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Commonwealth v. Daniels

Supreme Court of Pennsylvania

October 30, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
HENRY DANIELS, Appellee; COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
HENRY DANIELS, Appellant; COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
KEVIN PELZER, Appellee; COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KEVIN PELZER, Appellant

Submitted February 12, 2013

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Appeal from the Order entered on August 26, 2011 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. CP-51-CR-1031751-1988. Appeal from the Order entered on August 26, 2011 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. CP-51-CR-1031751-1988. Appeal from the Order entered on August 26, 2011 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. CP-51-CR-1031752-1988. Appeal from the Order entered on August 26, 2011 by the Court of Common Pleas, Criminal Division, of Philadelphia County at No. CP-51-CR-1031752-1988.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ. MR. CHIEF JUSTICE CASTILLE. Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Saylor files a concurring and dissenting opinion.

OPINION

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CASTILLE, CHIEF JUSTICE

These twin capital cross-appeals involve co-defendants Henry Daniels and Kevin Pelzer (" Daniels" and " Pelzer," or collectively " appellees" ) and represent a continuation of their first collateral challenges to their convictions under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546. By Opinion filed on January 23, 2009, this Court vacated the PCRA court's March 25, 2003 order, which had granted appellees a new trial. The Court reviewed three claims of trial counsel ineffectiveness, denied relief on all three claims, and remanded the case to the PCRA court for the preparation of an opinion addressing the remainder of appellees' claims. Commonwealth v. Daniels and Pelzer, 600 Pa. 1, 963 A.2d 409 (Pa. 2009). On remand, the PCRA judge having retired, a new judge ordered a new penalty proceeding for each appellee, while denying guilt phase relief. The PCRA court explained its reasoning in an opinion dated November 22, 2011.

The Commonwealth appeals from the grant of penalty phase relief in each case, while appellees, in separate cross-appeals, seek review of additional issues upon which the PCRA court denied relief. For the reasons set forth below, we affirm the order of the PCRA court as it relates to Kevin Pelzer, but reverse the order as it relates to Henry Daniels. Thus, Pelzer is denied guilt phase relief, but the award of a new penalty phase hearing to him is affirmed, and Daniels's PCRA petition is dismissed in its entirety.

The facts and procedural history are not recounted at length given that a full history of the case was set forth in our initial review of these collateral proceedings in Daniels and Pelzer, and in the direct appeal opinions reported at Commonwealth v. Daniels, 531 Pa. 210, 612 A.2d 395 (Pa. 1992) (Opinion in Support of Affirmance) and Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407 (Pa. 1992) (Opinion in Support of Affirmance).

As relevant here, appellees were tried jointly before a jury. Daniels was represented at trial by Charles Houston, Esquire, a South Carolina lawyer hired by Daniels's family and granted pro hac vice status, with John Drost, Esquire, a Pennsylvania

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attorney and Daniels's original trial counsel, appointed as standby counsel. Pelzer was represented by Donald Padova, Esquire. Appellees obtained new counsel for purposes of their direct appeals. All prior counsel testified during the PCRA hearings with the exception of Mr. Houston.

The guilt phase evidence established that appellees participated in a plan to kidnap and hold for ransom sixteen-year-old Alexander Porter. Appellees kidnapped the victim, bound and gagged him, and placed him in the trunk of his car. Ultimately, they determined to kill the victim. In all, the victim was held in the trunk for twenty-four hours. According to appellees' police statements and Daniels's trial testimony, appellees were unable to determine whether the youth was dead when they went to dispose of his body. Pelzer shot Porter four times in the back of the neck to remove all doubt. The jury found both appellees guilty of first-degree murder and other offenses.

Following a capital penalty hearing, the jury found the same four aggravating circumstances and two mitigating circumstances with regard to each appellee and further found that the aggravating circumstances outweighed the mitigating circumstances; accordingly, the jury fixed the murder penalty at death for each appellee. See 42 Pa.C.S. § 9711(c)(1)(iv). The trial court formally imposed the sentences of death on November 14, 1989. On April 23, 1990, the trial court sentenced each appellee to an aggregate, consecutive term of twenty-five to fifty years in prison for his remaining crimes. The Supreme Court affirmed the sentences of death on direct appeal. Daniels, 612 A.2d at 397-98; Pelzer, 612 A.2d at 410. Daniels filed for reconsideration, which was granted. Subsequently, the Court again affirmed the judgment of sentence, this time by a 4-3 majority vote. Commonwealth v. Daniels, 537 Pa. 464, 644 A.2d 1175 (Pa. 1994) ( per curiam ).

