Submitted: November 7, 2014.
[Copyrighted Material Omitted]
Appeal from the Orders entered on August 7, 2013 in the Court of Common Pleas, Criminal Division of Bucks County at No. CP-09-CR-0000746-1988. Trial Court Judge: Rea Behney Boylan, Judge.
For Richard Roland Laird, APPELLANT: Elizabeth Hadayia, Esq. Federal Community Defender Office, Capitol Habeas Unit.
For Commonwealth of Pennsylvania APPELLEE: Jill Marie Graziano, Esq.; Michelle Ann Henry, Esq.; Amy Zapp, Esq. PA Office of Attorney General.
BEFORE: MR. JUSTICE SAYLOR. SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
MR. SAYLOR, JUSTICE.
This capital post-conviction appeal relates to Appellant's killing of Anthony Milano in 1987. The underlying facts are described in Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991), and Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618 (2010).
Briefly, on the night of December 14, 1987, Milano drove to the Edgely Inn in Bristol Township, a bar where Appellant
and his friend Frank Chester were drinking. Milano, Chester, and Appellant conversed and drank alcohol until the early morning hours of December 15. Witnesses testified that, during this time, Appellant seemed coherent, was able to walk without swaying or stumbling, and was not slurring his speech. At some point, Appellant and Chester began taunting Milano because they thought he might be homosexual. In spite of the taunting, Milano agreed to give Appellant and Chester a ride home. Traveling in Milano's car, they eventually proceeded to a wooded area, stopped along the side of the road, and exited the vehicle. Chester struck Milano, causing him to fall to the ground. Appellant pinned Milano down and killed him by slashing his throat repeatedly with a box-cutter. Appellant and Chester ran to the home of a friend, Rich Griscavage. On arriving at Griscavage's residence, Chester said they had gotten into a fight and " the dude is dead." Appellant told Chester to " shut up." Griscavage gave Appellant a ride home on his motorcycle. He testified that Appellant had no trouble keeping his balance or leaning into turns.
Later that day (December 15, 1987), Appellant's girlfriend observed Appellant place his blood-covered keychain and clothing into a plastic bag, which he discarded in a dumpster in a nearby town. She testified that Appellant disposed of the box cutter by throwing it into a creek, and, additionally, asked her if she could " be an alibi." That evening, Milano's car was found engulfed in flames, and the fire marshal testified that, in his opinion, the fire was deliberately set. Milano's body was found near the car.
The Commonwealth introduced a recording and transcript of a phone call between Chester and Appellant that occurred five days after the killing, the interception of which was approved by Chester. During the call, Appellant: suggested that Chester leave town; indicated his intention to " hide until this blows over; " recommended ways of passing a polygraph test; commented on the district attorney's inability to prove a case without evidence; and expressed a belief that criminal homicide is subject to a seven-year statute of limitations. See Laird, 605 Pa. at 150-52, 988 A.2d at 625-26; Chester, 526 Pa. at 586-89, 587 A.2d at 1371-72.
Appellant and Chester were tried together in May 1988. Each testified and admitted he was present at the crime scene, but blamed the other for the killing. Both defendants were convicted of first-degree murder, kidnapping, aggravated assault, and related offenses. Both were sentenced to death. This Court affirmed the judgments of sentence. See Chester, 526 Pa. at 615, 587 A.2d at 1385.
Appellant filed a timely petition under the Post Conviction Relief Act, 42 Pa.C.S. § § 9541-9546 (" PCRA" ), which was denied. See Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999). The federal district court granted in part Appellant's subsequent petition for habeas relief, vacating his first-degree murder conviction and death sentence. See Laird v. Horn, 159 F.Supp.2d 58 (E.D. Pa. 2001), aff'd, 414 F.3d 419 (3d Cir. 2005). With Appellant's conviction for, inter alia, kidnapping still in place, the Commonwealth retried him on the first-degree murder charge in February 2007.
