Submitted May 30, 2013
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Appeal from the Order entered on 03/27/2012 in the Court of Common Pleas, Criminal Division of Erie County at No. CP-25-CR-0000842-2001. Ernest J. DiSantis, Jr., President Judge.
For Stephen E. Treiber, APPELLANT: Hunter Stuart Labovitz, Esq., Defender Association of Philadelphia; Maura McNally, Esq., Federal Public Defender's Office.
For Commonwealth of Pennsylvania, APPELLEE: Gregory Joseph Simatic, Esq.; Amy Zapp, Esq., PA Office of Attorney General.
CASTILLE, C.J., SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, MCCAFFERY, JJ.
MR. JUSTICE EAKIN
Appellant, Stephen Treiber, appeals from the order denying him collateral relief from his criminal convictions and death sentence pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § § 9541-9546. We affirm.
On the night of March 9, 2001, appellant set fire to his home while his girlfriend, Denise Riddle, and his two-year-old daughter, Jessica, slept inside. As the home burned, appellant and Ms. Riddle escaped, but Jessica remained in her crib until firefighters removed her; however, they were unable to revive her. Appellant was charged with criminal homicide, reckless endangerment, and multiple counts of arson; the Commonwealth gave notice of its intent to pursue the death penalty.
Appellant's neighbor, who went to help after seeing smoke emanating from the home, testified at trial that appellant and Ms. Riddle were standing on a second-story deck, and Ms. Riddle screamed for help while appellant calmly stood by with his arms folded. Appellant asked about the well-being of his dogs but, when referring to Jessica, said, " [T]he firemen will get her. She's probably dead anyway." N.T. Trial, 9/30/02, at 97. A fire marshal who investigated the scene testified the fire had been started at two points of origin -- one in the basement and the other in the garage -- using gasoline, clothing, straw, and candles. He noted the home's security system had been disabled and one wire had been cut. The marshal also observed a chain ladder affixed to the residence, which, he reasoned, had been recently tethered to the home because it had no signs of rust. Members of the fire and police departments also testified Jessica's bedroom door was open, and stated appellant was unusually calm and inquired only about his dogs. At the scene, police told
appellant they were searching for Jessica, to which he responded, " [W]ell, it's probably too late anyway." Id., at 242.
At trial, Ms. Riddle described appellant as very controlling, stating he implemented and enforced rules that shoes not be worn in the home, and that bedroom doors be closed and locked. Ms. Riddle also mentioned appellant had previously forbidden her from going to a local bar, once even threatening to burn it down if she went there again. She testified that, during the fire, appellant escorted her and two of their dogs onto the deck, but told her he could not rescue Jessica because " the smoke was too bad[.]" N.T. Trial, 10/2/02, at 124-25. Yet, Ms. Riddle recalled she did not observe much smoke at that time. She also testified that after Jessica was pronounced dead, appellant instructed her not to talk to police, and when she expressed her sorrow of Jessica's death to appellant, he replied they " could always make another little Jessica[.]" Id., at 136.
The Commonwealth introduced extensive evidence of appellant's preparatory activities and behavioral changes. Weeks before the fire, appellant became obsessed with fire safety, making Ms. Riddle and her 22-year old son, Erik Keith, practice fire-evacuation routes. One month before the fire, appellant purchased straw on four separate occasions, along with two five-gallon gas cans, and he bought gasoline on two separate occasions the day of the fire. The week before the fire, appellant affixed a chain ladder to the residence as a means of escape. Four days before the fire, appellant called an ADT Security Services employee to his home to update his security system. He disclosed to her he knew how to disable the security system and said a fire might start in his home in a few days. A funeral director testified that during meetings with appellant for Jessica's funeral arrangements, he did not show emotion and repeatedly referred to Jessica as " it." N.T. Trial, 10/3/02, at 161.
Evidence of appellant's motive and intent was also introduced at trial. Appellant's unwillingness to pay child support was established by testimony from Jodie Treiber, Jessica's mother. Ms. Treiber stated appellant had a visitation weekend with Jessica scheduled for March 9 -- the weekend of the fire -- but appellant insisted he take Jessica early, i.e., the previous Tuesday of that week. When appellant picked up Jessica, Ms. Treiber informed him she intended to increase his child-support payments. Jamie Pianta, who accompanied appellant and Mr. Keith on the trip to pick up Jessica, testified appellant discussed his plans to kill Jessica to avoid paying child support, stating he would use rope, gasoline, straw, and candles to start a fire in the home. Mr. Pianta said appellant expressed the same plans to him and Mr. Keith about one month earlier, during another trip to pick up Jessica. Other witnesses testified about appellant's financial motives for the murder. For instance, one month before the fire, appellant tried to increase the limits on his credit card and his homeowner's insurance, and sought to purchase life insurance on Jessica, naming himself as beneficiary. He also changed his automobile comprehensive deductible but did not alter his collision insurance.