Appellees filed timely pro se PCRA petitions and new counsel entered their appearances and filed amended petitions, which were followed by many supplemental petitions. The PCRA petitions were assigned to the Honorable James A. Lineberger, because the trial judge was no longer sitting on the bench, and Judge Lineberger considered the cases together.

The PCRA court held a hearing at which it reviewed the twenty-one collective claims submitted by appellees. The court granted an evidentiary hearing on seven claims and granted the Commonwealth's Motion to Dismiss the remaining claims. The seven issues to be considered at the evidentiary hearing were: (1) trial counsel ineffectiveness for failing to object to the trial court's instruction on accomplice liability, (2) trial counsel ineffectiveness for failing to adequately investigate and present evidence on the cause of death, (3) a jury selection challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (4) trial counsel ineffectiveness for failing to present mitigation evidence, (5) allegations related to appellate counsels' performance, (6) a general request regarding the application of relaxed waiver, and (7) Daniels's challenge to the propriety of the Section 9711(d)(6) (perpetration of a felony) aggravating circumstance under Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (Pa. 1998) (plurality decision). See N.T., 2/2/2000, at 80-89.

After holding hearings on these claims in December of 2001, May of 2002, and January of 2003, the PCRA court granted new trials based on the guilt phase claims that trial counsel were ineffective for (1) failing to object to the trial court's instruction on accomplice liability, and (2) failing

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to present evidence disputing the cause of death. The PCRA court also addressed the Batson claim, but denied relief; the court did not provide a reasoned analysis of the myriad other claims.

The parties filed cross-appeals after the PCRA court ruled that its order was final and appealable. See Daniels and Pelzer, 963 A.2d at 416. On appeal, this Court reviewed the three claims addressed by the PCRA court, ultimately reversing the grant of relief on the two guilt phase ineffectiveness claims, while agreeing with the dismissal of the Batson claim. We therefore reversed the PCRA court's grant of new trials. We were unable to reach the other claims raised on appellees' cross-appeals, however, given the PCRA court's failure to discuss the claims, a lapse that precluded meaningful appellate review. We thus remanded for a merits opinion. Since the intention of our remand is now disputed, we will set forth our directive verbatim :

Finally, appellees raise numerous other claims which, though dismissed by the PCRA court, were not addressed by the PCRA court on the merits either in its opinion or elsewhere on the record. For example, in its opinion, the PCRA court acknowledged that appellees raised other claims of error in connection with the penalty phase of the trial, but stated that those claims were rendered moot because of its decision to grant a new trial, and thus dismissed them. Given the prospect of appellate review, and to avoid piecemeal review, PCRA courts in capital cases should be thorough and should address all issues. In light of our disagreement with the PCRA court's existing grant of relief, the proper course is to remand for the PCRA court to address these claims.
In addition, the PCRA court failed to explain the basis for its determination that appellees' many other claims affecting the guilt phase were meritless. Because of the PCRA court's failure, we have no rationale supporting the denial of appellees' remaining claims and cannot conduct meaningful appellate review. Under such circumstances, we will remand the matter to the PCRA court to write an opinion addressing all of the PCRA petitioner's claims. ... Accordingly, we remand this matter to the PCRA court to furnish a written opinion on the remaining claims raised by appellees in their petitions for post-conviction relief, including those claims that it previously dismissed without a hearing. As to any claims requiring resolution of disputed material facts, the court should include specific factual findings and express credibility judgments.

Id. at 435 (citations omitted). Appellees' Applications for Reargument were denied.

On remand, the case was assigned to the Honorable Carolyn Engel Temin because Judge Lineberger was no longer serving. Judge Temin held several hearings between December 10, 2010 and August 26, 2011, to determine which issues remained to be addressed. The parties disputed whether Judge Lineberger had dismissed on the merits the four remaining claims encompassed in his grant of an evidentiary hearing. The Commonwealth asserted that the claims were dismissed as meritless, while appellees asserted that dismissal was premised upon mootness. Judge Temin ultimately concluded that Judge Lineberger's June 2004 opinion " definitely states that the remaining issues were dismissed as moot," and thus she reconsidered the claims " ab initio." PCRA court Slip Op., 11/22/11, at 4. The court ultimately addressed seven guilt phase claims, seven penalty phase claims, and a cumulative prejudice claim, concluding that trial counsel for each appellee were ineffective for

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failing to investigate and present additional mitigation evidence specific to their client, but that appellees were not entitled to relief on their remaining claims. Accordingly, the PCRA court awarded each appellee a new penalty phase hearing. These twin cross-appeals followed.