At his retrial, Appellant was represented by attorneys John Kerrigan and Keith Williams, with the former having a leading role in the guilt phase and the latter primarily responsible for the penalty phase. For his guilt-phase strategy, Appellant stipulated that he participated in murdering Milano, but not that he acted with specific intent. Thus, the only question for
the jury was whether Appellant acted with a specific intent to kill so as to make him guilty of first-degree murder. As to this issue, Appellant advanced a diminished-capacity defense, which negates specific intent so as to mitigate first-degree murder to third-degree murder. See Commonwealth v. Hutchinson, 611 Pa. 280, 341, 25 A.3d 277, 312 (2011). To support the defense, Appellant presented the testimony of multiple experts who indicated that Appellant had a high blood-alcohol content (" BAC" ) at the time of the killing and that this, together with brain damage resulting from head injuries sustained during Appellant's life, impeded Appellant from forming the requisite intent to kill. The experts also developed that, given the amount of alcohol Appellant ingested prior to the killing, he may have been acting in an " alcoholic blackout," where he could function normally but later have no recall of the time period in question. Two of the experts related that Appellant told them shortly before the retrial that he had no memory of the killing. See Laird, 605 Pa. at 148, 988 A.2d at 624.
The defense was unsuccessful, however, as the jury convicted Appellant of first-degree murder. In the penalty phase, Appellant again received the death penalty when the jury determined that the only aggravating factor it found -- the circumstance pertaining to a killing committed while in the perpetration of a felony (here, kidnapping), see 42 Pa.C.S. § 9711(d)(6) -- outweighed the mitigating circumstances found by one or more jurors pursuant to the " catchall" mitigator, see id. § 9711(e)(8) (relating to " [a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense" ). This Court affirmed the judgment of sentence on direct appeal. See Laird, 605 Pa. at 186, 988 A.2d at 648.
Appellant filed a counseled, amended PCRA petition, raising thirteen claims. The PCRA court, per Judge Boylan (who also presided over Appellant's retrial), dismissed two claims without a hearing. The court thereafter conducted an evidentiary hearing on the remaining claims on May 23, May 24, and June 19, 2012, at which a number of witnesses testified, including Attorneys Kerrigan and Williams. The PCRA court denied relief by two orders dated August 7, 2013. After Appellant filed a notice of appeal, the court issued an opinion pursuant to Rule 1925(a), Pa.R.A.P., addressing each of the allegations of error reflected in the notice of appeal and concluding that it had properly denied the petition. See Commonwealth v. Laird, No 1988-746, slip op. (C.P. Bucks April 10, 2014) (" PCRA Ct. Op. II" ).
To be eligible for relief, a PCRA petitioner must establish by a preponderance of the evidence that his conviction or sentence resulted from one of the circumstances enumerated in Section 9543(a)(2) of the PCRA, 42 Pa.C.S. § 9543(a)(2), and
that the allegation of error has not been previously litigated or waived. See Commonwealth v. Baumhammers, 625 Pa. 354, 92 A.3d 708, 714 (2014) (citing Commonwealth v. Sneed, 616 Pa. 1, 16-17, 45 A.3d 1096, 1105 & n.13 (2012)). Because all the claims Appellant presently raises relate to an alleged deprivation of the Sixth Amendment right to competent counsel, see McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed.2d 763 (1970), he may only prevail if he pleads and proves that his conviction or sentence resulted from ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have occurred. See 42 Pa.C.S. § 9543(a)(2)(ii); Commonwealth v. King, 618 Pa. 405, 415, 57 A.3d 607, 613 (2012).
