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December 23, 1997


Direct Appeal from the Order of the Court of Common Pleas of Northampton County, Criminal Division, denying PCRA relief, entered January 31, 1996 at No. 849-1986.

Madame Justice Newman.

The opinion of the court was delivered by: Newman


DECIDED: December 23, 1997

In this capital case, Josoph Henry (Henry) appeals pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. (PCRA), from the Order of the Court of Common Pleas of Northampton County (PCRA Court), which denied his petition for relief. We affirm.


Henry, a student at Lehigh University, burglarized the dormitory room of fellow student Jeanne Ann Clery (Clery) in the early morning hours of April 5, 1986. Clery, who was asleep in the room, was wakened during the burglary. To prevent her from identifying him, Henry began a brutal assault on Clery. He slashed her neck repeatedly with broken glass, bit her face and breasts, beat her face and body, raped her, sodomized her, and ultimately strangled her to death. Later, he confessed the murder to friends, who informed the police.

At trial, privately retained counsel, J. Michael Farrell, Esquire, represented Henry. Henry admitted to the savage attack and murder, and he made an attempt to raise the insanity defense. *fn1 However, the trial court granted the Commonwealth's demurrer and removed that defense from the jury's consideration. On April 25, 1987, the jury found Henry guilty of first degree murder, rape, involuntary deviate sexual intercourse, indecent assault, burglary, theft, robbery, and aggravated assault. After a penalty hearing, the jury returned a sentence of death. This Court affirmed the judgment of sentence on direct appeal, and the United States Supreme Court denied certiorari. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990), cert. denied, 499 U.S. 931, 113 L. Ed. 2d 269, 111 S. Ct. 1338 (1991).

On March 27, 1995, shortly before his scheduled execution, Henry filed a petition to stay the execution so that he could seek relief pursuant to the PCRA. *fn2 The PCRA court granted the stay and appointed Brian Monahan, Esquire, and Dwight Danser, Esquire, of the Northampton County Public Defender's Office to file a PCRA petition on Henry's behalf. The court held four days of hearings on the PCRA petition, during which time Henry and the Commonwealth presented several witnesses. *fn3 By Order dated January 31, 1996, the PCRA court denied Henry's petition for relief.

Henry then appealed to this Court. See 42 Pa.C.S. § 722(4) and 42 Pa.C.S. § 9546(d) (Supreme Court has exclusive jurisdiction of appeals from final orders denying post-conviction relief in capital cases). After perfecting his appeal, Henry petitioned this Court to relieve the Northampton County Public Defender's Office so privately retained counsel, Billy Nolas, Esquire, and his associate Robert B. Dunham, Esquire, both presently with the Center for Legal Education, Advocacy & Defense Assistance, could represent him exclusively. By Order dated December 20, 1996, we granted Henry's request.


Henry raises numerous claims for relief, which we are separating into four general categories: PCRA court error, prosecutorial misconduct, trial court error, and ineffective assistance of counsel. We will address his arguments in that order. *fn4

Alleged PCRA Court Error

Henry claims that he did not receive a full and fair evidentiary hearing from the PCRA court. Specifically, he claims that the PCRA court erred in denying his request to call Dr. Dennis Asen and Dr. Isidore Mihalakis as defense witnesses. At trial, Dr. Asen testified as a bite-mark expert for the Commonwealth and Dr. Mihalakis testified as an expert pathologist for the Commonwealth. Henry attempted to call these witnesses at the PCRA hearing to demonstrate that their testimony at trial was "false, baseless and misleading," and should have been "excluded or devastatingly impeached at trial . . . ." Brief of Appellant at 16. Thus, Henry called these witnesses for the purpose of challenging the admissibility and credibility of their trial testimony. He asks our Court to remand this case to the PCRA court so his counsel can examine Dr. Asen and Dr. Mihalakis. We decline to do so.

