Commonwealth v. Wholaver, E., Aplt. , 177 A.3d 136 ( 2018 )

[J-34-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 717 CAP
:
Appellee : Appeal from the Order dated September
: 22, 2015 in the Court of Common Pleas,
: Dauphin County, Criminal Division, at
v. : No. CP-22-CR-0000692-2003.
:
: SUBMITTED: March 3, 2017
ERNEST WHOLAVER JR., :
:
Appellant :
OPINION
JUSTICE BAER DECIDED: January 11, 2018
This is a direct appeal from an order dismissing a petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant Ernest
Wholaver, Jr. (“Appellant”), who is sentenced to death, presents the Court with a
multitude of issues, none of which afford him relief.1 We, therefore, affirm the order
dismissing Appellant’s petition.
I. Factual and Procedural Backgrounds
A. Introduction
In July of 2002, the Commonwealth charged Appellant with several sexual
offenses for alleged conduct involving his two daughters, Victoria and Elizabeth. At the
1
A final order under the PCRA, in a case in which the death penalty has been imposed,
is directly appealable to this Court. 42 Pa.C.S. § 9546(d).
time that the charges were filed, Elizabeth was a minor, and Victoria was the mother of
a nine-month old baby named Madison. Madison’s father is Francisco Ramos
(“Ramos”).
After the criminal charges were filed, Jean Wholaver (“Jean”), Elizabeth’s mother
and Appellant’s wife, obtained a Protection From Abuse (“PFA”) order against Appellant
on Elizabeth’s behalf. Among other things, the PFA order evicted Appellant from the
family residence located in Middletown, Pennsylvania. As a result of this order,
Appellant moved to Cambria County to live with his mother, father, and younger brother,
Scott Wholaver (“Scott”).
Thereafter, a preliminary hearing was held on Appellant’s sexual offenses. Jean,
Victoria, and Elizabeth testified against Appellant at that hearing. The charges were
held for court, and trial on those charges was scheduled to commence in January of
2003.
Shortly after midnight on December 24, 2002, Appellant and Scott drove from
their home in Cambria County to Jean’s residence in Middletown. Scott waited in the
vehicle while Appellant forcibly entered the home, where he shot and killed Jean,
Victoria, and Elizabeth. Nine-month old Madison was relatively unharmed, but
remained unattended until the bodies were discovered nearly 28 hours later.
Police arrested Appellant and charged him with, inter alia, three counts of first-
degree murder. The Commonwealth subsequently issued notice that it intended to
pursue the death penalty. While in prison awaiting trial, Appellant attempted to hire a
man to kill Ramos (Madison’s father) and frame him for the murders. The trial court
consolidated the sexual offenses, murders, and the criminal solicitation related to
Appellant’s attempt to have Ramos killed.
[J-34-2017] - 2
The jury acquitted Appellant of the sexual offenses. However, the jury convicted
Appellant of first-degree murder as to all three victims and of the crimes of killing
prosecution witnesses (Jean, Victoria, and Elizabeth, witnesses to the sexual crimes
pending trial when they were killed), conspiracy, reckless endangerment, and criminal
solicitation (to have Ramos killed). The evidence presented in the guilt phase of trial
was incorporated into the penalty phase.
During the penalty phase, the Commonwealth pursued four aggravating
circumstances: (1) the defendant committed a killing while in the perpetration of a
felony; (2) during the commission of the offense, the defendant knowingly created a
grave risk of death to another person (baby Madison) in addition to the victim of the
offense; (3) the defendant has been convicted of another murder committed in any
jurisdiction, either before or at the time of the offense at issue; and (4) at the time of the
killing, the defendant was subject to a PFA order.2 42 Pa.C.S. §§ 9711(d)(6), (7), (11),
and (18), respectively. Appellant, on the other hand, sought to prove the no-significant-
history-of-prior-criminal-convictions mitigating circumstance, as well as the catch-all
mitigator. 42 Pa.C.S. §§ 9711(e)(1) and (8), respectively. The jury found all of the
aggravators, and at least some of the jurors accepted Appellant’s mitigating
circumstances. After weighing the aggravating and mitigating circumstances, the jury
returned verdicts of death as to each of the murder victims. Appellant appealed his
judgment of sentence.
B. Direct Appeal
This Court affirmed the judgment of sentence. Commonwealth v. Wholaver, 903
A.2d 1178 (Pa. 2006). In so doing, we concluded that the Commonwealth presented
2
The aggravating circumstance regarding the defendant being subject to a PFA order
pertained only to Appellant’s sentence for murdering Elizabeth.
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sufficient evidence to support Appellant’s first-degree murder convictions and the
aggravating circumstances found by the jury. Id. at 1182-83. Moreover, consistent with
42 Pa.C.S. § 9711(h), we determined that the sentences of death were not the product
of passion, prejudice, or any other arbitrary factor. Id. at 1185. While Appellant raised a
number of other issues, the Court found those issues were waived due to Appellant’s
failure to file timely a court-ordered Pa.R.A.P. 1925(b) statement. Id. at 1183-85.
Appellant subsequently filed a PCRA petition wherein he sought reinstatement of
his right to a direct appeal due to trial counsel’s failure to file timely a Pa.R.A.P. 1925(b)
statement. The PCRA court granted the petition, and Appellant again appealed to this
Court, raising fifteen issues, none of which warranted relief. Commonwealth v.
Wholaver, 989 A.2d 883 (Pa. 2010). Accordingly, the Court again affirmed Appellant’s
judgment of sentence. Appellant petitioned the United States Supreme Court for a writ
of certiorari, which was denied on October 4, 2010. Wholaver v. Pennsylvania, 562
U.S. 933 (2010).
C. Current PCRA Petition
On September 2, 2011, Appellant, acting pro se, filed a PCRA petition. On
September 8, 2011, the PCRA court issued an order dismissing the petition and
granting Appellant leave to have his counsel of record file an amended PCRA petition.
The order noted that courts cannot entertain pro se motions when a PCRA petitioner is
represented by counsel. PCRA Court Order, 9/8/2011 (citing, inter alia, Commonwealth
v. Pursell, 724 A.2d 293 (Pa. 1999)). Subsequently, Appellant, through counsel, filed an
amended PCRA petition, which spans 247 pages and includes no fewer than 24 issues.
On April 27, 2012, Appellant filed a supplemental and amended PCRA petition.
