO failed to acknowledge its own deliberate role in delaying innumerable capital cases, including cases the FCDO specifically listed in the federal motion as its “proof’ of the Court’s supposed ineptitude. Thus, my discussion of delays caused by the FCDO occurred in the context of a discussion of the blatant misrepresentations the FCDO made in Dougherty, as well as the gratuitous burdens placed upon the Court by abusive briefs like the one the FCDO deliberately filed in this case-burdens which necessarily delay all other matters, capital and noncapital. See In re Reno, 55 Cal.4th 428, 146 Cal.Rptr.3d 297, 283 P.3d 1181, 1246-47 (2012). My discussion of multiple cases where FCDO litigation strategies unquestionably caused substantial PCRA delay was precise, detailed, and accurate.
Parenthetically, as I noted at the outset of this Opinion, I am not the only jurist to comment upon the substantial delays that result once the FCDO puts its private agenda into motion. One of the cases discussed in my Concurring Opinion, respecting FCDO delay tactics, was Commonwealth v. Abdul-Salaam, 606 Pa. 214, 996 A.2d 482 (2010). After yet another FCDO state court delay in that case, see Common wealth v. Abdul-Salaam, 615 Pa. 297, 42 A.3d 983 (2012) (per curiam decision on third PCRA petition), Abdul-Salaam finally proceeded to a merits disposition of his federal habeas petition, and Judge Jones of the Middle District noted the delay caused by Abdul-Salaam’s lawyers, who “are at bottom gaming a system and erecting roadblocks in aid of a singular goal — keeping Abdul-Salaam from being put to death. The result has been the meandering and even bizarre course this case has followed. Its time on our docket has spanned nearly all of our service as a federal judge — almost twelve years.” Abdul-Salaam v. Beard, 2014 WL 1653208, at *78. The attorneys of record in Abdul-Salaam v. Beard are the FCDO and Michael Wiseman. Abdul-Salaam’s judgment of sentence became final in 1996; the FCDO or its predecessor organization has since represented Abdul-Salaam on three PCRA petitions, two preceding the FCDO being appointed for federal habeas purposes, and all causing substantial delay.
Another point respecting Abdul-Salaam’s federal habeas petition warrants mention, since it is of a kind with the false accusations and tactics used by the FCDO in Dougherty. The trial prosecutor in Abdul-Salaam was J. Michael Eakin, who was later elected a Justice of this Court (and has never participated in any appeal involving Abdul-Salaam). The FCDO took the bald fact of Justice Eakin’s former service as a prosecutor and conjured a scurrilous accusation that, in denying relief on a Brady claim on Abdul-Salaam’s first PCRA appeal, the Pennsylvania Supreme Court sought only to shield Justice-elect Eakin; that, in rejecting the FCDO’s later attempts to relitigate the same basic claim, we demonstrated a bias against the FCDO and its “client”; and, as a result, no federal court deference was due to this Court’s decisions. Judge Jones summarily rejected the FCDO’s attempt to negate the role of this Court, noting: “All of these speculative assertions relative to bias are meritless. Abdul-Salaam and his counsel’s suggestion that the Pennsylvania Supreme Court was anything but professional and unbiased in its review and disposition of the issues is without foundation and in no way a justification for bypassing AEDPA [Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241(d) ] review of the state court decision at hand.” Abdulr-Salaam v. Beard, 2014 WL 1653208, at *23. In the beholding eye of the FCDO, the abject baselessness of a claim is no reason not to invent and pursue it.
The FCDO’s current complaint about my discussion of its delay tactics addresses cases in isolation, in an attempt to justify its substantial delay in each case. But, that FCDO quibbling, of course, begs the relevant point: whether lengthy delays in individual cases were “justified” from the perspective of the FCDO private agenda or not, the FCDO’s strategy and tactics unquestionably were the cause of the delays — not this Court’s alleged incompetence or dereliction, as the FCDO scurrilously alleged in Dougherty. No authorized entity appointed the FCDO to enter these cases where its appearance, pursuant to its private agenda, is invariably followed by years or decades of delay. Nothing the FCDO says concerning the delays it has caused alters the fact of the delays, or the fact that delay is a pervasive feature of FCDO litigation, when it suits its agenda.
My Concurring Opinion did not purport to be an exhaustive accounting of the delays the FCDO has achieved in pursuing its global agenda in capital cases. Take, for example, Commonwealth v. Edmiston, which appears on the list forwarded by the FCDO in its federal motion in Dougherty, and which has since been decided. Edmiston was delayed because the FCDO belatedly filed a motion for DNA testing in the context of a serial PCRA petition, years after the serial petition was filed and years after the DNA testing statute was enacted. Predictably enough, the FCDO filed the motion only as its serial PCRA petition was approaching decision. In reviewing the timeliness of the belated DNA testing motion on appeal, we held that: “our own review of the record and circumstances surrounding [Edmiston’s] post-conviction DNA testing request leads to the conclusion that this motion was untimely as a matter of law and was forwarded only to delay further the execution of the sentence.” Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339, 357 (2013).
Or, take the case of Craig Murphy, which tellingly was not included in the list appended to the false FCDO motion in Dougherty. That is because Murphy’s judgment of sentence was affirmed by this Court nineteen years ago, see Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995); and we affirmed the denial of relief on Murphy’s of-right PCRA petition fifteen years ago. Commonwealth v. Murphy, 559 Pa. 71, 739 A.2d 141 (1999). The FCDO has been representing Murphy ever since, and the case has not yet even proceeded to a decision in the federal district court. It appears, from review of the federal PACER docket, that a fully-briefed habeas petition has been pending for more than thirteen years; the last activity noted — Murphy’s response to the Commonwealth’s response to his presentation of new authority — occurred on October 10, 2001. See Murphy v. Horn, 2:00-cv-03101.
While the Murphy case lay dormant, with the judgment of sentence of death effectively subject to permanent federal injunction without reason, in 2006, the FCDO pursued a serial PCRA petition in state court, which was denied, and this Court affirmed the denial on time-bar grounds in 2009. Commonwealth v. Murphy, 601 Pa. 3, 970 A.2d 426 (2009) (per curiam). There is no indication on the PACER docket that the FCDO ever: filed a motion requesting a decision on the habeas petition; complained to the judge about the inaction; complained to the Third Circuit about the federal delay and inaction; apprised the district court of its foray into state court in 2006 to pursue a serial PCRA petition; or apprised the court of the result of that foray in 2009. Where is the motion of faux-outrage from the FCDO — which is actually appointed as counsel for Murphy for habeas purposes-to the federal district court judge or to the Third Circuit complaining of the unconscionable federal court delay in Murphy ?
Or, consider this case. Over two months before filing its Withdrawal pleading, the FCDO filed a 392-page habeas petition in federal district court on appellant’s behalf. A review of the federal PACER docket reveals that, as is typical, the FCDO then moved to stay that petition, noting that appellant was pursuing a PCRA attack on his noncapital homicide conviction arising from Clearfield County, which formed the basis for an aggravating circumstance in his three capital murder cases. Once the state collateral attack upon the Clearfield County conviction proved unsuccessful earlier this year, the FCDO filed motions to reactivate appellant’s other two capital habeas matters, but not this one. Called upon by the federal district court judge to explain its lapse, FCDO lawyers claimed that they “were under the erroneous assumption that the proceedings in this case had been stayed on both the pending Clearfield County state court proceedings and the absence of a final determination of [appellant’s] reargument motion that remains pending before the Pennsylvania Supreme Court. Counsel were wrong.” Spotz v. Wetzel, No: 3:02-CV-0614 (Petitioner’s Response to the Court’s July 16, 2014 Order).
These examples further confirm the deliberate falsity of the FCDO’s allegations about this Court, which it forwarded in the federal motion in Dougherty, in an attempt to secure a state court bypass. The FCDO’s current complaint about my Concurring Opinion ignores the context of its scurrilous federal motion in Dougherty and thus demonstrates another distressing lack of candor.
My commentary on FCDO tactics is not intended to suggest that capital defendants cannot avail themselves of legitimate procedures. But, if a defendant is interested in avoiding delays, there is nothing to keep him from going forward sooner. For purposes of the FCDO’s current complaint that my Concurring Opinion was wrong to comment on its pervasive conduct in causing delay, the FCDO well knows that I spoke in the context of the FCDO’s falsehoods in Dougherty. My Concurring Opinion remains true: the FCDO “obviously has no fixed position on delay.” Rather:
When delay advances their global litigation strategy, they do their best to grind state courts to a halt, as with their prolix pleadings and abusive briefing in this case, and their more extreme conduct and/or misconduct in cases like Banks, Abdulr-Salaam, and Bracey. When faux outrage about the delays their overall strategy necessarily induces serves their purpose, they forward that claim, accusing Pennsylvania courts of incompetence or laziness, their argument unencumbered by concerns for accuracy, honesty, and candor.