The Commonwealth established appellant took steps to make it appear that someone else started the fire. Specifically, it asserted appellant, about six weeks before
the fire, contrived a threatening note and surreptitiously attached it to his own mailbox, arranging for Ms. Riddle to find it and report it to police. The Commonwealth contended the note was appellant's effort to cast suspicion away from himself and onto an unknown intruder. The note, which was comprised of letters cut from printed materials glued onto the paper, was addressed to " Steve," and said, " [G]et rid of dogs or I kill them and burn you out again." N.T. Trial, 10/2/02, at 88-89. Earlier that day, appellant called Ms. Riddle and told her someone was lurking around their home. When police arrived to investigate, appellant told them the doorbell rang earlier in the night but no one was there, and he saw the note affixed to the mailbox at that time. Police discovered hairs stuck to glue in the envelope and subsequently retained the services of DNA experts Dr. Joy Halverson and Dr. Christopher Basten. They determined one of the hairs was a canine hair, compared it to the hair of appellant's dog, and concluded the hair was 1,000 times more likely to have come from appellant's dog than any other dog.
A jury convicted appellant of first degree murder, 18 Pa.C.S. § 2502(a), arson endangering persons, id., § 3301(a), arson endangering property, id., § 3301(c), and recklessly endangering another person, id., § 2705. At the penalty phase, the jury found three aggravating circumstances and two mitigators. The aggravating circumstances were: (1) appellant committed a killing while in the perpetration of a felony (arson), 42 Pa.C.S. § 9711(d)(6); (2) appellant knowingly created a grave risk of death to another person other than the victim of the murder, id., § 9711(d)(7); and (3) the victim was a child under 12 years of age, id., § 9711(d)(16). As for the mitigating circumstances, the jury found appellant had no significant history of prior criminal convictions, id., § 9711(e)(1), and a positive work history, falling within § 9711(e)(8)'s catch-all provision. However, the jury determined the aggravating circumstances outweighed the mitigating circumstances and sentenced appellant to death. This Court affirmed appellant's convictions and death sentence, Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26, 33 (Pa. 2005), and the United States Supreme Court denied certiorari, Treiber v. Pennsylvania, 547 U.S. 1076, 126 S.Ct. 1783, 164 L.Ed.2d 528 (2006). The same counsel represented appellant at trial and on direct appeal.
Appellant filed a pro se PCRA petition, and counsel from the Federal Community Defender Office (FCDO) entered their appearance on appellant's behalf and filed an amended petition. The PCRA court held evidentiary hearings on ten separate dates and denied relief. Appellant presents 14 issues for review:
I. Was trial counsel ineffective for failing to challenge the Commonwealth's dog DNA evidence?
II. Was the Commonwealth's dog DNA evidence false and unreliable in violation of [a]ppellant's rights to due process and a fair trial?
III. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present evidence in the guilt phase undermining the Commonwealth's motive theories and supporting the defense?
IV. Did trial counsel ineffectively fail to impeach Jamie Pianta and ineffectively fail to request a corrupt source instruction with regard to Pianta's testimony?
V. Was [a]ppellant convicted on the basis of inaccurate and unreliable testimony, in violation of his 8th and 14th Amendment rights?
VI. Did the Commonwealth violate its Brady obligations?
VII. Did the trial court abuse its discretion when it failed to voir dire the remaining jurors after dismissing [a] juror?
VIII. Was trial counsel ineffective for failing to present good character evidence at [the] guilt phase?
IX. Was [a]ppellant erroneously denied his constitutional right to represent himself at trial?
X. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present expert evidence at [the] guilt phase?
XI. Is [a]ppellant entitled to relief from his death sentence because counsel was ineffective for failing to investigate, develop[,] and adequately present substantial mitigating evidence?
XII. Is [a]ppellant entitled to a new sentencing hearing where errors in the trial court's penalty phase instructions, both individually and cumulatively, denied appellant a fair and reliable sentencing hearing, and was counsel ineffective for failing to object or request proper instructions?
XIII. Was the aggravating circumstance of grave risk of death improperly applied and submitted to the jury in violation of [a]ppellant's rights to a fair trial and reliable sentencing, and was counsel ineffective for failing to object and raise this claim?
XIV. Was [a]ppellant denied full and fair review in the PCRA [c]ourt?
Appellant's Brief, at 1-2.