On January 8, 2013, the PCRA court issued an order and a supporting memorandum
wherein the court gave notice that it intended to dismiss all but four of Appellant’s issues
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without holding an evidentiary hearing. See Pa.R.Crim.P. 909(B)(2)(a) (explaining that
a judge shall issue notice to the parties of its intent to dismiss a PCRA petition if the
judge is satisfied that there are no genuine issues of material fact, that the petitioner is
not entitled to collateral relief, and that no legitimate purpose would be served by any
further proceedings). Appellant timely filed his objections to the court’s notice. On
January 28, 2013, the PCRA court dismissed the claims that it identified in its notice to
dismiss.3
An evidentiary hearing was held on September 6, 2013. The only witness to
testify at that hearing was Appellant’s trial counsel. Shortly thereafter, Appellant filed a
motion in which he sought an opportunity to present evidence at another hearing.
Following the Commonwealth’s answer to this motion, the PCRA court issued an order
and a supporting memorandum on March 31, 2014, providing its notice of intent to
dismiss two of Appellant’s four remaining claims and granting Appellant an additional
hearing to address Brady4 claims and related claims of ineffective assistance of
counsel. As to Appellant’s only other unresolved issue, which involves underlying
claims of juror misconduct, the court directed the Dauphin County Court Administration
to release to counsel questionnaires completed by two members of Appellant’s jury.
The court directed that the questionnaires be kept under protective seal.
On May 7, 2014, the PCRA court formally dismissed the two claims identified in
its March 31, 2014, notice to dismiss. Appellant then asked the PCRA court to grant his
request for additional discovery related to his Brady claims. On August 28, 2014, the
3
On April 3, 2013, Appellant filed a motion in which he requested that the PCRA judge,
the Honorable John F. Cherry, recuse himself from deciding the matter. The court
denied the motion.
4
Brady v. Maryland, 373 U.S. 83 (1963).
[J-34-2017] - 5
court granted in part and denied in part this discovery request. This order required the
Commonwealth to provide to Appellant a number of documents and materials related to
witnesses that the Commonwealth presented at Appellant’s trial. The court denied
Appellant’s request for similar documents related to individuals who did not testify at
trial.
On September 4th and 5th of 2014, the PCRA court held its final hearing on
Appellant’s PCRA petition. Over the course of those two days, in connection with his
substantive Brady claims, Appellant presented the testimony of Robert Marley, Steven
Stephens, Wilson Talavera, and James Meddings, all of whom spent time in prison with
Appellant after his arrest and were Commonwealth witnesses at Appellant’s trial.
Appellant also presented testimony from two members of his jury and from Ronald Diller
(“Agent Diller”), who, as a narcotics agent for the Pennsylvania Attorney General, had
utilized Robert Marley as a confidential informant. The Commonwealth presented
testimony from only one witness, Francis Chardo, Esquire (“Attorney Chardo”).
Attorney Chardo is the Assistant District Attorney of Dauphin County who prosecuted
Appellant.
On January 6, 2015, Appellant filed a motion for discovery, which the court
denied. Appellant subsequently filed a motion for leave to amend his PCRA petition to
conform to the evidence presented at the evidentiary hearings. The court granted this
motion, noting that the facts and allegations as set forth in the motion were incorporated
into Appellant’s previously filed PCRA petition and supplements thereto. On September
22, 2015, the PCRA court issued an order and a supporting memorandum denying
Appellant’s remaining claims and dismissing the PCRA petition.5
5
The PCRA court mistakenly informed Appellant that he had 30 days to appeal the
order to the Superior Court, rather than to this Court. Appellant filed a motion to modify
the order to reflect that an appeal from the order should be pursued in this Court. The
(continued…)
[J-34-2017] - 6
II. General Principles of Law
In order to be eligible for PCRA relief, a petitioner must prove by a
preponderance of the evidence that his conviction or sentence resulted from one or
more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2) (delineating
the eligibility requirements of the PCRA). A petitioner also must demonstrate that the
issues raised in his PCRA petition have not been previously litigated or waived. Id. at
§ 9543(a)(3). An issue has been previously litigated if “the highest appellate court in
which the petitioner could have had review as a matter of right has ruled on the merits
of the issue.” Id. at § 9544(a)(2). For purposes of the PCRA, a claim 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.” Id. at § 9544(b).
Appellant raises multiple issues for review, many of which allege the ineffective
assistance of counsel. It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s alleged ineffectiveness.
Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this
presumption, a petitioner must establish that: (1) the underlying substantive claim has
arguable merit; (2) counsel did not have a reasonable basis for his or her act or
omission; and (3) the petitioner suffered prejudice as a result of counsel’s deficient
performance, “that is, a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A PCRA petitioner must
address each of these prongs on appeal. See Commonwealth v. Natividad, 938 A.2d
310, 322 (Pa. 2007) (explaining that “appellants continue to bear the burden of pleading
(…continued)
court never ruled on the motion; however, Appellant properly and timely filed a notice of
appeal which reflected that he would be appealing the matter to this Court.
[J-34-2017] - 7
and proving each of the Pierce elements on appeal to this Court”). A petitioner’s failure
to satisfy any prong of this test is fatal to the claim. Cooper, 941 A.2d at 664.
Generally speaking, when this Court reviews an order dismissing or denying a
PCRA petition, its standard of review is whether the findings of the PCRA court are
supported by the record and are free from legal error. Commonwealth v. Ligons, 971
A.2d 1125, 1136-37 (Pa. 2009). “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court[.]” Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013)). Appellant has the burden to persuade this Court that the PCRA court erred and
that such error requires relief. See Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.
Super. 2012) (“It is an appellant’s burden to persuade [an appellate court] that the
PCRA court erred and that relief is due.”); see also Commonwealth v. Bracey, 795 A.2d
935, 940 n.4 (Pa. 2001) (stating that the appellant failed to meet his burden of
establishing that he is entitled to relief). Lastly, it is well settled that this Court may
affirm a valid judgment or order for any reason appearing as of record. Commonwealth
v. Flanagan, 854 A.2d 489, 503 (Pa. 2004).