Pennsylvania's test for ineffectiveness is the same as the two-part performance-and-prejudice standard set forth by the United States Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), albeit this Court has divided the performance element into two sub-parts dealing with arguable merit and reasonable strategy. See Commonwealth v. Washington, 592 Pa. 698, 713 n.8, 927 A.2d 586, 594 n.8 (2007). Therefore, to succeed on an ineffectiveness claim, a petitioner must demonstrate that: the underlying claim is of arguable merit; counsel had no reasonable basis for the act or omission in question; and he suffered prejudice as a result, i.e., there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See Commonwealth v. Harris, 578 Pa. 377, 387, 852 A.2d 1168, 1173 (2004) (citing Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. See King, 618 Pa. at 416, 57 A.3d at 613 (citing Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). See generally Commonwealth v. Kimball, 555 Pa. 299, 311-13, 724 A.2d 326, 332-33 (1999) (developing that the PCRA test for prejudice is identical to that of Strickland ).
Appellant forwards multiple ineffectiveness claims as well as a contention that he should be afforded relief based on the cumulative effect of counsel's alleged errors. For convenience, Appellant's claims have been reordered below according to the chronology of events surrounding his retrial. Details of the retrial and post-conviction proceedings will be set forth as necessary to resolve each claim.
Failure to renew change-of-venue motion
Appellant's first claim is based on an allegation that there was excessive publicity about the crime during the timeframe leading up to his retrial, and that this publicity prejudiced the jury against him. Appellant faults counsel for failing to renew an earlier motion for a change of venue immediately before, or during, jury selection.
A hearing on pretrial motions was held on October 30, 2006, three months before jury selection. In support of a venue-change motion, counsel explained that certain news articles concerning the upcoming trial described Appellant as having been " previously convicted" of murder as opposed to simply " accused," as would be the norm for a first trial. Counsel argued that
the publicity was especially damaging because certain advocacy groups were promoting the view that Appellant was motivated to kill Milano by his perception of Milano's sexual orientation. The Commonwealth responded that the publicity was not excessive and the mere existence of some pretrial publicity did not justify a change of venue. The common pleas court denied the motion but stated that counsel would be permitted to renew it and place any supporting evidence into the record at voir dire. To minimize any further exposure counsel and the Commonwealth entered into an agreement -- which the court approved by order issued from the bench -- that neither side would speak publicly about the case before trial. When jury selection began in late January 2007, counsel did not renew the motion.
Appellant argues that, between the October 2006 denial of the motion and the conclusion of voir dire on January 31, 2007, several articles appeared in the local Bucks County Courier Times. He observes that counsel placed two of these articles into the record during jury selection in the context of a motion to strike a prospective juror for cause. The first article, dated January 28, 2007 (one day before jury selection began) appeared on the front page of the newspaper and carried the headline, " Convicted killer back in court." See Petitioner's PCRA Exhibits, Vol. I, at 303; see also N.T., Jan. 29, 2007, at 290-322 (containing the voir dire examination and strike for cause of a prospective juror who had read the January 28 article). Appellant argues that this article was damaging because it discussed his prior conviction and death sentence, as well as related information about the case from which prospective jurors should be shielded. The second newspaper story, entitled, " Jury selection begins in Laird retrial," was published on January 30, 2007, the second day of jury selection. See Petitioner's PCRA Exhibits, Vol. I, at 305; see also N.T., Jan. 31, 2007, at 190-214 (reflecting the voir dire examination and peremptory strike of a prospective juror who had read the January 30 article). Appellant suggests that he was prejudiced by this article because the word " retrial" appeared in the headline.
Overall, Appellant maintains that 22 panelists admitted having some knowledge about the case and that, of those, thirteen knew that Appellant was previously convicted of murder and had received the death penalty. Appellant points to several instances in which a prospective juror, on individual questioning, expressed knowledge of the facts of the case or an opinion as to Appellant's guilt. Appellant also notes that one of the selected jurors, Juror 12, was the co-worker of a person who attended high school with Appellant and who had recently read an article about the case. In this regard, Appellant observes that Juror 12 stated he had spoken with his co-worker the previous day and that the co-worker described the case as " gruesome."  Appellant contends, based on the foregoing, that trial counsel erred in not renewing the motion for a change of venue. He maintains that he was presumptively prejudiced by having his case tried to a Bucks County jury under the circumstances. In the alternative, Appellant contends
he suffered actual prejudice because the jury that was seated was not fair and impartial.