Commonwealth v. Spotz, 18 A.3d at 348-49 (2011) (Castille, C.J., concurring, joined by McCaffery, J.). Because the FCDO disingenuously fails to come to terms with the false position it formally staked out in Dougherty, this ground of complaint concerning my Concurring Opinion is contemptible.
Similarly disingenuous is the FCDO’s current allegation that my Concurring Opinion faulted it for merely seeking to expedite review in certain cases. Motion, at 24. My discussion of those expedition requests was in the context of the overall burden placed upon the Court by the FCDO’s federally-financed private litigation agenda. Indeed, the discussion followed immediately after I posed these questions:
Does it comport with principles of federalism for lawyers financed by the federal courts to so affect a state Supreme Court’s docket? Does it comport with principles of federalism for the federal courts to finance a group to enter state capital cases at will and pursue an agenda that inundates the PCRA courts and this Court with abusive pleadings and frivolous claims, with the apparent ultimate aim of attempting to bypass the state courts?
Spotz, 18 A.3d at 336 (Castille, C.J., concurring, joined by McCaffery, J.) (emphasis in original). Regarding motions for expedition, I then noted, “none of the motions mention the length of the [FCDO] briefs in the appeals, or the number of prolix claims, or the complexity of the proceedings and maneuverings below, or the overall and collective burden the [FCDO] has imposed on this Court.” Id. at 337. This observation remains true. This FCDO complaint, again ignoring context and characteristically lacking candor, is frivolous.
B - Quality and Numerosity of Claims -
I turn' next to the FCDO’s claim that I misperceive the role and obligations of capital PCRA defense counsel respecting the quality and numerosity of claims that must be pursued on state collateral attack. Notably, the FCDO never engages the specifics of my Concurring Opinion, but instead declares generically that it can “confidently assert” that all of the claims it raised here — and all of the claims it raises in all of its cases — are “arguably meritorious.” Motion, at 7. My commentary on the FCDO brief was not vague or generic; it was specific. The FCDO Brief here was exactly 100 pages, a length representing this Court’s indulgence since briefs, at that time, were not to exceed an already-generous 70 pages without leave of the Court. I noted in my Concurring Opinion that the FCDO flouted that indulgence by dispensing with required briefing elements, such as a Statement of the Case, thus creating space to burden the Court with more claims. I described with specificity other abuses in the Brief:
The Brief pretends to raise “only” 20 issues, which would be burdensome enough. But, within those twenty claims are multitudes of additional claims or sub-claims. My conservative count of the total number of distinct “claims” presented in the Defender’s Brief, including both derivative and subsidiary allegations, exceeds 70. How does the Defender manage to “litigate” 70 claims in a 100-page brief? It employs a number of additional tricks.
or example, in 100 pages of Brief, the Defender includes no less than 136 single-spaced footnotes, many of extreme length, and then routinely advances distinct substantive arguments in those footnotes. See, e.g., Initial Brief of Appellant, nn. 15, 18, 20-29, 32-33, 37-39, 43-51, 53, 59, 61-70, 72-77, 79-85, 94-95, 103, 107-18, 123-25, 127-34. The Defender also seizes more briefing space by single-spacing, and not indenting, its Statement of Questions Presented, making them virtually unreadable in the process. See, e.g., id. at 2 (containing 40 single-spaced lines of text running margin to margin). Another common Defender abuse, immediately recognizable to those of us charged -with attempting to read their Briefs, is to list distinct claims or sub-claims by single-spaced bullet point in text, essentially doubling the number of points to be made. To make the abuse worse, these bullet points often simply declare the subclaims without development or legal support; other times, the Defender will append footnotes, which may contain factual support or substantive argument, or may provide no meaningful development or explanation of the relevance of bald citations. See, e.g., id. at 29-30 & nn. 27-29; 47-48 & nn. 53-57; 53; 64-65 & nn. 82-83; 66-67 & nn. 86-92; 71-72 & nn. 96-101; 75-76; 83; 95-98 & nn. 125-34. The time-consuming burden is then placed on the Court to attempt to decipher the arguments.
Spotz, 18 A.3d at 333-34 (Castille, C.J., concurring, joined by McCaffery, J.).
Beauty may reside in the eye of the beholder, but the FCDO is certainly wrong in stating that the measure of what is legally frivolous is equally subjective and convenient. A claim lacking a basis in law or fact is frivolous. See, e.g., Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1190 (2011) (“A frivolous issue is one lacking in any basis in law or fact.”). It is frivolous to say that trial counsel is constitutionally obliged to object to every theoretically disputable word out of a trial prosecutor’s mouth, for example; meritorious ineffectiveness claims require more than merely identifying a potential objection. Boilerplate or undeveloped claims — such as the numerous skeletal claims in text, in footnote, and in bullet point included in the Brief in this case — are frivolous beyond question. No party can conceivably expect to prevail upon a claim identified only in the abstract, without explanation, development, context, and legal argument. See McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (“[a] lawyer ... has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court....”) (quotation omitted); accord Smith v. Pennsylvania Bd. of Probation and Parole, 524 Pa. 500, 574 A.2d 558, 563 (1990). The fact that the case is a capital one, and that the FCDO seeks to impede the death penalty to indulge its private political viewpoint, does not allow officers of the Court to abuse or pester the Court with frivolous claims. Chmiel, 30 A.3d at 1191.
Moreover, the FCDO briefing abuse in this ease is not atypical. Take, as a second example, Commonwealth v. Roney, 587 CAP, which was included in the list appended to the FCDO’s mendacious federal motion in Dougherty. The Roney appeal has since been decided. In my Concurring Opinion in Roney, I described the abuses in the FCDO’s initial brief, as well as the delay its litigation agenda caused in that case, as follows:
This appeal was pending when Spotz was decided, already having been briefed and submitted. Soon after Spotz was decided, however, this Court acted upon the fact that the FCDO brief in this case was abusive in the same fashion as the Spotz brief had been. Thus, by per curiam order, the Court directed that a conforming brief be filed:
AND NOW, this 9th day of June, 2011, upon review of the briefs in this submitted capital PCRA'appeal, the Court has determined that counsel for Appellant [the FCDO] have filed a brief that does not conform with the Pennsylvania Rules of Appellate Procedure.
•The non-conforming brief does not contain a Statement of the Case, the inclusion of which is described and is mandatory, pursuant to Pa.R.A.P. 2111(a)(5) and Pa. R.A.P. 2117. In addition, while purporting to raise thirteen issues, in actuality, by conservative count, the brief raises over seventy issues, many of which are undeveloped. Further, counsel have burdened the Court with seventy-eight single-spaced footnotes, many of which purport to raise substantive arguments. Accordingly, the indulgence of the Prothonotary’s May 4, 2010 administrative order granting leave to file a brief in excess of page limitation set forth in Pa.R.A.P. 2135(a)(1) having been abused, that order is hereby VACATED.
The Prothonotary is to return the Initial Brief for Appellant, along with the Appendix of Initial Brief of Appellant, to counsel for Appellant to file a brief conforming to the Rules of Appellate Procedure within thirty days of this order----Page limitations will be strictly enforced, and substantive arguments and sub-arguments are not to be set forth in footnotes or other compressed texts such as block quotations or single-spaced bullet points. Such practices facilitate violation of the restrictions on the length of briefs, and arguments set forth in such fashion will not be considered.
Order, 6/9/11.
The Court’s decision today, by a Majority Opinion in excess of seventy pages, is in response to the conforming briefs we directed in the wake of Spotz.
It is also notable, given the FCDO’s claims respecting delay in capital cases, that before filing its initial brief here, the FCDO requested seven extensions of time, including three requests forwarded after a directive that no further extensions would be granted. Those seven requests alone caused over seven months of delay. In all but the last of its extension requests, the FCDO cited to its workload, including its workload in state PCRA matters. Since the FCDO’s “voluntary” activities involving first-petition capital PCRA matters are not by way of federal court appointment, every delay occasioned by the organization due to manpower or workload is chargeable to the FCDO’s extensive private agenda in state court which, it is apparent, includes strategic delay. In the future, unless the FCDO is acting pursuant to explicit federal court appointment and authority to pursue an initial PCRA petition, I would not accept FCDO workload as a relevant or legitimate basis for delay in the PCRA courts, or on appeal in this Court.
Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 647 (2013) (Castille, C.J., concurring).
The FCDO claims that the defendant’s federal constitutional claims must be exhausted in state court in order to pursue the same claims on subsequent federal habeas review, if any such review should occur. Ignoring that federal habeas review is not the primary or exclusive focus of state court litigation, that collateral point is true enough. But, the federal exhaustion requirement does not mean that all possible claims (federal and state) must, may or should be presented in an appeal to the Commonwealth’s highest Court; and it certainly does not mean that all conceivable claims must be listed, even if only in vague, conclusory, skeletal or unintelligible fashion. To the contrary, the federal habeas exhaustion doctrine requires a fair presentation of federal claims to state courts. “Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to resolve the claim on the merits.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Deliberately abusing a state’s highest court with a list of bald assertions — as the FCDO deliberately did here — does not fairly articulate federal claims. A boilerplate declaration with a footnote containing unexplained citations does not fairly present and properly exhaust a federal claim. Rather, the tactic abuses and pesters the state court. And, nothing in the federal exhaustion requirement authorizes lawyers to ignore or subvert state court briefing rules and specific court orders governing the content, form, and length of briefs.
