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Commonwealth v. Watkins

Supreme Court of Pennsylvania

December 29, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GERALD WATKINS, Appellant

Submitted April 29, 2013

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Appeal from the Order entered on June 29, 2012 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CP-02-CR-0015480-1994. Trial Court Judge: Jeffrey A. Manning, Judge.

For Gerald Watkins, APPELLANT: Cristi A. Carpentier, Esq., Maria Katherine Pulzetti, Esq., Federal Community Defender Office, Eastern District of PA.

For Commonwealth of Pennsylvania, APPELLEE: Ronald Michael Wabby Jr., Esq., Allegheny County District Attorney's Office; Amy Zapp, Esq., PA Office of Attorney General.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ. Madame Justice Todd files a concurring opinion in which Mr. Justice Saylor joins.

OPINION

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PER CURIAM

Appellant Gerald Watkins appeals from the denial of his petition pursuant to the Post Conviction Relief Act (" PCRA" ),[1] which was filed after this Court's affirmance of his direct appeal from three death sentences imposed following his conviction for murdering his girlfriend, their newborn daughter, and his girlfriend's son. We affirm the order of the PCRA court.

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In December 1994, Appellant was charged by information with three counts of criminal homicide for the shooting deaths, on July 20, 1994, of his girlfriend, Beth Ann Anderson; their 18-day-old daughter, Melanie Watkins; and Ms. Anderson's nine-year-old son, Charles Kevin Kelly, Jr.[2] The FBI coordinated a search for Appellant, placing him on the ten most wanted fugitive list in March 1995. Appellant was arrested in New York City in May 1995, and, on August 3, 1995, Pittsburgh Detectives Dennis Logan and Richard McDonald drove him back to Allegheny County to stand trial for the murders. Prior to trial, Appellant filed an omnibus motion seeking, inter alia, to suppress inculpatory statements he had made to the detectives on the trip from New York City to Allegheny County. At the ensuing hearing, Appellant testified that he had not discussed the murder charges against him with the detectives during the trip and had not signed a statement purporting to bear his signature. The trial court denied Appellant's motion, concluding that the issue raised by Appellant did not present a constitutional question, but rather, was a question of credibility, reserved for the jury. See Notes of Testimony (" N.T." ) Suppression Hearing, 12/9/96, at 73-101.

Trial commenced immediately after the suppression hearing on December 9, 1996, and the guilt phase continued for four days. The Commonwealth presented the following testimony: (i) Monique Kohlman had been on the phone with Ms. Anderson when Appellant arrived at Ms. Anderson's home; Ms. Kohlman spoke briefly with him by phone, heard sounds of a struggle, called the police at Ms. Anderson's request, and then went to the home where she observed the victims' bodies; (ii) Ronnie Williams, one of Ms. Anderson's neighbors, saw Appellant, whom he recognized as Ms. Anderson's boyfriend, on the porch of Ms. Anderson's home shortly before the murders; (iii) the police officers who responded to the report of a shooting described their observations and processing of the crime scene; (iv) Leon Rozin, M.D., a forensic pathologist who performed autopsies of the victims, determined that each had died of multiple gunshot wounds from bullets fired at close range; (v) Dr. Robert Levine, from the Allegheny County Crime Lab, determined that all the spent cartridge casings at the scene were from the same semi-automatic .22 caliber firearm; (vi) Keith Platt, a friend of Appellant, was threatened by Appellant when, following the murders, he declined Appellant's request to ask several mutual acquaintances to repay money they allegedly

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owed Appellant; (vii) Detective Logan summarized a statement Appellant made in which he admitted that he had killed the three victims, and claimed that the killings were not premeditated, but rather were prompted by Ms. Anderson's spurning of his marriage proposal and his jealousy of another man.

The defense theory at trial was that drug dealers had committed the murders in retaliation against Appellant for his failure to pay for a drug transaction. Appellant testified on his own behalf, denying involvement in the murders, asserting that all the Commonwealth's witnesses were lying, and contending that the detectives had fabricated his inculpatory written statement and forged his signature on that statement. Two character witnesses testified for the defense regarding Appellant's reputation as a peaceable, non-violent person.