The Commonwealth responds that the question is not whether jurors exposed to media reports had some knowledge of the crime, but whether they were able to set aside any impressions or preliminary opinions they may have formed and render a verdict based only on the evidence presented at trial. It highlights that the two newspaper articles mentioned above are the only media stories of record. See Brief for the Commonwealth at 93 & n.11. The Commonwealth notes, moreover, that in the three days of jury selection, only a fraction of the 160 panelists stated they had any familiarity with the case, and virtually all of them were stricken, either for cause or via peremptory challenges. The Commonwealth adds that only a single individual -- Juror 12 -- was seated who had indicated any familiarity with the case, and that such familiarity was limited to a suggestion by his co-worker that the underlying facts were " gruesome." Further, the Commonwealth observes that Juror 12 testified he would put aside what his co-worker said and rely solely on the trial evidence and the court's instructions. As such, the Commonwealth argues that Appellant's claim lacks arguable merit, counsel acted reasonably in not renewing the motion to change venue, and Appellant has not established a basis to presume prejudice or find actual prejudice.
In rejecting this claim, the PCRA court recounted that it had dismissed all prospective jurors who knew the case was a retrial. See PCRA Ct. Op. II, slip op. at 10. The court also recited that Attorney Kerrigan had testified at the PCRA hearing that he would have renewed the motion for a change of venue if it appeared at jury selection that the publicity had been overwhelming, see id. at 11 (quoting N.T., May 23, 2012, at 106-07), and that Attorney Williams testified that, at the conclusion of jury selection, he and Mr. Kerrigan were " ready to go forward" and believed a venue-change motion at that juncture would have been a " waste of time." See id. (quoting N.T., May 23, 2012, at 144). Ultimately, the PCRA court concluded that: the venire panelists' knowledge of the case was " limited; " the community was not " saturated" with publicity; and it would have denied a renewed change-of-venue motion in any event because the court " would have had no basis to grant such a motion." Id. at 13.
A change of venue is necessary when the court determines that a fair and impartial jury cannot be selected in the county where the crime took place. See Commonwealth v. Karenbauer, 552 Pa. 420, 433, 715 A.2d 1086, 1092 (1998). " [T]he trial court is in the best position to assess the atmosphere of the community and to judge the necessity of any requested change." Commonwealth v. Briggs, 608 Pa. 430, 466, 12 A.3d 291, 313 (2011) (internal quotation marks omitted). The existence of pretrial publicity does not alone justify a presumption of prejudice, but prejudice will be assumed where the defendant shows that the publicity: was sensational, inflammatory, and slanted toward conviction, rather than factual or objective;
revealed the defendant's prior criminal record (if any) or referred to confessions, admissions, or reenactments of the crime by the defendant; or was derived from official police and prosecutorial reports. See Karenbauer, 552 Pa. at 434, 715 A.2d at 1092; Commonwealth v. Tharp, 574 Pa. 202, 219 830 A.2d 519, 529 (Pa. 2003). Even if the accused proves one of these factors, a change of venue is not required unless he also shows, inter alia, that the pretrial publicity was so extensive, sustained, and pervasive that the community must be deemed to have been saturated with it. See Karenbauer, 552 Pa. at 434, 715 A.2d at 1092.