" [A]s a general proposition, we review a denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court. Id., at 305 (citations omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of the evidence: (1) his conviction or sentence resulted from one or more of the errors enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not been previously litigated or waived, id., § 9543(a)(3); and (3) " the failure to litigate the issue prior to or during trial ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel[,]" id., § 9543(a)(4). An issue is previously litigated if " the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]" Id., § 9544(a)(2). " [A]n issue is waived if [appellant] could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding." Id., § 9544(b).
To be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have rendered effective assistance. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa. 2006). Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.
Ali, at 291.
I. GUILT PHASE CLAIMS
Issues I & II: The Commonwealth's Canine DNA Evidence
As previously noted, the Commonwealth's theory at trial was that appellant attempted to make it appear that someone else started the fire by creating a threatening note and attaching it to his mailbox. See N.T. Trial, 10/2/02, at 85-92; N.T. Trial, 10/7/02 at 95-98. While initial testing of the note produced no forensic evidence, a scientist ultimately found two hairs embedded in the dried glue on the paper and concluded one of the hairs was canine. See N.T. Trial, 10/3/02, at 14-17. Police sought to ascertain whether the hair originated from appellant's dogs, as this would implicate appellant as the note's author. Accordingly, they sent the hair samples to Joy Halverson, DVM -- a California veterinarian and epidemiologist, who also had practical experience in molecular biology and held herself out as a forensic canine DNA analyst. See id., at 109-12. Police also provided blood and saliva reference samples from appellant's dogs. The district attorney notified appellant's counsel of the scheduled testing.
In response, appellant's counsel telephoned several individuals knowledgeable in animal DNA analysis, including Marcia Eggleston, Ph.D, who oversaw the genetic testing of animals at the University of California, Davis, to determine whether a defense expert should be present during the testing. See N.T. PCRA Hearing, 8/10/09, at 32-34. Dr. Eggleston informed counsel she was familiar with Dr. Halverson's work, Dr. Halverson was qualified to process canine DNA samples using standard protocols, and the procedures were straightforward and generally accepted within the scientific community. See id., at 39-40, 151. Dr. Eggleston offered to review the results of Dr. Halverson's test, but she did not tell counsel: (1) canine DNA evidence was novel; (2) Dr. Halverson was not qualified; (3) the genetic DNA markers used by Dr. Halverson were invalid; or (4) her methodology was flawed. See id., at 219. Based on those conversations -- but prior to actual testing or preparation of any report -- counsel abandoned further inquiry into the scientific validity
of canine DNA evidence and ceased efforts to obtain a defense expert; instead, he chose a strategy of advancing the notion that the hairs were merely contaminants, which came in contact with the note after it was prepared. See id., at 40-41.
In pre-trial discovery, the Commonwealth produced reports by Dr. Halverson and statistician Christopher Basten, Ph.D concerning the hair sample. Dr. Halverson's reports declared a match between the hair sample found on the note and the reference blood sample taken from appellant's dog, even though the report admitted the sample was " suboptimal" and produced " low template quantity or quality" DNA. Reports of Joy Halverson, DVM, 10/2/01, at 4, & 8/26/02, at 1, available at Petitioner's Evidentiary Hearing Exhibits, Vol. IX, tab 2 & 3. Dr. Halverson initially opined:
Assuming that [the utilized] data group is representative of the general dog population and is the correct data set for comparison in this case, the product rule shows that the likelihood that the evidence sample  and reference blood sample are from different dogs and match by random chance exceeds 1 in 1.6 million.
Report of Joy Halverson, DVM, 10/2/01, at 5, available at Petitioner's Evidentiary Hearing Exhibits, Vol. IX, tab 2. Yet, in a supplemental report, she indicated that since her last report she " completed coursework on forensic DNA analysis and ha[d] a greater understanding of the use of the likelihood ratio for estimating the significance" of a match between the hair and reference samples. Report of Joy Halverson, DVM, 8/26/02, at 1, available at Petitioner's Evidentiary Hearing Exhibits, Vol. IX, tab 3. She explained she had come to appreciate the necessity of abandoning a straightforward application of the product rule, in favor of applying a likelihood ratio which could correct for " population substructure found in dog breeds and for the data missing from profiles of suboptimal DNA samples, such as the hair in this case." Id. By applying this ratio and cross-referencing Dr. Basten's supportive report, Dr. Halverson adjusted her previous probability estimate and concluded it was 1,000 times more likely the hair came from appellant's dog than any other dog.