The jury found Appellant guilty of three counts of first-degree murder. Following a penalty hearing, on December 13, 1996, the jury found two aggravating circumstances relative to all three victims: Appellant was convicted of another offense for which a sentence of life imprisonment or death was imposable, 42 Pa.C.S. § 9711(d)(10); and Appellant was convicted of another murder, 42 Pa.C.S. § 9711(d)(11). In addition, the jury found a third aggravating circumstance respecting the murders of the two child victims: the victim was less than twelve years of age, 42 Pa.C.S. § 9711(d)(16). The jury also found the " catchall" mitigating circumstance, 42 Pa.C.S. § 9711(e)(8). More specifically, at least one juror found the following mitigating factors with regard to all three victims: Appellant was non-violent until July 20, 1994; was known to attend church; and has the ability to love. With regard to the murder of his daughter Melanie Watkins, at least one juror found an additional mitigating circumstance: Appellant loves his daughters. Finding that the aggravating circumstances outweighed the mitigating circumstances as to each murder, the jury determined that Appellant should be sentenced to death. The court formally imposed the three death sentences and, on direct appeal, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d 1203 (Pa. 2003).[3]

In October 2005, Appellant filed a pro se petition seeking PCRA relief. The court granted the Federal Community Defender Office (" FCDO" ) permission to represent Appellant,[4] and on November 13, 2006, the FCDO filed an amended petition. After the PCRA court issued a notice of intent to dismiss and an accompanying memorandum opinion, Appellant amended his petition to address the defects the PCRA court had identified. See PCRA Court Order and Opinion, dated 3/14/08. The PCRA court then issued an order dismissing seventeen of Appellant's claims and

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scheduling an evidentiary hearing on the remaining four claims. See PCRA Court Order, dated 2/13/09. After conducting the evidentiary hearing, the PCRA court denied relief on June 29, 2012.

In this appeal, Appellant has raised fifteen issues, most of which include allegations of ineffective assistance of counsel. The issues, as stated by Appellant, are:

I. Were the statements introduced against Appellant at trial unreliable and involuntary?
II. Were jurors improperly excused without an adequate inquiry into their ability to impose the death penalty?
III. Did the Commonwealth improperly exercise peremptory challenges to strike female venirepersons from jury service?
IV. Did the Commonwealth violate due process by suppressing material exculpatory evidence?
V. Were trial counsel ineffective in failing to investigate and present evidence at both the guilt-innocence and penalty phases of trial?
VI. Did the introduction and consideration of improper aggravating victim-impact evidence and argument render Appellant's death sentence arbitrary and capricious?
VII. Must Appellant's convictions and death sentences be vacated, because inflammatory and highly prejudicial evidence on the manner of death was presented?
VIII. Did the trial court err when it refused to admit photographs of Appellant?
IX. Should Appellant's death sentences be vacated because the jury was not instructed that life imprisonment is without possibility of parole?
X. Is Appellant entitled to relief from his sentence of death because of penalty phase jury instruction errors?
XI. Did the trial court improperly permit the sentencing jury to consider and weigh the same conduct as evidence of multiple aggravating factors?
XII. Was Appellant denied a fair trial before an impartial tribunal?
XIII. Is Appellant entitled to a new trial and sentencing proceeding because of the prejudicial effects of the cumulative errors in this case?
XIV. Was Appellant denied full, fair and reliable PCRA review?
XV. Did the PCRA court err in denying Appellant's motion for compulsory mental health evaluation?

Appellant's Brief at 1-2.

Before addressing the issues, we set forth some general principles. In reviewing the denial of PCRA relief, we examine whether the PCRA court's determinations are supported by the record and are free of legal error. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 603 (Pa. 2013). The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions. Id.

In order to obtain collateral relief, a petitioner must establish by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, either of which " so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error

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have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been 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." 42 Pa.C.S. § 9544(a)(2). An issue has been waived " if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b).

With regard specifically to the claims sounding in ineffective assistance of counsel, we presume that counsel is effective, and Appellant bears the burden of proving otherwise. Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426, 439 (Pa. 2011). To prevail on an ineffectiveness claim, Appellant must satisfy, by a preponderance of the evidence, the Sixth Amendment performance and prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has divided the performance component of Strickland into two sub-parts dealing with arguable merit and reasonable strategy. Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa. 2014). Thus, Appellant must show that: the underlying legal claim has arguable merit; counsel had no reasonable basis for his or her action or omission; and Appellant suffered prejudice as a result. Id. (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (Pa. 1987)). With regard to " reasonable basis," we will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that " an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Commonwealth v. Spotz, 616 Pa. 164, 47 A.3d 63, 76 (Pa. 2012) (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (Pa. 2006)). To establish Strickland prejudice, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Id.

