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Commonwealth v. Pruitt

Supreme Court of Pennsylvania

June 20, 2017


          SUBMITTED: January 9, 2017

         Appeal from the Order entered on 5/25/16 in the Court of Common Pleas, Berks County, Criminal Division at No. CP-06-0006003-2002




         This is a capital post-conviction appeal.

         On September 23, 2003, Appellant forcibly entered the Berks County home of Greta A. Gougler, where he robbed, raped, and murdered her. Appellant was arrested, tried, and convicted for first-degree murder, rape, robbery, and other offenses, and a jury returned a death verdict in a capital sentencing proceeding. On direct appeal, this Court affirmed. See Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307 (2008).

         In 2009, Appellant commenced the present proceedings under the Post Conviction Relief Act, 42 Pa.C.S. §§9541-9546 (the "PCRA"). The post-conviction court conducted a series of evidentiary hearings, throughout which Appellant was represented by the members of the Federal Community Defender Office. Later, per Appellant's request, those attorneys were removed from the representation and current counsel was appointed in their place.

         In 2015, Appellant submitted a request to proceed pro se. The PCRA court scheduled a proceeding, at which Appellant agreed to continue to be represented by counsel but was deemed by the court to have "knowingly, intelligently and voluntarily abandon[ed] any issues raised by prior PCRA counsel and/or [current counsel] that are not contained in [a] memorandum in support of the PCRA relief petition filed this date[.]" NT., Nov. 23, 2015, at 9-10.

         The PCRA court subsequently denied relief on the remaining claims for relief. This appeal followed, in which Appellant advances six challenges, several of which fall within the category of the claims deemed to have been abandoned by the PCRA court.

         Part I

         Appellant's first three claims, pertaining to DNA evidence presented by the Commonwealth at trial, were found by the PCRA court to have been preserved. The relevant background is as follows.

         At trial, the prosecution offered several primary lines of evidence to address Appellant's identity as the robber, rapist, and killer, as well as the actus reus of the rape. First, Appellant's confession to police was introduced, in which he admitted to having forcibly entered Ms. Gougler's home and inflicting physical violence upon her, albeit that he denied any intention to kill and maintained that he did not rape the victim. See NT., Apr. 25, 2005, at 174-177. The Commonwealth also presented testimony from a witness to whom Appellant had confessed, extrajudicially, to having perpetrated the physical acts resulting in the victim's death. See NT., Apr. 26, 2005, at 247-48 (testimony of Sean Peterson).

         In a second category of evidence, a forensic pathologist testified that the victim had been beaten severely and subjected to ligature strangulation. See id. at 355-365. In terms of the rape, the pathologist explained that the victim suffered lacerations and other injuries to her vagina and anus consistent with nonconsensual penetration. See id. at 352-355, 364. Police officers also attested that the victim's body was naked when discovered. See, e.g., NT., Apr. 25, 2005, at 22, 31.

         In the third set of evidence, the Commonwealth sought to confirm the fact of the rape, and Appellant's identity as the rapist, through testimony establishing a match between Appellant's DNA and a sample of genetic material taken from the inner thigh of the victim's body. In this regard, crime-laboratory serologist Michael Brincat testified that this evidence sample contained both blood and sperm cells. See NT., Apr. 26, 2005, at 290-291. Pennsylvania State Police ("PSP") forensic scientist Lisa Mihalacki then testified that she segregated the sample into male and female components and conducted DNA analysis. According to the witness: "Every genetic marker, every place that we checked from this sample and [Appellant's] were identical to each other, " resulting in between a one in 1.5 billion and a one in 39 billion chance that another person might have contributed the sample (with the variation accounted for by racial differences within the population). Id. at 313-314.[1] On cross-examination, Appellant's lawyer initially pointed out that the DNA data reflected that there was more than one contributor to the portion of the evidence sample denominated as the male component. See id. at 316-320.[2] The remainder of the cross-examination focused on racial differences in the population samples and the handling of the evidence samples. See id. at 320-323.