III. Discussion
A. Introduction
Appellant’s brief to this Court presents issues and arguments in a manner that
hampers our review. For example, Appellant enumerates sixteen issues for this Court’s
consideration, which he presents in a seemingly haphazard order. Some of his issues
combine several distinct claims that must be examined individually, while many other
issues contain multiple sub-issues. In addition, the documents which contain
Appellant’s myriad PCRA claims span nearly 300 pages collectively. Yet, in presenting
his multitude of issues and sub-issues on appeal, Appellant’s brief fails to indicate
[J-34-2017] - 8
where he raised and preserved these issues in the PCRA court, in violation of Pa.R.A.P.
2117(c) and 2119(e). To avoid further complications, we set forth his issues verbatim
and address them in the order in which he presents them in his appellate brief.
B. Issues
Issue I: “Did the PCRA court err in denying Appellant a full, fair, and reliable PCRA
review?” Appellant’s Brief at 5.
Appellant contends that the PCRA court denied him a full and fair review of his
claims by: (1) denying several of his discovery requests, Appellant’s Brief at 16-17; (2)
dismissing 21 of his PCRA claims without holding an evidentiary hearing, id. at 18; (3)
impermissibly prejudging claims upon which the court granted an evidentiary hearing,
id. at 18-19; and (4) improperly limiting the presentation of evidence at the evidentiary
hearings, id. at 19-20. While Appellant asserts that the PCRA court erred in this regard,
as the Commonwealth points out, he fails to present developed arguments in support of
these assertions.6
For instance, regarding the 21 claims that the PCRA court denied without holding
an evidentiary hearing, Appellant states, “Because each of these claims was meritorious
and involved genuine issues of material fact - as the respective discussions in this Brief
and the supporting evidence demonstrate - the PCRA court erred in dismissing them
without a hearing.”7 Appellant’s Brief at 18. In support of this statement, Appellant
6
Commonwealth’s Brief at 20-25.
7
Here and throughout this issue, Appellant seems to attempt to support his claims by
incorporating by reference arguments that he has made elsewhere. See, e.g.,
Appellant’s Brief at 17-18 (“As argued in the respective motions Appellant filed, his
pleadings and the testimony at the evidentiary hearing established good cause to obtain
the requested discovery.”). This Court has “held that such ‘incorporation by reference’
is an unacceptable manner of appellate advocacy for the proper presentation of a claim
for relief[.]” Commonwealth v. Briggs, 12 A.3d 291, 342 (Pa. 2011).
[J-34-2017] - 9
merely cites Commonwealth v. D’Amato, 856 A.2d 806, 820 (Pa. 2004), and
Pa.R.Crim.P. 909(B)(2), both of which simply explain the procedure for dismissing a
PCRA claim when a court is satisfied that the claim does not warrant an evidentiary
hearing. Appellant makes no effort to demonstrate how the PCRA court erred in this
regard or with respect to any of the other claims that he raises under this issue.
Consequently, this issue warrants no relief. See Commonwealth v. Williams, 732 A.2d
1167, 1175 (Pa. 1999) (recognizing “the unavailability of relief based upon undeveloped
claims for which insufficient arguments are presented on appeal”).
Issue II: “Did the PCRA court err in denying Appellant’s claim that the lower court
violated his constitutional rights by denying him the expert assistance necessary for an
adequate defense, and prior counsel were ineffective for failing to fully litigate this
issue?” Appellant’s Brief at 5.
Prior to his trial, Appellant was granted in forma pauperis status. Soon
thereafter, he petitioned the president judge of Dauphin County for the appointment and
payment of experts in ballistics, pathology, psychiatry, and serology. He also sought
funds for a specific private investigator. The president judge appointed pathology and
ballistics experts but did not fund those experts in the amounts Appellant wanted.
Instead of the requested psychiatrist, the president judge appointed a psychologist,
Lawrence McCloskey, Ph.D., and funded him in a lesser amount than Appellant asked.
In addition, the president judge appointed a different private investigator than Appellant
requested and again provided less funding than Appellant wanted.
Appellant subsequently filed a petition renewing several of his requests for
experts and funding, and contending, inter alia, that the limitations that the court
imposed upon him were unreasonable and unconstitutional. Renewed Petition for
Expert Witness Expenses, 5/14/2004, at ¶12. Trial counsel submitted a 57-page brief in
[J-34-2017] - 10
support of this petition and later filed addenda and several supplemental motions in
which he continued his pursuit of obtaining the services of experts. Trial counsel’s
efforts were largely unsuccessful.
Appellant reiterated these claims in his direct appeal nunc pro tunc, contending
that “the president judge denied him the tools for an adequate defense by limiting the
funds given to him to retain qualified, independent experts[.]” Wholaver, 989 A.2d at
893. He argued that “the court’s actions violated his rights to due process, to present a
defense, to have competent counsel, and to confront his accusers, necessitating a new
trial.” Id. at 894. In support of his arguments, Appellant relied, in part, upon the United
States Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68 (1985).8 This Court
rejected Appellant’s various arguments and determined that the trial court did not abuse
its discretion with regard to the appointment of experts and funding that the court
provided to Appellant. Wholaver, 989 A.2d at 894-96.
In his PCRA petition, Appellant again claimed that the president judge erred in
the manner in which he disposed of his requests for expert services and funding. PCRA
Petition, 1/12/2012, at 26-54. In so doing, Appellant detailed trial counsel’s extensive
efforts in advocating for the appointment and funding of experts - efforts which exceed
8
In Ake, the Supreme Court held that
when a defendant demonstrates to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who
will conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense. This is not to say, of course,
that the indigent defendant has a constitutional right to choose a
psychiatrist of his personal liking or to receive funds to hire his own.
Ake, 470 U.S. at 83.
[J-34-2017] - 11
those described above. Id. at 26-34. Appellant contended that the trial court’s rulings
violated his constitutional rights, “including his rights to expert assistance, to competent
counsel, to due process, to present a defense, to confront witnesses, to rebut the
Commonwealth’s case, and to a fair trial.” Id. at 34.
Appellant nonetheless argued that trial counsel rendered ineffective assistance
because, according to Appellant, he objected to the trial court’s rulings only on the basis
of Ake. Id. at 54. Appellant asserted that, had trial counsel raised the constitutional
violations that Appellant outlined in his PCRA petition, “there is a reasonable likelihood
of a different result.” Id. at 54-55. In addition, Appellant contended that appellate
counsel rendered ineffective assistance “by failing to raise or adequately litigate these
issues.” Id. at 55.