After reviewing these reports, appellant's counsel did not consult with a DNA expert or file a pre-trial motion challenging the admissibility of the experts' testimony; rather, he maintained the " contamination" strategy. At trial, Dr. Halverson testified -- consistent with her report -- that her testing revealed a match between the hair sample and the reference blood sample from appellant's dog. She concluded it was " a thousand times more likely that they match because they came from the same dog than because they came from two dogs by coincidence." N.T. Trial, 10/3/02, at 129. This calculation was supported through Dr. Basten's testimony. See id., 139-41. On cross-examination, trial counsel did not question Dr. Halverson regarding her qualifications and did not object when she was proffered as an expert in canine DNA analysis and comparison. See id., at 116. Instead, trial counsel told Dr. Halverson, " I'm certainly not going to quibble with you about your findings." Id., at 132. Trial counsel made no inquiries about her protocols, the actual testing, or the ensuing analysis; he merely confirmed Dr. Halverson was unfamiliar with the source of the hair samples tested and asked her a few questions about the second hair found on the note, which had yielded no DNA profile. See id., at 132-34. He did not cross-examine Dr. Basten at all. See id., at 143.
Appellant testified at trial and denied creating the threatening note or committing
arson or murder. See N.T. Trial, 10/5/02, at 36-37, 61-62. Consistent with trial counsel's strategy, a DNA expert was not presented in the defense's case. During closing arguments, trial counsel did not dispute Dr. Halverson's DNA match, instead advancing the contamination proposition. See N.T. Trial, 10/7/02, at 75-77. In its closing, the Commonwealth stressed the canine DNA evidence connected appellant to the note, demonstrating his preparation and intent to carry out the arson and murder. The Commonwealth also emphasized the fact the hairs were embedded in dried glue, arguing this proved the hairs became attached to the note while the glue was still wet, i.e., during the note's preparation. See id., at 96-97.
At the PCRA evidentiary hearings, appellant offered expert testimony from Dr. Eggleston, who, like Dr. Halverson, is a member of the International Society for Animal Genetics (ISAG), a scientific organization established to transfer information among animal-genetics labs worldwide. N.T. PCRA Hearing, 8/10/09, at 138. Dr. Eggleston was the chairperson for the canine-genetics workshop at the ISAG and the executive director of Veterinary Genetics Lab (VGL), a reference lab for the ISAG. Id., at 140. Dr. Eggleston disclosed Dr. Halverson's " ten marker" methodology was known to her and ISAG as early as 1996, id., at 214-16, 222, and both she and VGL analyzed those ten markers from 2000-2002, id., at 143-45, 147, 163. She also stated any worldwide lab interested in analyzing and testing Dr. Halverson's markers was able to do so at that time. Id., at 145. Although Dr. Eggleston conceded canine DNA testing was generally accepted within the scientific community, id., at 205, she testified Dr. Halverson's particular methodologies and practices used in appellant's case were not, id., at 161, 163, 166-202. She stated only four of Dr. Halverson's ten markers were considered adequate. Id., at 165. Based on her own analysis, Dr. Eggleston concluded there was no scientifically reliable way to determine whether the hair sample came from appellant's dog; thus, she opined the results of the testing were inconclusive. Id., at 202. In response, the Commonwealth presented testimony from Dr. Halverson and Dr. Basten to the effect that their methods were generally accepted. See, e.g., N.T. PCRA Hearing, 10/29/09, at 10-11 (Dr. Halverson); id., at 151 (Dr. Basten).
As to her conversation with appellant's trial counsel, Dr. Eggleston testified counsel inquired whether an expert should be present to observe the testing of the hair by the Commonwealth's experts. N.T. PCRA Hearing, 8/10/09, at 148-49. She told counsel canine DNA testing was generally accepted in the scientific community and informed him an expert was not needed because Dr. Halverson had been conducting canine DNA analysis for many years and, thus, Dr. Halverson likely knew the accepted protocols for testing and extracting DNA from the hair. Id., at 150, 213-14, 216-17. Yet, she told counsel an expert should evaluate Dr. Halverson's interpretation of the testing and offered to conduct such evaluations. Id., at 150-52. She also stated it was not possible to analyze Dr. Halverson's methodologies or conclusions until testing was completed. Id., at 153-54, 174-75. Dr. Eggleston did not tell counsel that canine DNA evidence was
novel, Dr. Halverson was not qualified, the genetic DNA markers used by Dr. Halverson were invalid, or her methodology was flawed. See id., at 219. She also admitted to vouching for Dr. Halverson's ability to process the samples, which encompasses the use of DNA markers. Id., at 221. Dr. Eggleston had only one telephone conversation with counsel, and counsel never indicated he would send her Dr. Halverson's reports after testing or retain her to review the reports, nor did he ask her to refer him to another DNA expert. Id., at 154-55, 203.