I. Appellant's Ability/Competence to Give an Inculpatory Statement and to Stand Trial

On direct appeal, Appellant challenged the admissibility of the inculpatory statements he made to Detectives Logan and McDonald as they were driving him from New York City to Allegheny County on August 3, 1995, claiming, inter alia, that the statements were involuntary. As this Court explained on direct appeal, that claim was inconsistent with the position Appellant maintained throughout the trial proceedings, where he insisted that he had never made or signed any confession, that the detectives were lying, and that his signature had been forged. See Watkins, 843 A.2d at 1211-13. In determining that this issue lacked merit,[5] we explained:

Detective Logan testified at the suppression hearing that, during the drive to Allegheny County, Appellant: initiated the discussion about the crime; promptly received Miranda [6] warnings and manifested an understanding of them; and chose to continue his statement without his attorney present. He also indicated that Appellant's demeanor was " talkative" and " carefree," and that no attempt was made to coerce or deceive Appellant into confessing.

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Appellant likewise confirmed that during the trip he was provided with sufficient food and was not subjected to coercive tactics. Under these circumstances, we find no error in the trial court's determination that the Commonwealth met its burden to establish that Appellant's waiver was valid.

Watkins, 843 A.2d at 1213 (footnote added).

Appellant continues to assert that his inculpatory statements were involuntary, but for a reason different from the one he advanced on direct appeal. Appellant now avers that his statements were the consequence of a traumatic brain injury that he suffered three days after the murders, which rendered him incompetent and unable to provide a knowing, intelligent, and voluntary waiver of his Miranda rights when he made his inculpatory statements one year later. Appellant's Brief at 12. In addition, Appellant asserts that his traumatic brain injury and resulting " frontal lobe syndrome" rendered him incompetent, not just to give a confession, but also to testify at the suppression hearing and at trial. Id. at 14, 35. Finally, Appellant claims that counsel was ineffective for failing to investigate and present evidence of his brain injury at the suppression hearing and at trial, and for failing to mount a challenge to his competence to stand trial based on his brain injury. Id. at 17, 19.[7]

In its analysis, the PCRA court noted that a defendant is presumed competent to waive Miranda rights and to stand trial, and he or she bears the burden to prove incompetence by a preponderance of the evidence. PCRA Court Opinion, dated 6/29/12, at 14, 16. In determining competence to stand trial, the relevant question is whether a defendant has sufficient ability to consult with counsel with a reasonable degree of rational understanding and to have a rational as well as a factual understanding of the proceedings. Id. at 14 (quoting Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 617 (Pa. 2010)). We have made clear that the same competency standard is applicable to standing trial, waiving the right to counsel, pleading guilty, and waiving the right to present mitigation evidence. Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 288-89 (Pa. 2008).

The PCRA court heard testimony from several mental health expert witnesses regarding Appellant's competence at the relevant times. Specifically, Appellant called William Musser, M.D., a psychiatrist/neurologist, and George Woods, M.D., a psychiatrist, both of whom were retained by the FCDO. Both physicians based their opinions solely on their respective reviews of Appellant's medical and other records, as neither had ever spoken to Appellant or examined him. Appellant also called Robert Wettstein, M.D., a forensic psychiatrist who, at the request of trial counsel, had evaluated Appellant prior to trial in 1996. The Commonwealth called Bruce Wright,

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M.D., a psychiatrist who reviewed Appellant's records shortly before the PCRA hearing but did not interview him. In addition, Christine Martone, M.D., the Chief Psychiatrist of the Allegheny County Behavior Assessment Unit, who examined Appellant for competency in October 2009 at the request of the court,[8] testified at the PCRA hearing. Finally, Appellant's trial counsel also testified at the PCRA hearing, explaining that, based upon his interactions with Appellant, he had no reason to believe that Appellant was incompetent.

