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Commonwealth v. Miller

December 28, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DENNIS MILLER, APPELLANT



Appeal from the order dated 6-30-07, entered by the Court of Common Pleas of Chester County denying Post-Conviction Collateral Relief at No. CP-15-CR-0000061-1996.

The opinion of the court was delivered by: Madame Justice Greenspan

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

SUBMITTED: October 30, 2008

OPINION

This is a capital appeal from an order entered by the Court of Common Pleas of Chester County denying Appellant Dennis Miller's request for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant was sentenced to death following his convictions for first-degree murder, rape, indecent assault, recklessly endangering another person, possessing an instrument of crime, and flight to avoid apprehension. These charges arose out of the stabbing murder of Appellant's wife in November of 1995. We affirm.

Briefly, the facts underlying appellant's convictions are as follows. On November 18, 1995, Appellant and his wife, Sherry, left their two children, Barbara and Dennis, with Appellant's mother, Agnes Miller, and went to a local bar called Trib's Waystation where they drank some beer and ingested methamphetamine. During the course of the evening Appellant became visibly upset and angry when his wife spoke to other men or used her cell phone.*fn1 The couple left the bar at about 1:20 a.m.*fn2

The next day, when Appellant and Sherry did not appear at Agnes Miller's home as planned, Ms. Miller became concerned, especially after no one answered the telephone at Appellant's residence. Ms. Miller twice drove to Appellant's home and observed that the doors to the residence were locked, no one answered the door, and that Sherry's car was not there. On November 20, 1995, after speaking to Sherry's mother and learning that she had not heard from Sherry, Ms. Miller filed a missing persons report with the Pennsylvania State Police. After the investigating trooper was unable to locate Appellant or his wife, he and other troopers went to their residence. Once there, they received permission from Ms. Miller to break into the residence. Upon doing so, they discovered the naked body of Sherry Miller lying on a bed in an upstairs bedroom. Her body was covered in blood, her legs were spread, her knees were bent, and there was a blood-covered pillow over her face. Upon discovering the body, the troopers left the residence to wait for a search warrant.

An autopsy of Sherry Miller's body indicated that she had died because she was stabbed over thirty times in her head, chest, arms, and hands. During the autopsy, the tip of a knife was retrieved from her shoulder. The knife from which the tip originated was found in a trash can. The forensic pathologist who performed the autopsy concluded from the position of the body, defensive wounds on the victim's hands, the lack of blood below her waist, and the lack of seminal material outside her vagina that she had been subjected to intercourse at the time of her death.*fn3

An investigation of the residence resulted in the seizure of evidence tying Appellant to the crime including Appellant's bloody palm print on the pillow found covering the victim's face, Appellant's bloody fingerprint on a bandage, and a bloody footprint belonging to Appellant. In addition, investigators noted that the box spring from the bed on which the victim was found was broken and that the murder weapon had a bloody thumbprint on it. While the thumbprint had several characteristics consistent with Appellant's thumbprint, it contained insufficient identifying markers to be positively identified as having been placed on the knife by Appellant. Police also found a note in the kitchen, in Appellant's handwriting, that read:

Now I hope some of Sherry's whore friends learn something from this. I didn't want for it to go this far, but you people don't understand what she put me through. Some know, but they don't want to say something about her. Everybody told her everything I did, but me, I had to find out for myself what she did. All of my so-called friends f--- me one way or another. I had no friends. And I wish I had more time to get even with some of you assholes. I just want to say that you, Larry Brown, I would have killed you, and you, Sean Smith, I told Donny one time before to tell you to leave her alone. I don't know if he did. And if he did, the next time somebody tells you something, you better do what they say. I would have got you too. I hope somebody in my family takes care of Barb, Dennis. I do love you all. I will see some of you in hell.

Appellant fled the area following the crime. He was apprehended six months later in Florida because of a tip authorities received following a report about the crime on the television show "America's Most Wanted."

