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Commonwealth v. Steele

December 18, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ROLAND WILLIAM STEELE, APPELLANT



Appeal from the Order entered on September 26, 2001 in the Court of Common Pleas of Washington County at Nos. 686-688 of 1985

The opinion of the court was delivered by: Mr. Justice BAER*fn1

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

SUBMITTED: March 27, 2003

OPINION

Following a jury trial between January 10 and January 22, 1986, Appellant Roland William Steele was convicted of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. The same jury fixed the punishment at three separate death sentences for the first-degree murder convictions. On direct appeal, this Court affirmed the convictions and death sentences. See Commonwealth v. Steele, 559 A.2d 904 (Pa. 1989). Appellant now appeals from the denial of claims raised in his PCRA petition. For the reasons contained herein, we affirm the order of the PCRA court denying Appellant relief.

The facts of this case, while long and complex, are relevant to the disposition of this case. The bodies of Lucille Horner, age 88, Minnie Warrick, age 86, and Sarah Kuntz, age 85, were found on the morning of June 22, 1985, in a secluded, wooded area off a dirt road in Cecil Township. Pursuant to the subsequent autopsy, Dr. Earnest L. Abernathy of Washington County determined that the victims were killed the previous day between 12:30 p.m. and 9:30 p.m. At Appellant's trial, Dr. Abernathy testified that Ms. Horner's injuries included significant bruising on her chin, chest, and back, damage to her heart, numerous fractures of her ribs, a fracture of her backbone, damage to her liver, and a torn larynx. Dr. Abernathy concluded that the cause of death was traumatic rupture of the heart. The autopsy of Ms. Kuntz revealed similar injuries, including bruises on her face, chest, and legs, lacerations to the scalp, fractured ribs, and damage to her heart and liver. Dr. Abernathy concluded that the cause of death was asphyxia due to a fracture of the larynx. With regard to Ms. Warrick, Dr. Abernathy testified that she also sustained bruising to the face and chest, fractured ribs, and heart damage, as well as a partially collapsed lung and blowout of the stomach wall. The cause of death for Ms. Warrick was traumatic rupture of the heart, with numerous companion injuries. Dr. Abernathy testified that the pattern of bruising was similar in all three cases, caused by substantial blunt force blows, which, in his opinion, were most likely delivered by human hands.

During the investigation, the police learned that the three victims had attended a luncheon together on Friday, June 21 at 1:00 p.m. at the Millcraft Shopping Center, and that they had driven to this event together in Ms. Horner's car, a beige four-door Dodge Dart. Mildred Stitler testified that on June 21, 1985, she observed, from her apartment window overlooking the shopping center parking lot, an elderly woman standing with a bald, well-dressed, African-American man, identified as Appellant, next to a car. She noticed Appellant pointing to the rear of the car as if something was wrong with the tire. The two got into the car, with Appellant in the driver's seat, and drove away, apparently to pick up the other two victims who were waiting for the car at another location in the shopping center. Kimberly Oyler testified that on June 21, 1985, she was at the Millcraft Shopping Center at approximately 2:15, and, as she was parking her car, she observed Appellant holding open the rear door of a vehicle (later determined to be Ms. Horner's car) as two elderly women entered the rear seat. A third witness, Harry Crothers, testified that he was personally acquainted with Ms. Horner, who was his friend's mother-in-law. Mr. Crothers owned a shop across the street from the shopping center, and observed Ms. Horner in the passenger seat of her car, with two elderly women in the back seat and Appellant driving, as the vehicle left the shopping center at about 2:30 p.m.

Joseph Klements, owner of a gas station and convenience store 1.5 miles, or a four minute drive, from where the bodies were found, testified that he observed a cream colored Dodge or Plymouth four-door sedan drive into his station between 3:00 and 3:30 p.m. on the day of the murders, June 21, 1985. Appellant got out of the car, and there were no other occupants in the vehicle. Witnesses inside the store, who identified Appellant from a photographic array, stated that he purchased some soda, and handed a child a gold-chain necklace. He left the store and drove away, heading north. Shortly thereafter, Mr. Klements observed Appellant driving the same vehicle heading south past the station. Appellant appeared a third time, between 4:00 and 4:30, when he coasted into the station with the motor off. An employee assisted Appellant in restarting the car, and he drove away. Mr. Klements identified Ms. Horner's vehicle as the car he had seen Appellant driving during his multiple stops at the service station throughout the day of the murders. Other witnesses identified the necklace Appellant gave to the child as belonging to Ms. Warrick.