One additional fact — conveniently not addressed by the FCDO — makes clear just how deliberately abusive the FCDO Brief was in this case. The FCDO initially requested leave to file a brief of 137 pages in length — twice the authorized maximum. The request was largely boilerplate, apparently borrowed from a template where the request was to accept a brief of 100 pages. Thus, where the number “100” appeared in typeface, FCDO counsel crossed it out and scribbled in, “137.” This effort led to the following contradictory assertion concerning what this Court “routinely accepts:”
Because of these considerations, Appellee’s [sic] brief necessitated additional pages. The brief, however, has been edited to under 100 [‘TOO” crossed-out and “137” handwritten in] pages, pursuant to this Court’s usual policy in capital cases of accepting briefs of 100 pages or less____This Court has routinely granted such requests in capital cases, where the brief did not exceed 100 [“100” crossed-out and “137” handwritten in] pages.
Motion, 5/29/09, ¶¶ 10, 12. This Court has never routinely allowed “137 page” briefs in capital cases, and the Court specifically denied the cut-and-paste request here, leaving the FCDO with a still-indulgent authorization to file a brief of 100 pages. It is apparent that the Brief ultimately filed represented the FCDO’s deliberate flouting of a specific order rejecting a 137-page brief. Rather than comply with a Court order, the FCDO abused the Court, dispensing with a statement of the case, and jamming non-developed issues into bullet points and footnotes. This FCDO Brief is simply indefensible, which no doubt explains why the FCDO’s instant objection is vague, generic, and ultimately contemptuous.
The FCDO next attempts to justify the number and “quality” of the claims it “briefed” by citing standards it says are established by the ABA. The FCDO then argues that my “misperception” concerning the proper role of capital PCRA defense counsel is proven by consultation of the ABA’s 2003 “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.” See 31 Hofstra L.Rev. 913 (2003). The FCDO says that it takes its “approach to capital representation” from the 2003 ABA Guidelines. The FCDO argues that it would be easy to comply with briefing rules if the FCDO “raised only two or three claims in each brief,” but “it would be ethically improper for the FCDO to “winnow’ claims in that fashion” in a capital PCRA appeal. Rather, the FCDO states, it believes it has “an ethical duty to raise and exhaust claims on behalf of our clients.” The FCDO adds that its decision to raise innumerable claims follows the ABA’s preference, which urges capital collateral counsel to litigate all “arguably meritorious” claims and to beware that winnowing issues “can have fatal consequences.” Motion, 6, 29, quoting ABA Guidelines. This argument does not begin to excuse the abuses and excesses in the FCDO Brief here or in its capital litigation agenda generally. Indeed, the fact that the FCDO admits that its agenda in Pennsylvania cases follows this approach as a matter of routine is reason enough to remove it from all Pennsylvania capital cases.
First, the FCDO’s abuses in briefing here did not arise from the difficulty of raising four or five issues, rather than two or three. The FCDO raised over seventy issues or sub-issues. Second, the implied notion that the FCDO’s asserted “ethical duty” to raise all claims is an excuse to flout briefing rules, and specific briefing orders from the Court, obviously is frivolous. FCDO lawyers — like all lawyers — are obligated to obey court rules and orders, and to conform their strategies and agendas to that ethical reality. If the FCDO thinks that a state court briefing rule or court ruling violates the federal Constitution, the FCDO should be frank and raise and articulate that claim. But, the fact that a reasonable rule or ruling impedes the FCDO’s agenda does not grant the organization license to contemptuously flout both the restriction and the Court.
Finally, general guidelines and preferences expressed by the ABA, or by any other private organization for that matter (including the FCDO), obviously cannot justify any lawyer in ignoring court rules and rulings and then filing an abusive brief, littered with frivolous claims. The FCDO appears to suggest that the ABA would approve the abusive brief it filed here; I certainly hope that would not be the case. But, the ABA’s approval, or its disapproval of the FCDO’s conduct, is irrelevant. The conduct of counsel in capital PCRA matters is not governed by the opinions and suggestions of the ABA generally, or of the subcommittee that offered its idiosyncratic view on capital litigation — or by any other private group. No relevant governmental entity has delegated authority to the ABA or to any other group respecting the appropriate manner of litigating criminal cases generally, or capital PCRA matters explicitly. Indeed, this is the ABA’s own understanding. See, e.g., Brief of the ABA as Amicus Curiae in Martinez v. Ryan, 566 U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), at *3 (“The ABA Standards do not provide per se rules or a checklist for judicial evaluation of attorney performance, nor do they purport to establish the constitutional baseline for effective assistance of counsel.”). The practice of law in Pennsylvania is subject to the standards of the Supreme Court of Pennsylvania. The FCDO’s lawyers should take heed that their oath of office obliges them to “support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth;” to “discharge the duties of [their] office with fidelity, as well to the court as to the client;” and to “use no falsehood, nor delay the cause of any person for lucre or for malice.” 42 Pa.C.S. § 2522 (emphasis supplied).
Justice Samuel A. Alito, Jr., addressed the limited, tangential relevance of the ABA’s 2003 Guidelines as follows:
I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole. It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.
Bobby v. Van Hook, 558 U.S. at 13-14, 130 S.Ct. 13 (Alito, J., concurring).
I expressed a similar view the year before Van Hook:
I realize that Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] and later cases refer to American Bar Association-promulgated standards as guides for evaluating the reasonableness of attorney performance respecting mitigation investigations----However,
I would be wary of going too far with such observations, absent evaluation and adoption of such commands by those in authority in Pennsylvania, or an express command along those lines from the High Court. Moreover, the Court has recognized that applicability of the standards may be subject to dispute____ Of course, the ABA does much good work to advance the cause of justice. In recent years, however, the ABA has chosen to be a very active voice, almost invariably on the defense side, in criminal and particularly capital matters. Its activism in this regard has been pronounced enough to lead many prosecutors away from the organization. Notwithstanding the good work and dedication of the ABA generally, and its prestige, in this instance at least, I would keep in mind that its suggestions are those of a private organization, not answerable to the people’s voice or purse, offering one view, which does not necessarily account for the views of all with front-line experience in these matters.
Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1155 n. 10 (2008) (Castille, C.J., joined by McCaffery, J., concurring). See also Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 132 (2008) (“Appellant notes the [ABA] guidelines recommend two qualified trial attorneys should represent the defendant in death penalty cases. This Court has never endorsed or adopted the ABA guidelines in full. We do not do so now. Appointment of additional counsel is not a right; it is within the trial court’s discretion.”).
This view is not an outlier. The unanimous U.S. Supreme Court in Van Hook addressed at some length the limited relevance of the ABA Guidelines in identifying practice norms, and thus the inability of the ABA’s opinions to serve as a basis to assess attorney performance. In the process, the Court noted the stark difference in the “detailed prescriptions” found in the ABA’s totally reworked 2003 approach, which covered some 131 pages (perhaps reflecting both the ABA’s emerging oppositional stance on capital punishment as well as the oppositional orientation of the advisory committee that drafted the new guidelines, see 31 Hofstra L. Rev. at 914 (listing affiliations of members of advisory Committee)), as compared to its simpler, more neutral, previous Guidelines. The High Court also criticized the 2003 Guidelines because of their lack of flexibility and warned courts against treating the ABA’s revamped private views as “inexorable commands”:
The Sixth Amendment entitles criminal defendants to the “‘effective assistance of counsel’” — that is, representation that does not fall “below an objective standard of reasonableness” in light of “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). That standard is necessarily a general one. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” 466 U.S. at 688-689,104 S.Ct. 2052. Restatements of professional standards, we have recognized, can be useful as “guides” to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. Id., at 688,104 S.Ct. 2052.
The Sixth Circuit ignored this limiting principle, relying on ABA guidelines announced 18 years after Van Hook went to trial. See 560 F.3d, at 526-528 (quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7, comment, pp. 81-83 (rev. ed.2003)). The ABA standards in effect in 1985 described defense counsel’s duty to investigate both the merits and mitigating circumstances in general terms: “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.” 1 ABA Standards for Criminal Justice 4-4.1, p. 4-53 (2d ed. 1980). The accompanying two-page commentary noted that defense counsel have “a substantial and important role to perform in raising mitigating factors,” and that “[information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself.” Id., at 4-55.