The PCRA court denied these claims without holding an evidentiary hearing,
concluding that the only aspect of Appellant’s claims that was not previously litigated
and is cognizable under the PCRA is Appellant’s argument that appellate counsel
rendered ineffective assistance by solely pursuing a claim that the trial court’s decisions
violated Ake. PCRA Court Memorandum, 1/8/2013, at 15-16. In this regard, the court
essentially determined that Appellant failed to state with sufficient specificity what other
arguments he believed appellate counsel should have presented on direct appeal. Id.
at 16.
In his brief to this Court, Appellant once again reiterates his long-standing claim
that the president judge’s decisions regarding his requests for experts and funding
unconstitutionally curtailed his ability to investigate and present his defense. Appellant’s
Brief at 20-26. He then recounts his claims of ineffective assistance of trial and
appellate counsel. Id. at 27-28.
[J-34-2017] - 12
As to any error committed by the PCRA court, Appellant initially maintains that
his claim of trial counsel ineffectiveness was not previously litigated. Id. at 28. He also
takes the position that, in concluding that appellate counsel properly raised his current
claim on direct appeal, the PCRA court “ignored that there were numerous aspects to
the claim that competent counsel would have included in appellate briefing.” Id. at 28-
29. The Commonwealth disagrees with Appellant’s position, arguing, inter alia, that
both trial and appellate counsel provided competent stewardship in presenting this issue
on direct appeal. Commonwealth’s Brief at 29-30.
Initially, we agree with Appellant that, while he previously litigated the underlying
issue regarding the trial court’s rulings, he did not previously litigate his wholly distinct
legal claim of ineffective assistance of counsel. See Commonwealth v. Cox, 983 A.2d
666, 699 (Pa. 2009) (explaining that, in Commonwealth v. Collins, 888 A.2d 564 (Pa.
2005), “this Court held that a Sixth Amendment claim alleging ineffective assistance of
counsel raises an issue cognizable under the PCRA even if the claim underlying the
ineffectiveness claim had been previously litigated”). We nonetheless conclude that this
oversight by the PCRA court does not entitle Appellant to relief. See Commonwealth v.
Tedford, 960 A.2d 1, 14 (Pa. 2008) (stating that, when a PCRA court improperly
disposes of claims of ineffective assistance of counsel as previously litigated where only
the underlying substantive issue was previously litigated, a remand to that court for
further analysis under Collins is unnecessary “when the claims are obviously deficient
for other reasons”).
Appellant’s assertion that trial and appellate counsel challenged the pertinent trial
court rulings simply by relying on Ake is inaccurate. Indeed, a review of the record
reveals that counsel maintained that the trial court’s rulings violated a number of
Appellant’s constitutional rights, including the rights he has cited in his attack on
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counsel’s stewardship. See, e.g., Renewed Petition for Expert Witness Expenses,
5/14/2004, at ¶12 (asserting that the court’s rulings deprived Appellant of his rights to
mount a constitutionally adequate defense, to confront his accusers, and to challenge
the Commonwealth’s evidence); Appellant’s Direct Appeal Nunc Pro Tunc Brief at 25
(“The court’s actions violated Appellant’s state-protected rights to due process, to
present a defense, to competent counsel and to confront one’s accuser.”); see also
Wholaver, 989 A.2d at 894 (explaining that Appellant argued that the trial court’s
“actions violated his rights to due process, to present a defense, to have competent
counsel, and to confront his accusers, necessitating a new trial”). Because the premise
underlying Appellant’s claims is belied by the record, this issue warrants no relief.
Issue III: “Did the PCRA court err in denying Appellant’s claim that trial counsel was
ineffective for failing to challenge the admissibility and weight of the Commonwealth’s
forensic document examiner’s conclusions and for failing to present an independent
expert?” Appellant’s Brief at 5.
At trial, the Commonwealth presented the testimony of James Meddings, who
testified that, while he was imprisoned with Appellant in Dauphin County on federal
charges, Appellant informed him of his desire to hire someone to kill Ramos. Trial
Transcript at 663.9 According to Meddings, Appellant wanted the hitman to leave a note
at the scene stating that Ramos had killed Appellant’s family and then committed
suicide. Id. Meddings further testified that, armed with this information, he agreed to
cooperate with the investigation into the murders of Appellant’s family. Id. at 666. In
9
Appellant’s trial took place from August 23, 2004, to August 31, 2004. The notes of
testimony from all days of trial are numbered consecutively. Thus, when we cite to
those notes, we simply will refer to them as the “Trial Transcript.”
[J-34-2017] - 14
short, with Meddings’ help, Appellant communicated via letter, to a putative would-be
hitman, his desire to have Ramos killed.
Unbeknownst to Appellant, the recipient of the letter actually was Drug
Enforcement Administration Agent Jack Luikart (“Agent Luikart”), who also testified
about this arrangement at Appellant’s trial. Id. at 708-18. The Commonwealth
subsequently offered the testimony of Kersten Jackson, an expert in forensic document
and handwriting identification. Jackson testified that she compared the handwriting in
the letter received by Agent Luikart to a known writing of Appellant and concluded, to a
reasonable degree of scientific certainty, that Appellant was the author of the letter. Id.
at 727.
In his PCRA petition, Appellant first claimed that trial counsel was ineffective for
failing to request a Frye10 hearing to test the admissibility of Jackson’s testimony
because, in Appellant’s view, “the methodology underlying the field of handwriting
analysis has not been proven to be reliable or capable of producing valid results that are
generally accepted in the scientific community.” PCRA Petition, 1/12/2012, at 94.
Appellant also maintained that counsel rendered ineffective assistance by failing to
obtain an expert to help prepare him to cross-examine Jackson and to testify regarding
the unreliability of handwriting analysis.11 Id. at 97-101 and 232-34.
The PCRA court rejected these claims without holding an evidentiary hearing.
Concerning Appellant’s Frye claim, the court correctly noted that, under Frye, “novel
scientific evidence is admissible if the methodology that underlies the evidence has
general acceptance in the relevant scientific community.” Grady v. Frito-Lay, Inc., 839
10
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
11
In support of these claims, Appellant submitted the report of Mark Denbeaux, a
purported expert on the limitations of forensic evidence.