Evidence was also introduced at trial concerning a burglary that occurred that day at the home of Delha Woznicak, which was located three-tenths of a mile, about a thirty second drive, from the Klements service station. Ms. Woznicak testified that her residence was broken into between 3:25 and 4:50 p.m. on June 21, 1985. She identified evidence introduced at trial as items stolen from her home, and further identified the bottom portion of a dress that she had found in her abode while cleaning up after the burglary, which Ms. Warrick's relative identified as the dress Ms. Warrick wore to the luncheon.*fn2

At this time, Appellant resided with his girlfriend, Joan Whitlock, approximately thirty minutes from the Klements service station. Ms. Whitlock's neighbors testified that on the evening of June 21, 1985, they observed Appellant driving a beige four-door sedan, and saw him unloading from this car items later identified as belonging to the Woznicaks. When Appellant was arrested on June 23, 1985, numerous items identified as the Woznicaks' were discovered in his possession.

A white vinyl purse, identified as the property of one of the victims and containing credit cards in the name of two victims, Ms. Horner and Ms. Kuntz, was found on the grounds outside a housing project in McKees Rocks, approximately one mile from Ms. Whitlocks' residence. Ms. Whitlock's brother resided there, and testified that Appellant visited him the night of June 21, 1985. Alfred Adams testified for the Commonwealth that he grew up with Appellant, and that at one time Appellant had lived approximately 600-800 yards from where the victims' bodies were found. The Commonwealth also established that Appellant had been an instructor in martial arts, and held a black belt in karate. Further, the Commonwealth submitted expert testimony from FBI Special Agent Andrew Podolak, who testified that he examined samples of a hair found on Appellant's clothing, and determined that the hair had characteristics similar to that of Ms. Warrick's, and in his expert opinion, the hair was Ms. Warrick's.

The Commonwealth's last witness at trial was Sarah Hair. Ms. Hair testified that on June 18, 1985, three days before the murders, at approximately 6:15 p.m., she was sitting in her car in the parking lot of Chartiers Valley Shopping Center in Bridgeville when she was approached by a bald African-American man whom she identified as Appellant. Appellant told her that her car had a flat tire. Ms. Hair inspected the tire, but could see nothing out of the ordinary. Appellant was persistent, she stated, saying that he observed someone "fooling" with the tire. Appellant attempted to extract a nail from the tire, and after several minutes offered to drive Ms. Hair to a service station to have the tire repaired. She refused his offer, and attempted to drive away. Appellant, however, blocked her from driving away, then bent down and stood up holding a pair of scissors, claiming to have found them under the tire. Ms. Hair took the scissors, saying she would take them to the police. Appellant took them back, and stated that he would take them there. As a result of this incident, Ms. Hair made a complaint with the Collier Township Police.

Appellant testified on his own behalf, denying his involvement in the homicides and the Woznicak burglary. He admitted that he was in the area on June 21, 1985, to see an attorney, but that he left, returning by car to Pittsburgh at about 12:45 or 1:00 p.m. with a man known to him only as "P.I." Appellant further testified that he came to be in possession of the Woznicak's belongings after meeting with P.I. on the night of the 21st in the Hill District of Pittsburgh. Other defense evidence included defense experts who offered their opinions that the blows sustained by the victims were not the result of a karate-style attack, karate blows, or a human hand. Finally, although other witnesses testified as to Appellant's whereabouts on June 21, 1985, none were able to account for the time between 12:00 noon and 7:00 p.m.*fn3

Following the guilt phase, trial counsel presented the testimony of two individuals at the penalty phase in support of the "catch-all mitigator:*fn4 " Lamont Stephens*fn5 and Appellant's mother. Mr. Stephens testified that when Appellant was seventeen, he saved Mr. Stephens, then two years old, from being killed by a train. For this heroic act, Appellant received the Carnegie Hero Award. Appellant's mother likewise testified about this award and stated that her son had always been nonviolent.

Following the conclusion of the penalty phase, the jury found three aggravating circumstances with respect to Ms. Horner and Ms. Warrick, see 42 Pa.C.S. § 9711(d)(6), (d)(8), and (d)(10), and, with respect to Ms. Kuntz, the jury found two aggravating circumstances, see 42 Pa.C.S. § 9711(d)(8) and (d)(10).*fn6 In each instance the jury found that the aggravating circumstances outweighed the catch-all mitigator apparently accepted by the jury. See 42 Pa.C.S. § 9711(e)(8) ("Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense").