Following the denial of a motion to suppress and the waiver of his right to a jury trial, Appellant's capital murder trial commenced in September of 1997. At trial, the Commonwealth presented, inter alia, the testimony of Michael Torres who for a time was Appellant's cellmate while he was incarcerated on the aggravated assault charge. Torres testified that Appellant often spoke of killing his wife and that on the day Appellant was released from prison he stated, "I'll be back for killing my wife." The Commonwealth also presented the testimony of forensic pathologist, Richard Callery, M.D., who testified that the victim died because of the numerous stab wounds she sustained, which caused severe internal bleeding. The doctor also opined that the victim died while being subjected to forcible intercourse. In his defense, Appellant presented the testimony of a witness who stated that Torres had fabricated his testimony. At the conclusion of the trial, the trial court found Appellant guilty of the above enumerated offenses.

After Appellant waived his right to a jury trial, a penalty hearing was held before the trial court. At the penalty hearing the Commonwealth presented evidence on two aggravating circumstances, namely, that Appellant committed the murder during the perpetration of a felony, in this case rape, 42 Pa.C.S.§ 9711(d)(6), and by means of torture, 42 Pa.C.S. § 9711(d)(8). Appellant thereafter asserted that two mitigating circumstances applied: Appellant lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3), and the "catch-all provision," 42 Pa.C.S. § 9711(e)(8). At the conclusion of the penalty hearing, the trial court found one aggravating circumstance, Section 9711(d)(6), and one mitigating circumstance, Section 9711(e)(3). Upon weighing the aggravating and mitigating circumstances, the trial court fixed the penalty at death. The court formally imposed that sentence on October 27, 1997, together with a consecutive sentence of ten to twenty years incarceration on the rape conviction.

Appellant appealed to this Court arguing that the trial court erred in denying his motion to suppress, the evidence was insufficient to support his convictions for rape and indecent assault, and the aggravating circumstance did not outweigh the mitigating circumstance. This Court affirmed the judgment of sentence on January 20, 1999. Commonwealth v. Dennis Miller, 724 A.2d 895 (Pa. 1999). Appellant was represented by the same attorney at trial and on appeal.

On October 29, 1999, Appellant filed a pro se PCRA petition.*fn4 The PCRA court entered an order on November 8, 1999, granting Appellant an emergency stay of his death sentence pending disposition of his request for relief under the PCRA. The PCRA court also appointed two attorneys to represent Appellant. On June 7, 2000, Appellant filed an amended petition. He thereafter filed several supplemental petitions and requests for discovery, which included a request for high-resolution scans of the negatives of the photographs of the crime scene. The PCRA court denied Appellant's request for the high-resolution scan of the negatives on July 19, 2002.

On October 17, 2003, the Commonwealth filed its answer and a pre-hearing memorandum requesting that the PCRA court dismiss some of Appellant's claims because they had been previously litigated. On December 31, 2004, the PCRA court, in a written opinion and order, granted in part and denied in part the Commonwealth's request.

An evidentiary hearing was conducted in late October 2003. In the months following the hearing, Appellant filed several motions asking permission to supplement the record with the victim's medical records and documents relating to Michael Torres. The PCRA court denied both requests in written orders filed January 19, 2005, and November 30, 2005. The Appellant also sought permission to present the testimony of Dr. Callery, the forensic pathologist who testified at trial. Appellant sought to present the doctor's testimony to clarify his trial testimony with respect to whether the victim had been raped. Following a hearing, Appellant's request was denied. On June 30, 2007, the PCRA court issued an opinion and order denying Appellant post-conviction collateral relief (PCRA Court Opinion, 6/30/07). Appellant thereafter timely filed the instant appeal.*fn5 The PCRA Court requested a Pa.R.A.P. 1925(b) Statement, and on November 2, 2007, the court issued a Rule 1925(a) Opinion (PCRA Court Opinion, 11/2/07).