Here, in arguing for a finding of presumed or actual prejudice, Appellant primarily refers to the two newspaper stories of record which appeared shortly before or during jury selection. We do not find these articles to be materially sensational, inflammatory, or slanted toward conviction. Indeed, the only Karenbauer factor that these stories implicate is that they reveal Appellant's prior criminal record in that they state he had been convicted and sentenced to death previously, and that the then-impending proceeding would be a retrial necessitated by the federal courts' decision to vacate his first-degree murder conviction and death sentence. Although Appellant correctly notes that trial counsel were concerned about such publicity, any such concerns were allayed when it emerged during jury selection that only a small portion of the venire had been exposed to these media stories, and anyone who knew that Appellant was being retried would be excluded from the jury. The only seated juror who had learned anything stemming from the media had only heard a second-hand generalized description of the nature of the crime itself and nothing material about Appellant.
The United States Supreme Court has explained that jurors need not " be totally ignorant of the facts and issues involved" in an upcoming trial, Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), quoted in Commonwealth v. Robinson, 581 Pa. 154, 197 n.36, 864 A.2d 460, 485 n.36 (2004), and that a presumption of prejudice " attends only the extreme case." Skilling v. United States, 561 U.S. 358, 381, 130 S.Ct. 2896, 2915, 177 L.Ed.2d 619 (2010). The record before us does not suggest that pretrial publicity in this case was extreme or that the community must be deemed to have been saturated with it. Only two articles of record were disseminated in the media shortly before Appellant's retrial, and only a comparatively small portion of the venirepersons indicated an awareness of them. Thus, Appellant's assertion that prejudice should be presumed cannot be supported. Cf. Karenbauer, 552 Pa. at 434, 715 A.2d at 1093 (rejecting a presumed-prejudice argument where the appellant made a " bald assertion that the pretrial publicity in th[e] case was extensive" ).
Any contention that actual prejudice occurred -- or, more accurately in view of the ineffectiveness overlay, that counsel should have been aware that actual prejudice was likely to ensue -- depends on the predicate that the individuals selected to serve as jurors would have been unable, in view of the pretrial publicity, to " set aside their impressions or preliminary opinions and render a verdict solely based on the evidence presented to them at trial." Briggs, 608 Pa. at 467, 12 A.3d at 314 (citing
Commonwealth v. Tressler, 526 Pa. 139, 145 n.6, 584 A.2d 930, 933 n.6 (1990); Commonwealth v. Hoss, 469 Pa. 195, 200-01, 364 A.2d 1335, 1338 (1976)). Besides Juror 12, however, the ability to set aside preliminary opinions derived from the media was not an issue since there is no record basis to believe that the other seated jurors were exposed to the newspaper articles in question. As for Juror 12, his exposure was limited to having heard that the case involved " gruesome" facts, see N.T., Jan. 31, 2007, at 71, a description that was not substantially at issue. See, e.g., id. at 72 (reflecting that, in ascertaining whether Juror 12 would be capable of listening to the Commonwealth's evidence without compromising his ability to be fair and impartial, Attorney Kerrigan explained that " this case involves a very horrible, brutal killing" ). Additionally, Juror 12 testified during voir dire that he did not form any preconceived ideas about Appellant's guilt or innocence, and that he would refrain from speaking any further to his co-worker about the case. See N.T., Jan. 31, 2007, at 68, 71.
The PCRA court credited such testimony as it concluded that Appellant " can demonstrate no partiality of any juror." PCRA Ct. Op. II, slip op. at 10. We find this conclusion to be supported by the record, including the extensive voir dire transcripts and related exhibits, and consistent with precedent. See, e.g., Briggs, 608 Pa. at 471-74, 12 A.3d at 316-18 (affirming the denial of a motion for a change of venue where eight seated jurors had read about the case in the media, six of those eight had forgotten about it by the time they were summoned for jury duty, and none of the eight indicated that their exposure would interfere with their ability to render a verdict based solely on the trial evidence).
Accordingly, since Appellant has not demonstrated a basis to presume prejudice or find actual prejudice, the underlying claim lacks arguable merit. That being the case, relief is unavailable on the present ineffectiveness contention. See generally Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1061 (2012) ( " Failure to establish any prong of the [ineffectiveness] test will defeat an ineffectiveness claim." ).