Quite different are the ABA’s 131-page “Guidelines” for capital defense counsel, published in 2003, on which the Sixth Circuit relied. Those directives expanded what had been (in the 1980 Standards) a broad outline of defense counsel’s duties in all criminal cases into detailed prescriptions for legal representation of capital defendants. They discuss the duty to investigate mitigating evidence in exhaustive detail, specifying what attorneys should look for, where to look, and when to begin. See ABA Guidelines 10.7, comment, at 80-85. They include, for example, the requirement that counsel’s investigation cover every period of the defendant’s life from “the moment of conception,” id., at 81, and that counsel contact “virtually everyone ... who knew [the defendant] and his family” and obtain records “concerning not only the client, but also his parents, grandparents, siblings, and children,” id., at 83. Judging counsel’s conduct in the 1980’s on the basis of these 2003 Guidelines — without even pausing to consider whether they reflected the prevailing professional practice at the time of the trial — was error.
To make matters worse, the Court of Appeals (following Circuit precedent) treated the ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel “ ‘must fully comply.’ ” 560 F.3d at 526____ Strickland stressed, however, that “American Bar Association standards and the like” are “only guides” to what reasonableness means, not its definition. 466 U.S. at 688, 104 S.Ct. 2052. We have since regarded them as such. See Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527,156 L.Ed.2d 471 (2003). What we have said of state requirements is a fortiori true of standards set by private organizations: “[WJhile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one .general requirement: that counsel make objectively reasonable choices.” Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
Van Hook, 558 U.S. at 7-9, 130 S.Ct. 13. Accord Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 1407, 179 L.Ed.2d 557 (2011) (identifying proper Strickland measure as “the standard of professional competence in capital cases that prevailed in Los Angeles in 1984” (the time and place of trial); noting also relevance of whether strategy employed was one in use by defense bar at relevant time).
In short, the Constitutions (state and federal), the Rules of Professional Conduct established by this Court, and norms and standards of practice, which respect the wide latitude afforded counsel, are the proper measure of counsel’s “ethical duties,” not the opinions or preferences of private groups, answerable to a different agenda. Advocacy that is both effective and ethical in capital PCRA appeals is little different than advocacy in any other appeal: counsel must act ethically, follow the rules and obey court orders, and should focus on strong claims. Counsel should never litter a PCRA petition or brief, and thereby “pester” any court, with limitless weaker claims and sub-claims — much less undeveloped or fragmentary claims. Contrary to the erroneous private views of the FCDO, “[t]he law does not require counsel to raise every available nonfrivolous defense.” Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); accord Jones, 463 U.S. at 751-52, 103 S.Ct. 3308 (“experienced advocates since time beyond memory emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues”); id. at 754, 103 S.Ct. 3308 (“For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every colorable claim suggested by a client would disservice the very goal of vigorous and effective advocacy.”). Thus, “ethical and diligent counsel may winnow the available claims so as to maximize the likelihood of obtaining relief.” In re Reno, 146 Cal.Rptr.3d 297, 283 P.3d at 1212 (citing Jones). And, there are simply no circumstances that allow counsel to deliberately flout briefing rules and rulings merely to add more claims to abuse an appellate court, exhaust its time and resources, foster delay, and manufacture a platform to file the sort of scurrilous claims the FCDO forwarded in, for example, Dougherty and Abdul-Salaam. Yet, that is precisely what the FCDO has done in this case, not only with its inexcusably abusive brief, but with this frivolous and disingenuous Motion, which refuses to take responsibility for multiple, obvious ethical derelictions.
The California Supreme Court in Reno well expressed the proper balance. After summarizing the Van Hook Court’s criticism of reliance upon the private opinions powering the 2003 ABA Guidelines, the Reno court noted:
We agree with the high court’s characterization of the ABA Guidelines. California, consistent with federal law, requires that counsel — including in capital cases — make objectively reasonable choices according to prevailing professional norms____To the extent petitioner relies on the ABA Guidelines’ directives that “[p]ost-conviction counsel should seek to litigate all issues, whether or not previously presented” (ABA Guidelines, guideline 10.15.1(C), italics added), and that counsel is required to preserve “ ‘any and all conceivable errors ’ ” (ABA Guidelines, p. 87, italics added), to justify his position that postconviction counsel in capital cases is ethically bound to raise defaulted claims in an exhaustion petition, we reject the point because the ABA Guidelines require much more of counsel than is required by state and federal law governing ineffective assistance of counsel.
146 Cal.Rptr.3d 297, 283 P.3d at 1213 (citations omitted). See id. 146 Cal.Rptr.3d 297, 283 P.3d at 1214 (“The ABA Guidelines thus recommend a higher level of rigor than does this court or the United States Constitution.”).
In short, the FCDO’s generic and unapologetic defense of its abusive briefing approach in capital PCRA appeals where it has injected itself as counsel in pursuit of its private agenda, premised upon the private preferences reflected in the 2003 ABA Guidelines, provides zero justification for the Brief it filed and the briefing order it contemptuously flouted in this case. Thus, the FCDO’s current complaint provides no basis for the withdrawal of my Concurring Opinion on grounds that I, rather than the FCDO, “misperceive” the “proper” role of capital PCRA counsel. The actual governing principle for ethical capital PCRA counsel is to make reasonable choices in determining which issues to pursue, so as not to pester the court and cause delay just for the sake of delay; to candidly acknowledge governing law; and to file professional pleadings that conform to court rules, court rulings, and the actual ethical standards governing our profession. Legitimate representation, however zealous, does not embrace a scorched earth policy of listing all possible claims, developing them erratically or not at all, flouting court rulings, seeking to manipulate procedural defaults, placing the burden upon the Court to drop all other matters in an attempt to decipher the Brief, and then further wasting the Court’s time and resources when ethical lapses are noted. The governing standard does not encompass, require, or approve inundation of the PCRA courts, or of this Court on appeal, with undeveloped claims and sub-claims, or other abjectly frivolous claims. No good lawyer would do this: unless a private agenda was at work.
C. - FCDO Agenda -
I turn next to the FCDO’s complaint that my Concurring Opinion comments on the burden its global litigation agenda in capital cases has placed upon Pennsylvania courts. The FCDO declares that it has no such agenda. However, the legitimacy of that position is tied to the FCDO’s proffered justification for its manner of litigation, including its disingenuous stances that frivolous claims are not objectively measurable, that it is ethically required to raise all non-frivolous claims, and that its ethical duties justify it in flouting briefing rules and Court orders. I have already addressed these mistaken notions. Moreover, it bears repeating that the FCDO, despite burdening the Court with this Motion, never attempts to defend the actual Brief it filed in this case except through generic, and mistaken, assertions. The FCDO’s manner of litigation unquestionably has caused substantial delay, and has required an unwarranted commitment of the Court’s resources to wade through multiple, abusive pleadings.
It also warrants emphasis that the FCDO does not just abuse this Court with its scorched-earth private litigation agenda in capital cases; it gratuitously overtaxes the trial courts as well, as I explained in my Concurring Opinion detailing the excessive, abusive FCDO effort here. At the outset of this Opinion, I quoted the trial court’s opinion in Commonwealth v. Eichinger, 657 CAP, detailing a similar effort. Judge Carpenter’s opinion noted, inter alia, that:
This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. This Court had to devote twenty two full and partial days to hearings. To carry out the daily business of this Court visiting Senior Judges were brought in. The District Attorney’s capital litigation budget had to have been impacted. With seemingly unlimited access to funding, the Federal Defender came with two or three attorneys, and usually two assistants. They flew in witnesses from around the Country. Additionally, they raised overlapping issues, issues that were previously litigated, and issues that were contrary to Pennsylvania Supreme Court holdings or otherwise lacked merit.
Opinion, Carpenter, J., July 25, 2012, at 1-2.
Furthermore, laying aside the diversion of federal funds to support the FCDO’s “private” activities in Pennsylvania capital cases, the FCDO’s own description of its basis for appearing in Pennsylvania cases without court appointment or other authorization corroborates that it acts in pursuit of a private agenda. The FCDO has not been retained by the scores of indigent capital defendants it has been representing with federal resources. Instead, the FCDO embarked upon a deliberate course to secure for itself the statewide role of primary counsel for capital PCRA petitioners through some form of private, “volunteer” arrangements with individual defendants. An agenda involving such arrangements invites abuse, and this case demonstrates how that can entail abusive briefing.
No court appointed the FCDO to assist appellant in filing his PCRA petition. Appellant either asked the FCDO to assist him or the FCDO solicited appellant, offering its “free” services and ability to deploy vast federal resources in state court, and he agreed. Lawyers owe competing duties: to their clients primarily, but they are also constrained by core ethical duties to the court. This reality can create tensions in any criminal case, especially with difficult clients, and the stakes are higher in capital cases. Nevertheless, no lawyer is authorized to abuse a court, by raising frivolous claims, or flouting a court briefing order, to appease a client. In some cases, the lawyer must stand up to the client, or the client must pursue his own cause.