After Appellant's convictions and death sentence, trial counsel filed post-trial motions, which were denied on March 25, 1988. This Court affirmed Appellant's sentence on June 5, 1989.*fn7 During years of legal wrangling before the PCRA court, Appellant filed a pro se PCRA petition in 1996, and a counseled amended PCRA petition in January of 2000, raising eighteen issues, including allegations of ineffective assistance of counsel. The PCRA court held a limited evidentiary hearing, permitting Appellant to present the testimony of two witnesses: trial counsel Attorney Tershel and his investigator Michael Reid. Following the hearing, the PCRA court denied all of Appellant's claims. Appellant thereafter appealed directly to this Court.*fn8

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. Commonwealth v. Washington, 927 A.2d 586, 593-94 (Pa. 2007); Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001); Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 2000). In order to be eligible for PCRA relief, Appellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2).

Further, Appellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived, and that "the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel." Washington, 927 A.2d at 593 (citing 42 Pa.C.S. §§ 9543(a)(3), (4)). An issue has been previously litigated if "the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue." Id. (citing 42 Pa.C.S. § 9544(a)(2)); Commonwealth v. Crawley, 663 A.2d 676, 678 (Pa. 1995). A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). Further, we no longer apply the relaxed waiver doctrine in capital PCRA appeals. Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998).*fn9

Appellant now raises seventeen issues of alleged error, many of which involve allegations of ineffective assistance of counsel. In Pennsylvania, counsel is presumed effective, and a defendant bears the burden of proving otherwise. Commonwealth v. Hall, 701 A.2d 190, 200-201 (Pa. 1997). In order to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel's action or inaction. Commonwealth v. McGill, 832 A.2d 1014, 1020 (Pa. 2003); Commonwealth v. (Michael) Pierce, 786 A.2d 203, 213 (Pa. 2001); Commonwealth v. (Charles) Pierce, 527 A.2d 973 (Pa. 1987); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (explaining that, to establish an ineffective assistance claim, a defendant must show that counsel's performance was deficient and that such deficiencies prejudiced the defense). When determining whether counsel's actions or omissions were reasonable, "we do not question whether there were other more logical courses of actions which counsel could have pursued: rather, we must examine whether counsel's decisions had any reasonable basis." Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007) (citation omitted) (emphasis added). Further, to establish prejudice, a petitioner must demonstrate that "but for the act or omission in question, the outcome of the proceedings would have been different." Id. at 799 (citing Commonwealth v. Rollins, 738 A.2d 435, 441 (Pa. 1999)). Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the Pierce test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met. Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000).

In accord with these well-established criteria for review, a petitioner must set forth and individually discuss substantively each prong of the Pierce test. Commonwealth v. James Jones, 876 A.2d 380, 386 (Pa. 2005); Commonwealth v. (Aaron) Jones, 811 A.2d 994, 1003 (Pa. 2002); Commonwealth v. Wharton, 811 A.2d 978, 988 (Pa. 2002) ("Claims of ineffective assistance of counsel are not self-proving...."); (Michael) Pierce, 786 A.2d at 221 (noting that an appellant cannot prevail on claim of ineffective assistance of counsel when claim is not developed); (Charles) Pierce, 527 A.2d 973. In multiple claims in this case, Appellant only addresses the first prong, arguing that the underlying claim has arguable merit, followed by a bald assertion of the lack of a reasonable basis and the fact of prejudice.*fn10 Such undeveloped claims, based on boilerplate allegations, cannot satisfy Appellant's burden of establishing ineffectiveness. See Jones, 876 A.2d at 386; Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001) ("[s]uch an undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is entitled to any relief."). Thus, where Appellant has failed to set forth all three prongs of the ineffectiveness test and meaningfully discuss them, he is not entitled to relief, and we are constrained to find such claims waived for lack of development. As referenced above and discussed infra, many of the claims asserted by Appellant fail on this basis.*fn11

We will not address the issues in the order presented by Appellant. Rather, we will begin with the issues implicating the guilt phase of trial.

Guilt Phase

I. Trial Court Error Regarding the Commonwealth's Expert

Appellant's first issue is a claim of trial court error regarding the admissibility of the testimony of FBI Special Agent Podolak, who opined that hair samples found on Appellant's clothing came from one of the victims. Appellant asserts this testimony was false, misleading, and without scientific basis, and therefore inadmissible. The PCRA court found that the challenged testimony of Mr. Podolak was, in fact, admissible, and that even if it was not, its admission was harmless error.