The standard of review applicable to appeals from the denial of PCRA relief requires this Court to ascertain whether the PCRA court's rulings are supported by the record and free of legal error. Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008); Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008). "In order to be eligible for PCRA relief, [a petitioner] 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)." Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).

Appellant raises thirteen issues on appeal including claims that prior counsel failed to provide effective assistance of counsel. In order to be eligible for relief on a claim alleging ineffective assistance of counsel, a defendant must establish that counsel's representation fell below accepted standards of advocacy and that as a result thereof, prejudice resulted. Strickland v. Washington, 466 U.S. 668 (1984). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987), this Court interpreted the Strickland standard as requiring proof that: (1) the underlying claim is of arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008). A chosen strategy will not be found to have been unreasonable unless it is proven that the path not chosen "'offered a potential for success substantially greater than the course actually pursued.'" Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). Finally, to prove prejudice, a defendant must show that but for counsel's error, there is a reasonable probability, i.e., a probability that undermines confidence in the result, that the outcome of the proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (citing Strickland, 466 U.S. at 694). A defendant's failure to satisfy even one of the three requirements results in the denial of relief. Commonwealth v. Cook, 952 A.2d 594, 614 (Pa. 2008).

Having articulated the standards applicable to appeals from the denial of PCRA relief and claims alleging ineffective assistance of counsel, we turn to a review of the issues raised by Appellant. We have re-ordered Appellant's issues for ease of review in accordance with their relation to the guilt, penalty, or PCRA phases of the proceeding.

GUILT PHASE ISSUES

1. A New Trial Is Warranted Because Trial Counsel Failed to Investigate and Present Evidence Showing that the Victim Was Killed in the Heat of Passion

Appellant asserts that he should have been granted a new trial because trial counsel failed to investigate and present evidence demonstrating that Appellant killed his wife in the heat of passion. In support of this claim, Appellant faults trial counsel for not calling during trial Dr. Gerald Cooke, a psychologist who had been retained by the defense for the penalty phase. Appellant claims Dr. Cooke would have opined that the killing was consistent with an explosive rage premised on Appellant's "personality makeup, his drug use and everything he told [Dr. Cooke] about the incident". Appellant's Brief, 18 (citing N.T. 10/29/03, 440). Appellant also contends that trial counsel's representation was deficient because he did not interview or call as witnesses several of Appellant's family members. According to Appellant, these witnesses would have testified that Appellant and the victim had a tumultuous relationship that was fueled by drug and alcohol abuse, that the victim saw other men, that she was impregnated by another man and had an abortion, that knives were kept in the bedroom where the murder occurred, and that the bed was broken prior to the day of the murder. Finally, Appellant states that trial counsel should have presented expert testimony demonstrating that the manner in which the victim was killed (multiple stab wounds) was typical of a "very angry assailant, an emotionally charged assailant," as well as testimony opining that the killing was committed in the heat of passion and that Appellant suffered from brain damage that affected his ability to appreciate the consequences of his actions.*fn6 Appellant's Brief, 21-22.

Appellant is entitled to no relief on this claim. A person is guilty of "heat of passion" voluntary manslaughter "if at the time of the killing [he or she] reacted under a sudden and intense passion resulting from serious provocation by the victim." Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa. 1999). "'Heat of passion' includes emotions such as anger, rage, sudden resentment or terror which renders the mind incapable of reason." Commonwealth v. Mason, 741 A.2d 708, 713 (Pa. 1999). An objective standard is applied to determine whether the provocation was sufficient to support the defense of "heat of passion" voluntary manslaughter. Commonwealth v. Laich, 777 A.2d 1057, 1066 (Pa. 2001). "The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was incapable of cool reflection." Commonwealth v. Thornton, 431 A.2d 248, 252 (Pa. 1981).