Failure to impeach Commonwealth witnesses
Next, Appellant maintains that his guilt-phase counsel, Attorney Kerrigan, rendered ineffective assistance in cross-examining several witnesses concerning Appellant's alcohol consumption. Although counsel did, through cross-examination, bring to light that Appellant had consumed alcoholic beverages during the relevant timeframe, Appellant proffers that there were ways counsel could have more skillfully handled these witnesses so as to portray an even higher level of intoxication and thereby make his diminished-capacity defense more likely to prevail.
Appellant focuses on four such individuals. First, he notes that Chester's friend Alan Hilton testified at the 2007 retrial that at the bar, although Appellant was drinking beer, see N.T., Feb. 6, 2007, at 43,
he was not falling down, slurring his speech, or swaying and that he did not appear to be drunk, see id. at 28; whereas, at the first trial in May 1988, Hilton testified more particularly that Appellant had ingested beer and two shots of liquor. Additionally, in January 1988 Hilton told Joe Stark, an investigator for the public defender's office, that Appellant and Chester were getting " shit faced" at the bar, as memorialized in a report prepared by Stark.
Second, Appellant refers to the testimony of Gale Gardener, another friend of Chester's. On the evening in question, Gardener was present at Chester's apartment, then Appellant's apartment, and then the bar, after which she and Appellant's fiancé e Barbara Parr returned to Appellant's apartment to sleep. Gardener testified at the retrial that Appellant: drank alcohol at Chester's residence, see N.T., Feb. 7, 2007, at 42, 46; drank alcohol at the bar later on, see id. at 48; and was " coherent" upon arriving at his apartment after the killing, id. at 63. In view of the passage of over 19 years, however, she was unable to give further details regarding the number and types of alcoholic beverages that Appellant had consumed, and she conceded that her memory was fresher in 1988 when she testified at Appellant's first trial. See id. at 51. Appellant acknowledges that, in cross-examining Gardener, counsel showed her a transcript of her 1988 trial testimony in an attempt to refresh her recollection, and Gardener testified at the retrial that she had testified truthfully in 1988 when she described Appellant as " drunk" upon his arrival at his apartment after the killing, see id. at 57-58. Appellant complains, however, that counsel failed to: (a) confront Gardener with a statement she gave to police in which she stated that, when Appellant returned to his apartment, he " mumbled" that Chester was alright and then " staggered" into the bedroom; or (b) impeach her with her alleged motive to testify favorably for the Commonwealth by minimizing the amount of alcohol Appellant had consumed. Appellant asserts that such motive stemmed from Gardener's friendship with Chester as well as her status as a Florida probationer based on driving without a license as a habitual offender.
Third, Appellant finds deficient counsel's questioning of Jolanda Thompson, a former co-worker of Chester's who was present at the bar on the night in question. Thompson testified at the retrial that a group of individuals, including Appellant, were all drinking at the bar and that Appellant was loud and boisterous, but she could not recall the specific amount Appellant drank. See N.T., Feb. 5, 2007, at 173-75. Appellant avers that counsel failed to " impeach" Thompson with her statement to Joe Stark (as reflected in a report prepared by Stark in January 1988) that Appellant had, in fact, been drinking shots of liquor. Brief for Appellant at 51.