[J-34-2017] - 15
A.2d 1038, 1043-44 (Pa. 2003); PCRA Court Memorandum, 1/8/2013, at 21. The court
concluded that this claim lacks arguable merit because handwriting comparison does
not constitute novel scientific evidence. In support of this conclusion, the court
highlighted that the Pennsylvania Rules of Evidence expressly allow for expert and lay
testimony in this area. 42 Pa.C.S. § 6111(a) and (b).12
As to Appellant’s claim that trial counsel was ineffective for failing to obtain an
expert, the PCRA court first summarized Jackson’s credentials. PCRA Court
Memorandum, 1/8/2013, at 22. The court then questioned how trial counsel could have
effectively cross-examined Jackson, as Appellant failed to put forth any evidence
suggesting that she was not a qualified expert in handwriting comparison. Id. at 22-23.
Moreover, the court, in effect, concluded that Appellant was not prejudiced by any
12
Section 6111 states, in relevant part, as follows:
(a) Opinion evidence as to handwriting.--Where there is a question as
to any writing, the opinions of the following persons shall be deemed to be
relevant:
(1) The opinion of any person acquainted with the handwriting of the
supposed writer.
(2) The opinion of those who have had special experience with, or
who have pursued special studies relating to, documents,
handwriting, and alterations thereof, who are called experts in this
section.
(b) Comparison of handwriting.--It shall be competent for experts in
giving their testimony, under the provisions of this section, to make
comparison of documents and comparison of disputed handwriting with
any documents or writing admitted to be genuine, or proven to the
satisfaction of the judge to be genuine, and the evidence of such experts
respecting the same shall be submitted to the jury as evidence of the
genuineness or otherwise of the writing in dispute.
42 Pa.C.S. § 6111.
[J-34-2017] - 16
alleged failure by counsel to obtain an expert to rebut Jackson’s testimony, as the
evidence of his guilt was overwhelming. Id. at 23.
In his brief to this Court, Appellant renews his claims of ineffective assistance of
counsel. Appellant’s Brief at 29-36. In terms of the PCRA court’s analysis, Appellant
offers a brief argument that the court erred by rejecting his claims. Id. at 36.
Concerning the court’s application of the rule of evidence found at 42 Pa.C.S. § 6111,
Appellant simply comments, “Regardless of Jackson’s years of training and experience,
the discipline in which she was trained and in which she practices lacks the hallmarks of
scientific reliability.” Id. Appellant then asserts that the PCRA court did not address his
claim that “trial counsel should have challenged the weight of Jackson’s testimony once
she was permitted to offer her conclusions to the jury.” Id. For its part, the
Commonwealth counters with a cursory argument, noting, inter alia, that a Frye hearing
was unnecessary given that the admissibility of expert testimony regarding handwriting
analysis is specifically provided for in Section 6111. Commonwealth’s Brief at 31-32.
Turning now to our disposition of these claims, we observe that, at Appellant’s
trial, there was a question regarding who authored the letter received by Agent Luikart.
In such circumstances, Subsection 6111(a)(2) deems relevant the opinions of experts,
like Jackson. 42 Pa.C.S. § 6111(a)(2). Moreover, Subsection 6111(b) expressly
regards as competent Jackson’s method of determining that Appellant authored the
letter, i.e., the comparison of disputed handwriting to known examples of the
handwriting to be scrutinized for its authorship. Id. at § 6111(b). In the face of this rule,
we can discern no error in the PCRA court’s conclusion that there is no merit to
Appellant’s claim that trial counsel should have requested a Frye hearing to examine
the admissibility of Jackson’s testimony.
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Moreover, Appellant has failed to establish that he was prejudiced by counsel’s
decision not to obtain an expert to aid in diminishing the weight of Jackson’s testimony.
At best, such an expert may have lessened the impact of Jackson’s scientific conclusion
that Appellant wrote the letter received by Agent Luikart. However, in light of the
testimony of Meddings and Agent Luikart regarding Appellant’s scheme to have Ramos
killed, Appellant has failed to meet the third prong of the ineffective-assistance-of-
counsel standard that, but for counsel’s failure to hire an expert to refute the reliability of
handwriting analysis, a reasonable probability exists that the outcome of Appellant’s trial
would have been different. For these reasons, we conclude that the PCRA court did not
err by rejecting these claims.
Issue IV: “Did the PCRA court err in denying Appellant’s claim that he was convicted
and sentenced to death on the basis of inaccurate and unreliable forensic testimony,
and that trial counsel was ineffective for failing to adequately investigate, develop, and
present expert forensic testimony and evidence?” Appellant’s Brief at 5.
During the course of Appellant’s trial, Wayne Ross, M.D., testified for the
Commonwealth. Trial Transcript at 86-122. Dr. Ross is the forensic pathologist who
performed autopsies on Jean, Victoria, and Elizabeth. Dr. Ross testified to a number of
topics, including the victims’ time of death and risks to which nine-month old Madison
was potentially exposed during the hours that she was unattended after the murders.
Id. at 98-101. Under direct examination, the doctor opined that the victims died
between 4:00 a.m. and 4:30 a.m. on December 24, 2002. Id. at 98-99. As to the
dangers to Madison, Dr. Ross testified, inter alia, that: Madison did not receive her
medication for an ear infection, which left untreated could spread to the brain and cause
meningitis and death; and Madison could have been injured or killed by falling down
steps or eating shampoo or the like. Id. at 100.
[J-34-2017] - 18
Relevant to Dr. Ross’ testimony, Appellant presented two distinct issues in his
PCRA petition. Appellant first contended that Dr. Ross’ testimony was unreliable and,
thus, that presentation and consideration of this evidence violated his right to due
process.13 Specifically, regarding Dr. Ross’ time-of-death testimony, Appellant asserted
that “it was improper as a matter of forensic pathology to render an opinion to such a
narrow window of time - here, only 30 minutes.” PCRA Petition, 1/12/2012, at 224.
Appellant further highlighted that, during his testimony, Dr. Ross confirmed that the
coroner’s report indicated that all three bodies were in full rigor mortis at the time they
were discovered. Appellant, however, maintained that the coroner’s report makes no
mention of post-mortem changes to the victims, thereby calling into question Dr. Ross’
time-of-death testimony. Id. at 225.
Discussing the same issue, Appellant also posited that Dr. Ross’ testimony about
risks to Madison was unreliable. Appellant stated that there was no evidence of record
demonstrating that Madison could crawl; yet, according to Appellant, much of Dr. Ross’
testimony was contingent on Madison being able to traverse some distance.
Additionally, Appellant took the position that Dr. Ross’ testimony that an ear infection
can result in death was pure speculation. Id. Under a separate and distinct issue,
Appellant claimed that trial counsel was ineffective for failing to obtain an expert to
challenge Dr. Ross’ testimony. Id. at 226-32.