The PCRA court's opinion indicates that trial counsel not only did an "exceptional" job in attempting to establish that the killing was committed in the "heat of passion," but also that the refusal of Appellant to testify handicapped trial counsel because he was unable, without Appellant's testimony, to establish Appellant's state of mind at the time of the killing. The PCRA court wrote:

Based on the totality of the circumstances, the court finds that trial counsel was not ineffective for failing to establish a heat of passion defense. To the contrary, counsel did an exceptional job of getting evidence and argument regarding heat of passion into the record despite the defendant's refusal to take the stand. Further the testimony of the other alleged witnesses would either have been not admissible or irrelevant and/or not helpful. Thus, trial counsel was not ineffective for failing to call said witnesses during the trial.

PCRA Court Opinion, 6/30/07, 25. The PCRA Court's reasons for rejecting this claim were correct as they indicate that the court had considered and rejected the evidence submitted at trial by Appellant regarding his claim that the killing was committed in the heat of passion and that the additional evidence would have resulted in a different outcome. The reason for this is clear, namely, the additional evidence fails to establish that the killing resulted from a sudden and intense passion resulting from serious provocation caused by the victim contemporaneously with the killing. Once Appellant refused to testify about the events surrounding the killing, he made it virtually impossible for counsel to convince the trial court that the killing was committed in the "heat of passion" insofar as the record lacked any evidence that the killing was the result of some provocative act committed by the victim or that Appellant killed the victim in the "heat of passion" as a consequence of the victim's provocation of him. Under the circumstances, the PCRA did not err in denying relief on this claim.

Even were we to consider the additional evidence and testimony Appellant claims trial counsel was ineffective for not presenting at trial, which concerns his wife's alleged infidelity and their stormy relationship, it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim. While Appellant claims that the victim's apparent infidelity and flirtatiousness, when coupled with his own mental state, were sufficient to cause him to act with sudden and intense passion, we note Appellant was well aware of his wife's proclivities prior to the day of the killing and trial counsel introduced evidence establishing this. Thus, the evidence Appellant claims should have been introduced on this issue was merely cumulative of evidence already presented at trial. Moreover, the evidence shows that although Appellant and his wife argued while together at the bar, he calmed down and appeared to be in control of his faculties following the argument. N.T. 9/30/97, 213, 220. Also the note Appellant left at the scene evinces that he had not acted in the "heat of passion" but rather in a calculating manner.

In numerous cases, evidence showing a history of minor disputes and allegations of past infidelity has been held not to be sufficiently provocative to reduce murder to manslaughter. See Commonwealth v. Frederick, 498 A.2d 1322 (Pa. 1985) (holding that evidence of a stormy relationship and of an argument between the defendant and his victim earlier on the day of the killing was not sufficient evidence of provocation to require a heat of passion jury instruction); Commonwealth v. Pirela, 507 A.2d 23 (Pa. 1981) (holding that defendant, who killed a man defendant believed killed his brother twenty-four hours prior thereto, was not acting under sudden passion); Commonwealth v. Whitfield, 380 A.2d 362 (Pa. 1977) (holding argument between defendant and her mother's husband over black- eyed peas and leaving door open, which occurred approximately one half-hour to an hour before fatal stabbing of husband, was not adequate legal provocation to reduce murder to voluntary manslaughter); Commonwealth v. Walter Brown, 260 A.2d 742 (Pa. 1970) (holding refusal of wife to return home, which caused husband to lose control and stab her, was not sufficient provocation to justify finding of voluntary manslaughter). In Commonwealth v. Collins, 269 A.2d 882 (Pa. 1970), the defendant, who claimed that he was provoked to kill his wife because his wife may have seen another man while he himself was incarcerated, argued that it was error to refuse a request that the jury be instructed on heat of passion voluntary manslaughter. This Court found no merit to the claim, stating:

Unfortunately, this evidence, even if true, does not come close to establishing the prerequisites of voluntary manslaughter as set forth in Commonwealth v. Barnosky, 436 Pa. 59, 64, 258 A.2d 512, 515:

"To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state or rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting-if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Commonwealth v. Drum, 58 Pa. 9(17)'[sic]; Commonwealth v. Paese, 220 Pa. 371, 373, 69 A. 891, 892 (1908), cited in Commonwealth v. Drum, 58 Pa. 917).'[sic] Com-2d 757, 762 (1968).[sic] See Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373 (1947)."

