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Commonwealth v. Tharp

Supreme Court of Pennsylvania

September 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHELLE SUE THARP, Appellant

Submitted March 6, 2013

As Corrected December 23, 2014.

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Appeal from the Order entered on August 31, 2011, in the Court of Common Pleas, Criminal Division of Washington County at No. CP-63-CR-0001494-1998. Trial Court Judge: Paul M. Pozonsky, Judge.

For Michelle Sue Tharp, Appellant: Angela S. Elleman, Esq., Federal Community Defender Office, Eastern District of PA, Elizabeth Hadayia, Esq., James Joseph McHugh Jr., Esq., Defender Association of Philadelphia.

For Commonwealth of Pennsylvania, Appellee: Jerome Anthony Moschetta, Esq., Washington County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Mr. Justice Baer delivers the opinion of the Court with respect to all issues, except for the reference to a principle pertaining to catch-all mitigation evidence, as discussed in the concurrences of Messrs. Chief Justice Castille, Justice Saylor, and Justice Eakin. Mr. Justice McCaffery joins the opinion. Mr. Chief Justice Castille files a concurring opinion in which Mr. Justice Eakin joins. Mr. Justice Saylor files a concurring opinion in which Mr. Justice Eakin and Madame Justice Todd join. Mr. Justice Eakin files a concurring opinion. Mr. Justice Stevens files a concurring and dissenting opinion.

OPINION

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MR. BAER, JUSTICE

On November 14, 2000, Appellant Michelle Sue Tharp was convicted of first degree murder and related offenses after she deliberately starved her seven-year-old daughter to death. After her judgment of sentence was affirmed on appeal, Appellant filed a petition pursuant to the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-46. Following several evidentiary hearings, the Washington County Common Pleas Court (" PCRA court" ) dismissed Appellant's petition. For the reasons set forth herein, we affirm the PCRA court's denial of relief on Appellant's guilt phase claims, and reverse the PCRA court's denial of relief on the claim that trial counsel was ineffective for failing to present mental health mitigation evidence during the penalty phase of trial.[1] Accordingly, we remand for a new penalty hearing.

Evidence presented at Appellant's murder trial established that she was the mother of the victim in this case, Tausha Lee Lanham. Appellant gave birth to Tausha prematurely on August 16, 1990, and, due to health consequences stemming from her premature birth, Tausha spent the first year of her life hospitalized. Tausha was the second born of Appellant's four children, and was the sole target of Appellant's severe neglect and abuse. Appellant did not mistreat or neglect her other children, who were all healthy and well-fed. In 1996, Appellant began living with Douglas Bittinger, Sr., with whom Appellant had her fourth child.

Pursuant to Appellant's direction, the family would eat dinner while Tausha was either kept in the pantry or trapped in a corner of the kitchen by pieces of furniture. Appellant further instructed Bittinger not to feed Tausha while Appellant was away from the apartment. Accordingly, on multiple occasions, two or three days would pass without Tausha getting any food or drink. This led her to sneak and eat cake mix or dog food from the pantry, eat bread thrown outside for birds, eat

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from the garbage, and drink from the toilet. Appellant also strapped Tausha to the toilet for extended periods of time to " potty-train" her. Additionally, notwithstanding that Tausha suffered from several infirmities due to her premature birth, in the years preceding her death, Appellant did not seek any medical care for Tausha.

Remarkably, several individuals in addition to Douglas Bittinger observed Appellant's abuse and neglect of Tausha, but apparently could not rescue the child from her mother's torment. Bittinger's sister-in-law, Audrey Bittinger, lived in the apartment above Appellant's residence, and observed the aforementioned abuse. She reported the matter to the Washington County Children and Youth Services (" CYS" ), and a caseworker made at least five attempts to visit Tausha. However, Appellant removed Tausha from the apartment on each occasion.