I. PRELIMINARY PROCEDURAL ISSUE

The parties first dispute the propriety of the successor PCRA court's decision to consider claims on remand anew. The Commonwealth argues that Judge Temin had no authority to vacate the death sentences because in doing so she overruled Judge Lineberger's prior dismissal. That action, the Commonwealth alleges, violated Pa.R.A.P. 2591, which provides that the lower court must proceed in accordance with the judgment or order of the appellate court on remand, as well as the coordinate jurisdiction rule, which provides that judges sitting on the same court in the same case should not overrule each other's decisions. The Commonwealth contends that this Court's remand order was narrow, merely directing the PCRA court to produce a written opinion on the remaining issues it had dismissed, and Judge Temin exceeded that mandate when she granted penalty phase relief. Respecting coordinate jurisdiction, the Commonwealth posits that Judge Lineberger specifically rejected appellees' mitigation-based ineffectiveness claim on the merits during a March 25, 2003 PCRA hearing and then memorialized the decision in an order dated the same day. According to the Commonwealth, the coordinate jurisdiction rule precluded Judge Temin from overruling the merits determination of a fellow PCRA judge.

The Commonwealth further argues that Judge Lineberger's June 2004 written opinion, which stated that the claims he did not address in the opinion were " moot," is not part of the record on appeal, and therefore Judge Temin should not have considered its contents in determining whether she could address the merits " ab initio." The Commonwealth concludes that " because the PCRA court lacked the authority to go beyond this Court's narrow remand order and overrule the prior binding decision of a judge of coordinate jurisdiction, the court's ultra vires award of a new penalty phase hearing should be reversed." Principal Brief of Commonwealth, at 26.

Pelzer responds that in the June 2004 opinion, Judge Lineberger stated that he deemed appellees' penalty phase issues " moot" because of his determination that a new trial was warranted. See PCRA court Slip Op., 6/29/2004, at 12. Pelzer adds that this Court recognized that the claims were dismissed as moot in our remand directive (quoted above). According to Pelzer, the Court remanded the case specifically because certain claims remained unaddressed by the PCRA court. It follows, Pelzer says, that the coordinate jurisdiction rule was not violated by Judge Temin because Judge Lineberger did not decide the merits of the remaining claims. Pelzer further contends that the cases cited by the Commonwealth to support its argument that Judge Lineberger's opinion is not part of the record are inapplicable because they stand for the proposition that facts stated in an opinion cannot overcome the lack of record evidence to support the existence of those facts, a proposition not at issue here. Daniels's arguments largely echo those of Pelzer.

The circumstances here are not optimal, even aside from the unavailability of the original PCRA judge to conduct the remand proceeding. This Court has too often seen capital PCRA matters where the court below, faced with a multitude of

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claims and prolix amendments, addresses a claim or two, grants relief, and then fails to discharge its duty to address at all, or to address fully, the remaining claims, a circumstance that can lead to piecemeal review, multiple appeals to this Court, and accompanying delay. See, e.g., Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (Pa. 2006) (reversing PCRA grant of new trial on single guilt phase claim, while affirming grant of penalty relief), followed by Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096 (Pa. 2012) (deciding remaining guilt phase claims following remand and further appeal). See also Daniels and Pelzer, 963 A.2d at 435 (collecting cases). Our remand in this case illustrates that we have not hesitated in such circumstances to remand either for a fuller explanation of the rejection of claims, or for a fuller treatment of claims, since the circumstance impedes the Court's ability to conduct meaningful appellate review.

In this case, the original PCRA judge gave conflicting signals, as he actually dismissed appellees' other claims, signaling a merits disposition that allowed for appealable orders, and further suggested, as relevant here, that he was not necessarily convinced by the ineffectiveness respecting mitigation claim, but then suggested in his opinion that the dismissal was on mootness grounds. The suggestion of mootness was plainly misguided in light of this Court's repeated insistence on a comprehensive approach to PCRA petitions. A capital PCRA petitioner's claims should not be deemed " moot" by the trial court based upon a determination that a claim or two possesses merit; any finding of mootness would depend upon this Court's determination of any ensuing Commonwealth's appeal. As an institutional matter, and as a matter of judicial economy, mootness is more properly for this Court to determine in capital PCRA proceedings. If a single collateral issue is both contested (as here) and deemed of such importance as to warrant immediate interlocutory review in the PCRA court context, the PCRA court can avail itself of the issue certification process, Pa.R.A.P. 312 (interlocutory appeals by permission). But, a PCRA trial court should not invoke " mootness" to avoid the task of deciding the entire case before it so as to make for a ready, comprehensive, and timely single appeal. This imperative is not just a matter of sparing the parties and this Court the burden of multiple, " ping-ponging" appeals but it also avoids the prospect -- as happened here -- of the PCRA judge no longer being available to preside over any remand.