A client who disagrees with his lawyer can fire the lawyer, if he is retained; or seek new counsel, if the lawyer is appointed; or seek appointed counsel, if he is indigent and the lawyer is a “volunteer” “private” lawyer; or he can represent himself, if he cannot otherwise be satisfied. A criminal defendant, like citizens generally, has a right to self-representation, even if his lawyer thinks self-representation is a bad idea; and he certainly has a right to refuse the unwanted assistance of non-retained, non-appointed, “volunteer” “private” federal lawyers pursuing their own agenda. But, none of these scenarios ever authorize an officer of the court — retained, appointed, or volunteer — to abuse and burden the court, whether to indulge the client or for any other reason. General questions of ethics aside, the only lawyer who would have difficulty navigating these shoals is one who decides that remaining in the case at all costs is the prime directive. And, that is where the FCDO’s special political agenda comes in: not only is the FCDO obviously willing to abuse the court to keep its client happy — which is even in question here (as explained infra)— but the FCDO has demonstrated in multiple cases the lengths to which it will go to remain in a case against its client’s wishes, as I noted in my Concurring Opinion. Spotz, 18 A.3d at 339 (Castille, C.J., concurring, joined by McCaffery, J.) (discussing, inter alia, Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 290 (2010); Commonwealth v. Saranchak, 570 Pa. 521, 810 A.2d 1197, 1198 (2002); and Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565 (2008)).
Lawyers operating pursuant to a pervasive private agenda in capital cases can cause other mischief, as well. Pennsylvania has a policy against “hybrid” representation, that is, we typically do not consider the merits of pro se briefs or motions filed by counseled defendants. See Commonwealth v. Reid, 537 Pa. 167, 642 A.2d 453, 462 (1994); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (1993). This system assumes honest and responsible lawyers. When a court receives pro se communications from a represented client, it ordinarily waits for the lawyer to respond or act, albeit courts obviously retain the discretion to direct counsel to respond. Lawyers with agendas in tension with the wishes of their clients, however, may game this arrangement to act contrary to the wishes of their clients. So, for example, in this case, appellant sent a letter to the Supreme Court Prothonotary, dated January 4, 2012 (stamped received on January 9, 2012), relating the following (bold emphasis added):
Dear Prothonotary:
I am a death row inmate. I have 2 capital appeals pending before this court [576 CAP and 610 CAP]. I want to waive those appeals. I do not know my case numbers and my lawyers will not file this waiver for me. Please, I beg of you, please file this letter into the record and present it to the judge so that I can be executed.
Thank you for your kindness and mercy.
Sincerely,
/s/
Mark Spotz
The same day, appellant directed a separate letter, addressed to myself, with a “Re” line entitled “WAIVER OF CAPITAL CASE APPEALS,” stating that he “should have been executed a long time ago,” no longer wished to pursue his appeal, and saying “allow no one to interfere.” The letter is courtesy copied to three FCDO lawyers.
The FCDO has filed no motions in light of these pro se communications, and according to appellant at least, refused to do so, against his wishes. If the appeals were not already concluded, remand would be required to ensure that appellant’s expressed cause is pursued, and not a contrary private agenda of the FCDO.
There is a documented, earlier tension between the FCDO and appellant. On November 18, 2008, appellant filed a pro se petition to remove the FCDO and to allow him to proceed pro se on PCRA appeal. Appellant alleged that there were claims he had made counsel aware of, but that counsel had not raised below. Appellant said that if the FCDO “is not going to fully litigate all meritorious issues on appeal, which they have failed to do,” then appellant would prefer to represent himself, as was his right. Five months later, appellant withdrew the Motion, stating that he had since met with counsel in person and spoken to counsel over the telephone. Appellant stated that, “I do not want to proceed pro se. I want to be represented by current counsel, but I want counsel to raise all available issues.” Motion, 3/10/09, ¶ 4 (emphasis supplied).
This circumstance may explain why the FCDO would file something so blatantly contemptuous as the Brief in this case, after the Court had specifically denied the request to file the 137-page brief it initially prepared. The FCDO apparently determined that it had to make its “client” happy, even if it meant abusing the Court, so that the FCDO could remain in the case; the FCDO’s “stay in the case at all costs” agenda trumped its core ethical obligations to the Court. This circumstance does not happen absent the dynamic of the federally-financed FCDO “volunteering” its “private” services to clients who are not obliged to accept the offer. All lawyers without such an agenda properly resist demands from a client that require unethical conduct. But, a lawyer or organization with a political agenda to remain in a case — indeed, in all capital cases at all costs — but subject to being “fired” by the client, is tempted by a different calculus. It appears that the FCDO indulged that temptation here, simply ignoring its lawyers’ duties as officers of the Court.
The additional specifics of the FCDO’s agenda are shrouded in the mystery of its hybrid status, the precise extent of its involvement in Pennsylvania capital cases, the true extent of its past and present diversion of federal funds, its relationship to the AO and the federal courts when it engages in so-called “private” state court litigation, and the actual manner in which it has managed to monopolize Pennsylvania capital cases without answering to any legitimate authority. The FCDO’s strategic refusal to be candid — to, in the words of our order in Mitchell, take the modest step of “demonstrating] that its actions here were all privately financed, and convincingly attest that this will remain the case going forward” — combined with its self-assumption of the central role of capital defense in Pennsylvania, requires a response from Pennsylvania, and an institutional response from this Court, which I address in Part VII below. For present purposes of evaluating the claim that I am required to withdraw my Concurring Opinion, the FCDO has alleged nothing to diminish the demonstrated, multiple concerns with the obstructionist intention and effects of its private litigation agenda in Pennsylvania courts, as revealed by its conduct in this case, and in many other cases.
For all of the above reasons, the FCDO has identified no reason why I should withdraw my Concurring Opinion. The request is denied.
VII. Remedial Measures — Short Term
In my Concurring Opinion, I made suggestions respecting appellate briefing in capital PCRA matters, “[t]o curb the rampant abuses in this case and other cases”:
(1) Direct the Supreme Court Prothonotary to immediately reinstate a briefing limit of 70 pages in capital PCRA appeals, with no exceptions absent: (a) a showing of extraordinary circumstances; and (b) the explicit concurrence of the Commonwealth.
(2) Direct the Supreme Court Prothonotary to amend briefing notices to advise parties that: (a) substantive arguments and sub-arguments are not to be set forth in footnotes or other compressed texts, such as block quotes or single-spaced bullet points, since such practices facilitate violation of the restrictions on the length of briefs; and (b) arguments set forth in such fashion will not be considered. I would also refer the matter to the Appellate Procedural Rules Committee to recommend changes to our Rules to curb these abuses, including: (a) limitations on the number of words in a brief, such as are found in the Federal Rules, and (b) required certification from counsel that the brief is compliant.
18 A.3d at 349 (Castille, C. J., concurring, joined by McCaffery and Orie Melvin, JJ., on this point). As noted, with the exception of its eventual admission to diverting federal funds to support its state court activities, the FCDO has failed to take responsibility for its abusive litigation activities in Pennsylvania courts, including its disingenuous and infantile claim that there was nothing inappropriate in the way it briefed this appeal and litigated this case. I have explained why the posture so assumed has merely compounded the initial abuse, thus wasting more of the Court’s time and resources.
Even indulging the fiction that the FCDO believes what it has said, the Court has already implemented measures along the lines that I suggested, beginning immediately after the decision in this case. For example, the Court’s briefing notice in capital PCRA appeals was amended to provide that page limitations would be strictly enforced, that “substantive arguments and sub-arguments are not to be set forth in footnotes or other compressed texts, such as block quotations or single-spaced bullet points,” and that points set forth in such a manner would not be considered. This amendment was a direct response to FCDO briefing abuses.
Furthermore, the Appellate Court Procedural Rules Committee responded to the concerns by proposing revisions to the Appellate Rules to rein in the kind of abuses routinely found in FCDO briefs. These revisions were approved by the Court in an order entered on March 27, 2013. Tracking aspects of the federal rules of appellate procedure, the revisions set forth restrictions on the font size used in briefs, see Pa.R.A.P. 124, and change the method by which to measure the length of briefs. See Pa.R.A.P. 2135. A principal brief, for example, is limited to 14,000 words, unless the brief does not exceed thirty pages. The revised rules also require that counsel file a certificate of compliance if, for example, a principal brief exceeds thirty pages and is measured by use of the word count alternative. Id.
The significance of what these changes they say about FCDO abuses should not be overlooked. The Court has always had very flexible briefing rules. The Court had no previous occasion to adopt such explicit rules of limitation, because there was no need to: the professionalism of Pennsylvania lawyers resulted in responsible attorneys generally not
flouting the flexible rules. And then, the federally-financed FCDO came along, in pursuit of its private agenda, and contemptuous of practice rules.
Reforms to rein in abuses at the appellate level only address the back-end of the problem. There is also the question of whether similar reforms should be made to the Rules of Criminal Procedure governing PCRA practice, to ensure that the trial courts no longer are overwhelmed with prolix and abusive pleadings and amendments. The Court’s Criminal Procedural Rules Committee has recently published for public comment proposed revisions to Rules 905-909 which, if adopted, should help to rein in abuses. See 44 Pa. Bull. 27 (July 5, 2014).