The PCRA court held that Appellant had failed to prove that: (1) he was not competent to waive his Miranda rights; (2) he was not competent to stand trial; or (3) counsel knew or should have known of his alleged incompetence. PCRA Court Opinion, dated 6/29/12, at 16, 21 & n.8. The PCRA court credited the testimony of Dr. Wettstein, who was the only testifying mental health expert who had actually interviewed Appellant before trial in 1996. Based on his two interviews with Appellant, his review of Appellant's Bronx Hospital records related to the 1994 head injury, his interview with Appellant's mother, and his review of reports relating to the homicides, Dr. Wettstein concluded that Appellant was competent to waive his Miranda rights, to give a voluntary statement, and to stand trial. See Letter from Robert Wettstein, M.D., to Kim Reister, Esq., penalty-phase counsel, dated 1/7/97; see also PCRA Court Opinion, dated 6/29/12, at 19 (citing Dr. Wettstein's PCRA testimony at N.T. PCRA Hearing, 10/15/09, at 116-19).[9]

Although Appellant called Dr. Wettstein to testify at the PCRA hearing, notably, the doctor did not testify at trial. During Dr. Wettstein's PCRA testimony, counsel produced a series of records, handed them to Dr. Wettstein, and asked him to " flip through" them. N.T. PCRA Hearing, 10/15/09, at 107-08. The records contained the following: Appellant's school records from 1980-84; Appellant's discharge summary from " KIDS," a program for troubled teens in New Jersey; and two New Jersey police records describing contacts with Appellant in 1989 and 1991. Dr. Wettstein testified that he had not had these records when he evaluated Appellant in 1996. He further testified that, although PCRA counsel had orally described the contents to him previously, Dr. Wettstein had never actually seen the records until PCRA counsel asked him to " flip through" them while on the witness stand. Dr. Wettstein concluded that, if he had had the records in 1996, his opinion " could" have changed. Id. at 107-14, 119-23; see id. at 123 (cross-examination testimony of Dr. Wettstein that in 2008, he had " additional information [he] didn't have [in 1996], so [he] might have been able to provide helpful testimony" ). However, Dr. Wettstein did not indicate that his opinion in fact had changed, how it might have changed, or what helpful testimony he might have provided. Thus, the PCRA court noted, Dr. Wettstein did not recant any of the opinions he had formulated

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regarding Appellant and set forth in writing twelve years before, at the time of trial. PCRA Court Opinion, dated 6/29/12, at 20. In the PCRA court's view, any possible change in Dr. Wettstein's opinion from 1996, when he had personally interviewed and evaluated Appellant, was speculative. See id.

The PCRA court also credited the testimony of Dr. Martone, who had conducted a mental status examination of Appellant shortly before the PCRA hearings commenced, and had concluded that he was competent to proceed with the hearings. Id. at 12-13, 20; N.T. PCRA Hearing, 10/15/09, at 7. Dr. Martone testified that Appellant understood his legal situation, had explained it to her " in detail and with a high degree of understanding," had " no difficulty with funding [sic] information, memory problems, judgment questions, abstraction, mathematical questions." N.T. PCRA Hearing, 10/15/09, at 7.

Furthermore, the PCRA court found Dr. Woods's opinion testimony that Appellant was rendered permanently incompetent as a result of his brain injury to be of " limited value," citing Dr. Woods's failure to speak with Appellant, much less to examine and evaluate him. PCRA Court Opinion, 6/29/12, at 20. In addition, the PCRA court noted the fact that Dr. Musser had offered no opinion as to Appellant's competence or whether Appellant actually had suffered any long-term impairments from his brain injury. Id. at 18-20.

Finally, the PCRA court credited the observations of Appellant by trial counsel and the court itself,[10] which suggested no concern about Appellant's competence. Id. at 21 (citing Puksar, 951 A.2d at 289, for the proposition that the trial court's and trial counsel's contemporaneous observations regarding a defendant-appellant's competency are relevant to assessing trial counsel's conduct). More specifically, at the PCRA hearing, when asked about Appellant's brain injury in the context of the motion to suppress, trial counsel testified that Appellant " seemed to be clear about what had occurred, what had happened, what had transpired, where he wanted the case to go and what he wanted presented," and that he " seemed to be making very deliberate and thought-out decisions" and was not impulsive. N.T. PCRA Hearing, 10/15/09, at 160.

The PCRA court summarized its conclusions as follows:

Trial counsel was not ineffective for failing to [move to] suppress on the basis that [Appellant] was not competent because the evidence established that [Appellant] was competent when he provided the [inculpatory] statement.
For the same reasons, the [c]ourt finds that [Appellant] was competent to stand trial. Dr. Wettstein was in the best position to evaluate [Appellant's] competence in 1996 and has not changed that opinion. The observations of trial counsel and this [c]ourt, as well as Dr. Martone's opinion as to his current competence far outweigh the contrary views of Dr. Woods.

PCRA Court Opinion, dated 6/29/12, at 21 & n.8.