         In the post-conviction proceedings, Appellant contended that there were multiple flaws in the Commonwealth's DNA analysis and that his trial counsel were derelict in failing to apprehend and capitalize upon such deficiencies.[3] In support, Appellant presented testimony from Randal T. Libby, PhD, a forensic geneticist. Dr. Libby testified that the "male" component of the evidence sample taken from the victim's thigh was of a low-template quality and, accordingly, generated a great deal of subjectivity in interpreting the testing result. See, e.g., NT., Aug. 21, 2013, at 32-38, 59, 62, 64-65, 80.[4]

         Indeed, it was Dr. Libby's opinion that the sample contained insufficient DNA to yield a reliable analysis. See id. at 51, 87. This, the geneticist explained, was reflected, inter alia, in the absence of any data whatsoever in Ms. Mihalacki's report pertaining to alleles at three loci for the male evidence sample. See id. at 54, 65-66. Additionally, Dr. Libby affirmed that this report itself indicated that results at five loci were "[i]nconclusive due to an insufficient amount of DNA." Id. at 62-63.

         Dr. Libby also found the interpretive enterprise to have been further complicated by the obvious presence of multiple contributors (as was alluded to during cross-examination at trial). See id. at 47, 68-70; see also supra note 2. Moreover, he posited that the results of Ms. Mihalacki's analysis in fact suggested that Appellant should be excluded as a contributor to the evidence sample. See, e.g., NT., Aug. 21, 2013, at 51, 54-55, 95. It was also the geneticist's opinion that there were too many inconsistencies in the data to justify the use of a statistical analysis to support the probability estimates that Ms. Mihalacki offered in her testimony. See id. at 94.[5]

         In terms of Ms. Mihalacki's assertion at trial of a match at every genetic marker, Dr. Libby testified that such testimony was demonstrably false according to her own report. See id. at 73-75. Dr. Libby further attested that the conclusion that the male component of the evidence sample contained sperm was unverifiable, since sperm tails were undetectable upon microscopic examination. See id. at 75-79. Finally, Dr. Libby noted that data from Ms. Mihalaki's initial analysis of the evidence sample, which she apparently had discounted in favor of further testing, had resulted in an affirmative exclusion of Appellant as a possible contributor to the evidence sample. See id. at 133. In this regard, Dr. Libby suggested that Ms. Mihalaki's methodology conflicted with the scientific norm of reproducibility. See id. at 130-134.

         Appellant also presented testimony from his lawyer primarily responsible for his representation at the guilt phase of trial. The attorney testified that he was not significantly concerned with the DNA evidence, because the Commonwealth already had adduced compelling physical evidence demonstrating the fact of rape via the testimony of a forensic pathologist, and moreover, "there was only [Appellant] in the room." NT., Dec. 19, 2013, at 1201; see also id. at 1196 ("[A]ll the DNA did was identify, really identifying [Appellant] as the person who committed the rape. But, you know, the fact of the rape was there, though, and there was no evidence of anybody else being there, so I didn't think it added much."); id. at 1219. Counsel explained that he did not wish to draw undue attention to evidence that he considered unimportant. See id. at 1202.

         Nevertheless, the lawyer affirmed that the Commonwealth's DNA evidence presented a strong indication of Appellant's culpability for rape. See id. at 1208. In spite of such materiality, counsel testified that he did not understand the data in Ms. Mihalaki's report and merely relied on her representation of a genetic match between the evidence sample and the sample taken from Appellant. See id. at 1207. With reference to the data reflected in the report, the attorney also indicated: "I don't imagine any lawyer would know how that got from A to B or what that means." Id. at 1208.