On direct appeal, this Court reviewed Henry's claims concerning the admissibility of the disputed testimony and found them to be without merit. Henry, 524 Pa. at 146-47, 151 n.6, 569 A.2d at 934-35, 937 n.6. Therefore, Henry's challenges to the admissibility of the trial testimony of Dr. Asen and Dr. Mihalakis are not cognizable under the PCRA because they were previously litigated. 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(a)(2). Additionally, to the extent that Henry sought to examine Dr. Asen and Dr. Mihalakis to demonstrate that trial counsel's cross-examination of these witnesses was ineffective, the PCRA court did not err in precluding the testimony. The admissibility of evidence is vested in the sound discretion of the hearing court and an appellate court may reverse only where there is an abuse of that discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). The PCRA court heard four days of testimony and permitted Henry to present many witnesses, including Dr. Norman Sperber, who rebutted the trial testimony of Dr. Asen, and Dr. Jonathan Arden, who rebutted the trial testimony of Dr. Mihalakis. The testimony of Dr. Sperber and Dr. Arden provided the PCRA court with sufficient information to evaluate Henry's claim of ineffectiveness, and we find no abuse of discretion in the PCRA court's decision to preclude the examinations of Dr. Asen and Dr. Mihalakis. Claypool.

Henry next argues that the PCRA court abused its discretion in denying his request for a continuance to present the testimony of his expert psychiatrist, Dr. Alec Whyte. He claims that we should remand this case to the PCRA court so Dr. Whyte can testify. We disagree.

The decision to grant or deny a request for a continuance is within the sound discretion of the trial Judge and will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96 (1996), cert. denied, 139 L. Ed. 2d 46, 118 S. Ct. 90 (1997); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994). Before seeking a continuance for Dr. Whyte's testimony, Henry presented the testimony of Dr. Barry Crown, his expert psychologist. Dr. Crown testified extensively concerning Henry's alleged psychological problems, including difficulties with his birthing process, his childhood experiences, his purported brain damage, the nature of neuropsychological testing, and the lack of such testing by Henry's defense psychiatrist at trial. Henry then sought a continuance because Dr. Whyte was not available to testify.

In denying the continuance, the PCRA court noted that the parties had been aware of the hearing date for quite some time. In fact, our review of the PCRA docket shows that on December 4, 1995, nearly six weeks before the hearing, the PCRA court entered an Order scheduling the hearing for January 16, 1996. The PCRA court also rejected counsel's claim that inclement weather prohibited Dr. Whyte's attendance, noting that numerous other witnesses from out-of-state could attend the hearing. Moreover, it does not appear that Dr. Whyte's testimony would have been significantly different from Dr. Crown's testimony. Henry's own counsel characterized Dr. Whyte's Conclusions as "similar to those of Doctor Crown", and stated that Dr. Whyte "may be deemed by the court to be redundant." Notes of Testimony, January 18, 1996 at 185, 191. The trial court did not abuse its discretion in denying Henry's request for a continuance and no relief is due. See Commonwealth v. Howard, 466 Pa. 445, 353 A.2d 438 (1976) (a continuance is properly denied where proposed testimony from an absent witness is cumulative or available from another source).

Next, Henry claims that the PCRA court erred when it permitted former District Attorney Richard Pepper to remain in the courtroom and confer with the prosecution while defense witnesses testified. Pepper was one of the prosecutors for Henry's trial in 1987. The Commonwealth called Pepper as a fact witness at the PCRA hearing to rebut the testimony of defense witnesses. Henry claims that Pepper's presence in the courtroom violated the Rules of Professional Conduct, and Pepper should have been sequestered. We disagree.

Rule of Professional Conduct 3.7(a) generally prohibits a lawyer from acting as both advocate and witness in the same trial, and provides as follows:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

Rule of Professional Conduct 3.7(a). Contrary to Henry's assertion, Pepper did not act as an advocate at the PCRA hearing. He did not question witnesses, present evidence, or argue on behalf of the prosecution. Although Pepper conferred with the prosecution during the hearing, Henry provides no authority that bars the prosecution from consulting with its witnesses during a hearing. Thus, this issue is without merit.