The FBI forensic examination conducted by Mr. Podolak pre-trial resulted in a report indicating that the hair found on Appellant's clothes shared characteristics with Ms. Warrick's hair, and was "consistent with having originated from [Ms. Warrick]." Brief for Appellant at 42. The report contained the qualification that "hair comparisons do not constitute a basis for absolute personal identification." Id. Trial counsel filed a motion in limine to exclude Mr. Podolak's testimony on the theory that the opinion described in the report violated the rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted by this Court in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977) (requiring scientific evidence to be generally accepted in the scientific community). In response to that motion, the prosecutor indicated that, consistent with this report, Mr. Podolak would testify concerning findings that the hair had the same characteristics as that of Ms. Warrick. The trial court denied the motion in limine. At trial, Mr. Podolak testified that it was his opinion that the hairs found on Appellant's clothes "came from" Ms. Warrick. Trial counsel fully cross-examined Mr. Podolak on the contents and accuracy of his findings and conclusions, and Mr. Podolak conceded that his findings were not conclusive. The defense called Dr. Cyril H. Wecht, a practicing physician and pathologist, to testify as to the origin of the subject hair sample, which contradicted Mr. Podolak's testimony.

Appellant argues that his rights to a fair trial and due process were violated when the trial court permitted the Commonwealth to introduce Mr. Podolak's expert testimony regarding the hair samples found on Appellant's clothing. Specifically, Appellant argues that there is no scientific basis for any hair examiner to claim the ability to determine that a hair sample came from a specific person. Appellant now seeks a PCRA hearing to demonstrate that the Commonwealth's expert's testimony was false and misleading.

This issue is waived. Appellant argued before the trial court that it had erred in admitting the opinion evidence of Mr. Podolak regarding the hair samples found on Appellant's clothing. See Commonwealth v. Steele, Nos. 686-688 of 1985, slip op. at 18-20 (C.P. Washington County, March 3, 1988) (1988 Trial Ct. Op.). On direct appeal to this Court, however, Appellant did not raise the issue. An issue is waived if Appellant "could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b) (emphasis added). Here, Appellant plainly could have raised the issue on direct appeal to this Court, but failed to do so. Thus, the claim is waived.*fn12

To the extent Appellant alleges ineffective assistance of counsel for failing to pursue this claim of trial court error on direct appeal, Appellant has failed to address and develop meaningfully the three prongs of the ineffectiveness test. See Wharton, 811 A.2d at 988; Bracey, 795 A.2d at 940 n.4; (Michael) Pierce, 786 A.2d at 221. Further, as discussed in connection with the second issue, below, regarding trial counsel's cross-examination of Agent Podolak, we do not agree with Appellant that if counsel had raised this claim on direct appeal, the outcome of that appeal would have been different given the overwhelming nature of the evidence against Appellant.

II. Ineffectiveness Stemming from the Hair Analysis

This issue contains several subparts. First, Appellant argues that the Commonwealth violated Pa.R.Crim.P. 305,*fn13 which requires it, when requested, to disclose expert reports and imposes a continuing duty on both parties to disclose additional evidence to the other party. This subpart arises from Agent Podolak's testimony. As described above, Mr. Podolak stated in the report that hair analysis does not provide an absolute basis for identification. Counsel filed a motion in limine to exclude Mr. Podolak's testimony. The trial court denied the motion, and Mr. Podolak testified that he could make, and did make, a positive identification of the source of the hair found on Appellant's clothes. According to Appellant, the Commonwealth never disclosed that the agent would render this opinion, before or during trial. As such, Appellant contends that the Commonwealth deliberately violated the rules of discovery. Appellant argues that this discovery violation rendered defense counsel ineffective at the motion in limine proceeding. Specifically, Appellant argues that had counsel known of the actual content of Mr. Podolak's proposed testimony, or if the Commonwealth had been forthright with the court during the litigation on the motion in limine, counsel would have persuaded the trial court to exclude this evidence as violating the Frye/Topa requirement of general acceptance in the scientific community.