The parties' dispute over the proper interpretation of Judge Lineberger's handling of the remaining claims is ultimately of little moment to the appellate task of this Court. Even if Judge Lineberger had made it perfectly clear that he was rendering a merits conclusion as to every claim, that fact would hardly advance the purpose of our remand. The impediment to meaningful appellate review was the absence of any reasoned expression why any particular claim was being rejected. Judge Lineberger denied most of appellees' claims without an evidentiary hearing. See N.T., 2/2/2000, at 80-89. He then held multiple hearings related to specific claims, including both the guilt phase claims that were subject of the prior collateral appeal and the penalty phase claim upon which Judge Temin ultimately granted relief. When Judge Lineberger granted relief on the two guilt phase claims, the prosecutor stated that he " would assume all the other claims are denied." Judge Lineberger replied, " No. What I'm saying to you, is this. I didn't go down the list of claims on there.... Some of those issues that were raised did not trouble me at all...." N.T., 1/29/03, at 11. But, the

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court did not identify these claims or articulate the reasons he believed they were not troubling. During a March 5, 2003 hearing, Judge Lineberger appeared reluctant to rule on the merits of the penalty phase issues because he had not fully considered them. See 3/5/03, at 5, 12-15 (" See, I'm in a position at this moment where I really did not give the issues raised concerning the penalty phase probably the consideration they might have legally deserved...." ). Ultimately, on March 25, 2003, the court appeared to deny relief on the mitigating evidence claims on the merits, but again without any kind of reasoned expression, and in an equivocal manner tied to a hope that the penalty phase issues would be rendered " academic" by his granting of new trials: " [S]o I guess what I'm saying is this, gentlemen, that in this Court's opinion the conduct of the lawyers were not an F. Lee Bailey type presentation on the part of Houston, but in my opinion it does not warrant another penalty phase should the Commonwealth overcome the threshold on its appeal of this Court's decision on the new trial. Hopefully the question will be academic." N.T., 3/25/03, at 14. The court's subsequent reference to mootness in its opinion seems to continue its equivocation.

What is not equivocal is that the initial PCRA judge memorialized no findings of facts or specific conclusions of law as to the various claims he dismissed, and he offered no reasoned explanation as to any of the claims; an offhand reference to Attorney F. Lee Bailey is not helpful to meaningful appellate review. We are left with nothing of substance from Judge Lineberger to review, irrespective of whether the judge intended to engage the merits. In these circumstances, Judge Temin, tasked with providing this Court with a reasoned analysis of the myriad remaining claims, can hardly be faulted for proceeding to analyze the claims de novo: there was nothing material for Judge Temin to defer to, and she was no better off than this Court, when the appeal was here before, to try to fathom the grounds for Judge Lineberger's decisions (or non-decisions). Our remand order did not contemplate a circumstance where the judge who had failed to fully discharge his duty in the first instance would be unavailable to complete the task upon remand. Hence, at least in these admittedly unique circumstances, we see no error in the judge to whom the case was reassigned examining the merits anew, so as to provide this Court with the explication necessary for us to discharge our appellate task. Thus, we will proceed to the merits.

II. REVIEW STANDARDS

In reviewing the rulings of a PCRA court, we examine whether the PCRA court's determination " is supported by the record and free of legal error." Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007). In order to be eligible for PCRA relief, a petitioner must establish by a preponderance of the evidence that the conviction or sentence resulted from one or more of the enumerated circumstances found in 42 Pa.C.S. § 9543(a)(2), and that the allegation of error has not been previously litigated or waived. Id. § 9543(a)(3). A claim is previously litigated if the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue. Id. § 9544(a)(2). An allegation is waived " if the petitioner 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).

The majority of appellees' claims sound in ineffective assistance of counsel under the Sixth Amendment. The

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U.S. Supreme Court has stressed that there is a strong presumption that counsel was effective, and the burden of overcoming the presumption rests with the defendant. See Burt v. Titlow, U.S., 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013); Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief, the defendant must demonstrate that counsel's performance was constitutionally deficient and that the deficient performance prejudiced him. Strickland, 466 U.S. at 687. In Pennsylvania, we have applied the Strickland test by looking to three elements, two concerning performance, and one concerning prejudice. Respecting counsel's performance, the petitioner must establish that his underlying claim is of arguable merit and that no reasonable trial strategy existed for counsel's action or inaction. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). The reasonableness of counsel's conduct is objectively measured, Cullen v. Pinholster, U.S.,, 131 S.Ct. 1388, 1404, 1407, 179 L.Ed.2d 557 (2011) (citing Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 791, 178 L.Ed.2d 624 (2011)). Respecting prejudice, we employ the Strickland actual prejudice test, which requires a showing of a reasonable probability that the outcome of the proceeding would have been different but for counsel's constitutionally deficient performance. See, e.g., Strickland, 466 U.S. at 694; Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108 (Pa. 2012). " [A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (citations omitted); see also Hinton v. Alabama, U.S., 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014) (" When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." ) (quotation marks omitted); Strickland, 466 U.S. at 695 (explaining same concept in context of penalty relief). A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1076 (Pa. 2006).