Appellant's neighbor, Lisa Camp, witnessed Tausha eating " toy food," cat food, and dog food. She further saw Appellant withhold food from Tausha, and described the child as weak and frail a few months before she died. When Camp asked Appellant about Tausha's condition three weeks before the child's death, Appellant responded that Tausha " belonged six feet under in a body bag." Tausha's aunt, Rhonda Lanham, who lived with Appellant and her children for several months, also documented the deplorable abuse that Tausha suffered at the hands of her mother. Lanham had such concern over Appellant's treatment of Tausha that she offered to take the child to live with her, but Appellant refused. Finally, Carrie Tharp, Appellant's step-mother, was a witness to Appellant's abuse of Tausha. After one occasion where Tharp cared for Tausha and fed her, Appellant refused to let Tharp see the child again. Tharp made 25 calls to CYS to report the abuse from 1996 until Tausha's death in 1998.

On the morning of April 18, 1998, Appellant returned home and found seven-year-old Tausha dead in her bed. Bittinger returned to the apartment shortly thereafter, and told Appellant to call 911. Appellant refused, indicating that she was afraid that CYS would take away her other children. Appellant and Bittinger thereafter placed Tausha's body in a car seat in their car, along with the rest of their children, and proceeded to run errands. They ultimately drove to Empire, Ohio, where Appellant and Bittinger purchased garbage bags to dispose of the child's body. Appellant and Bittinger proceeded to Follansbee, West Virginia, where they discarded Tausha's body in garbage bags on the side of the road.

Appellant and Bittinger thereafter returned to a mall in Ohio, shopped for a while, and then reported to mall security that Tausha had been abducted. When questioned by police, both Bittinger and Appellant ultimately confessed that Tausha had died and that they had hidden her body. Bittinger led police to the location where Tausha's body was recovered. An autopsy revealed that Tausha, at seven years of age, weighed only 11.77 pounds and was 31 inches tall. The medical examiner concluded that Tausha had not eaten for several days, that the cause of death was malnutrition due to starvation, and that the manner of death was homicide. The medical examiner based his opinion on the fact that Tausha's body demonstrated various indicators of malnutrition, including no fat at all in parts of the body where fatty tissue normally accumulates, and extreme wear on the grinding surface of Tausha's teeth, which is common in juvenile starvation cases.

Appellant and Bittinger were thereafter charged with criminal homicide and related

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offenses. Approximately one week prior to the commencement of jury selection, the two defendants filed requests to waive their right to a jury trial. In response, the Commonwealth requested a jury trial pursuant to the 1998 amendment to Article I, Section 6 of the Pennsylvania Constitution.[2] The trial court granted the Commonwealth's request. Appellant and Bittinger appealed to this Court, which affirmed the trial court's order. Commonwealth v. Tharp, 562 Pa. 231, 754 A.2d 1251 (Pa. 2000) (rejecting the constitutional challenge to the 1998 amendment to Article I, Section 6, and holding that there was no impediment to applying the amendment to the facts presented).

Upon remand to the trial court, Appellant's case was severed from Bittinger's, and a jury trial was conducted. To establish that Appellant deliberately withheld food from Tausha with the intent to starve her to death, the Commonwealth presented the testimony of several witnesses who had each independently observed Appellant repeatedly deny Tausha food. These witnesses included Douglas Bittinger, Audrey Bittinger, Rhonda Lanham, Carrie Tharp, and Lisa Camp. Additionally, three inmates who had been incarcerated with Appellant after her arrest testified that Appellant was not sorry Tausha had died. Specifically, inmate Juanita Donnelly testified that Appellant told her that she withheld food from Tausha because Tausha was mentally retarded. Inmate Dena Chandler testified that when she asked how Appellant could have committed the offense, Appellant responded that she never loved Tausha and that Tausha interfered with her life. Further, inmate Renee Vogel testified that Appellant told her that she was glad her " little retarded baby" had died. Finally, the medical examiner testified as to the basis for his conclusion that Tausha died as a result of malnutrition due to starvation, and opined that the manner of her death was homicide.