Collins, 269 A.2d at 885-86.

The foregoing cases make clear that the acts of provocation relied upon by Appellant were simply not acts which society is prepared to recognize as providing sufficient provocation to reduce the crime of murder to manslaughter. Thus, trial counsel was correctly deemed not to have been ineffective for failing to present such evidence.

Appellant further argues, however, that when this evidence is coupled with the proposed testimony of the expert witnesses identified above, it establishes that the killing was committed in the "heat of passion." In the absence of evidence about what precipitated the killing, one simply cannot draw the conclusion that Appellant killed his wife in a fit of rage after she provoked him. While Appellant's psychological makeup may have rendered him unable to handle his wife's infidelity and the couple's marital difficulties, absent some evidence that his wife committed an act sufficiently provocative at the time of or very shortly before the killing, the testimony of the expert witnesses was irrelevant. See Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972) (indicating that before a defendant's state of mind becomes relevant as to whether there was sufficient provocation, a defendant must first present evidence of provocation). Thus, trial counsel cannot be faulted for failing to introduce the identified expert testimony at trial. In view of the foregoing, we affirm the PCRA court's ruling that trial counsel was not ineffective for failing to investigate and introduce at trial the suggested additional evidence pertaining to whether the killing was committed in the heat of passion.

2. Trial Counsel Was Ineffective for Failing to Investigate and Present Expert Testimony to Rebut the Commonwealth's Assertion that the Victim Was Raped

Appellant accuses trial counsel of providing him with ineffective assistance of counsel for not investigating and presenting evidence to rebut the Commonwealth's claim that Appellant raped the victim. Appellant submits that had such evidence been presented, the trial court would have ruled that the evidence was insufficient to support the rape charge.

During the PCRA evidentiary hearing, Appellant presented the testimony of two expert witnesses, Dr. Peter R. DeForest, a professor of criminalistics at John Jay College of Criminal Justice, and Dr. Charles Wetli, Chief Medical Examiner for Suffolk County. Dr. DeForest testified that his examination of the physical evidence in the case led him to the conclusion that the victim had not been raped. In reaching this conclusion, Dr. DeForest opined that the grounds relied upon by Dr. Callery in finding that a rape occurred, namely, the lack of blood below her stomach, the volume of fluid in her vagina, and the position in which her body was found, were insufficient to prove that a rape occurred, due either to more plausible explanations or the lack of adequate testing. N.T. 10/28/03, 285-91. Dr. DeForest further testified that trial counsel's cross-examination of Dr. Callery was grossly inadequate. N.T. 10/28/03, 292-96. Dr. DeForest indicated that his examination of the evidence and the opinions he rendered were based on scientific principles that were available in 1997 prior to the commencement of trial in this case. N.T. 10/28/03, 300.

Dr. Wetli also testified that there was no evidence of forcible rape. He based his conclusion on the lack of trauma to the victim's genital region and the fact that there was no evidence of strangulation or asphyxiation, which he opined almost always occurs during a forcible sexual assault. N.T. 10/28/03, 330-31. According to Dr. Wetli, the victim's defensive injuries were more consistent with her assailant straddling her chest than with his having intercourse with her at the time. N.T. 10/28/03, 333.

Both Dr. DeForest and Dr. Wetli conceded that they could not rule out that the victim had been forcibly raped. N.T. 10/28/03, 320, 352. During cross-examination, Dr. DeForest qualified his opinion that the position of the victim's body made it unlikely that a rape occurred by admitting that intercourse could have occurred in the position in which the victim was found. N.T. 10/28/03, 307. He also conceded that the defensive wounds found on the victim's body demonstrated that she was resisting the attack. N.T. 10/28/03, 315-16.