Both Daniels and Pelzer were represented by new lawyers on direct appeal, and those direct appeals were litigated before this Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), reargument denied, 573 Pa. 141, 821 A.2d 1246 (Pa. 2003). Thus, in theory, direct appeal counsel in each case could have raised claims of trial counsel ineffectiveness on direct appeal, and the failure to raise a claim of trial counsel ineffectiveness on direct appeal could implicate PCRA waiver.[1] As a consequence, to the extent that appellees on collateral attack now raise claims deriving from the alleged ineffectiveness of trial counsel, those particular claims must be " layered," i.e., appellees must prove Strickland ineffectiveness as to both trial counsel and appellate counsel in order to demonstrate an entitlement to PCRA relief.

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Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 7 (Pa. 2011); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (Pa. 2003).

Recognizing the dynamism that has continued to be evident in this area of the law since Grant and McGill,[2] this Court in Walker recently explained that a remand for further explication of the appellate counsel aspect of a layered ineffectiveness claim continues to be available. Specifically, we explained that an appellate court should not simply reject a claim of appellate counsel ineffectiveness based upon deficiencies in the appellate brief if the deficiencies in the brief " mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity for amend." We then explained that a remand remained " an option" to correct pleading and proof deficiencies and that we will continue to " review the underlying claim concerning trial counsel's stewardship to determine whether remand for further development" of appellate counsel ineffectiveness claims is necessary. However, we reiterated that, in the layered claim scenario, a remand remains unnecessary if the petitioner has not met his burden of establishing the underlying claim of trial counsel ineffectiveness. Walker, 36 A.3d at 8-9.

Thus, in this case, for appellees to secure relief on any particular claim, they must establish Strickland's elements as to both trial and appellate counsel. To the extent that this Opinion discusses appellees' underlying claims of alleged trial court error or trial counsel ineffectiveness, we do so purely for purposes of assessing appellees' derivative and cognizable claims of appellate counsel ineffectiveness, and in particular, to assess whether a Walker-style remand is required.

III. GUILT PHASE ISSUES

We first address the guilt phase claims that are the subject of appellees' cross-appeals, since they offer the prospect of the greatest relief.

A.

Appellees allege that the Commonwealth failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), identifying three items of exculpatory evidence they say were withheld from them. First, they cite a " body receiving record" prepared by the medical examiner, which indicated that Alexander Porter had died " eight or nine hours before the gunshots were fired." Brief of Daniels at 30 (original emphasis). Appellees aver that this document supports a theory that Porter died in the trunk of the car while they were sleeping. Second, appellees cite witnesses' statements that they heard gunshots in the park area where the victim's body was found between 11 p.m. and 1 a.m. on the night of the murder. Third, appellees cite a forensic report stating that no bloodstains were found in their vehicle; appellees say this report was exculpatory because it proved the falsity of a police officer's statement at trial that blood was found in the vehicle.

According to appellees, the collective import of this withheld information was significant because it refuted the Commonwealth's trial theory, which was that the victim was shot and killed at the park. Appellees say the evidence tended to support

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Judge Lineberger's belief, in granting guilt phase relief, that the victim was dead by the time he was brought to the park and shot four times. Repeating the argument they made on the first collateral appeals, appellees contend that the defense forensic evidence at the PCRA hearing established that the victim was already dead by the time they arrived at the park. Proof that the victim was already dead when Pelzer shot him, appellees aver, would undermine the Commonwealth's proof of their specific intent to kill. Pelzer also argues that this evidence corroborated his statement to the police that the victim was already dead when he shot him at the park. Additionally, appellees contend that the Brady material would have further supported the defense objection to the trial court's instruction that a specific intent to kill could be inferred from the use of a deadly weapon upon a vital part of the victim's body.

Appellees acknowledge that their initial collateral appeals posed a central issue related to trial counsels' alleged ineffectiveness for failing to contest the cause of death. The Court rejected the issue on the basis that appellees could not demonstrate prejudice because the entire circumstances surrounding the kidnapping and binding of the victim, and then holding him in the trunk for a prolonged period, established appellees' specific intent to kill. See Daniels and Pelzer, 963 A.2d at 428 (" To suggest that the victim's death was the result of an 'accidental act' or was the result of something less than intentional conduct because he may have died of asphyxiation -- caused by appellees -- rather than by strangulation or gunshot wounds -- also inflicted by appellees -- fails to acknowledge that appellees controlled the circumstances surrounding his death every step of the way and that those circumstances fully supported a finding of an intent to kill beyond a reasonable doubt." ).