Henry argues that the trial court should have sequestered Pepper while Henry's fact witnesses were testifying. The purpose of sequestration is to prevent a witness from shaping his testimony with evidence presented by other witnesses. Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986), cert. denied, 480 U.S. 951, 94 L. Ed. 2d 801, 107 S. Ct. 1617 (1987). However,

in nearly every criminal case, one side or the other would like to have some or all of the witnesses of his opponent sequestered. The lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, make sequestration of witnesses ordinarily impractical or inadvisable, except in unusual circumstances. For the foregoing reasons the question of sequestration of witnesses is left largely to the discretion of the trial Judge and his decision thereon will be reversed only for a clear abuse of discretion.

Commonwealth v. Kravitz, 400 Pa. 198, 217-18, 161 A.2d 861, 870 (1960), cert. denied, 365 U.S. 846, 5 L. Ed. 2d 811, 81 S. Ct. 807 (1961) (footnote omitted). A request for sequestration of a witness should be specific and should be supported by a showing that the interests of Justice require it. Kravitz.

Here, Henry fails to cite instances in the record where Pepper may arguably have tailored his testimony. He also fails to explain how the PCRA court's denial of his request for sequestration contravened the interests of Justice. This claim warrants no further review.

Prosecutorial Misconduct

Next, Henry argues that the Commonwealth's experts, Dr. Asen and Dr. Mihalakis provided "false and misleading" testimony at trial. He claims this testimony violated his right to due process. In support of his claim, he cites numerous cases where the United States Supreme Court has held that a violation of the Fourteenth Amendment's due process clause occurs when a state obtains a criminal conviction through the knowing use of false evidence. Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972) (prosecution falsely claimed that it did not offer a witness leniency for his testimony); Miller v. Pate, 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785 (1967) (prosecution knowingly presented an expert who falsely identified paint on shorts as blood); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959) (prosecution failed to correct witness' false testimony that he had not been offered leniency for his testimony); Alcorta v. Texas, 355 U.S. 28, 2 L. Ed. 2d 9, 78 S. Ct. 103 (1957) (prosecution knowingly elicited false testimony from a witness); Pyle v. Kansas, 317 U.S. 213, 87 L. Ed. 214, 63 S. Ct. 177 (1942) (prosecution knowingly presented perjured testimony); Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340 (1935) (prosecution knowingly presented perjured testimony).

The present case, however, does not involve the knowing use of false evidence. The foundation for Henry's claim that the Commonwealth presented false evidence is the testimony of his experts, Dr. Arden and Dr. Sperber, at the PCRA hearing. These experts disputed the validity of the scientific theories on which Dr. Asen and Dr. Mihalakis based their testimony. Simply because Henry's experts disagree with the Commonwealth's experts does not mean that the Commonwealth knowingly presented false evidence in violation of Henry's due process rights. This claim warrants no relief.

In a similar vein, Henry claims the Commonwealth knowingly presented false testimony at trial through Marvin Brunson, who was Henry's cellmate in prison. At trial, Brunson testified for the Commonwealth that Henry confessed to burglarizing Clery's dormitory room, assaulting her, and strangling her to death. However, in an affidavit attached to Henry's PCRA petition, Brunson recanted his trial testimony. On direct examination at the PCRA hearing, Brunson testified that he fabricated the account of Brunson's confession because he expected to receive leniency from the Commonwealth for charges pending against him. Henry now claims that Brunson's recantation demonstrates that the Commonwealth violated his due process rights by knowingly presenting false testimony at trial.

Recantation testimony is extremely unreliable. Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979); Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). When the recantation involves an admission of perjury, it is the least reliable form of proof. Coleman. The trial court has the responsibility of judging the credibility of the recantation. Nelson. Unless the trial court is satisfied that the recantation is true, it should deny a new ...

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