Appellant woefully fails to develop any argument regarding the three separate prongs of the ineffective test. His entire argument seems to be directed towards the arguable merit prong. He makes no mention whatsoever of whether counsel had a reasonable basis, or how counsel's failures prejudiced him. Appellant fails to meet his burden, and his claim must fail. See Jones, supra. Further, we fail to see how counsel can be considered ineffective at the motion in limine hearing. Based on the information contained in the report, trial counsel argued that Mr. Podolak's testimony should be excluded because the opinion described in the report was not generally accepted in the scientific community. It is not apparent what more counsel could have done, and the fact that the agent subsequently testified conclusively does not render counsel's performance ineffective at the motion in limine hearing.

Second, Appellant argues that trial counsel was ineffective for failing to object to Agent Podolak's trial testimony positively connecting the hair found on Appellant's clothes to Ms. Warrick. Although Appellant argues the arguable merit portion of the ineffectiveness test, he completely ignores the reasonable basis and prejudice prong. As this Court noted in Bracey, "[s]uch an undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is entitled to any relief." Bracey, 795 A.2d at 940 n.4.

Third, Appellant argues that counsel was ineffective for failing adequately to cross-examine, impeach, and rebut Mr. Podolak's testimony. Appellant argues that, had counsel adequately prepared, he could have impeached Agent Podolak's testimony by the use of "standard treatises" and in numerous other respects, including the following eight points: (1) the uniqueness of cuticle cells and cortical fusi in hair; (2) the subjective nature of hair analysis; (3) the existence of recorded examples of hairs from different individuals that match hairs from other individuals based on all microscopic characteristics; (4) the allegedly exaggerated amount of hairs claimed to be examined by Agent Podolak in relation to the amount of time necessary to adequately examine a single hair; (5) the 67% error rate in hair comparison analysis; (6) the speculative nature of the prosecution's "secondary transfer" theory regarding the location where the hairs were found;*fn14 (7) the accuracy and propriety of Agent Podolak's method of comparing questioned samples to his own hair; and (8) the alleged false and misleading statements regarding Agent Podolak's ability to render an opinion on the source of the hair. See Brief for Appellant, at 56-57.

Appellant contends that counsel was without a reasonable basis for not adequately preparing and cross-examining Agent Podolak on the above points. He also contends that he was prejudiced by trial counsel's failures because the hair evidence was the only direct evidence linking him to the crime. As such, adequate preparation and cross-examination, according to Appellant, would have likely led to a different result. We disagree.

Appellant cannot demonstrate that he was prejudiced by trial counsel's actions. Even if we assume that trial counsel's preparation and cross-examination were inadequate, which we need not take a position on here, we cannot agree with Appellant that the outcome of the proceeding would likely have been different. See Rios, supra. Even if the jury disregarded the hair evidence, the evidence at trial overwhelmingly demonstrated Appellant's guilt. Three different eyewitnesses saw Appellant with the victims at, or near, the Millcraft Shopping Center. The first witness observed Appellant approach one of the victims and point to the car's tire. The same witness watched as Appellant got into the drivers' seat of the car. The second witness saw Appellant holding the door open for the other two victims as they entered the vehicle. A third witness identified Appellant driving the car around the time in question while his friend's mother-in-law, Ms. Horner, was in the passenger seat. Appellant was then seen driving the victim's car later that day at the Klements Service Station.

Testimony was also introduced regarding a burglary that occurred shortly after the murders at the home of Ms. Woznicak, which was a short distance from the Klements Service Station. Appellant was later observed by three witnesses unloading the stolen items from Ms. Warrick's vehicle into his girlfriend's home. Ms. Woznicak found a strip of cloth that was later determined to be from the dress worn by Ms. Warrick the day she was murdered. Moreover, the bodies of the victims were found approximately 600-800 yards from Appellant's childhood home. The Commonwealth introduced testimony that Appellant was a black-belt in karate, which was important because the coroner found that the victims were likely killed by blunt trauma by a human hand. Finally, Ms. Hair testified that just three days before the murder, Appellant tried to gain access to her and her vehicle by fabricating a problem with the vehicle's tire, going so far as to feign seeing a nail in the tire and a pair of scissors under the tire. All of this evidence is sufficient to establish Appellant's guilt, even if the jury disregarded the hair comparison evidence. Thus, Appellant's claim must fail as he cannot demonstrate prejudice.