Appellees next attempt to relitigate the initial PCRA appeals, collaterally attacking this Court's decision. They argue that the Court's reasoning was flawed because the Commonwealth's theory at trial was that the gunshots caused the victim's death; thus, they believe, a verdict of first-degree murder was only possible by way of a finding that the victim was killed by the multiple gunshots. Appellees note that the trial court declined to instruct the jury on a cause of death other than the shooting, such as strangulation or suffocation. Appellees then contend that this Court's explication of what the jury might have found if a different theory had been pursued -- in discussing Strickland prejudice on the first collateral appeals -- violated their Sixth Amendment right to a jury trial. A Strickland prejudice analysis, according to appellees, is constrained by a requirement to contemplate only the trial that actually occurred and cannot proceed on a " speculative" theory of the case not actually pursued by the Commonwealth. See Brief of Appellee Daniels at 33-35, discussing Smith v. Cain, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012); Chiarella v. U.S., 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); and Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (Pa. 2009).

The Commonwealth responds that the witnesses's statements about hearing gunshots were not favorable to appellees in a Brady sense and appellees cannot establish that they were prejudiced. The Commonwealth argues that the evidence at best merely corroborated the Commonwealth's allegation that appellees shot the victim. The Commonwealth notes that this aural evidence certainly does not address whether the victim died at appellees' hands prior to arriving at the park, which is the point relevant to appellees' contention. The Commonwealth also avers that

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appellees did not establish that the evidence was withheld, since Pelzer's trial counsel's testimony on the point was equivocal at best. Finally, the Commonwealth argues that any prejudice argument is foreclosed by the Court's 2009 decision denying relief on the cause of death claim, which is the theory this evidence was relevant to.

The Commonwealth then argues that the remaining two Brady claims -- respecting the body receiving record and the forensic report -- are waived because they were not raised until after this Court remanded the appeals for the PCRA court to address already existing claims. Alternatively, the Commonwealth contends that the issues are baseless. The Commonwealth argues that the body receiving report is irrelevant because this Court previously concluded that the timing of the victim's demise was immaterial to specific intent. The Commonwealth then argues that the forensic report (showing no blood) only related to the passenger compartment of the vehicle and did not test items in the trunk. For all of these reasons, the Commonwealth concludes that appellees' Brady claims fail.

In further responses, appellees largely reiterate points already made, but two points bear further mention. First, regarding the witnesses' statements concerning hearing gunshots, appellees say the evidence was exculpatory because it was relevant to whether the victim was alive when appellees shot him. Second, and related to the question of waiver, appellee Daniels contends that the forensic report was attached to his 2000 amended PCRA petition, and further argues that the claim respecting the body receiving record was part of his " existing" Brady claim. Reply Brief of Appellee Daniels at 9.

The PCRA court found that the Brady issue deriving from the body receiving record in fact was not raised in the initial or supplemental PCRA petitions. The PCRA court added that the Brady claims were without merit because the issues related to the manner of the victim's death, and arguments relating to the manner of death, were previously addressed and rejected by this Court on the first collateral appeals.

To succeed on a Brady claim, the defendant must show that: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted. A Brady violation exists only where the suppressed evidence is material to guilt or punishment, i.e., where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 30 (Pa. 2008).

Taking the witnesses' statements concerning gunshots first, we agree with the Commonwealth that appellees have not demonstrated materiality, or even that the statements were favorable to them. The Commonwealth's theory at trial was that the victim was shot by appellees after being bound and gagged and confined in the trunk of the car, which was a fact that appellees admitted either on the stand (appellee Daniels) or in their statements to police. The alleged Brady evidence does not undermine the Commonwealth's position that the victim was killed by gunshots. Additionally, appellees' Brady claim depends upon accepting the notion that trial counsel was constitutionally obliged to pursue the theory that the victim was dead at the time appellees shot him. That Strickland argument was raised and rejected, on prejudice grounds, on the initial PCRA appeals. Daniels and Pelzer, 963 A.2d at 428. We will not reconsider that issue, which is an indispensable predicate to the

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current Brady claim related to the witnesses' statements.

Second, the PCRA court correctly determined that the Brady claim related to the body receiving record was waived, as it was not raised prior to the remand. This Court explicitly limited the subject matter of the remand to the remaining issues already raised by appellees; we neither invited nor authorized appellees to raise additional collateral claims years after expiration of the PCRA time-bar. Daniels and Pelzer, 963 A.2d at 435. Thus, this new claim is waived. See Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (Pa. 2012) ( appellant cannot add Brady claim to existing PCRA petition without PCRA court's permission); Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 320 (Pa. 2010) (Supreme Court PCRA remand for specific purpose is not authorization to raise new collateral claims).