The PCRA court dismissed the due process claim without holding an evidentiary
hearing. The court found that the claim was not cognizable under the PCRA, essentially
because, on direct appeal, this Court held that the evidence admitted of record was
sufficient to support Appellant’s convictions and the aggravating circumstances found by
13
In support of this claim, Appellant submitted the reports of Jonathan Arden, M.D., and
Richard Callery, M.D.
[J-34-2017] - 19
the jury. PCRA Court Memorandum, 1/8/2013, at 54. The court, however, determined
that a hearing was necessary to dispose of Appellant’s separate claim of ineffective
assistance of counsel. Id. at 55. That hearing occurred on September 6, 2013, and trial
counsel was the only witness to testify. The PCRA court ultimately dismissed the claim,
reasoning that counsel thoroughly and effectively cross-examined Dr. Ross, thus
negating any need to rebut his testimony with expert testimony. PCRA Court
Memorandum, 3/31/2014, at 12-14.
In his brief to this Court, Appellant seems to have combined into one issue his
due process and ineffective-assistance-of-counsel claims. Appellant’s Brief at 36-42.
He offers a misguided argument that the PCRA court erred by rejecting his claims. Id.
at 42. Appellant initially notes that the PCRA court found his due process claim to have
been previously litigated. However, Appellant next incorrectly asserts that the PCRA
court dismissed his ineffective assistance of counsel claim on the basis that that the
claim was cumulative of other issues that Appellant presented in his PCRA petition. Id.
(citing to the PCRA court’s January 8, 2013, memorandum). In his only assertion of
PCRA court error, Appellant contends that his “claim of ineffective assistance is neither
waived nor previously litigated” and that, therefore, this Court should grant relief.14 Id.
Contrary to Appellant’s summary, the PCRA court did not dismiss his ineffective-
assistance-of-counsel claim regarding Dr. Ross’ testimony in its January 8th
memorandum. Instead, in that memorandum, the court granted Appellant an
evidentiary hearing on the issue.15 PCRA Court Memorandum, 1/8/2013, at 55.
14
In response to Appellant, the Commonwealth offers an argument that effectively
mirrors the reasoning employed by the PCRA court in rejecting Appellant’s claims.
Commonwealth’s Brief at 32-33.
15
In its January 8th memorandum, the PCRA court did comment that Appellant’s
ineffective-assistance-of-counsel claim appeared to be an attempt to “demonstrate a
cumulative effect in creating prejudice against [Appellant] during the guilt phase at trial.”
(continued…)
[J-34-2017] - 20
Moreover, the PCRA court did not find that Appellant waived or previously litigated this
claim of ineffective assistance of counsel. Rather, as detailed above, the PCRA court
found that Appellant previously litigated his distinct due process claim regarding Dr.
Ross’ testimony. Id. at 54.
As to Appellant’s claim that counsel rendered ineffective assistance, the court
ultimately found the claim meritless in its March 31, 2014, memorandum, opining that
trial counsel effectively cross-examined Dr. Ross and, thus, negated any need to rebut
his testimony with expert testimony. PCRA Court Memorandum, 3/31/2014, at 12-14.
Because Appellant does not assign any error to the manner in which the PCRA court
actually disposed of his claims, he has failed to meet his burden of proving that the
PCRA court erred. See Brown, supra (“It is an appellant’s burden to persuade [an
appellate court] that the PCRA court erred and that relief is due.”); see also Com. ex rel.
Robinson by Robinson v. Robinson, 478 A.2d 800, 804 (Pa. 1984) (explaining that “the
burden is on the appellant, and not the appellate court, to demonstrate that the trial
court’s decree is, under the evidence, manifestly erroneous or based on an error of
law”). Accordingly, this issue warrants no relief.
Issue V: “Did the PCRA court err in denying Appellant’s claim that the trial court’s
refusal to suppress statements elicited outside the presence of counsel violated his
constitutional rights, and trial counsel was ineffective for failing to properly litigate the
issue?” Appellant’s Brief at 5.
(…continued)
PCRA Court Memorandum, 1/8/2013, at 55. The court further commented that this
Court has held that “no number of failed claims may collectively attain merit if they could
not do so individually.” Id. (quoting Commonwealth v. Ly, 980 A.2d 61, 97 (Pa. 2009)).
Yet, the court clearly granted Appellant an evidentiary hearing on the issue. Id.(“However, the Commonwealth has conceded to hold a hearing on this issue and we
therefore withhold disposition of this issue until a hearing is held.”).
[J-34-2017] - 21
Prior to his trial, Appellant filed a motion to suppress statements that he made to
James Meddings while they were both in prison. Appellant characterized Meddings as
an inmate acting as a state agent and claimed that his constitutional rights were violated
when he spoke with Meddings because, prior to their conversations, Appellant was not
given notice or the opportunity to invoke his rights to counsel and to remain silent. The
trial court denied the suppression motion, and in his direct appeal nunc pro tunc,
Appellant challenged the trial court’s ruling.
This Court determined that Appellant’s claim failed, holding that it was
permissible for Meddings to question Appellant about soliciting Ramos’ murder, as
Appellant’s right to counsel had not yet attached with respect to that specific charge.
Wholaver, 989 A.2d at 896-97. We further held that the trial court properly determined
that Meddings was not a Commonwealth agent when he spoke to Appellant. Id. at 897
(quoting Trial Court Opinion, 4/21/2004, at 12).
In his PCRA petition, Appellant reiterated his claim that his right to counsel was
violated when he spoke to Meddings in prison because: (1) his right to counsel had
attached when he made statements to Meddings (PCRA Petition, 1/12/2012, at 57-61);
(2) Meddings was acting as a government agent when he spoke with Appellant (id. at
61-62); and (3) Meddings deliberately elicited incriminating information from Appellant
(id. at 62-64). For these reasons, Appellant claimed that the trial court erred by denying
his motion to suppress. Id. at 64. In connection to this assertion of trial court error,
Appellant presented fairly generic claims of ineffective assistance of trial and appellate
counsel. Id. at 65-68.