Fourth, Appellant argues that counsel was ineffective for failing to request, in a timely manner, an expert examination of a hair and a cigarette found in the victim's car, and that the court abused its discretion by refusing to order the testing that was requested mid-trial.*fn15 Appellant, noting his constitutional right to a fair opportunity to present his defense, relies on Ake v. Oklahoma, 470 U.S. 68 (1985) and Commonwealth v. Carter, 643 A.2d 61, 73 (Pa. 1994) for the position that an indigent criminal defendant is entitled to the assistance of expert opinions to prepare an adequate defense. At trial, the Commonwealth introduced evidence that an African-American hair was found in the vehicle. Trial counsel did not request that the hair be compared to Appellant or anyone else until midway through the trial. Accordingly, Appellant asserts that trial counsel was ineffective for not timely preparing the case and waiting until mid-trial to request expert assistance to test the hair.

Appellant fails to address the reasonable basis and prejudice prongs of the ineffectiveness test. Rather, he advances only boilerplate allegations of ineffective assistance of counsel. As such, Appellant has not carried his burden of proving he is entitled to relief. See Jones, supra.*fn16

III. Admissibility of Hair Analysis Evidence

In another issue, Appellant argues that admission of the hair comparison evidence violated his constitutional rights to due process pursuant to this Court's decision in Topa, 369 A.2d 1277.*fn17 In Topa, this Court reversed a murder conviction that was based on testimony of an expert in spectography, who identified the appellant's voice during a confession on a recorded telephone call. This Court rejected the use of spectography as its validity was not generally accepted by those in the same scientific field. Id. at 1281. Appellant contends that hair comparison evidence is similarly unaccepted, and should not have been permitted at trial.

This issue, to the extent it involves a constitutional question, is waived.*fn18 42 Pa.C.S. § 9544(b). As Appellant notes, nothing prevented counsel from raising this issue on direct appeal. Appellant seeks to resurrect the claim by making a blanket claim of ineffectiveness for failing to raise the issue on appeal. Again, he does not meaningfully address the three prongs of the Pierce test with minimally adequate detail. Therefore, this claim too must fail. See Jones, supra. Further, as we noted in disposing of Appellant's claim that trial counsel was ineffective for failing to cross-examine Mr. Podolak adequately, the evidence against Appellant was overwhelming, and we cannot conclude that had counsel raised this issue on appeal, the conviction would have been reversed.

IV. Ineffectiveness Relating to Voir Dire

Appellant next claims that the jury selection process was defective in violation of his rights pursuant to the 5th, 6th, 8th and 14th Amendments to the United States Constitution and Article I, Sections 9 and 13 of the Pennsylvania Constitution. This argument has several subparts.

First, Appellant argues that trial counsel was ineffective for failing to ask specific questions regarding racial bias and attitudes towards race because this case involved an African-American man charged with murdering three white women. The trial court granted trial counsel permission to ask the following three questions during voir dire: (1) "Do you feel that black people are more likely to commit a crime than white people?;" (2) "Do you have any prejudices towards black people?;" and (3) "Would you give more credence to the testimony of a white person over that of a black person simply because he was a white person?" Brief for Appellant at 64. Appellant alleges that during the voir dire process, trial counsel asked only the first question, rather than all three. This, he claims, rendered counsel ineffective.

Again, in order to be entitled to relief, Appellant must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as a result of counsel's action or inaction. Pierce, 786 A.2d at 213.

Assuming arguendo that this claim has arguable merit, we first turn to whether counsel had a reasonable basis for asking only one of the three permitted questions. As the PCRA court noted, an effective attorney may refrain from asking a prospective juror repeatedly about racial bias if he believes doing so may anger, embarrass, or annoy a potential juror that the attorney finds acceptable. PCRA Court Op. at 19. Therefore, counsel may have had a legitimate reason not to ask all three questions concerning racial prejudice to each prospective juror. See Commonwealth v. Richardson, 473 A.2d 1361, 1364 (Pa. 1984) (noting that there are valid reasons not to ask questions concerning racial issues even in a case where the victim is white and the defendant is black); Commonwealth v. Henry, 706 A.2d 313 (Pa. 1997) (finding counsel was not ineffective for failing to ask racial prejudice questions in a case involving a black defendant and a white victim).

Moreover, the mere fact that counsel was permitted to ask three questions but only asked one does not alone demonstrate prejudice. Having gotten an answer regarding whether the prospective juror felt that black people were more likely to commit a crime than white people, it is difficult to see how Appellant could persuasively demonstrate prejudice because counsel did not also ask that juror whether he or she had racial prejudices against black people or would credit a white person's testimony over that of a black person.