Appellant's trial counsel also testified at the PCRA evidentiary hearings. He stated Dr. Eggleston notified him that canine DNA testing was straightforward, she knew Dr. Halverson, and the procedure was generally accepted in the scientific community. Id., at 39-40. Trial counsel remarked he initially considered a Frye challenge; however, after discussing canine DNA evidence with experts, including Dr. Eggleston, he concluded a Frye challenge or any other pre-trial motion would be inappropriate. N.T. PCRA Hearing, 8/10/09, at 34-36, 39-41. He also decided it would be futile to call a defense DNA expert at trial and cross-examine Dr. Halverson and Dr. Basten on the validity of their findings. Id., at 40-41. Trial counsel explained the reasons for his " contamination" strategy, one of which was based on his conversations with canine DNA experts. He also recalled appellant told him his dogs were outside before the threatening note was discovered, which, he reasoned, was one explanation for the hair. Id., at 80-81. Trial counsel felt a contamination theory would be further supported by the fact the note had been in the Commonwealth's possession for six months before a hair had been found and had been transported various times between laboratories and other locations. Id., at 36, 40-41, 80-81. In addition, he posited because the Commonwealth never offered an explanation for the second hair found on the note, that hair must have been the result of contamination. Id.
With this background in mind, we turn to appellant's allegations of error. Initially, he contends the Commonwealth's canine DNA evidence should not have been admitted at his trial. However, as the Commonwealth points out, appellant did not raise this issue on direct appeal. By failing to challenge the evidence, appellant waived his underlying contentions to the admissibility of the Commonwealth's canine DNA evidence and the manner in which this evidence was admitted at trial. See 42 Pa.C.S. § 9544(b). Because appellant's remaining claims are couched in terms of ineffectiveness, we proceed to those claims.
We address appellant's ineffectiveness claims collectively and, as permitted under Strickland, analyze the prejudice prong first. Appellant asserts trial counsel was ineffective for failing to: (1) file a Frye motion challenging the admissibility of the Commonwealth's canine DNA evidence; (2) challenge Dr. Halverson's qualifications;
(3) cross-examine the Commonwealth's canine DNA experts; and (4) present a defense canine DNA expert.
Appellant claims a Frye motion would have likely been granted because, at the time of trial, neither forensic canine DNA evidence nor Dr. Halverson's specific methodologies were generally accepted as reliable within the scientific community. He argues he was prejudiced because the canine DNA evidence was crucial to the Commonwealth's case, as it was the only forensic evidence admitted at trial and juries tend to give forensic evidence substantial weight. Had such evidence been excluded, appellant claims, the Commonwealth's circumstantial case would have been severely diluted and the defense's theory -- that an unknown intruder burned the home -- would have been more persuasive and credible.
The Commonwealth responds that the PCRA court's conclusions were supported by the record and free of legal error. The Commonwealth argues Dr. Eggleston should have made counsel aware of any flaws in Dr. Halverson's methodologies at the time of their conversation, and " [t]o place an expert's alleged error at counsel's feet unmoors the analysis from Strickland." Commonwealth's Brief, at 18 (citing Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 382 n.18 (Pa. 2011)). Regardless, the Commonwealth contends, the court would have denied the Frye motion, and thus, appellant was not prejudiced by counsel's failure to file the motion. Specifically, the Commonwealth notes Dr. Halverson's testing was generally accepted in the scientific community at the time of trial, appellant's own canine DNA expert testified to the same effect at the PCRA hearings, and a difference of expert opinion has no bearing on the admissibility of Dr. Halverson's theories and methodologies.
Appellant further contends counsel was ineffective for failing to challenge Dr. Halverson's qualifications because she did not qualify as an expert at the time of his trial due to her lack of sufficient experience, knowledge, and education relevant to canine DNA testing. In support, appellant claims Dr. Halverson's experience focused on bird DNA testing and she did not publish materials involving canine DNA identification. Noting Dr. Halverson stated her qualifications stemmed from on-the-job training, appellant asserts she is unqualified because a mere technician lacking educational credentials cannot serve as an expert in forensic DNA evidence. Appellant claims he was prejudiced because, had counsel objected to Dr. Halverson's qualifications,
the court would have disqualified her as an expert and the Commonwealth would not have been able to find a substitute expert, as she was the only individual in the country willing to testify about canine DNA testing.
The Commonwealth argues a challenge to Dr. Halverson's qualifications under Pa.R.E. 702 would have been meritless given her qualifications and experience. It claims even if Dr. Halverson lacked the relevant education or degree, she was qualified to render an expert opinion based on her training and experience. Thus, the Commonwealth contends, counsel's decision to forego such a challenge was reasonable and did not prejudice appellant.