Appellant testified on her own behalf at trial. Her defense was that Tausha suffered from the preexisting medical condition known as " failure to thrive," and that such condition caused Tausha's deteriorative physical state and, ultimately, her death. Appellant further testified that she had been a victim of physical and emotional abuse at the hands of her own parents, step-parents, and previous boyfriends, including the fathers of her children, who gave her no support in raising the family. Appellant explained that she had felt overwhelmed by the burden of child rearing and may not have been a good mother to Tausha, but that she did not starve her own child to death.

On November 13, 2000, the jury convicted Appellant of first degree murder, endangering the welfare of a child, and abuse of corpse. During the penalty phase of trial, the defense incorporated the guilt phase evidence and presented no other witnesses or documentary evidence in mitigation, with the exception of a stipulation that Appellant had no prior criminal history. Following the penalty hearing, the jury found one aggravating circumstance, that the victim was less than twelve years of age, 42 Pa.C.S. § 9711(d)(16), and two mitigating circumstances, that Appellant had no significant history of prior criminal convictions, id. § 9711(e)(1), and the " catchall mitigator" of any other evidence of mitigation concerning the character and record of Appellant and the circumstances of her offense. Id. § 9711(e)(8).[3] Finding

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that the aggravating circumstance outweighed the two mitigating circumstances, the jury returned a verdict of death. Accordingly, the trial court sentenced Appellant to death for the murder conviction and to a consecutive sentence of one to two years of imprisonment on the charge of abuse of corpse.[4]

The trial court denied Appellant's post-trial motions. In her direct appeal to this Court, Appellant challenged the weight and sufficiency of the evidence, and alleged that the trial court erred by denying her motion for change of venue. Appellant also contended that the trial court erred by admitting photographs of the victim, by failing to declare a mistrial after jurors overheard a witness's comments, and by failing to recuse. This Court rejected all of Appellant's contentions, and affirmed her judgment of sentence. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519 (Pa. 2003). We stated:

We recognize that this case is unusual in that death was not brought about by a single act. Rather, the evidence showed a course of conduct over a 7-year period of time. The perhaps-unusual facts, however, do not change the ample evidence of appellant's hardness of heart. They do not change the evidence of a seven-year-old's starvation death at the deliberate hand of her own mother. Indeed, the very length of time needed to bring about Tausha's death by starvation suggests a unique type of coldness and deliberation, for within that time there was ample opportunity for reflection, for reconsideration, and for the development of a tinge of sympathy for the child. That appellant still proceeded in her course reveals the sort of premeditation and deliberation that separates first degree murder from other killings or, at least, the jury could so find.

Id. at 527. The United States Supreme Court thereafter denied Appellant's petition for certiorari. Tharp v. Pennsylvania, 541 U.S. 1045, 124 S.Ct. 2161, 158 L.Ed.2d 736 (2004).

On May 3, 2005, Appellant filed a timely PCRA petition, raising approximately thirty issues. Appellant subsequently filed four supplements to the petition. The PCRA court conducted an evidentiary hearing on April 26 and 27, 2010, and Appellant presented several witnesses in support of both her guilt and penalty phase issues. After Appellant's evidence was presented, the PCRA court recessed the hearing to afford the Commonwealth an opportunity to prepare witnesses to respond to Appellant's claims. The evidentiary hearing resumed on January 4, 2011, and both parties were permitted to file additional legal memoranda in support of their arguments by June 20, 2011.[5]

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The PCRA court noted in its opinion that it had considered Appellant's lengthy original PCRA petition, her four supplements thereto, thousands of pages of appendices and exhibits, and Appellant's 160-page post-hearing memorandum. Commonwealth v. Tharp, Docket No. 1494-1998, slip op. at 45 (CP Washington, Aug. 31, 2011) (hereinafter, " PCRA Ct. Op." ).[6] The court concluded that several of Appellant's issues had been previously litigated, and that various other issues of ineffective assistance of counsel were waived for lack of development. The PCRA court further addressed thoroughly the merits of the remaining issues, which analysis is set forth in detail, infra, to the extent it is relevant to the claims raised herein.