Finally, Appellant highlights the testimony of James Phillips, Jr., the bartender at the Edgely Inn on the night in question. Phillips testified at the retrial that, when he arrived at the bar that evening, Appellant and Chester were sharing a 64-ounce pitcher of beer and that he (Phillips) refilled the pitcher twice. See N.T., Feb. 5, 2007, at 210. Phillips also stated that, in addition to the beer, he served one shot of liquor to Appellant, and Appellant threw an empty shot glass across the bar in anger. Appellant faults counsel for failing to elicit that, at the preliminary hearing in January 1988, Phillips testified that he had brought a total of four pitchers of beer to Appellant and Chester, and had served Appellant two or three shots of liquor. Appellant takes particular exception in this regard because, at the time of the events,
Phillips was the bar owner's son and he had become the owner by the time of the retrial. Thus, Appellant posits that counsel should have presented evidence that Phillips had a motive to downplay the amount of alcohol he served Appellant because he was concerned about his business incurring civil liability. Although counsel did attempt (unsuccessfully) to introduce into evidence a civil complaint filed by Milano's parents against the Edgely Inn, Appellant offers that there was other evidence of motive that could have been proffered. In particular, he identifies a statement that Jolanda Thompson gave Joe Stark in which Thompson related that James Phillips, Sr., the owner of the bar in December 1987, had asked her not to say that Chester was drunk that night because Chester was underage. According to Appellant, if counsel had reviewed that statement it would have prompted him to cross-examine James Phillips, Jr. as to whether his father had told him also to minimize the amount of alcohol he served Appellant.
The PCRA court rejected the position that counsel provided deficient stewardship based on the questioning of these four witnesses. The court reasoned in particular that, even to the extent the material in Stark's reports may have been somewhat helpful, Stark credibly testified at the PCRA hearing that he was not reachable when counsel was preparing for the retrial because he was experiencing personal problems and was not maintaining an office, returning phone calls, or responding to contacts. See PCRA Ct. Op. II, slip op. at 23; see also N.T., May 23, 2012, at 43-44, 46-47 (reflecting Attorney Kerrigan's PCRA testimony that he had tried unsuccessfully to contact Stark). The PCRA court also rejected the premise that Gardener could have been confronted with evidence of motive or bias, particularly since Appellant failed to establish a connection between Gardener's status as a Florida probationer and a supposed motive to falsify her testimony. More generally, the court recounted that counsel testified his strategy was to demonstrate extreme intoxication by adducing testimony concerning Appellant's alcohol ingestion from as many witnesses possible. The court reasoned, in this regard, that counsel elicited substantial testimony along these lines and " argue[d] in closing that Appellant was extremely intoxicated at five times the legal limit with a BAC of 0.45 percent." PCRA Ct. Op. II, slip op. at 22. Thus, the PCRA court concluded that Appellant failed to show counsel acted unreasonably or that he suffered prejudice. See id. at 26-27.
A review of the record confirms that guilt-phase counsel adduced significant eyewitness testimony suggesting that Appellant had consumed a very large amount of alcohol on the night of the murder. The jury learned that he was drinking before arriving at the bar, that at the bar he shared several 64-ounce pitchers of beer with Chester and ingested at least one shot of liquor, and that he was loud and boisterous. The jury also heard that Appellant was described by Gardener as being " drunk" at a time when her memory of the events was still fresh. Other individuals besides these four witnesses provided supporting testimony. See, e.g., N.T., Feb. 5, 2007, at 135-36 (testimony of Officer Patrick Connell to the effect that when he encountered Appellant at the bar, Appellant showed signs of intoxication, including smelling like alcohol and becoming belligerent with three armed officers); N.T., Feb. 6, 2007, at 100, 115-16 (testimony of Barbara Sylvia (formerly Barbara Parr) that Appellant " drank a lot when he drank," and that when he arrived at his apartment after the killing he was " drunk" and he " passed out" on the bed); see also N.T., Feb. 8, 2007, at 179 (testimony of Dr.
O'Brien, an expert witness, that Appellant was reported to be " overwhelmingly intoxicated" during the early hours of December 15, 1987, and that " when he returned home he was likewise reported to be stumbling and passed out" ). For his part, counsel emphasized Appellant's " severe degree of intoxication" in his summation. N.T., Feb. 9, 2007, at 9.