Appellant next submits trial counsel ineffectively challenged Dr. Halverson's reliability, particularly her credentials, methodologies, and calculations, and he failed to question her on the suitability of the labs in which she tested. He further claims proficient cross-examination would have yielded Dr. Halverson's and Dr. Basten's bias. Appellant opines effective cross-examination would have undermined the Commonwealth's claim that the hair found on the threatening note matched his dog, thereby weakening the Commonwealth's arguments regarding intent, identity, premeditation, and absence of mistake. He concludes " empirical evidence confirms the prejudice from trial counsel's deficient performance. ... Confidence in the outcome of [a]ppellant's trial is undermined." Appellant's Brief, at 19.
The Commonwealth claims counsel's cross-examination was proper in light of the information received from Dr. Eggleston, i.e., her vouching for Dr. Halverson's qualifications and abilities, and appellant's suggestion that trial counsel should have cross-examined Dr. Halverson in the same manner as PCRA counsel is improperly retrospective.
Appellant argues counsel's lack of cross-examination and concession of the admissibility of the canine DNA evidence made " presentation of expert testimony in the defense case all the more incumbent." Id. Based on these alleged errors, he asserts he was prejudiced by counsel's failure to call a canine DNA expert because such an expert would have rebutted all aspects of Dr. Halverson's and Dr. Basten's testimony. Appellant contends counsel's ineffectiveness led the jury to assume the hair sample found on the note matched appellant's dog and, thus, but for this ineffectiveness, the outcome would have been different.
The Commonwealth notes counsel cannot be deemed ineffective merely for not calling a witness who would offer conflicting expert testimony, and the absence of such testimony did not prejudice appellant. It further rejects the three experts offered by appellant, noting the PCRA court found Dr. Libby and Dr. Mueller not credible. As for Dr. Eggleston, the Commonwealth claims her testimony would not have been credible because she vouched for Dr. Halverson and thus would not have testified at trial that Dr. Halverson's methodologies were flawed or she was not qualified.
The PCRA court denied relief, concluding appellant failed to prove counsel was ineffective and the outcome would have been different. The court determined Dr.
Halverson was qualified to testify at trial as a canine DNA expert; thus, it rejected appellant's claim that counsel was ineffective for failing to challenge her qualifications, as that challenge would have been futile. PCRA Court Opinion, 3/27/12, at 27-28. Regarding admissibility of the canine DNA evidence, the court held the evidence was reliable and admissible, noting both Dr. Halverson and Dr. Eggleston testified at the PCRA hearings that canine DNA evidence was not novel at the time of appellant's trial. Id., at 29. The court explained although their testimony demonstrated a difference of expert opinion, which does not require the exclusion of evidence, it did not prove Dr. Halverson's methodology was flawed. Id., at 30, 34 n.21.
Additionally, the court rejected appellant's claims that counsel was ineffective for failing to present a defense DNA expert and sufficiently cross-examine Dr. Halverson and Dr. Basten. Id., at 30-33. After reviewing Dr. Eggleston's testimony from the PCRA hearings, the court reasoned that, because she had " vouched for [Dr.] Halverson's testing procedure and [Dr.] Halverson's qualifications to conduct the test[,]" Dr. Eggleston placed counsel " in the unenviable position of having to virtually concede the strength of the Commonwealth's canine DNA evidence." Id., at 31-33. The court highlighted that Dr. Eggleston did not refer counsel to any other expert who might assist him. See id., at 32. As to counsel's failure to request a Frye hearing, the court determined the request would have been futile, for the same reasons explained above. See PCRA Court Opinion, 3/27/12, at 33.
" If a [PCRA] petitioner fails to satisfy any prong of the ineffectiveness inquiry, a claim of ineffective assistance of counsel will be rejected." Commonwealth v. Eichinger, 108 A.3d 821, 830-31 (Pa. 2014) (citation omitted); see also Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998) (" If it is clear that [a]ppellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first or second prongs have been met." (citation omitted)). Thus, even if we assume there is arguable merit to appellant's claims and counsel had no reasonable basis for failing to challenge the Commonwealth's canine DNA evidence, appellant is not entitled to relief because he failed to demonstrate the outcome of the guilt phase would have been different had the canine DNA evidence been excluded from his trial.