In this direct appeal from the denial of PCRA relief, Appellant raises ten issues.[7] In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination " is supported by the record and free of legal error." Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1117 (Pa. 2012) (citing Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)). The PCRA provides that to be entitled to relief, a petitioner must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in Section 9543(a)(2), and his claims have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(2).[8] An issue is previously litigated if " the highest

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appellate court in which [the appellant] could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). An issue is waived if the appellant " could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding." Id. § 9544(b).

To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sepulveda, 55 A.3d at 1117. This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 45 (Pa. 2012); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Accordingly, to prove counsel ineffective, the petitioner must demonstrate: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Sepulveda, 55 A.3d at 1117 (citing Pierce, 527 A.2d at 975). Counsel is presumed to have rendered effective assistance. Sepulveda, 55 A.3d at 1117.

A court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the ineffectiveness test, the court may proceed to that element first. Id. at 1117-18; Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998). Finally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa. 2006).

Guilt Phase Issues

I. Brady claim

Appellant contends that the Commonwealth violated its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose extensive exculpatory and impeachment evidence. Before considering the particular items of allegedly withheld evidence, we review the relevant law. In Brady, the United States Supreme Court held that " the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87. This Court has held that " [t]o prove a Brady violation, the defendant must show that: (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the suppression prejudiced the defendant." Commonwealth v. Busanet, 54 A.3d at 48 (citing Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 291 (Pa. 2008)).

To obtain a new trial based on the Commonwealth's failure to disclose evidence affecting a witness's credibility, the defendant must demonstrate that the reliability of the witness may be determinative of the defendant's guilt or innocence. Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 815 (Pa. 2009); Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1094 (Pa. 1999). Additionally, " [t]o satisfy the prejudice inquiry, the evidence suppressed must have been material to guilt or punishment."

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Commonwealth v. Ly, 602 Pa. 268, 980 A.2d 61, 76 (Pa. 2009) (citing Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1126-1127 (Pa. 2008)). " [F]avorable evidence is material and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted). In determining if a reasonable probability of a different outcome has been demonstrated, " [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Weiss, 986 A.2d at 815 (quoting Kyles, 514 U.S. at 434). Keeping in mind this jurisprudence, we proceed to review the categories of allegedly withheld evidence.

A. Douglas Bittinger

The primary thrust of Appellant's Brady claim concerns evidence allegedly withheld that could have been used to impeach the testimony of Douglas Bittinger, the Commonwealth witness who was also charged with first degree murder in connection with Tausha's death, and likewise faced the death penalty.

Appellant argues that the Commonwealth failed to disclose that it had entered into an oral plea agreement in exchange for Bittinger's testimony against Appellant. Relying on the PCRA evidentiary hearing testimony of Bittinger's attorney, Michael Savona, Esquire, Appellant asserts that the Commonwealth orally agreed that if Bittinger testified against Appellant, the Commonwealth would allow Bittinger to plead guilty to general homicide, not exceeding murder of the third degree, would drop Bittinger's aggravated assault charge, and would recommend that his remaining sentences run concurrently. See Notes of Testimony (" N.T." ), Apr. 26, 2010, at 149.[9] Appellant acknowledges that, at her trial, Bittinger testified that no promises had been made to him in return for his testimony, and that, despite facing the death penalty, he was testifying out of the goodness of his heart, expecting nothing in return. N.T., Nov. 8, 2000, at 429, 468-69. Appellant argues, however, that Bittinger's testimony in this regard was false, and that the prosecution was aware of its falsity, and did nothing to correct it.

Appellant further argues that the Commonwealth failed to disclose a letter Bittinger sent to the District Attorney, indicating he would only testify against Appellant if he received some benefit for doing so. Finally, Appellant contends the Commonwealth failed to disclose a mental health evaluation of Bittinger given to the prosecutor by Attorney Savona prior to Appellant's trial, establishing that Bittinger suffered from a cognitive disorder, emotional disturbances, and mild mental retardation, as evidenced by

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an IQ of 62. See Appellant's PCRA Exhibit 102, Psychological Evaluation of Bittinger conducted by Paul M. Bernstein, Ph.D. The evaluation also noted that Bittinger denied that Tausha had ever been starved.