If counsel had done everything Appellant now alleges he should have done, it is possible the jury would have been left with the impression that he had consumed even more alcohol, but the additional amount would not likely have been significant; as such, it would not have materially aided Appellant's defense in view of the record as a whole. It bears noting, in this latter respect, that counsel called an expert toxicologist, Gary Lage, PhD, to testify concerning Appellant's BAC on the night of the murder. Dr. Lage observed that Appellant drank for more than seven hours that evening, from 7:00 pm until after 2:00 am. See N.T., Feb. 8, 2007, at 26. In view of Appellant's physical characteristics and the number and types of beverages he ingested -- and when during the evening he ingested them -- the expert estimated that Appellant's BAC during the early morning hours of December 15, 1987, was approximately 0.45 percent. See id. at 28, 57-58. Dr. Lage explained that this was significant because the effects on the brain become severe, and a coma can develop, when a person's BAC reaches the range of .40 to .50 percent. See id. at 30. Thus, we find Appellant's present argument unpersuasive to the degree he suggests that counsel's alleged omissions left the jury with a material misimpression concerning the amount of alcohol he consumed.
Separately, Appellant does not articulate any connection between Gardener's status as a Florida probationer -- or as a friend of Chester's -- and a motive to minimize the amount of alcohol Appellant drank. Nor would the Stark reports have added meaningfully to the picture of Appellant being heavily intoxicated, as the information contained in them is largely cumulative of that which was brought out at trial. If counsel had been able to impeach Gardener, moreover, it is unclear how this would have aided his case, since Gardener's testimony confirmed that Appellant had ingested a significant amount of alcohol and that he was " drunk." Finally, even if the Stark report on Jolanda Thompson had been available, the relevant portion only pertains to what Phillips' father said to her (Thompson), and not to Phillips himself. As such, the assumption that it would have led to the jury hearing that Phillips' father instructed Phillips to minimize the amount of alcohol he served to Appellant is speculative.
The Constitution guarantees the accused a fair trial, not a perfect one. See, e.g., Commonwealth v. Rasheed, 536 Pa. 567, 570-71, 640 A.2d 896, 898 (1994). Moreover, " [a]lthough hindsight might reveal the comparative worth of alternatives not pursued, an ineffectiveness claim cannot succeed on that basis." Chester, 526 Pa. at 612, 587 A.2d at 1384. Here, the differences between the manner in which counsel cross-examined the four witnesses at issue, and the way Appellant now believes he should have cross-examined them, are relatively minor or are based on speculation and conjecture. Appellant's presentation has not brought to our attention any substantial way in which counsel's cross-examination failed to bring to light the contention, and supporting evidence, that he was highly intoxicated on the night in question. Under these circumstances, we agree with the PCRA court's essential determination that Appellant has failed to demonstrate that his attorney's performance was deficient.
Failure to move to exclude evidence or request a mistrial
In his next claim, Appellant maintains that counsel erred by failing to object or move in limine to exclude certain " bad acts" evidence or request a mistrial once the evidence was adduced. In particular, Appellant takes issue with testimony that, when he was at the Edgely Inn, he furnished alcohol to a minor and made a sexual remark to Gail Gardener.
During the evening of December 14, 1987, Appellant, his fiancé e Barbara Parr, Chester, and Gardener were at the apartment Parr shared with Appellant. At some point, Appellant and Chester left to go to the Edgely Inn, and they took Parr's son with them, who was nine or ten years old. Later that night, Parr and Gardener joined Appellant and Chester at the bar for a brief period, during which two things occurred: Appellant stated to Gardener that he wanted to " run his tongue across [her] teeth," N.T., Feb. 7, 2007, at 28, and Parr became angry with Appellant because someone told her that Appellant and Chester had given her son alcohol. Specifically, Parr testified as follows on direct examination by the Commonwealth:
Q. What did you do when you were at the bar?
A. My son was there and he had been drinking.
Q. What do you mean by that?
A. He was sick. He was drunk. They had given him alcohol.
[Defense counsel]: Objection.
THE COURT: Sustained. The jury shall disregard the part that they had given him alcohol. She can testify as to the observation that he ...