Evidence of appellant's comprehensive preparatory activities was extensive. One
month before the fire, he purchased straw on four separate occasions, along with two five-gallon gas cans, and he bought gasoline on two separate occasions the day of the fire -- straw, gasoline, and two five-gallon gas cans were recovered at the fire's points of origin. During that month, he also changed his automobile comprehensive deductible to cover his vehicle if destroyed by fire -- notably, he did not alter his collision insurance. Further, he tried to increase the limits on his homeowner's insurance and sought to purchase life insurance on Jessica, naming himself as beneficiary. A few days before the fire, he affixed a chain ladder to the residence as a means of escape. The jury heard testimony that appellant, on two separate occasions, discussed his plans to kill Jessica to avoid paying child support, stating he would use rope, gasoline, straw, and candles to start a fire in the home. Evidence established the security system had been disabled and the fire was started by using clothing, gasoline, straw, and candles.
Four days before the fire, appellant requested a survey of his home from ADT Security Services, expressing it was urgent. He told the ADT employee he knew how to disable his home security system and said a fire may start in his home in a few days, indicating its likely points of origin -- the same areas as the origin of the fire four days later. Because appellant told the employee about the threatening note and that a fire might soon occur, the employee offered to install camera equipment that day at no immediate cost, but appellant refused. Even though the employee explained she could place the cameras in any location appellant wished, he told her he didn't " think the camera is going to catch [any potential perpetrators] because they're going to come through the front door." N.T. Trial, 10/4/02, at 70. As the employee was leaving the home, appellant said to her that " if [she] had noticed that his home had burnt ... in the paper that [she] would know that he wouldn't be needing [a security] system." Id., at 67.
Moreover, significant evidence concerning the threatening note itself was submitted to the jury. Earlier on the day the note was discovered, appellant called Ms. Riddle at work and told her someone was lurking around their house, yet he did not call the police at that time. Ms. Riddle did not initially notice the note on the mailbox when she arrived home; thus, appellant insisted they leave the home and visit his parents. When they left, Ms. Riddle noticed the note, and appellant made copies of it before calling police. When police arrived to investigate, appellant told police the doorbell rang earlier in the night but no one was there when he answered, and he saw the note affixed to the mailbox at that time. Despite telling police he noticed the note on the mailbox earlier, appellant did not retrieve it at that time but instead waited until Ms. Riddle came home and discovered it.
Telling evidence of appellant's behavioral changes was also introduced at trial. Appellant implemented and enforced rules that shoes not be worn in the home, and that bedroom doors be closed and locked. Significantly, on the night of the fire, appellant kept his shoes in his bedroom and his daughter's door was open. Appellant had previously forbidden his girlfriend to go to a local bar, once even threatening to burn it down if she went there again. On the day of the fire, however, appellant called her at least ten times, repeatedly urging her to go to the bar. Several witnesses testified appellant, before and after Jessica's death, was very calm and showed no emotion. Other witnesses, including Ms. Riddle and appellant's neighbor, stated he made no effort to assist rescuing Jessica, despite the facts that her bedroom was 11 feet away from his and, regarding Jessica's fire escape, that he previously told Ms. Riddle he could easily get to her
bedroom by breaking a wall in a bathroom that separated their bedrooms. The jury also heard testimony that appellant referred to his deceased daughter as " it" during funeral arrangements and, while she was burning inside the home, stated, " '[T]he firemen will get her. She's probably dead anyway[,]'" and " 'it's probably too late anyway.'" N.T. Trial, 9/30/02, at 97, 242.
Given the overwhelming circumstantial evidence of appellant's guilt, it is difficult to believe the outcome of the proceedings would have been different but for counsel's failure to challenge the canine DNA evidence. See Commonwealth v. Philistin, 617 Pa. 358, 53 A.3d 1, 10 (Pa. 2012) (stating counsel presumed effective, and appellant must overcome such presumption by proving prejudice, i.e., reasonable likelihood outcome would have been different but for counsel's alleged ineffectiveness (citations omitted)). Accordingly, we conclude appellant's claims regarding counsel's ineffectiveness for not challenging the Commonwealth's canine DNA evidence fail for lack of prejudice.
Issue III: Counsel's Failure to Investigate and Present Evidence to Contradict the Commonwealth's Theory
Appellant claims trial counsel was ineffective for failing to investigate and present evidence contradicting the Commonwealth's theory of the case, i.e., that appellant committed the arson and murder because: (1) he was in financial distress; (2) he would profit by collecting insurance money and rebuilding the home himself;  and (3) he was unwilling to pay child support.
A. Counsel's failure to present financial expert
Appellant asserts trial counsel was ineffective for failing to consult with a financial expert and call such an expert at trial to rebut the Commonwealth's evidence of his financial status and theories of appellant's motives. The Commonwealth asserts counsel had a reasonable basis for not consulting with or calling a financial expert to testify, noting he testified at the PCRA hearing: (1) appellant was the best source to assess his own finances; (2) he felt making a common-sense argument at trial that appellant would not have benefitted financially from the fire was sufficient and the evidence would have established the same; and (3) because the Commonwealth had a rebuttal financial expert prepared to testify, he thought it would have been futile to create a battle between experts.