The PCRA court's conclusions with regard to Appellant's competence are supported by the record. Turning first to appellant's claim of trial counsel ineffectiveness for failing to challenge appellant's competency to waive his Miranda rights, trial counsel obtained a professional evaluation of Appellant's competence prior to

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trial, and acted in accordance with the results of that evaluation, which aligned with his own observations in the context of numerous interactions with his client. Appellant's assertion that trial counsel was ineffective for failing to raise Appellant's alleged inability and incompetence to waive his Miranda rights due to his brain injury, as a basis for suppression, is unsupported by any credible evidence.

Appellant's separate but related argument that trial counsel should have mounted a challenge to Appellant's competency to stand trial based on his brain injury fails for the same reason. Given Dr. Wettstein's pretrial evaluation, trial counsel's firsthand observations, and the trial judge's own observations (" this Court saw nothing that would have caused concern about the defendant's competence [at the time of trial]" ), counsel cannot be deemed ineffective for failing to pursue a meritless competency claim. See Puksar, 951 A.2d at 289.[11]

II. Death Qualification of Jurors

In his second issue, Appellant claims that trial counsel was ineffective for failing to object to the trial court's decision to excuse nine venire persons based on their general views of the death penalty without any attempt to rehabilitate them via further questioning. Appellant asserts that his constitutional right to trial by an impartial jury was violated as a result of counsel's failure in this regard. Appellant's Brief at 21, 24. The PCRA court rejected this claim without a hearing.

The PCRA court noted that Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 262 (Pa. 2006), set forth the relevant law. In Carson, this Court noted:

The decision to disqualify a juror is within the discretion of the trial court, a decision which will only be reversed for an abuse of discretion. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 299 (1996). Any person may be excluded from a jury who holds views on capital punishment that prevents or substantially impairs [sic] that person from adhering to the trial court's instructions on the law. ... Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 48 (1997). " A juror's bias need not be proven with unmistakable clarity." Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 525 (1997). For instance, in Morales,

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we held that a juror expressed sufficient doubt about his ability to impose the death penalty when he said, " I'm not certain that I could judge someone fair enough to give them the death penalty." Id. We also found no error in excluding a juror who did not " feel comfortable having to make a decision about someone else's life" and who " always" doubts whether imposing the death penalty is correct. Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130, 137 (1996).

Id. at 262 (citation omitted). See PCRA Court Opinion, dated 3/14/08, at 6-7.

After reviewing the record, the PCRA court concluded that there was no merit to Appellant's ineffective assistance claim because the response of each challenged venire person justified his or her removal for cause. PCRA Court Opinion, dated 3/14/08, at 7. As explained by the PCRA court, eight of the nine venire persons made unequivocal statements that his or her personal views, opinions, and/or religious convictions would substantially impair his or her ability to vote to impose the death penalty. See id. at 8-9 (quoting N.T. Voir Dire, 12/4/96, at 474-75, the statement of one venire person that she did not " have the power to support the death penalty" based on her religious convictions; citing id., 12/3/96, at 90-91, the statement of another venire person that she did not think she could fairly consider death as a viable sentence, a view she had held for a period of time; citing id., 12/4/96, at 311-14, and id., 12/5/96, at 568-69, the respective statements of two additional venire persons that they would be substantially impaired in their ability to sentence someone to death even if it were warranted by the law because of questions they harbored concerning their right to make such a decision; citing id., 12/5/96, at 559-60, the statement of another venire person that, based on his life-long religious beliefs, he did not believe in capital punishment; citing id., 12/5/96, at 658-59, the response of another venire person who stated that she did not think she could return a sentence of death even if it were justified); see also N.T. Voir Dire, 12/5/96, at 572-73 (statement of a venire person that she " felt [she] could not hold someone's life in my hands" ); id., 12/5/96, at 634-35 (statement of another venire person that he was " quite against the death penalty," and that he would have trouble getting up in court and pronouncing a sentence of death). The final venire person at issue gave a more equivocal statement that he " probably" could set aside his personal views and return a verdict of death if warranted by the facts and the law. PCRA Court Opinion, dated 3/14/08, at 7 (citing N.T. Voir Dire, 12/5/96, at 638-39). The PCRA court held that this equivocal statement nonetheless was sufficient to warrant his removal for cause. Id.