         A. Failure to Investigate, Effectively Cross-examine, and Present an Expert

         Presently, based on the above, Appellant contends that his counsel failed to conduct a professionally reasonable investigation and rendered deficient stewardship at trial. Appellant argues that, at a minimum, his trial counsel had an obligation to garner at least some rudimentary understanding of the evidence being used against him. He also takes the position that counsel should have consulted with and presented testimony from a defense expert. See Brief for Appellant at 16-17 (collecting cases). According to Appellant, trial counsel "essentially conducted the cross-examination of the Commonwealth's DNA expert on the fly." Id. at 15. In terms of the materiality of the DNA evidence and its prejudicial impact, Appellant couches it as the "sole forensic evidence linking [him] to the crime" and posits that it played a pivotal role at trial. Id. at 16. He concludes that there is a reasonable probability that the jury would have found reasonable doubt to exist had counsel investigated and challenged the Commonwealth's DNA evidence in an effective manner.[6]

         At the outset, we find arguable merit in Appellant's challenge to his lawyer's stewardship and conclude that counsel could have had no reasonable strategy to support his failure to gain a better understanding of Ms. Mihalaki's report.[7] Contrary to counsel's comment that no lawyer would apprehend the underlying data, see NT., Dec. 19, 2013, at 1208, the present record reflects that Appellant's post-conviction lawyers amply comprehend it, including the multiple problems stemming from Ms. Mihalaki's interpretation of a partial genetic profile taken from a low-template evidence sample.[8]Moreover, counsel's failure to appreciate - and exploit - the fact that the data in Ms. Mihalaki's initial report apparently indicated an affirmative exclusion of Appellant as a contributor to the male evidence sample, see NT., Aug. 21, 2013, at 133-134, is simply inexplicable. To the degree that counsel was unable to understand the test results on his own, plainly he should have consulted an expert.[9]

         Given the potency of DNA evidence, see, e.g., McDaniel v. Brown, 558 U.S. 120, 136, 130 S.Ct. 665, 675 (2010) (commenting upon the "persuasiveness of [DNA] evidence in the eyes of the jury"), were this a case in which identity was in controversy, we would likely find prejudice to be manifest. Here, however, Appellant's identity as the robber and killer has never seriously been put into contest, even at the post-conviction stage. Accord NT., Dec. 20, 2013, at 1298 (reflecting the attestation of Appellant's trial counsel that Appellant consistently confirmed the facts that he had related to the police, which included his perpetration of a violent attack upon the victim). Although Appellant did not admit to having perpetrated the rape, the fact of such crime was apparent from the physical evidence, and Appellant has never provided any plausible explanation that would persuasively suggest any other person's involvement in the relevant events that took place in the victim's house. Accord NT., Dec. 20, 2013, at 1298 (memorializing trial counsel's testimony that Appellant never indicated that anyone other than he and the victim was present during their encounter).[10] For these reasons, in our considered judgment - while trial counsel should have provided more able stewardship relative to the DNA evidence - Appellant has not established a reasonable probability that the verdict would have been different had counsel done so, i.e., a probability sufficient to undermine confidence in the outcome of the proceedings. See Commonwealth v. Laird, 632 Pa. 332, 343, 119 A.3d 972, 978 (2015).

         B. Assertedly False Testimony and Alleged Concealment of Evidence

         In his second line of argument, Appellant focuses on Ms. Mihalaki's testimony that "[e]very genetic marker, every place that we checked from this sample and [Appellant's] were identical to each other." NT., Apr. 26, 2005, at 313. According to Appellant, he was denied due process and the effective assistance of counsel on the basis of this assertedly false attestation.

         Appellant supplements this argument with a series of allegations concerning the involvement of a former PSP serologist, Ranae Houtz, in the forensic analysis. Appellant explains that trial counsel was aware that Ms. Houtz bore the responsibility for submission to the DNA laboratory of the samples taken from the victim, see NT., Dec. 19, 2013, at 1209, and that her job performance previously had been questioned by her superiors and others, ultimately resulting in her termination. See id. at 1212-1213. Appellant points to one error made by Ms. Houtz in his case, in which she had mislabeled one of the evidence samples. See Brief for Appellant at 44-45. Appellant also charges that "[t]he testimony of Ms. Mihalacki and Mr. Brincat was crafted to conceal the involvement - and errors - of [Ms.] Houtz, who was initially assigned to the case and who resigned from the [PSP] after repeated errors were detected in her work." Id. at 43. According to Appellant, his lawyers should have sought discovery regarding Ms. Houtz's performance, undertaken to have her work reviewed by a defense expert, and impeached the testimony of Commonwealth expert witnesses based on Ms. Houtz's involvement, which those witnesses failed to disclose to the jurors. See id. at 45 ("Ms. Mihalacki and Mr. Brincat testified falsely regarding Ms. Houtz's involvement and error in this case, concealing from the jury that crucial evidence was processed and tested by a forensic scientist whose repeated errors forced her resignation and called into question her work in over 600 cases.").