Trial counsel testified that based on his experience, he believed that it was not necessary to consult an expert to rebut the evidence that a rape occurred because he did not think that Dr. Callery would be found credible. N.T. 10/27/03, 85-87. Although counsel could not recall what he did in preparing to cross-examine Dr. Callery, he recalled he did take steps to discredit his testimony.

The PCRA court found this claim lacked merit for several reasons, the most salient one being that Appellant failed to prove that trial counsel's actions lacked a reasonable basis. PCRA Court Opinion, 6/30/07, 9.*fn7 Trial counsel testified that he did not seek out and retain an expert because his review of the evidence made it pellucidly clear to him that no rape occurred and that it was his belief that anyone who reviewed the evidence would draw the same conclusion he did. N.T. 10/27/03, 85-86. Trial counsel also related that it was his belief that he could rebut and undermine the testimony of Dr. Callery, the Commonwealth's expert witness, with respect to whether a rape occurred without the assistance of an expert witness through skillful cross-examination of Dr. Callery. N.T. 10/27/03, 87. Counsel drew this conclusion from his cross-examination of Dr. Callery at a pre-trial hearing during which he extensively cross-examined the doctor and elicited from him several inconsistencies with respect to whether the doctor was of the opinion, to a reasonable degree of medical certainty, that the murder and the sexual intercourse occurred simultaneously. Thus, the PCRA court concluded that "counsel reasonably thought that he did not need to retain additional experts in this case." PCRA Court Opinion, 6/30/07, 9.

On the basis of trial counsel's testimony, we cannot say that the PCRA court erred in concluding that trial counsel had a reasonable basis for not seeking out an expert witness to rebut Dr. Callery's testimony. This Court's review of matters involving trial strategy is deferential. Trial counsel will be deemed to have acted reasonably if the course chosen by trial counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008). Moreover, a claim of ineffectiveness will not succeed by comparing, in hindsight, the trial strategy trial counsel actually employed with the alternatives foregone. Id. Finally, "[a]lthough we do not disregard completely the reasonableness of other alternatives available to counsel, 'the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.'" Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007) (quoting Commonwealth v. Pierce, 527 A.2d 973, 975 (1987)).

Since the record supports the PCRA court's finding that trial counsel had a reasonable basis for not consulting with an expert witness, Appellant is denied relief with respect to this claim.

3. Trial Counsel Was Ineffective for Failing to Investigate, Develop, and Present Evidence at Trial Showing that Commonwealth Witness Michael Torres Suffered from a Mental Illness. Relatedly, the Commonwealth Violated Brady v. Maryland by Withholding Evidence Related to Michael Torres.

In this claim, Appellant complains that trial counsel was ineffective because he did not conduct any investigation with respect to Commonwealth witness Michael Torres, Appellant's former cellmate, who testified at trial that Appellant said he would be back in prison for killing the victim. N.T. 9/30/97, 180-81. According to Appellant, at the time he allegedly heard Appellant utter the threat, Torres was manic-depressive and bi-polar, was suffering from auditory hallucinations, and was being treated with psychotropic medication. Such information, Appellant maintains, was contained in various prison records and reports and in a pre-sentence report prepared by Northampton County officials after Torres had been convicted on drug and robbery charges. Appellant submits that trial counsel had an obligation to obtain these documents and could have obtained them had he simply conducted an investigation of Torres. Appellant argues that trial counsel's failure to investigate Torres entitles him to a new trial because Torres provided the only direct testimony that Appellant acted with premeditation when he killed the victim.

In a related claim, Appellant accuses the Commonwealth of violating the holding of Brady v. Maryland, 373 U.S. 83 (1963), because it failed to provide the defense with a copy of Torres's pre-sentence report. According to Appellant, the Commonwealth had an obligation under Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001), to obtain the presentence report from Northampton County authorities because it contained exculpatory information and was under the control of another governmental agency.