At trial, the Commonwealth established appellant unsuccessfully attempted to borrow
money and kept poor financial records, implying he set fire to his home to relieve himself from financial hardship. At the PCRA evidentiary hearings, appellant presented testimony from Kenneth McCrory, a forensic accountant, who opined appellant was financially sound, making financial gain an unlikely motive for arson. N.T. PCRA Hearing, 8/12/09, at 178. Specifically, Mr. McCrory stated appellant had personal equity of approximately $250,000, and his child-support payments of $3,000 per year were not a significant strain on his income. Id., at 189, 212. On cross-examination, he noted appellant's expenses and bills included: $90,000 per year on his mortgages;  a credit-card balance of approximately $30,000; utility bills of approximately $20,000; $1,000 per month to his ex-wife as part of their divorce settlement (which included child support); and approximately $13,000 in miscellaneous expenses. Id., at 215-23.
The PCRA court mentioned appellant's personal equity involved no liquid assets and concluded, " Had Mr. McCrory testified at trial, he would not have refuted the evidence that showed that [appellant] had significant expenses and little in the way of liquid assets." PCRA Court Opinion, 3/27/12, at 69-70. It also found credible the Commonwealth's PCRA expert who testified appellant's bank-account balances had significantly decreased weeks before the fire, his debt-to-income ratio supported banks denying him loans, and he would have made approximately $140,000 from insurance proceeds as a result of the fire but only $24,000 in profit if he sold the home. See id., at 70-71. The court cited counsel's reason for not presenting a financial expert -- he felt the Commonwealth could not establish a strong financial motive and there was no benefit " to get into this sort of tit for tat[.]" Id., at 71 (quoting N.T. PCRA Hearing, 8/10/09, at 98). Determining a " battle of the experts" would not have rebutted the Commonwealth's motive theories and instead would have likely elicited more prejudicial evidence against appellant, the court concluded counsel had a reasonable basis in not presenting a financial expert and appellant failed to establish prejudice. Id., at 71-72.
In Chmiel, this Court explained:
Where a claim is made of counsel's ineffectiveness for failing to call witnesses, it is the appellant's burden to show that the witness existed and was available; counsel was aware of, or had a duty to know of the witness; the witness was willing and able to appear; and the proposed testimony was necessary in order to avoid prejudice to the appellant. The mere failure to obtain an expert rebuttal witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant's cause. Trial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. Additionally, trial counsel will not be deemed ineffective for failing to call a[n] ... expert merely to critically evaluate expert testimony [that] was presented by the prosecution. Thus, the question becomes whether or not [defense counsel] effectively cross-examined [the Commonwealth's expert witness].
Chmiel, at 1143 (internal quotations marks and citations omitted).
We hold the PCRA court's conclusions are free from legal error and supported by the record. Apart from the fact that appellant failed to demonstrate Mr. McCrory was known at the time of trial or should
have been known to counsel, it is unlikely the expert would have established appellant was financially sound, as Mr. McCrory would not have refuted appellant's substantial expenses and lack of liquid assets. Further, expert testimony on appellant's financial status was unnecessary, particularly where counsel cross-examined the Commonwealth witnesses in an effective manner. Additionally, appellant does not explain how he was prejudiced particularly by the failure to present a financial expert, but instead argues he was collectively prejudiced by counsel's failure to call a multitude of experts. See infra, Issue X. Therefore, we reject this claim.
B. Counsel's failure to question appellant's family-law attorney
Although appellant acknowledges trial counsel called Attorney Kelly Mroz, his family-law attorney, as a defense witness at trial, he contends counsel was ineffective in failing to question Attorney Mroz about his financial status. In particular, he asserts Attorney Mroz analyzed his finances and, if properly questioned by counsel, would have testified appellant did not desire to reduce his child-support payments and had a considerable monthly income.
The Commonwealth, on the other hand, asserts Attorney Mroz had limited knowledge regarding appellant's mortgages and bills; thus, it contends, counsel elicited as much beneficial testimony from Attorney Mroz as she had to offer.
Attorney Mroz testified she was retained by appellant to represent him in a custody matter regarding Jessica. N.T. Trial, 10/4/02, at 209-10. Attorney Mroz stated that a few months before the fire, appellant sought a custody modification to increase his visitation time with Jessica. Id., at 210-13. At the PCRA hearings, Attorney Mroz knew minimal information concerning appellant's financial status. She had appellant's bank-account statements and information on occupancy and monthly rent for his apartments, but she was unaware of ...