Appellant further developed his claim of ineffective assistance of trial counsel in
his supplemental and amended PCRA petition by highlighting that, at the suppression
hearing, Meddings testified that he began cooperating with law enforcement on March
[J-34-2017] - 22
27, 2003. Supplemental and Amended PCRA Petition, 4/27/2012, at 9. Appellant
contended that motions Meddings filed in his federal criminal case proved this testimony
to be false, as the motions allegedly establish that Meddings had been cooperating with
local and federal authorities since his arraignment in federal court, which occurred on
December 30, 2002.16 Id. Appellant further stated that several witnesses were
available at the time of the suppression hearing to testify that Meddings, in fact, was a
government agent when he spoke with Appellant in prison.17 See id. at 10 (stating that
witnesses “indicate that [M]eddings was a government agent”). In addition, Appellant
contended that, in March of 2012, Meddings admitted to his investigator that he had
obtained information from Appellant at the direction of the Commonwealth. Id. at 11-12.
Appellant claimed in his amended and supplemental PCRA petition that the
Commonwealth violated Brady by failing to disclose the full extent of Meddings’
cooperation with law enforcement and by failing to correct Meddings’ allegedly false
testimony. Id. at 12-15. He further claimed that trial counsel was ineffective for failing
to review the filings in Meddings’ federal case and for failing to interview the
aforementioned inmates who were incarcerated with Appellant and Meddings. Id. at 15-
16. Appellant suggested that, had counsel taken these steps, Meddings’ testimony
16
Appellant mistakenly states in his PCRA petition that Meddings was arraigned in
December of 2003. Supplemental and Amended PCRA Petition, 4/27/2012, at 9.
17
In support of this statement, Appellant offered declarations from Andre West and
John Tharrett, both of whom spent time in prison with Appellant and Meddings.
Contrary to Appellant’s assertions, however, West and Tharrett did not state in their
declarations that Meddings was a government agent. Instead, West essentially
explained that Meddings successfully manipulated Appellant to acquire a reduced
sentence. Appendix to PCRA Petition, 1/12/2012, Tab 17, at ¶6. Tharrett merely
declared that Meddings kept tabs on Appellant, pried him for information, and got upset
if other inmates spoke to Appellant. Id., Tab 25, at ¶4.
[J-34-2017] - 23
would have been excluded, which in turn would have created a reasonable likelihood
that the jury would have returned a different verdict. Id. at 16.
The PCRA court denied these claims without holding an evidentiary hearing.
The court concluded that the underlying suppression claim had been previously litigated
on direct appeal, thus rendering his claims of trial court error and trial counsel
ineffectiveness not cognizable under the PCRA. PCRA Court Memorandum, 1/8/2013,
at 16. The court also determined that appellate counsel did not render ineffective
assistance.18 Id. at 17.
In his brief to this Court, Appellant reasserts the claims that he made in the
PCRA court, save for his claim that appellate counsel rendered ineffective assistance.
Appellant’s Brief at 43-52. Relevant to trial counsel, Appellant contends that counsel
was ineffective for improperly litigating his motion to suppress statements Appellant
made to Meddings by failing to review Meddings’ publicly available federal court filings
and by failing to contact inmates who observed Meddings’ coercive behavior toward
Appellant in prison.19 Appellant’s Brief at 49. In terms of any error committed by the
18
The PCRA court did not address Appellant’s Brady claim. Although Appellant renews
his Brady claim in his brief to this Court (Appellant’s Brief at 51-52), he assigns no error
to the PCRA court with respect to this claim (Appellant’s Brief at 52-53).
19
Appellant also maintains that trial counsel inappropriately limited “his admissibility
challenge to statements relating to the murder solicitation, as opposed to challenging all
of the many incriminating statements made by Appellant to Meddings.” Appellant’s Brief
at 49. In violation of Pa.R.A.P. 2119(c), Appellant fails to provide a citation to the
record as to where counsel allegedly limited his suppression request to statements
Appellant made to Meddings concerning only the solicitation of Ramos’ murder.
Moreover, a review of Appellant’s brief in support of his motion to suppress reveals that
counsel sought an order suppressing all of the statements Appellant made to all of the
inmates purportedly acting as government agents, including Meddings. See
Defendant’s Brief with Respect to Pre-Trial Motions, 1/23/2004, at 12 (“Accordingly, all
statements made to Commonwealth actors or government actors by Ernest Wholaver
after December 20, 2002 should be suppressed.”).
[J-34-2017] - 24
PCRA court, Appellant simply asserts that this Court should grant relief because his
claim of ineffective assistance of trial counsel had not been previously litigated and was
ripe for review in the PCRA proceedings.20 Id.at 52-53 (citing to Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002)).
Initially, we agree with Appellant that, while he previously litigated the underlying
suppression issue, he did not previously litigate his wholly distinct legal claim of
ineffective assistance of counsel. See Cox, supra. We, however, disagree with his
bald assertion that this oversight by the PCRA court entitles him to relief. See Tedford,
supra.
As noted above, Appellant now believes that trial counsel should have
interviewed jailhouse witnesses West and Tharett and, apparently, that counsel should
have called them to testify at his suppression hearing. Yet, their declarations reveal that
they would not have testified that Meddings was a government agent. Rather, their
testimony would have suggested that Meddings manipulated Appellant to get
information to help Meddings’ cause. See, supra, at 23 n.17. Such testimony adds little
to Meddings’ suppression testimony, where he described the manner in which he
worked with the Commonwealth concerning Appellant’s case. N.T., 12/2/2003, at 38-
51.
Moreover, at best, had trial counsel discovered the motions that Meddings filed in
federal court (which suggest that Meddings began cooperating with the Commonwealth
after his arraignment on December 30, 2002), counsel could have utilized those motions
to impeach Meddings’ suppression testimony that he began cooperating with the
Commonwealth in March of 2003. Appellant simply fails to sustain his burden to prove
20
Relevant to this assertion of PCRA court error, the Commonwealth contends that
Appellant previously litigated his suppression claim and that previous counsel fully and
effectively litigated the suppression issue. Commonwealth’s Brief at 34.
[J-34-2017] - 25
that, but for counsel’s alleged failures in this regard, the outcome of the proceeding
would have been different. Accordingly, this issue warrants no relief.
Issue VI: “Did the PCRA court err in denying Appellant’s claim that the Commonwealth
violated his constitutional rights by failing to disclose exculpatory evidence relating to
three central prosecution witnesses and failing to correct these witnesses’ false
testimony, and that counsel was constitutionally ineffective for failing to preserve and
adequately litigate this issue?” Appellant’s Brief at 5.