Neither claim entitles Appellant to relief. First, Appellant's attack on trial counsel's stewardship affords him no relief because trial counsel had no reason to believe that Torres was suffering from mental health problems. Although Torres was Appellant's cellmate for two months and spent significant time with Appellant in prison, Torres never told Appellant about his mental problems or acted in a manner suggesting that he had any. In fact, Torres never advised the prosecutor or the police involved in the instant matter about any mental problems. Torres admitted this at the evidentiary hearing held in this matter. N.T. 10/28/03, 224, 227, 235-36, 244.*fn8

In addition, the claim does not entitle Appellant to relief because he has not met his burden of establishing that he suffered prejudice because of trial counsel's alleged nonfeasance. According to Appellant, he was prejudiced by trial counsel's failure to investigate Torres because Torres's testimony "was critical to establishing the specific intent element of first-degree murder as [t]here was little else in the case that pointed to any kind of deliberation or premeditation of any kind." Appellant's Brief, 38. Appellant is mistaken. In addition to the use of a deadly weapon on vital parts of the victim's body,*fn9 Appellant left the incriminating note wherein he admitted that he killed the victim willfully. Thus, Torres's testimony was not as critical as Appellant claims it was with respect to proof that he acted with specific intent to kill.

Additionally, the PCRA court found Torres's recantation and Appellant's ignorance of Torres's mental health problems, including Torres's claim that he was hearing voices while incarcerated with Appellant, incredible because Appellant and Torres were cellmates and spent significant time together. PCRA Court Opinion, 6/30/07, 6-7. The PCRA court also noted that Torres had been threatened while in prison, which prompted prison authorities to move him on two occasions to other facilities after he testified against Appellant. The PCRA court attributed Torres's change of testimony to the threats and a desire to assist a friend and former co-prisoner. Finally, the PCRA court held that trial counsel effectively undermined Torres's testimony by presenting the testimony of a witness who stated that Torres admitted he was going to lie about what Appellant may have said to him in order to help himself. PCRA Court Opinion, 6/30/07, 7. We find that the reasons proffered by the PCRA court support its decision. Accordingly, Appellant has failed to establish that he was prejudiced by trial counsel's failure to conduct an investigation of Torres, and therefore, Appellant is not entitled to relief with respect to this claim of ineffectiveness. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998) (holding that where there is support in the record for a PCRA court's credibility determinations, this Court is bound by those determinations).

Appellant's claim that the Commonwealth violated the holding of Brady v. Maryland, supra, by failing to provide a copy of Torres's pre-sentence report to the defense lacks merit as well. In order to succeed on a Brady claim, a defendant must establish that the evidence withheld was favorable to him, i.e., that it was exculpatory or had impeachment value; the evidence was suppressed by the prosecution; and prejudice resulted. Commonwealth v. Sattazahn, 952 A.2d 640, 658 n.12 (Pa. 2008). In order to establish prejudice, a defendant is obliged to show that "the evidence in question was material to guilt or punishment, and that there is a reasonable probability that the result of the proceeding would have been different but for the alleged suppression of the evidence." Commonwealth v. James Dennis, 950 A.2d 945, 966 (Pa. 2008) (citing Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 434 (1995)). On this point, this Court has stated, "[i]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Commonwealth v. Green, 640 A.2d 1242, 1245 (Pa. 1994) (quoting United States v. Agurs, 427 U.S. 97, 112-13 (1976)). Further, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." Commonwealth v. Chambers, 807 A.2d 872, 887 (Pa. 2002) (emphasis added). Finally, a Brady violation will not afford a defendant relief if the defendant either knew of the existence of the evidence in dispute or could have discovered it by exercising reasonable diligence. Commonwealth v. Morris, 822 A.2d 684, 696 (Pa. 2003).

