February 25, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellant
KIMBERLY S. McKAVENEY
Appeal from the PCRA Order, April 12, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0000119-2006
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND OTT, JJ.
FORD ELLIOTT, P.J.E.
The Commonwealth appeals the order granting appellee a new trial pursuant to her first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding that the PCRA court erred in granting a new trial, we reverse.
On December 1, 2006, a jury convicted appellee of first degree murder in connection with the stabbing/slashing death of her daughter, Jennifer McKaveney ("Jennifer"), in Monroeville on September 16, 2005. On March 7, 2007, appellee was sentenced to life imprisonment. On appeal, appellee challenged the sufficiency of the evidence, and on October 20, 2009, this court affirmed the judgment of sentence. Commonwealth v. McKaveny [sic], 987 A.2d 820 (Pa.Super. 2009).
On September 9, 2010, appellee filed a counseled, first PCRA petition. Among the issues appellee raised was a claim of trial counsel's ineffectiveness in failing to obtain expert psychiatric testimony to explain appellee's flat emotional affect regarding Jennifer's death. The Commonwealth called attention to appellee's lack of emotion in the closing argument. At the PCRA hearing, appellee presented the expert psychiatric testimony of Dr. Robert Wettstein ("Wettstein"). Wettstein testified that appellee had a psychiatric history of depression and had been treated for the disorder. (Notes of testimony, 1/10/11 at 11.) Wettstein went on to explain that appellee suffers from a social anxiety disorder and that such disorder would cause a flat emotional affect upon hearing the news about her daughter. (Id. at 15-17.) Wettstein stated that if he had been called as a witness, he could have explained appellee's behavior. (Id. at 17.)
Another issue pertained to counsel's ineffectiveness for failing to investigate Jennifer's cellular telephone records. According to appellee at the PCRA hearing, Jennifer was having an argument with someone on her cellular telephone immediately prior to appellee and Jennifer leaving their house to go to Beechwood Park in Monroeville where Jennifer was murdered. (Id. at 68-69.) Appellee stated that she informed trial counsel of this incident, but counsel never investigated telephone records to determine who the caller may have been. (Id. at 69.)
The PCRA court awarded appellee a new trial on the bases of the aforesaid two issues. We are constrained to find that this was error, and we begin our analysis with our standard of review.
Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.
Moreover, as the issues upon which relief was granted were stated in terms of ineffective assistance of counsel, we also note that appellee was required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
We find that appellee cannot satisfy the third prong of the test for ineffectiveness. Simply stated, even if appellee was able to introduce expert psychiatric evidence to explain her flat emotional affect in response to Jennifer's murder, it would not have changed the outcome of the trial. While mostly circumstantial in nature, the evidence adduced at trial against appellee was overwhelming.
On the evening of September 16, 2005, the body of 20-year-old Jennifer was discovered on a path in some woods in Beechwood Park in Monroeville. (Notes of testimony, 11/27-12/1/06 at 38-48.) There were two lethal stab wounds to the chest, and the victim's throat had been slit, severing the Adam's apple and major blood vessels, resulting in a third fatal wound. (Id. at 263-265; 268-274.) The victim was wearing a tie-dyed shirt. (Id. at 175-176.)
Thirteen-year-old Zachary Kazmier testified that prior to 6:30 p.m., he had seen an older and a younger woman walking near the pathways into the woods. (Id. at 59-60; 62-63.) He stated that the older woman was carrying a box and walking a small dog. (Id. at 63.) Kazmier's companion, 11-year-old Michael Painter, also testified and confirmed Kazmier's account, stating that the younger woman was wearing a tie-dyed shirt and describing the dog as a "wiener dog." (Id. at 70.)