However, the Commonwealth is incorrect that the Brady issue related to the forensic report was not raised prior to the remand. See Supplemental Motion for Post-Conviction Collateral Relief, 12/22/00, at 6-10. The claim nonetheless fails for the same reason as the claim related to the witnesses's statements: the materiality of the report depends upon the claim -- pursued as an ineffectiveness claim on the initial collateral appeals -- that counsel were obliged to argue that the victim was dead at the time appellees shot him. That predicate theory was rejected by this Court, on grounds that appellees failed to show Strickland prejudice. Further evidence supporting the same theory does not alter the Strickland prejudice assessment.

Finally, we address Daniels's attack upon the Court's assessment of Strickland prejudice on the prior appeal, on grounds that the Court supposedly cannot discuss other theories not directly presented to the trial jury. This objection was a matter for reconsideration or reargument after our prior decision, and is not an available issue on this appeal, involving distinct claims. In any event, because versions of this sub-argument are raised by Daniels respecting multiple issues, we will explain why we disagree with the notion that the Strickland prejudice assessment is so narrow. Strickland requires that claims of counsel ineffectiveness be approached with a strong presumption that counsel was effective, and the Strickland prejudice assessment requires a court to make judgments -- essentially predictions -- about the reasonable probabilities of what the fact finder would have decided if a particular course had or had not been pursued by trial counsel, i.e., if the case had been tried differently. Under Strickland, the defendant has the burden to show a reasonable probability that the outcome of the proceeding would have been more favorable to the defense -- here, respecting the guilt phase -- that Daniels would have been convicted of something less than first-degree murder. Such a determination necessarily requires an assessment of the trial evidence as a whole, measured along with what is proffered on collateral attack.

This Court often engages in such Strickland assessments as part of our jurisprudential review. In doing so, we appreciate that the task is not to identify various hindsight " gotcha" scenarios: i.e., counsel could have done this, or he should not have done that. Indeed, the U.S. Supreme Court has emphasized that the Sixth Amendment right to counsel does not exist in a vacuum, but exists to ensure a fair trial, a trial whose result is reliable. Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 684; see also United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)

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 (" [T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." ). The fact that the defendant on collateral attack looks at a fixed record and produces a theory by which trial counsel can be assailed for failing to parry a point made by the Commonwealth does not mean that the Commonwealth would have been left without recourse, under the available evidence. Our examination on the prior appeals reviewed the totality of the trial evidence produced respecting appellees' manifested intention to kill, and properly assessed that evidence in determining whether there was a reasonable probability that appellees' new, collateral theory -- a theory itself subject to Commonwealth response and rebuttal, it is important to remember -- if pursued, would have led to a different verdict. Given appellees' extended course of conduct reflected in the trial record here, we concluded, the course proposed by appellees on collateral attack not taken by counsel did not offer a reasonable probability of a result other than a verdict of first-degree murder. The fairness of the proceeding focus required under Strickland works two ways; and final judgments are not upset by courts employing artificially blinkered views of the fairness of the initial trial.

For the foregoing reasons, appellees' Brady claims do not entitle either to relief.

B.

In another claim relating to their core complaint that their trial counsel were ineffective for failing to better dispute the cause of death, appellees next raise a layered ineffectiveness claim deriving from counsels' failure to object to the court's guilt phase jury instructions. Appellees say that those instructions fostered an unbalanced presentation of the specific intent issue and encouraged the jury to presume they had an intent to kill from their act of shooting the victim. Related to this claim, appellees separately aver that trial counsel were ineffective for failing to request a mistake of fact jury instruction.

Thus, Pelzer complains that the trial court focused the jury's attention on the fact that the victim had been shot without also directing the jury that it had to believe that the victim was alive at the time he was shot in order to find a specific intent to kill. Pelzer contends that the jury should have been told that a reasonable mistake of fact could refute the inference arising from the use of a deadly weapon on a vital part of the victim's body. Pelzer adds that the trial court did not make any reference to the evidence of strangulation as a possible cause of death or reference the defense claim that the victim was already dead at the time he was shot. Pelzer continues that trial counsel should have objected to these " unbalanced" instructions which, he says, failed to present the defense to the jury. He also contends that he was prejudiced because the cause of death was in question, as there was at least some evidence that appellees believed the victim was dead before they shot him to make sure.