Instantly, Appellant's claim fails for myriad reasons. First, Appellant has failed to establish that the result of the proceedings would have been different had the pre-sentence report been provided to the defense. As noted above, the record was replete with evidence establishing that Appellant was guilty of the crimes he was convicted of committing, including first-degree murder. Thus, Torres's testimony was not crucial to the verdict rendered by the trial court and the verdict would not have been different had the presentence report been provided to the defense.

In addition, the Commonwealth was not required to obtain the pre-sentence report and provide it to the defense because the governmental agency that possessed it was not involved in the prosecution of Appellant. In Commonwealth v. Burke, supra, this Court first applied the rule laid down by the United States Supreme Court in Kyles v. Whitley, supra, wherein the Supreme Court held that the prosecution has a duty to provide the defense with exculpatory evidence contained in the files of police agencies of the same government bringing the prosecution, even though the prosecution was unaware of the existence of the evidence. The United States Supreme Court, however, limited its holding to those agencies that were involved in the prosecution of the accused. Whitley, 514 U.S. at 437 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). Here, Appellant has failed to establish that the government agency or agencies having possession of the pre-sentence report were involved in the prosecution of Appellant. Consequently, the prosecution herein had no obligation to acquire or provide the report to the defense. Accordingly, we hold Appellant's claim of ineffectiveness and his allegation that the Brady rule was violated are meritless and entitle him to no relief.

4. Trial Counsel Was Ineffective for Failing to Object to the Testimony of Dr. Richard Callery about the Occurrence of Rape Because Dr. Callery's Opinion Fell Below the Standard of Proof Required in the Commonwealth

Appellant contends that he is entitled to a new trial because of trial counsel's failure to object to the testimony of Dr. Richard Callery, the Commonwealth's medical expert, regarding whether the victim had been raped. Appellant asserts that trial counsel should have objected to Dr. Callery's testimony on the ground that Dr. Callery failed to state that a rape occurred to a reasonable degree of medical certainty.

A review of the applicable law indicates that "magic words" need not be uttered by an expert in order for his or her testimony to be admissible. Commonwealth v. Baez, 720 A.2d 711, 728 (Pa. 1998); Commonwealth v. Spotz, 756 A.2d 1139, 1160 (Pa. 2000). Rather, the substance of the testimony presented by the expert must be reviewed to determine whether the opinion rendered was based on the requisite degree of certainty and not on mere speculation. Spotz, 756 A.2d at 1160.

Trial counsel testified that he did not proffer an objection to Dr. Callery's testimony because three weeks prior to Dr. Callery's taking of the witness stand, Dr. Callery testified during a pre-trial hearing that it was his opinion that a rape occurred and that if he proffered an objection, the Commonwealth would have been permitted to elicit the necessary testimony from the doctor. In addition, trial counsel testified that he did not object, and give the Commonwealth an opportunity to elicit from Dr. Callery the "magic words" because he made the tactical decision to use that omission to argue to the trial court that no rape occurred.

The PCRA Court ruled that this ineffectiveness claim lacked merit because trial counsel had a reasonable basis for failing to object. PCRA Court's Opinion,11/2/07, 30-31. We agree. Counsel was correct in surmising that an objection likely would have resulted in the Commonwealth seeking and being granted permission to elicit from Dr. Callery his opinion that a rape had occurred herein given that the doctor had offered that opinion prior to trial. Thus, had trial counsel proffered an objection, his strategy to use the omission to argue that there had been no rape would have been negated by the anticipated opinion testimony of Dr. Callery that the victim had been raped. Trial counsel's strategy was reasonable given that had the trial court determined that Dr. Callery's opinion testimony was insufficient to establish a rape because the doctor did not utter the "magic words," as trial counsel argued, the Commonwealth would have been without a viable aggravating circumstance. Accordingly, because trial counsel had a reasonable basis for not objecting here, Appellant's claim with respect to this issue was properly denied by the PCRA court.

5. The PCRA Court Committed an Abuse of Discretion in Refusing to Permit the Defense to Amend Appellant's PCRA Petition Two Years after ...


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