Wendy Fronk ("Fronk") testified that she arrived at the park at 7:10 p.m. with her boyfriend Samuel Papa ("Papa") and two other persons. (Id. at 82-83.) The police had already arrived when Fronk got there. (Id. at 83.) Eventually, Fronk noticed a woman in the distance coming from the general area of where the police were, carrying a box the size of a carton of copy paper. (Id. at 86-87.) As the woman approached Fronk, she noticed the woman's untucked white shirt was dirty with rips and slashes and had blood on the top right shoulder and bottom left hip. (Id. at 88-89.) As the woman passed her, Fronk could see that her arm was tightly wrapped in a black garbage bag. (Id. at 89-90.) Fronk also noted that the woman was walking a Dachshund and was moving rapidly. (Id. at 88-90.) Fronk identified appellee as the woman. (Id. at 90-91.)
Fronk's boyfriend Papa also testified. Papa stated that the woman was walking so fast that she was actually dragging the dog. (Id. at 105-106.) Papa also observed appellee's bloodstained shirt and her arm wrapped in a garbage bag and held inside the cardboard box. (Id. at 106-107.) Papa asked appellee "did something happen down there" in order to slow her from dragging the dog. (Id. at 107.) Appellant curtly replied and kept walking. (Id.) Papa stated that he and Fronk told police what they had seen. (Id. at 108.)
Police gleaned appellee's identity from Jennifer's cellular telephone. (Id. at 180-181.) Around 10:00 p.m. that evening, Allegheny County Detective Robert Opferman ("Opferman") went to appellee's residence. (Id. at 286.) Prior to going to the residence, Opferman had learned that appellee had registered a pet Dachshund with Allegheny County. (Id. at 288-289.) Appellee told Opferman that she had gone to Beechwood Park with her daughter and their dog around 5:00 p.m. to collect rocks, that they had argued about her daughter's drug use and failure to get a job, and that appellee left her daughter and drove home, arriving at 5:45 p.m. (Id. at 292; 294-295.) Appellee admitted that she had been carrying a box to collect rocks, but stated that she had put it in a dumpster. (Id. at 297-298.) Appellee also informed police that Jennifer was wearing a tie-dyed shirt. (Id. at 301.)
As one of the purposes of Opferman's visit was to inform appellee and her husband that their daughter had been killed, he questioned them about identifying tattoos on their daughter. (Id. at 305-306.) Upon hearing that the victim had a rose tattoo on her shoulder, together with the description of the victim's clothing, Opferman determined that the victim was likely Jennifer and told them of the her fate. (Id. at 306.) Opferman testified that appellee had no reaction, but that the husband became very emotional and asked him to leave. (Id. at 306-307.) In her closing argument to the jury, the assistant district attorney emphasized appellee's lack of emotion when told that her daughter had been killed. (Id. at 538.)
Mary Ann Stoops ("Stoops"), the victim's aunt and Godmother, testified at trial. Stoops stated that while she was standing near Jennifer's casket during the funeral services, appellee approached her and stated, "I am so sorry to have to put the family through all of this." (Id. at 402.) Stoops also related that while she herself was crying and distraught, appellee showed no emotion. (Id. at 401-402.)
Appellee's husband, Dennis McKaveney ("Dennis"), also testified. Dennis stated that when he arrived home on the evening of the killing, appellee told him the same story about going to the park with their daughter, about the argument, and about returning home alone. (Id. at 406-407.) Dennis described Jennifer's addiction to heroin, her repeated failures at rehabilitation, and her inability to hold a job. (Id. at 475-490.) Dennis testified that on the day before the killing, he caught Jennifer and one of her sisters in a situation in which he believed they were using drugs and he told appellee about it. (Id. at 509-510.) Dennis also testified that his wife showed no response or emotion when they were told that Jennifer was dead. (Id. at 496.)
Dennis testified that some days after the killing, he questioned appellee about the events of September 16, 2005, and that she now gave him a new account. (Id. at 408.) According to Dennis, appellee stated that while she was at the park, she was pushing the dog into a box when some man came up from behind Jennifer and cut her throat. (Id.) Appellee stated that she ran because she knew Jennifer wasn't going to make it and she was afraid for her life. (Id.) Appellee described the assailant as wearing a black cowboy hat over his eyes and having unshaven red hair on his face. (Id. at 408-409.) When Dennis asked appellee why she did not tell the police, she said she did not remember. (Id. at 409.) When Dennis asked her why she did not get help from anyone, she responded that she had blood on her shirt and she was afraid they would think she had committed the attack. (Id.) Appellee also admitted to hiding in the park from the police for the same reason. (Id. at 409-410.) Appellee also admitted to disposing of her clothing in a dumpster. (Id. at 410.)