Second, Appellant argues trial counsel was ineffective for failing to rehabilitate jurors who showed they were hesitant to impose the death penalty when the prosecutor was "death qualifying" them. Appellant asserts that the prosecutor challenged for cause eleven jurors who initially stated some form of opposition to the death penalty, and trial counsel failed to object or attempt to elicit more detailed information about whether the particular jurors were so predisposed that their personal beliefs would substantially impair their ability to judge the sentencing proceeding fairly. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (holding that potential jurors may not be excluded merely because they voice general moral or philosophical reservations about the death penalty).

The decision to disqualify a juror is within the discretion of the trial court, and will only be reversed for an abuse of discretion. Commonwealth v. Carson, 913 A.2d 220, 262 (Pa. 2006); Commonwealth v. Wilson, 672 A.2d 293, 299 (Pa. 1996). A potential juror may be excluded if he holds views on capital punishment that prevents or substantially impairs that person from adhering to the trial court's instructions on the law. Carson, 913 A.2d at 262; Commonwealth v. Lark, 698 A.2d 43, 48 (Pa. 1997). "A juror's bias need not be proven with unmistakable clarity." Commonwealth v. Morales, 701 A.2d 516, 525 (Pa. 1997).

Appellant makes no argument whatsoever regarding the prejudice prong, nor does he argue that he is not required to argue prejudice. Therefore, Appellant is not entitled to relief because of his failure to meaningfully address the necessary prongs of ineffectiveness. See Jones, supra, Bracey, supra. Further, we have held that a trial court is within its discretion to exclude jurors who expressed reservations about imposing the death penalty, and that trial counsel has no constitutional obligation to attempt to change the jurors' views. See Carson, 913 A.2d at 262.

Finally, Appellant asserts that the empanelled jurors were not asked if they could impose a life sentence, making it likely that at least one juror was empanelled who would automatically vote for the death penalty.*fn19 Prior to trial, counsel petitioned the trial court to include specific voir dire questions for venire, including two questions that the trial court rejected: (1) "If you found the defendant guilty of first degree murder, would you automatically vote for the death penalty?" and (2) "Do you feel that capital punishment is a deterrent to murder?" Brief for Appellant at 68. Appellant argues that during voir dire, trial counsel did not probe the juror's beliefs on the death penalty once the juror stated that he or she could impose that sentence.

Appellant relies on Morgan v. Illinois, 504 U.S. 719 (1992), where the United States Supreme Court held that during voir dire in a capital case, a trial court may not, without violating the Due Process Clause of the 14th Amendment, refuse questioning regarding whether a juror would automatically impose a death sentence following a first degree murder conviction:

A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. . . . If even one such juror is empanelled and the death sentence is imposed, the State is disentitled to execute the sentence.

Id. at 729 (emphasis supplied by Appellant); Brief for Appellant at 67.

It appears that Appellant is arguing trial court error in denying counsel's requested questions, rather than trial counsel ineffectiveness. In Commonwealth v. Blystone, 725 A.2d 1197 (Pa. 1999), the appellant argued, as Appellant does here, that he was deprived of his right to an impartial capital jury as a result of the trial court's refusal to allow trial counsel to life qualify potential jurors. We rejected this claim, and found that the appellant's reliance on Morgan was misplaced because Morgan was a new constitutional rule of criminal procedure for voir dire in capital cases, and therefore did not apply retroactively. Id. at 1203. We recognized that prior to Morgan, the United States Supreme Court "had not imposed a mandatory requirement that a defendant be afforded a life qualifying voir dire question upon request." Id. Nor did Pennsylvania have such a requirement. Therefore, we held that the appellant was not entitled to have his counsel life qualify the jury, according to the law at the time of trial. Id.

We reach the same conclusion here. Appellant was tried and convicted in 1988. This Court rejected his appeal in 1989. Morgan was decided in 1992. Thus, the law at the time of Appellant's trial did not mandate that juries be questioned on life qualification, and the trial court did not err in rejecting counsel's questions. See Carson, 913 A.2d at 262.*fn20

V. Instructions Regarding Identification Testimony

Appellant next alleges that his rights pursuant to the 5th, 6th, 8th, and 14th Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution were violated by the trial court's failure properly to instruct the jury regarding identification testimony. As Appellant notes, identification was a crucial aspect of the case. Appellant asserts that the cross-racial nature of the identification testimony, combined with the racially charged atmosphere of the trial, required careful control of the jury by the court, and the trial court's failure to instruct the jury regarding the difficult nature of such identifications raised serious questions about the accuracy of the verdict.