Pelzer then argues that trial counsel should have requested a mistake of fact instruction, i.e., an instruction that a mistake of fact exists if the defendant had a reasonable and bona fide belief that the victim was already dead when he shot him, and that such a mistake may negate the inference of an intent to kill. Pelzer says there was sufficient evidence to require such an instruction, citing his statement to the police as proof that he believed the

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victim was dead prior to the shooting. Brief of Appellee Pelzer at 59, citing 18 Pa.C.S. § 304 (defense of ignorance or mistake of fact). Pelzer says that counsel's failure was prejudicial because the cause of death was in question. See Initial Brief of Appellee Pelzer, at 61.

Daniels makes essentially the same argument. According to Daniels, the trial court's instructions shifted the burden to appellees by focusing the jury's attention on the fact that the victim had been shot, suggesting that the shooting was the cause of death, which made Daniels's testimony (that he believed the victim was dead at the time he was shot) appear immaterial. Daniels then contends that trial counsel's decision to join in objections raised by Pelzer's counsel was inadequate. He adds that appellate counsel was ineffective for failing to raise the issue on direct appeal.

Daniels also contends that a defendant is entitled to an instruction on any recognized defense, so long as it is supported by the record. According to Daniels, there was sufficient evidence to require a mistake of fact instruction, on grounds that he lacked the intent to kill because the victim was dead before being shot and he did not personally pull the trigger. Again seeking to collaterally attack our decision in the prior PCRA appeals, Daniels reiterates his view that this Court erred in determining that appellees' intent to kill was demonstrated throughout the course of the kidnapping. Daniels claims that that issue is reserved for the jury to make findings based on the trial that actually occurred. Like Pelzer, Daniels argues that he was prejudiced because a mistake of fact instruction would have advanced his prospects of avoiding a first-degree murder verdict.

The Commonwealth responds that the evidence did not support a mistake of fact defense and, in any event, the absence of the instruction did not prejudice appellees. First, the Commonwealth notes that a mistake of fact defense is only available when there is proof that the defendant harbored a bona fide and reasonable belief in a fact that negates the intent to commit the crime. The Commonwealth notes that in this case, Daniels's testimony showed that appellees were unsure whether the victim was dead and that he was shot in order to make certain he was dead. Thus, the evidence did not show that appellees had a bona fide belief that the victim was dead at the time of the shooting. Additionally, even if they had such a belief, the Commonwealth asserts that the evidence overwhelmingly demonstrated appellees' specific intent to kill the victim long before they shot him. Thus, according to the Commonwealth, appellees cannot establish an entitlement to relief.

Second, the Commonwealth argues that appellees cannot establish that they were prejudiced by counsels' failure to request the charge. Given the evidence presented at trial, the Commonwealth argues, the jury could not rationally have concluded that appellees lacked the specific intent to kill even if the jury believed both that the victim in fact was dead at the time he was shot, and that appellees believed he was dead. The Commonwealth points to this Court's opinion on the prior appeals to buttress its prejudice argument.

In reply, Pelzer argues that his statement to the police showed that he believed the victim was dead when he was shot. Additionally, echoing Daniels, Pelzer says that the Commonwealth's prejudice argument misses the mark because the trial court's instructions denied the jury the option to consider whether he was guilty of first-degree murder if the killing was accomplished by some means other than shooting.

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Daniels responds that the Commonwealth confuses the quantum of evidence necessary to be entitled to an instruction with the quantum necessary to prevail on a mistake of fact defense. According to Daniels, the Commonwealth cannot speculate regarding what the jury would have ultimately decided.

Similar to its assessment of the Brady claim, the PCRA court concluded that this issue was effectively previously litigated on the prior collateral appeals, since this Court concluded that appellees did not establish that they were prejudiced by counsels' failures in disputing the manner of death.

Preliminarily, we note that Daniels reprises his argument that we are precluded from " speculating" regarding what the jury would ultimately have decided if counsel had pursued a different course. We have already addressed that erroneous notion in disposing of claim A, supra, both in terms of prior litigation on the earlier appeals, and in terms of a proper appreciation of the prejudice assessment under Strickland by a reviewing court.

Turning to the merits, it is notable that neither appellee adequately accounts for the objections actually raised by trial counsel, or this Court's discussion of a similar issue on direct appeal. In point of fact, Pelzer's counsel objected to the trial court's instruction to the jury that the only cause of death was the gunshots and that the specific intent to kill could be inferred from the use of a deadly weapon upon a vital part of the body. N.T., 11/9/89, at 58-61. Daniels's counsel joined in the lengthy objection. Id. at 61. Counsel for both appellees also specifically asked that the court's charge on cause of death address the possibility that death was caused by strangulation; and appellees further objected that the court's charge reflected the trial court's theory of what had happened, notwithstanding that evidence supporting alternative theories of death had been presented to the jury, which ...


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