Following appellee's arrest on December 24, 2005, she was interviewed by Detective Lawrence Carpico ("Carpico"). Carpico testified that appellee made a statement in which she related that she had in fact gone into the woods with Jennifer. (Id. at 423.) Appellee stated that she had a discussion with Jennifer about getting a job and that Jennifer stated her intention to leave the park alone. (Id. at 424.) Appellee further related that while she and Jennifer were kneeling down fussing with the dog, a white man wearing a black ball cap and having facial hair suddenly appeared and slashed Jennifer's throat. (Id.) Appellee stated that blood splashed on her during the incident and that she hid until she heard sirens and then went home. (Id. at 425.)
From this evidence, we know that appellee was seen in Beechwood Park with her daughter both before and immediately after Jennifer's murder. Immediately after the murder, appellee was seen with a bloody shirt and a box and garbage bag hiding one of her hands and arms. She appeared to be fleeing the scene. Afterward, we know that appellee lied about what happened because she offered three inconsistent accounts of events; under one account, she argued with Jennifer and left her unhurt in Beechwood Park prior to witnesses seeing her there; while in the other accounts, she witnessed Jennifer's murder by a third party whose description changed in each version (first cowboy hat, then ball cap).
Most importantly, appellee lied not just to the police, but to her husband also. Moreover, her revelation to her husband that she had witnessed someone else murder Jennifer was incredible. When asked why she had not told police about the third party murderer, she fatuously claimed that she did not remember. This abrupt and disingenuous change in appellee's account is extremely damning quite apart from any lack of affect evidence.
We do not find that appellee's flat emotional affect in hearing of her daughter's death likely played a decisive role in the jury's verdict requiring questionable expert testimony. Such a reaction could just as likely have been seen by the lay jury as the result of total shock at the news. We do not find it to have been necessarily incriminating. In sum, we do not find that expert psychiatric evidence to explain this reaction would have changed the outcome at trial.
Next, as to counsel's failure to investigate Jennifer's telephone records, we likewise find no error. In the PCRA court's opinion, the court states, "[T]rial counsel admitted he was aware that prior to the petitioner and her daughter leaving the house, on the walk where the daughter was killed, the daughter was arguing with an unknown person. However, the defense never investigated the call." (Trial court opinion, 4/15/13 at 5.) The PCRA court's opinion is belied by the record.
Appellee's self-serving claim that someone called and argued with Jennifer immediately prior to her murder is an account that arose only during the PCRA proceedings. Appellee never mentioned this phantom caller to either her husband or the police prior to her trial. More importantly, trial counsel testified that although he interviewed appellee as to the events of the day of the murder, he had no memory of being told about Jennifer arguing with someone on her telephone immediately prior to the murder. (Notes of testimony, 1/10/11 at 47-48.) Contrary to the PCRA court's opinion, there is no admission by counsel that he was aware of this alleged argument. Moreover, counsel further testified that he specifically asked appellee as to whether Jennifer was having difficulties with any individuals and she indicated a person named Mike whom Jennifer had been seeing socially. (Id. at 48-49.) Under the evidence adduced at the PCRA hearing, counsel did not recall being told about any argument on the telephone and had no reason to investigate Jennifer's telephone records; thus, counsel cannot be regarded as ineffective in failing to do so.
Accordingly, having found that counsel was not ineffective upon the grounds stated by the PCRA court, we shall reverse the order granting relief.
I join the majority opinion. I write separately only to note that there may be situations where trial counsel's failure to call an expert witness to testify regarding an individual's flat emotional affect upon hearing of someone's death, may constitute ineffective assistance. However, as the majority thoroughly explains, such is not the case here.