This issue has two subparts. The first is in regard to Harry C. Crothers, who testified for the Commonwealth. Mr. Crothers gave a statement to police one week after the homicide indicating that he saw Ms. Horner's car on the day of the murders and could identify it, but was not in a position to see the occupants clearly, other than observing three elderly women and a bald black man driving. At trial, however, he testified that he saw Appellant driving the car. To counter the Commonwealth's identification witnesses, including Mr. Crothers, the defense presented the testimony of an expert in perception and memory, who testified regarding matters affecting the reliability of eyewitness identification, specifically cross-racial identifications. Further, the defense presented the testimony of three witnesses who observed a similar looking man, who was not Appellant, in the area around the time of the crimes. In light of this defense testimony, including the testimony of the defense expert, trial counsel requested an instruction with respect to Mr. Crothers, "in an effort to channel the jury in the direction of careful reasoned consideration and steer the jury away from conjecture." Brief for Appellant at 76. The requested instruction was taken from the standard jury instructions:

A victim or other witness can sometimes make a mistake when trying to identify the criminal. If certain factors are present, the accuracy of identification testimony is so doubtful that a jury must receive it with caution. Identification testimony must be received with caution (if the witness because of bad position, poor lighting or other reasons did not have a good opportunity to observe the criminal) (if the witness in his testimony is not positive as to identity) (if the witness' positive testimony is weakened [by qualifications, hedging or inconsistencies in the rest of his testimony] [by his not identifying the defendant, or identifying someone else, as the criminal (at a lineup) (when showing photographs) (___) before the trial]) (if, before the trial, the defendant's request for a (lineup) (___) to test the ability of the witness to make an identification was denied and the witness subsequently made a less reliable identification) (if, ___).

Brief for Appellant at 76-77 (quoting Standard Jury Instructions, 4.07). The trial court rejected this request.

Appellant now argues that the trial court erred in denying the requested instruction, based on the Standard Jury Instructions, regarding how the jury should assess the credibility and weight of an identification witness. We find this claim to be waived. Appellant raised it before the trial court after his conviction and sentence. See PCRA Ct. Op. at 23 (citing 1988 Trial Ct. Op.). However, Appellant did not pursue the claim on direct appeal to this Court, although he could have. See 42 Pa.C.S. §9544(b) (stating that a claim is waived if an appellant could have raised it but failed to do so on appeal). To the extent counsel was ineffective for failing to pursue this claim on appeal, Appellant fails to discuss and apply the governing ineffectiveness standard. As such, his claim fails. See Bracey, supra.

Second, Appellant argues that although the defense presented testimony concerning the unreliability of cross-racial identification, counsel did not request and the trial court did not give any instruction on that evidence. Because trial counsel did not request such an instruction, any claim of trial court error is waived. Although Appellant tags on a bald claim of trial counsel ineffectiveness for failing to preserve this issue, this underdeveloped argument, as with many of the issues discussed above, fails meaningfully to discuss and apply the governing ineffectiveness standard. As such, his claim fails. See Bracey, supra.

VI. Trial Court's Unanimity Instructions

Appellant next contends that his constitutional rights were violated because the trial court's instruction on unanimity improperly instructed the jury that it must find Appellant guilty, and that no other verdict was acceptable, even though the law allows and provides for circumstances where a jury cannot agree. The court stated:

No matter what your verdict may be, it must be unanimous, that is, it must reflect the unanimous choice of each and every one of you on each charge or count. Each and everyone of you must concur and agree on the final verdict which you will return here in open court. Any verdict which does not reflect the view of each and everyone of you would be improper and we could not accept it. In other words, you cannot come back in court and say that you are seven to five, nine to three, ten to two or anything like that. The verdict must be unanimous, either guilty or not guilty on each charge.

Notes of Testimony (N.T.) at 1484. Appellant contends that this instruction created a real risk that a juror would surrender his or her feelings and beliefs about the case in order to reach a unanimous verdict. In short, he claims this instruction was "judicial coercion." Brief for Appellant at 80. See Commonwealth v. Chester, 587 A.2d 1367, 1380 (Pa. 1991) ("It is well-established that a verdict brought about by judicial coercion is a legal nullity."). Appellant ...


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