         To the degree that Appellant attempts to frame the issue as one of direct trial court error, the claim is waived for failure to advance it at trial. See, e.g., Commonwealth v. Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (2012) (explaining that an issue is 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 postconviction proceeding" (quoting 42 Pa.C.S. §9544(b)). Moreover, despite the aspersions cast upon the Commonwealth, Ms. Mihalacki's report straightforwardly disclosed, inter alia, the absence of data at five loci. See NT., Aug. 21, 2013, at 62-63 (reflecting the report's admonition that the report itself indicated that results at five loci were "[i]nconclusive due to an insufficient amount of DNA"). While clearly she should have been more careful in her testimony at trial, affording her the benefit of the doubt, Ms. Mihalacki's overstatement may have reflected an attempt to express her belief that Appellant's profile matched the evidence sample at the genetic markers for which data was present. Notably, Appellant's own expert recognized that, although there is disagreement concerning the scientific validity of such an approach, various laboratories will declare DNA matches based on partial profiles. See NT., Aug. 21, 2013, at 60.[11]

         With regard to Ms. Houtz, before trial the Commonwealth discussed her involvement with defense counsel and explained that the serology testing had been repeated by Mr. Brincat. See, e.g., NT., Dec. 19, 2013, at 1398-1399. Mr. Brincat's report also indicated -- in bold capital type -- that the relevant samples of genetic material had been submitted to the DNA laboratory in October 2002, about five months before Mr. Brincat testified that he began his own testing of samples pertaining to Appellant's case. See NT., Apr. 26, 2005, at 301. This too, then, was information readily available to counsel.

         In terms of the ineffectiveness dynamic, we express reservations concerning trial counsel's performance similar to those indicated in our treatment of Appellant's initial claim, above. Plainly, in response to Ms. Mihalacki's assertion of a match at every genetic marker incorporated into the testing, counsel should have confronted the witness with her own report disclosing missing data at five loci. Counsel was also armed with enough information to disclose Ms. Houtz's involvement in the initial testing and in the chain of custody underlying the DNA analysis.

         In any event, our resolution of the issue again turns on Appellant's inability to establish prejudice in light of the compelling other evidence establishing his identity as the robber and killer and the fact of a rape, and the absence of any plausible alternative theory to discount that Appellant was also the rapist.

         C. Cumulative Effect of Alleged Napue and Brady Violations

         Appellant next characterizes the assertedly false testimony and alleged concealment of evidence as violations of Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959) (holding that the knowing use of false testimony to obtain a conviction violates due process), and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963) (reflecting the obligation, on the part of prosecutors, to disclose exculpatory information material to the guilt or punishment of an accused). Appellant catalogues the asserted taints as follows:

• The Commonwealth presented Ms. Mihalacki's false and misleading testimony that [Appellant's] DNA matched the perpetrator's DNA;
• The Commonwealth presented Mr. Brincat's false and misleading testimony concealing the involvement of Ms. Houtz in preparing samples used in DNA testing;
• The Commonwealth presented Ms. Mihalacki's false and misleading testimony concealing the involvement of Ms. Houtz in preparing samples used in DNA testing;
• The Commonwealth suppressed evidence that would have revealed the false and misleading testimony of Mr. Brincat;
• The Commonwealth suppressed evidence that would have revealed the false and misleading testimony of Ms. Mihalacki;
• The Commonwealth suppressed evidence that would have exposed at least one error by Ms. Houtz during her preparation of samples for DNA testing; and
• The Commonwealth suppressed evidence indicating that other errors may have been made in the handling and ...

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