VIII. Remedial Measures — Long Term
The revelations in this case and in other pending capital PCRA matters where the FCDO has involved itself, making clear that the obstructionist agenda of the FCDO affects the vast majority all Pennsylvania capital PCRA cases, also make clear that foundational measures beyond rewriting briefing and pleading rules are necessary. Pennsylvania simply cannot allow the FCDO to continue in its self-appointed but unauthorized, role as default defense counsel in capital PCRA matters, employing scorched-earth tactics, designed to grind capital cases to a halt. The FCDO should redirect its death penalty abolitionist energy to the political process, where it belongs.
Pennsylvania has an obligation in capital PCRA matters not to subvert the current law, which allows for capital punishment, but rather to provide indigent defendants with trained, competent, ethical, and appropriately compensated counsel, with access to necessary support resources. It is not for some private organization, with a private agenda, and answering to no Pennsylvania authority, to assume for itself the central statewide role of providing defense services. This would be so even if the FCDO were not pursuing an obstructionist agenda, supported with a diversion of federal taxpayer money.
The picture that has emerged is that the well-heeled FCDO has managed to insinuate itself into Pennsylvania cases to such an extent that it now assumes control over an overwhelming percentage of capital PCRA cases. Given budgetary constraints at the state and county level within Pennsylvania, and the FCDO’s bloated federal budget, it is not difficult to see how the FCDO managed to install itself on a case-by-case, county-by-county basis. As I noted in my Concurring Opinion: “The provision of federally-financed lawyers for state capital PCRA petitioners appears benign on its face and welcome; it spares Pennsylvania taxpayers the direct expense of state-appointed counsel.” 18 A.3d at 335. But, I went on to explain:
[T]hat veneer ignores the reality of the time lost and the expenses generated in the face of the resources and litigation agenda of the [FCDO]. Capital cases, like criminal cases generally, are highly individualized. Each case is invariably about one defendant and one primary capital crime; and the defense lawyer has a duty of zealous advocacy in advancing his client’s cause, within the ethical limits that govern all Pennsylvania lawyers, whether they are paid by the federal government or not. But, the [FCDO] has the resources and the luxury to pursue a more global agenda, and its conduct to date strongly suggests that, if it once engaged in mere legitimate zealous defense of particular clients, it has progressed to the zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania.
Id.
The reality is that the FCDO has deliberately overburdened the state courts with its resources and tactics, and its tentacles can be found in other stages of litigation as well, including amicus work on behalf of foreign governments and their citizens who commit murders in the United States. No Pennsylvania authority has approved this arrangement, no Pennsylvania authority oversees the arrangement, and the FCDO operates in a shroud of secrecy. Neither Pennsylvania generally, nor this Court specifically, is obliged to sit back and allow this private group, pursuing a private agenda, with federal taxpayer funds, employing obstructionist tactics, to assume this statewide function. Whatever relationship the FCDO has with the federal AO, when its lawyers appear in state court, it is only by this Court’s leave, as members of the Pennsylvania bar.
A further concern — one which is a unique function of the FCDO global agenda and its federal funding, expertise and orientation — must be noted. As detailed in my Concurring Opinion, the FCDO takes tactical stances in cases which are designed, not just to seek collateral relief in state court on substantive state and federal claims while also fairly exhausting federal claims, but to lay the groundwork for federal habeas positions designed to undermine Pennsylvania law, and sovereignty, across the board:
A competent appellate lawyer without a global agenda, intent on having his client’s issues actually heard on appeal, would never deliberately ignore a Rule 1925 order [thereby waiving the defendant’s claims on appeal]. But, the [FCDO] is financed and positioned to strategize differently and globally. In Pennsylvania capital cases, the [FCDO] routinely argues in federal habeas court that various Pennsylvania procedural default rules are arbitrarily applied, and therefore should be ignored. The reward, if the federal court accepts the argument, is de novo federal review, unimpeded by state court findings, and unimpeded by the federal habeas standard of review requiring deference to state court decisions. The result of this perverse system of incentives for professional capital counsel who ping-pong back and forth between state and federal courts, and who have seemingly inexhaustible federal resources and ample cases to choose from, is an opportunity and incentive to feign that they do not know how to comply with state procedural rules, see [Commonwealth v.] Steele [599 Pa. 341], 961 A.2d [786], 834-38 [(Pa.2008)] (Castille, C.J., joined by McCaffery, J., concurring); and in the process attempt to generate “uneven” procedural default rulings by the state courts. Then, counsel will proceed to argue in federal court that the particular default rule should be ignored in all cases. The state response, faced with continuing federal criticism that our procedural rules have too much discretionary flexibility to be considered legitimate expressions of state sovereignty, is to adopt less flexible rules. Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1150 (2008) (Castille, C.J., joined by McCaffery, J., concurring) (“The threat of dismissive federal responses to flexible state procedural rules can lead to state legislatures and courts adopting ever-more inflexible rules.”).
But, for those with the luxury to pursue a global agenda, this refinement does not end the incentive to create disruption in state court; it just requires a shift in strategy. Faced with a clear, simple, and known rule such as Appellate Rule 1925, counsel can ratchet up the stakes by deliberately engaging in the most overt of defaults, daring the state court to apply its “inflexible” Rule. If the state devises an exception, the [FCDO] will then proceed to federal court, in all eases involving Rule 1925 waivers and say; “Aha, they do not always follow the default; you may ignore it and consider my claims de novo.”
Spotz, 18 A.3d at 343-44 (Castille, C.J., joined by McCaffery, J., concurring) (describing FCDO tactics in Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484 (2011)). It is one thing if a state, of its own devices, adopts procedural mechanisms that are unevenly or unfairly applied, and unreasonably burden the ability to litigate federal claims. But, it is quite another thing to have a federally-financed, but non-accountable, private organization deliberately inject itself into state court cases so that it can foster and create those situations, as part of a strategy to subvert the proper role of state courts in favor of de novo federal review. That is simply unethical and improper. Pennsylvania cannot abide this agenda.
The FCDO conduct in Dougherty is another example of this pernicious effect: the FCDO, the prime source of delay in capital PCRA litigation, walks into federal court, falsely blames all delay in all capital cases on this Court, and then argues that the effects of the delay are a valid reason to subvert state court processes. Or, consider Abdulr-Salaam, where the FCDO conjures up a claim involving a false accusation that this Court had an outright corrupt motivation in its rejection of one of the defendant’s claims, and then asserts in federal habeas that its false accusation is a basis for ignoring this Court’s decision on the merits.
A recent change in habeas review represented by the U.S. Supreme Court’s decision in Martinez v. Ryan, 566 U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), will invite further abuses if the FCDO’s obstructionist agenda is permitted to continue. This Court explained the holding and effect of Martinez in Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013):
The Martinez Court recognized that there are “sound reasons” for a state to defer consideration of ineffectiveness claims to collateral review: e.g., such claims often depend upon evidence outside the trial record; direct appeal may not be as effective as other proceedings for developing such claims; and there may not be adequate time within governing appellate rules to allow for necessary expansion of the record. Martinez, 566 U.S. at -, 132 S.Ct. at 1318.... However, the Martinez Court held, there are “consequences” arising from the choice to defer ineffectiveness claims that will affect the State’s ability to argue, upon later federal habeas review, that the defendant defaulted trial counsel ineffectiveness claims by failing to raise them in state court. “By deliberately choosing to move trial ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners’ ability to file such claims. It is within the context of this state procedural framework that counsel’s ineffectiveness in an initial-review collateral proceeding qualifies as cause for a procedural default.” 566 U.S. at-, 132 S.Ct. at 1318....
Martinez is significant in its emphasis on the centrality of claims of ineffective assistance of trial counsel. Indeed, the Court stressed at some length the “bedrock” importance of effective counsel at trial and the derivative importance of opportunities to litigate claims of trial counsel ineffectiveness, which the Court went so far as to characterize as claims of “trial error.” Id. at-, 132 S.Ct. at 1317-18. ... The Court’s cause and prejudice holding, in essence, created a federal safety valve to allow for a third level of review — exclusively federal — if the subject claim involved a trial default, and initial collateral review counsel did not recognize it.
Id. at 582-83. Given the prior conduct of the FCDO in deliberately seeking to create state procedural defaults that will not be honored by federal habeas courts, the organization can be expected to manipulate claims they raise in state court, in order to take advantage of the Martinez exception. It is far better to have capital PCRA matters handled by lawyers who do not pursue such global, unethical agendas, but who instead ethically and zealously pursue their client’s cause.