We have reviewed the relevant voir dire record, and we see no basis to disturb the PCRA court's determinations. A trial court acts within its discretion when it excludes venire persons who express reservations about imposing the death penalty in a capital case. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1176 (Pa. 2011) (citation omitted). More to the point, capital trial counsel has no constitutional obligation to attempt to change the views of venire persons by further questioning. Id. Accordingly, we see no error in the PCRA court's finding that trial counsel was not ineffective for failing to object to the dismissal of the challenged jurors for cause.

III. Gender Discrimination in Jury Selection

In his third issue, Appellant claims that his constitutional rights to trial by an impartial jury and equal protection of the law were violated when the trial

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prosecutor struck women venire persons based on their gender, that the trial court erred by failing to consider and/or find a prima facie case of gender discrimination, and that appellate counsel was ineffective for failing to raise this claim on direct appeal. Appellant's Brief at 26-28; Appellant's Reply Brief at 7. The PCRA court denied these claims without a hearing. PCRA Court Opinion, dated 3/14/08, at 9-11.

">In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court extended its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to hold that intentional discrimination on the basis of gender in selecting the jury violates the Equal Protection Clause. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1211 (Pa. 2006) (citing Commonwealth v. Aaron Jones, 542 Pa. 464, 668 A.2d 491, 519 (Pa. 1995)).

The framework for analyzing a trial level claim of unconstitutional discrimination in jury selection is as follows:

First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712.

Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 602 (Pa. 2008) (citation omitted).

However, if defense counsel does not preserve a claim of discrimination via a contemporaneous objection at trial, and a Batson-derivative claim is raised on collateral attack, this Court has held that the three-part Batson framework does not apply. See, e.g., Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1132 (Pa. 2012) (defaulted Batson claim argued through derivative guise of ineffectiveness not treated same as properly preserved Batson objection); Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 87 (Pa. 2004) (when there is no Batson objection during jury selection, post-conviction petitioner may not rely on prima facie case under Batson but must prove actual, purposeful discrimination by preponderance of evidence). Thus, on collateral attack, a post-conviction petitioner " bears the burden in the first instance and throughout of establishing actual, purposeful discrimination by a preponderance of the evidence." Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 287 (Pa. 2011) (citation omitted).

The record reveals that, approximately one-third of the way through voir dire, trial counsel objected to the Commonwealth's use of peremptory strikes on the basis of racial bias. A sidebar discussion ensued, and the prosecutor noted that the first seated juror was an African-American woman. The prosecutor then acknowledged that the last juror he had struck was an African-American woman, but stated that he did not believe there " has been a prima facie case showing that I am striking for ethnic reasons...." Trial counsel responded that two of the Commonwealth's peremptory strikes were exercised on " women of minority, none Caucasians; Philippino and now [the African-American woman]." At this point, the trial court interjected its view, and the following exchange occurred:

Court: If I had an observation to make it is that there are an inordinate number of women on the panel yesterday and today. I can't presume that his strikes

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were on the basis of race any more than I can presume they are on the basis of gender. Based on those two, [defense counsel]--
Defense Counsel: Let's put it on the record. Number one, two [of the Commonwealth's peremptory strikes] was a woman, number three was a woman. Number four was a woman, and number five was a woman.
Prosecutor: How many are on the panel now, [defense counsel]? How many are on the panel? Four to one.
Court: [Batson v. Kentucky] does not apply to gender. I have never heard it apply to gender.
* * * *
Court: There is no basis as I see it for the defense's complaint here. The peremptory challenge will stand. I will not require the Commonwealth at this point to demonstrate any reason for a peremptory challenge.

N.T. Voir Dire, 12/4/96, at 266-67.

Notably, neither defense counsel nor the prosecutor alerted the trial court to the United States Supreme Court's J.E.B. case and the trial court's consequent misapprehension of the law on that point. In any event, when this exchange occurred, much of the jury remained unselected, and, notably, trial counsel did not renew a Batson objection later in the proceeding -- whether premised upon race, gender, or both.

In his amended PCRA petition and his brief to this Court, Appellant argues statistics derived from the entirety of voir dire, as follows:

1) The jury pool consisted of 116 people: 71 women (61%) and 45 men (39%);
2) 45 people remained after cause excusals: 32 women (71%) and 13 men (29%);
3) The Commonwealth struck 11 people: 10 women (90.9%) and 1 man (9%);
4) The seated jury consisted of 12 people: 9 women (75%) and 3 men (25%);
5) The defense struck 11 women (55%) and 9 men (45%).Submitted ...

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