The Commonwealth responds that the PCRA court's factual determination that no promise of leniency was made to Bittinger is supported by the record, and should not be disturbed. Moreover, it maintains, Attorney Savona's PCRA hearing testimony that an agreement existed contradicts his previous testimony, given ten years earlier at Appellant's trial, that there was no agreement reached regarding considerations given to Bittinger in exchange for his testimony against Appellant. N.T., Nov. 8, 2000, at 396 (where, immediately prior to Bittinger taking the witness stand at Appellant's trial, Attorney Savona informed the trial court that there was no concrete deal between Bittinger and the Commonwealth).

The Commonwealth further argues that, even if there had been an agreement between the government and Bittinger, no prejudice resulted from its nondisclosure because ample evidence existed, independent of Bittinger's testimony, from which the jury could conclude that Appellant murdered her child. The Commonwealth cites testimony from several witnesses who corroborated Bittinger's testimony that Appellant went to great lengths to withhold food from Tausha when there was ample food for her other children, and the medical examiner's conclusion, based on the performance of an autopsy, that Tausha had not eaten for several days and that her death resulted from severe malnutrition brought about by starvation. Finally, the Commonwealth emphasizes that the jury was made aware of the potential biases Bittinger held in favor of the Commonwealth and the trial court instructed the jury to scrutinize carefully Bittinger's credibility because, as an accomplice, he may have testified falsely in the hope of obtaining favorable treatment.

The PCRA court rejected Appellant's claim, finding that the District Attorney consistently indicated prior to Appellant's trial, during Appellant's trial, and at Bittinger's sentencing, that no formal or informal deal had been reached with Bittinger before he testified against Appellant. PCRA Court Opinion at 35.[10] Thus, the court found, contrary to Appellant's contentions, Bittinger was not promised leniency in exchange for his testimony. The PCRA court further held that even if the Commonwealth had suppressed a deal for leniency in exchange for testimony or suppressed the letter indicating Bittinger's desire to obtain a benefit from his testimony, disclosure of the same would not have changed the outcome of Appellant's trial, considering the substantial evidence of her guilt. Id. at 38.[11] The court emphasized that defense counsel thoroughly cross-examined Bittinger about his interests in testifying against Appellant, and suggested to the jury that Bittinger was testifying in exchange for a lesser sentence. Accordingly, the PCRA court held that Appellant's Brady issue relative to Bittinger fails.

Upon review, we conclude that the PCRA court's factual findings are supported by the record and its conclusions of law are free from legal error. The record supports the PCRA court's finding that

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Bittinger was not promised leniency in exchange for his testimony against Appellant. N.T., Nov. 8, 2000, at 394-95 (where the District Attorney indicates that there was no agreement promising Bittinger leniency in exchange for Bittinger's testimony against Appellant); id. at 469 (where Bittinger testifies that he does not expect anything in return for his testimony). Notwithstanding that other evidence presented at the PCRA evidentiary hearing suggested that an oral agreement may have been reached, the record supports the PCRA court's factual finding that no undisclosed agreement existed, which was suppressed by the Commonwealth. See Commonwealth v. Busanet, 54 A.3d at 48 (affirming the PCRA court's denial of relief on a Brady claim where the record supported the PCRA court's finding that no undisclosed deal between the Commonwealth existed); Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 135 (Pa. 2012) (same).