Finally, the FCDO’s dubious self-involvement in virtually all Pennsylvania capital cases creates another potential issue. Since the manner of its involvement is not regulated by any entity, judicial or otherwise, we can expect to see claims from defendants, in state and federal court, deriving from both the secretive manner of the FCDO’s self-involvement as well as the dubious tactics employed once the FCDO is involved. Again, it is better to have lawyers appointed by and responsive to Pennsylvania courts, and devoted to their clients, while dutiful to ethical obligations, court processes, court rules, and court orders, rather than lawyers devoted to an obstructionist and ultimately political agenda, which includes strategies to marginalize state courts.
The FCDO may have removed to federal court the discrete question this Court framed in Mitchell directing the FCDO to prove its asserted claim that it did not divert federal funds to support its private agenda in that one PCRA matter. Irrespective of the outcome of the removal question in the Third Circuit, it is this Court — and not any federal entity — that is responsible for the supervision of the practice of law in Pennsylvania, and we play a special role in capital cases, even beyond our general superintendency over the Unified Judicial System. The FCDO may be able to shield itself from inquiry by its risible claim to be a federal contractor in PCRA cases— at the same time swearing, to this Court, that it is acting “privately” in Pennsylvania — but Pennsylvania is not obliged to be complicit in any Pennsylvania lawyer’s deceptive, dubious or improper activities. And, this Court is certainly not obliged to defer to the FCDO’s private litigation agenda when it comes to a determination of the proper representation of capital defendants in PCRA matters across the Commonwealth. Given the FCDO’s course of conduct, this Court should exercise its power to remove FCDO lawyers from all Pennsylvania cases, just as we can remove any lawyer in an individual case whenever there is a grounded concern that the lawyer’s conduct is adversely affecting the administration of Pennsylvania justice.
The consequence of this corrective measure, of course, is that Pennsylvania has to accept and discharge the task of providing ethical, competent, properly-resourced, and properly-compensated attorneys to discharge the defense function in capital PCRA litigation. I am confident that Pennsylvania is up to the task, and the end result should be a fairer, more just, swifter, and less-politicized progression of Pennsylvania’s capital cases.
IX. The Commonwealth’s Motions
What remains are the Commonwealth’s Motion for Sanctions and the Commonwealth’s request for a Rule to Show Cause why the FCDO should not be held in contempt. The Motion for Sanctions is premised upon the Motion to Withdraw Concurring Opinion. The Commonwealth argues, among other points, that this Motion neither complies with nor is contemplated by the Appellate Rules, and is meritless in some parts, and frivolous in others. The Commonwealth seeks sanctions in the form of striking the pleadings; fining counsel; quashing the Motions; referral of counsel to the Disciplinary Board; and payment of the Commonwealth’s attorney fees and costs. The contempt request is premised upon the FCDO’s failure to respond to the Court’s initial directive to provide a Verified Statement, and its choice instead to file its argumentative Withdrawal pleading. That strategic choice put the Court to the trouble of drafting an administrative enforcement order, inconvenienced the Commonwealth by extending the litigation, and led to a series of other pleadings, further burdening the Court.
Without downplaying the Commonwealth’s obviously legitimate grievances, specific sanctions, if any, are better left to the formal disciplinary process, if any should result, in this individual case. As the Commonwealth recognizes, the broader problem that has been revealed is not the FCDO’s misconduct here, but the very fact of its institutional self-involvement in so many Pennsylvania capital PCRA matters. I have explained what I believe is the necessary and appropriate response above; that proposed response, like the response the Court has already incorporated into its briefing rules, does not depend upon the input, or involvement, of disciplinary authorities.
Meanwhile, the conduct of the FCDO relative to its postdecisional motions here is better viewed in the context of this one case. I have explained above that the FCDO’s conduct in the PCRA court was abusive, and its Brief here was equally problematic. As Mr. Justice Saylor noted in his Concurring Opinion, in response to my Concurring Opinion addressing broader concerns respecting the FCDO’s practice in Pennsylvania, “a referral to our lawyer disciplinary apparatus is warranted,” to permit involved FCDO counsel to respond, and to provide a foundation for imposition of any appropriate sanctions. Spotz, 18 A.3d at 354 (Saylor, J., concurring). The post-decisional Motions, administrative orders, Verified Statement, and the FCDO chart have provided more of a foundation to assess the conduct at issue here; and as reflected in the Commonwealth’s complaints, this additional litigation has raised further questions of concern. The better course in terms of possible sanctions, arising from this individual case, is by a formal inquiry. Hence, I will deny the Commonwealth’s requests.
ORDER
AND NOW, this 3rd day of September, 2014, and in accordance with a Single Justice Opinion I am filing this same date, Appellant’s Motions to File Post-Submission Communications, Appellant’s Motion for Recusal of Chief Justice Castille, Appellant’s Motion for Withdrawal of Concurring Opinion, Commonwealth’s Answer and Motion for Sanctions, Appellant’s Withdrawal of Motion for Withdrawal of Concurring Opinion and Motion for Recusal, Commonwealth’s Answer, including Request for a Rule to Show Cause, Commonwealth’s Request for Leave to Respond to Verified Statement, and Appellant’s Motion to Strike Commonwealth’s Response have been reviewed and are hereby resolved as follows:
(1) Appellant’s initial Motions for Leave to File Post-Submission Communications are DENIED. The Motions do not fall within the post-submission communication appellate rule appellant cites. However, I have entertained the Motions as a discretionary matter, out of deference to the concerns expressed by officers of the Court.
(2) The “Withdrawal” pleading file by the Federal Community Defender’s Office (“FCDO”) on August 22, 2011, which the Court as a whole has construed as an Application for Relief seeking leave to withdraw the prior Motions, is (a) GRANTED as to the recusal motion, but (b) DENIED as to the motion to withdraw my Concurring Opinion.
(3) Appellant’s Motion for the Withdrawal of my Concurring Opinion is DENIED, as is the request to refer that Motion to the full Court for decision (beyond the referral already made for the administrative purpose leading to the Court’s per curiam orders entered on July 28, 2011 and October 3, 2011, to ascertain information necessary to decide the Motion).
(4) The Commonwealth’s Motion for Sanctions, taken under advisement in the Court’s Order of July 28, 2011, and the Commonwealth’s request for a rule to show cause why the FCDO should not be held in contempt of court, taken under advisement in the Court’s order of October 3, 2011, are DENIED. Sanctions are better left to a formal disciplinary process, if any should result.
(5) The remaining Motions and responses (including requests for leave to file) are DENIED as unnecessary to resolution of the issues discussed in this Opinion, including: (1) the Commonwealth’s Request for Leave to Answer the FCDO’s Verified Statement (with answer attached), and the FCDO’s Reply thereto; and (2) the Commonwealth’s Response to the Answer for Sanctions, the FCDO’s Motion to Strike that Response, and the Commonwealth’s Answer to the Motion to Strike.
Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
See Commonwealth v. Padilla, No. 567 CAP, discussed infra. The Court’s decision affirming the judgment of sentence in Padilla is reported at 622 Pa. 449, 80 A.3d 1238 (2013).
The Motion to Withdraw Concurring Opinion was signed by Michael Wiseman, Esquire, identifying himself as the supervisor responsible for the administration and operation of the FCDO’s state capital litigation projects. Attorney Wiseman represented that ”[h]e is fully familiar with and aware of all facts asserted in this Motion.” In a later pleading discussed infra, the Chief Defender, Leigh M. Skipper, Esquire, responded to an administrative order the Court had specifically directed to Attorney Wiseman. Private counsel with the law firm Pepper Hamilton LLP filed the FCDO's final pleadings.
The pendency of the ancillary motions has not delayed the ultimate progression of appellant's case since the FCDO filed a federal habeas corpus petition immediately after this Court’s Opinion was issued; that petition remains pending since the FCDO moved to stay the petition pending the outcome of appellant’s collateral attack upon another one of his homicide convictions. See discussion in Part VI, infra.
In Applications to Withdraw Appearance in other capital cases, Attorney Wiseman has stated that he "left his employ” with the FCDO on August 26, 2011, and is engaging in the private practice of law. See Commonwealth v. Sanchez, 605 CAP (motion filed 12/13/2012); Commonwealth v. Sepulveda, 553 CAP (motion filed 12/6/2012).
In 3 of these 28 cases, the FCDO states that it was appointed by the federal court in an unrelated noncapital case.
The FCDO identifies 7 additional cases where it was appointed by a Pennsylvania trial court, including one as standby counsel. In 3 of the 7 cases, the FCDO states that it was also appointed by a federal court; in a fourth case, the FCDO states that it was appointed as counsel for a next friend. Respecting the 3 cases where the FCDO says there was a concurrent federal court appointment, presumably the federal court did not unlawfully appoint the FCDO to pursue an initial PCRA petition in advance of habeas review. See discussion infra. Thus, in all seven of these cases as well, the FCDO cannot divert federal funds to pursue its private agenda.
In one case, Tharp, the district court declared that “[cjounsel is directed to forthwith exhaust all of Petitioner’s claims in the appropriate state courts of Pennsylvania.” Tharp v. Beard et al., Civil Action No. 04-1284 (W.D.Pa.) (order dated April 14, 2005). The appointment order, however, was still only for purposes of filing a federal habeas petition, and the court’s later dismissal of the habeas action without prejudice stated that the dismissal rendered the prior order (including the FCDO appointment) "null and of no further force and effect.” The order produced in Commonwealth v. Solano, 647 & 648 CAP, granted the FCDO’s motion to stay federal habeas proceedings to permit state court exhaustion, and directed counsel to exhaust claims. But, this order likewise did not authorize the FCDO to misuse federal funds, in order to exhaust claims.
See Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 18 n. 2 (2011) (Castille, C.J., concurring) (noting FCDO involvement).
The Weiss order states that the "Petitioner" (not the FCDO, even assuming a prior order appointed the FCDO) was to file in state court to exhaust his claims. The order did not appoint the FCDO or authorize it to misuse federal funds to litigate the PCRA petition. Weiss v. Beard et al., Civil Action No. 02-1566 (W.D.Pa.) (order dated 5/13/03).
The Terrance Williams case does not appear on Attorney Skipper's list of cases, as the most recent round of FCDO filings there postdate the submission of the Verified Statement. The case is notable because the FCDO’s current federal court appointment, by the Honorable Michael M. Baylson, was only for purposes of preparing a state clemency petition. Williams v. Beard et al., Civil Action No. 2005-3486 (E.D.Pa.) (order entered 8/24/2012). Nevertheless, the FCDO proceeded to file a serial PCRA petition, which is currently on appeal to this Court.
I recognize that a reported interview with an FCDO director is hardly definitive evidence; I cite the reference because it squares with one of the FCDO’s (admittedly changing) positions here, and because, in subsequent proceedings in Pennsylvania state cases, the FCDO has refused to explain its actual funding and deployment of federal resources, and has removed those inquiries to federal court. See discussion of Commonwealth v. Mitchell, 617 CAP, infra.
A second FCDO chart lists another 21 Pennsylvania capital cases where it is currently providing consultation services. These services likewise must be supported by purely private funding.
The Third Circuit's calendar, available on its website, reveals that six FCDO removal cases were argued in the Third Circuit on June 25, 2014. As I will explain below, irrespective of how the Circuit ultimately rules on removal-and-dismissal of a supervisory inquiry into the FCDO’s candor to this Court concerning its diversion of federal funding because the FCDO is supposedly "acting under” a "federal officer” when it pursues a private agenda in a court system where the federal government has no obligation, this Court retains the supervisory power to remove the FCDO from cases.
Pursuant to § 3599(e)’s provision that counsel may represent her client in "other appropriate motions and procedures,” a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation. This is not the same as classifying state habeas proceedings as "available post-conviction process” within the meaning of the statute.
The Court has since amended the IOPs, effective February 8, 2013. The new IOPs make no material alterations to the provisions at issue.
Indeed, there is nothing in the IOPs, or logic, to prevent the author of a majority opinion from filing a separate concurring expression. See, e.g., Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 633 & n. 1 (2012) (Saylor, J., specially concurring in case where Mr. Justice Saylor authored majority opinion; citing examples of similar expressions).
A law review article by the Honorable Diane P. Wood, Judge of the U.S. Court of Appeals for the Seventh Circuit, describes the various types of responsive opinions available to appellate judges, and the purposes they serve. See Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a MultiMember Court, 100 Cal. L.Rev. 1445 (2012). My Concurring Opinion fits squarely within the tradition described in Judge Wood's article.
Later in its Motion, in discussing frivolous claims, the FCDO posits that " ‘frivolous’ is often in the eye of the beholder." Motion, 6, 7. The FCDO is wrong. The measure of what is frivolous is objective. See, e.g., Pa. R. Prof. Conduct 3.1 (Explanatory Comment) (comparing Pennsylvania Rules to Code of Professional Responsibility). An argument, such as the one in text, which misapprehends or misrepresents the only authority cited, is frivolous.
The initial averment of full compliance quoted from an identical averment the FCDO made in Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 490 (2011). The averment in Hill, made by the FCDO in specific response to the Commonwealth’s questioning the propriety of the FCDO’s state court foray in that case, is no less problematic a misrepresentation to the Court.
The California Supreme Court, citing my Concurring Opinion, has recognized that abusive pleadings and briefs in capital habeas cases in that forum "have created a significant threat to our capacity to timely and fairly adjudicate such matters,” and has taken corrective measures. In re Reno, 55 Cal.4th 428, 146 Cal.Rptr.3d 297, 283 P.3d 1181, 1246 (2012) (addressing serial petitions). The Reno court added: Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court’s review while we evaluate petitions raising dozens or even hundreds of frivolous and untimely claims. We are not the only state court of last resort concerned that abusive exhaustion petitions threaten the court’s ability to function. (See Commonwealth of Pa. v. Spotz (2011), 610 Pa. 17, 171, 18 A.3d 244, 336 (cone. opn. of Castille, C.J.) [estimating that the time required to evaluate an abusive postconviction petition in capital cases renders the Pa. Supreme Ct. "unable to accept and review about five discretionary appeals”].). Id. at 1246-47.
In terms of the FCDO’s continuing lack of candor, it bears repeating that the FCDO’s Withdrawal pleading was not premised upon taking responsibility and admitting that this particular argument derived from Attorney Wiseman’s central factual misrepresentation — a misrepresentation the FCDO has made to the Court before. See Hill, supra.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The FCDO does not state whether it ever corrected its false averments in the Dougherty motion.
At one point, the FCDO asserts that my "complaint” appears to be more about the sheer number of claims rather "than the manner in which they are briefed." Motion, 29. This is deliberate nonsense: my Concurring Opinion plainly expressed concern with the manner of presenting and developing the claims, as well as the abusive number of claims, and the blatant violations of the briefing rules.
The narrow grounds for our opinion should not be regarded as accepting the legitimacy of a less categorical use of the Guidelines to evaluate post-2003 representation. For that to be proper, the Guidelines must reflect "[p]revailing norms of practice,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, and “standard practice,” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and must not be so detailed that they would "interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions,” Strickland, supra, at 689, 104 S.Ct. 2052. We express no views on whether the 2003 Guidelines meet these criteria.
A more recent report of the FCDO's involvement in the unauthorized representation of a Pennsylvania capital defendant involves Ballard v. Pennsylvania, — U.S. -, 134 S.Ct. 2842, 189 L.Ed.2d 824 (2014) (per curiam order denying certiorari from this Court's affirmance of judgment of sentence of death). In addition to denying certiorari, the U.S. Supreme Court directed the lawyer who filed the petition in Ballard, Marc Bookman of the Atlantic Center for Capital Representation, to respond to a letter from Ballard himself. That letter claimed that Attorney Bookman’s certiorari filing on Ballard's behalf was unauthorized, that he did not wish to appeal, and that the filing was the product of the FCDO’s attempt "to secure themselves as ‘attorney's of record’ so as to circumvent having to obtain my authorization." I have noted above, in the discussion of the FCDO's "amicus ” work on behalf of Mexico in Commonwealth v. Padilla, Attorney Bookman’s close relationship with the FCDO. Attorney Bookman responded by letter dated July 8, 2014, corroborating the FCDO role and admitting he never met with Ballard. Attorney Bookman stated that after Ballard’s direct appeal was decided he was approached by an attorney with the FCDO, whom Bookman did not name, and who claimed Ballard had asked the FCDO "to find him an attorney to file a Petition for a Writ of Certiorari” and Bookman "agreed to do so.” The FCDO had never been appointed to represent Ballard. Attorney Bookman did not claim that he ever spoke with Ballard himself, or with Ballard’s court-appointed counsel. The Northampton County District Attorney’s Office responded by attaching a letter from Ballard’s court-appointed counsel, which related that: counsel received a telephone call from an FCDO lawyer, offering that he knew someone who might be willing to file a certiorari petition for Ballard, and asking to see materials relating to the case; counsel wrote to Ballard, who responded that he wanted no further appeals and that counsel was not to provide materials to any third party; counsel advised the FCDO lawyer of Ballard’s directions and wishes; the FCDO lawyer nevertheless said his office "will take it from here and speak directly with [Ballard] about the appeal;" and, after the certiorari petition was filed by Attorney Bookman, Ballard called counsel, asked who Bookman was, and advised that the FCDO had attempted to speak with him, but he told the FCDO he did not want to appeal. Ballard also then filed his pro se letter with the U.S. Supreme Court, complaining about the FCDO and Attorney Bookman pursuing the unauthorized certiorari petition. By order dated August 11, 2014, the Supreme Court referred the letters from Ballard, Attorney Bookman and the District Attorney to the Disciplinary Board of the Supreme Court of Pennsylvania "for any investigation or action it finds appropriate."
The FCDO’s Withdrawal pleading did not encompass the pending reargument petition; and, as noted, the FCDO apparently has used the pendency of the reargument petition to continue delaying appellant’s federal habeas proceedings.