Moreover, we conclude that even if a deal existed between the government and Bittinger, Appellant was not prejudiced by the Commonwealth's nondisclosure. First, as recognized by the Commonwealth, the jury was made aware during Bittinger's testimony that he was also charged with the first degree murder of Tausha, and similarly faced the death penalty. N.T., Nov. 8, 2000, at 431, 469-70. During closing arguments, defense counsel emphasized that Bittinger's testimony should be viewed with caution because he was also charged in connection with the crime. N.T., Nov. 13, 2000, at 907 (stating, " Mr. Bittinger is also charged in this case, and the Court will instruct you that because Bittinger is charged, you can take that fact into consideration, and the Court will give you a specific instruction, but that goes to his credibility" ); id. at 908 (stating, " Is Mr. Bittinger trying to make the situation look far worse than it ever was for his own gain and benefit?" ). Finally, the trial court specifically instructed the jury that because Bittinger was an accomplice to the murder, he may testify falsely in the hope of obtaining favorable treatment. Id. at 954. The court explained that Bittinger's testimony must be considered by special rules applicable to accomplices, including that the jury should view accomplice testimony with disfavor because it is from a corrupt and polluted source; that an accomplice's testimony should be examined closely and only accepted with care and caution; and that the jury should consider whether the accomplice's testimony is supported by other evidence. Id. at 955.

Second, even setting aside Bittinger's testimony, there was overwhelming evidence of Appellant's guilt. As cogently noted by the Commonwealth, the testimony of Appellant's own friends, neighbors, and relatives established that she deliberately starved her daughter to death, not only by denying meals, but by physically restraining the child so that she could not feed herself. The evidence demonstrated that, remarkably, Appellant asked others to perpetuate the same abuse upon her own child. Appellant also expended much effort to avoid the assistance of those able to help the child, including the Washington County CYS. Finally, the testimony of the medical examiner established that Tausha had not eaten for several days before her death, that she weighed less than twelve pounds at seven years of age, and that her cause of death was malnutrition as a result of starvation.

Considering that the jury was well aware that Bittinger had a motive to lie, and that there was overwhelming evidence of Appellant's guilt absent Bittinger's testimony, we conclude that Appellant was not prejudiced by any undisclosed deal, by a letter sent by Bittinger seeking leniency, or by a mental health evaluation suggesting

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that Bittinger may have been cognitively or emotionally impaired. We conclude that the absence of the allegedly suppressed evidence did not deny Appellant a fair trial or result in a verdict that was not worthy of confidence. See Weiss, 986 A.2d at 816. Accordingly, the requisite prejudice for a Brady claim is lacking.

B. Inmate Testimony

Appellant next contends that the Commonwealth suppressed information that could have been used to impeach the credibility of Juanita Donnelly, Dena Chandler, and Renee Vogel, who were incarcerated with Appellant and testified against her at trial. Each of these witnesses testified that Appellant had made comments while in prison indicating that she never loved Tausha, and was glad that the child had died.[12]

As to the alleged Brady violation with respect to Donnelly, Appellant contends the Commonwealth suppressed a letter Donnelly sent to the District Attorney, seeking an early parole in exchange for her testimony, and Donnelly's hospital records detailing that she suffered from mental health conditions that impaired her memory. Appellant also submits the Commonwealth failed to disclose that Donnelly was testifying under the threat of contempt and that she had a prior crimen falsi conviction. Regarding Chandler, Appellant asserts that the Commonwealth suppressed Chandler's criminal record for crimen falsi offenses, and a pre-sentence report that acknowledged her drug addiction and untrustworthiness. Finally, as to Vogel, Appellant asserts the Commonwealth suppressed Vogel's mental health records, prior criminal record, and the alleged " fact" that the District Attorney offered Vogel early parole in exchange for her testimony against Appellant.

The Commonwealth submits that the PCRA court properly denied relief on these claims. It reiterates that the record supports the court's finding that Appellant failed to prove the existence of any agreement, deal or favorable treatment in exchange for the inmates' testimony. Any parole that may have been granted to the inmates, the Commonwealth submits, would have been a matter of public record, readily obtainable by the defense from non-governmental sources. See Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 856 (Pa. 2005) (finding no Brady violation where the defendant knew, or with reasonable diligence, could have uncovered the evidence allegedly suppressed). Moreover, the Commonwealth reiterates the PCRA court's conclusion that any suppression of the alleged evidence was not outcome determinative because trial counsel called several witnesses to discredit the inmates' testimony.

The PCRA court denied relief on these Brady claims. Initially, the court found that those claims relating to the suppression of criminal records failed as such documents constitute public records. Similarly, the court found that claims ...


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