As noted above, during Appellant’s trial, the Commonwealth presented testimony
from Robert Marley, James Meddings, and Steve Stephens, all of whom spent time in
prison with Appellant after his arrest in late 2002. As will be discussed in more detail
below, Appellant contends, inter alia, that the Commonwealth violated Brady by failing
to disclose impeachment evidence concerning these witnesses, such as information
regarding their criminal histories. We will begin our analysis by providing a summary of
pertinent portions of these witnesses’ trial testimony.
1. Trial Testimony
a. Marley
Marley, who was Appellant’s cellmate in January of 2003, first spoke to police
regarding Appellant in February of 2003. Appellant’s trial took place in late August of
2004. On direct examination, Marley testified that he currently was under parole
supervision for county sentences in both Dauphin and Cumberland counties. Trial
Transcript at 592. Concerning his Dauphin County supervision, Marley stated that he
had been charged with seven counts of theft by deception but that he ultimately plead
guilty to only one count of that charge, for which he received a sentence of six months
of probation on September 11, 2003. Id. at 593. Marley’s testimony also revealed that
he previously had been convicted of tampering with records, forgery, and passing bad
checks. Id.
[J-34-2017] - 26
Marley further testified about his Cumberland County supervision. He stated
that, in 2003, he received only an 11.5 to 23-month sentence on multiple charges,
including tampering with the evidence, though he faced a maximum sentence of 49
years in prison for those charges. Id. at 593-94. Marley maintained that no government
official threatened him or made him any promises in exchange for him giving the police
statements about Appellant. Id. at 603-04.
On cross-examination, Marley explained that he would be on parole until 2006,
as long as he followed his supervision orders, which he had difficulty accomplishing in
the past. Id. at 607. Marley also admitted to being a heroin addict and to committing
crimes to support his addiction, including forgery in 1999. Id. at 608-11. Due to
supervision revocations and new arrests, Marley faced resentencing for his forgery
conviction in November of 2003, and he asked the prosecutor in Appellant’s case,
Attorney Chardo, to help him get out of jail. Id. at 612-13. Marley acknowledged that:
his attorney filed a petition for release from incarceration, wherein Attorney Chardo
stated that he did not oppose Marley’s release; and Marley, in fact, was released from
prison on November 26, 2003. Id. at 613. Marley also testified that Attorney Chardo
spoke on his behalf at his December 10, 2003, parole violation hearing and that,
following that hearing, he was released from parole and his case was closed. Id. at
613-14. Marley specifically admitted that Attorney Chardo got him out of jail and
released from parole. Id. at 614.
After further questioning Marley about the full extent of Attorney Chardo’s
assistance in his various criminal cases, id. at 614-20, Appellant’s counsel asked Marley
about his cooperation with the Pennsylvania Attorney General’s Office. Marley testified
that, after he was arrested by Agent Diller of the Attorney General’s Office on December
13, 2002, he began cooperating with the Attorney General in April of 2003. Id. at 620-
[J-34-2017] - 27
22. Marley acknowledged that: he knew that he could get himself a good deal by giving
information to police; and, as a result of his cooperation with authorities, he was re-
paroled in one of his cases, the case was closed, and his sentence was reduced from
20 years of incarceration to six months of probation. Id. at 622. Marley also admitted to
sending a letter to Attorney Chardo in June of 2003, wherein he stated, inter alia, that
he had information about Appellant and requested help with his criminal charges and
with remaining incarcerated in Cumberland County Prison, rather than being transferred
back to Dauphin County Prison. Id. at 623-25.
b. Stephens
Stephens, who was housed in Appellant’s prison block from June 3rd through
June 20th of 2003, also testified as a trial witness for the Commonwealth. On direct
examination, he stated that he currently was on probation in Dauphin County and that
he would remain on probation until June of 2005. Id. at 542-43. On cross-examination,
Stephens explained that he had a pending criminal charge in Dauphin County when he
was in prison with Appellant. Id. at 549-50. Stephens admitted that: he first spoke to
police concerning Appellant on June 20, 2003; his Dauphin County charge was resolved
on June 23, 2003; and he was released from Dauphin County Prison on June 23 rd. Id.
at 549-52. Shortly thereafter, Stephens returned to jail in Cumberland County on a
parole violation and new charge. While in Cumberland County Prison, Stephens sent a
letter to Attorney Chardo on November 4, 2003, reminding Attorney Chardo that he
knew details regarding the murders and asking for assistance in exchange for the
information. Id. at 553-56. Stephens eventually testified that Attorney Chardo informed
him that he would “put in a good word” for Stephens to the Dauphin County Probation
Office. Id. at 583.
c. Meddings
[J-34-2017] - 28
Meddings and Appellant also spent time together in the same cell block in
Dauphin County Prison, and as noted above, Meddings testified for the Commonwealth
at Appellant’s trial. On direct examination, Meddings explained that he was arrested by
federal authorities in December of 2002 and was incarcerated at Dauphin County
Prison. Id. at 657-58. While he faced the possibility of two 20-year sentences,
Meddings received only a seven-year sentence, which he was serving in a federal
prison camp.21 Id. Meddings testified at length regarding his cooperation with
government authorities in Appellant’s murder investigation. Id. at 665-74.
Appellant’s counsel further questioned Meddings about his federal charges and
confirmed that he could have received up to 40 years in prison on those charges. Id. at
674-75. Meddings acknowledged that he was aware of Federal Regulation 5-k-1, which
apparently allows for lesser sentences if a defendant cooperates with law enforcement,
and admitted that he benefitted from this program by cooperating with authorities in
Appellant’s case. Id. at 676-77. Meddings also acknowledged that his sentence could
be further reduced if he continued to participate in Appellant’s prosecution; he
specifically admitted that he may receive an additional sentence reduction depending on
Attorney Chardo’s opinion of his trial testimony in Appellant’s case. Id. at 678-80.
2. PCRA Proceedings
In his PCRA petition, Appellant acknowledged, to some extent, that: trial counsel
utilized the aforementioned impeachment evidence at trial to elicit testimony from all
three of these witnesses; the evidence and testimony demonstrated that the witnesses
were convicted criminals cooperating with government officials in this case; and their
cooperation led to beneficial treatment, which called their credibility into question.
21
During cross-examination, Meddings testified that he was sentenced in February of
2004. Trial Transcript at 679.
[J-34-2017] - 29
Appellant nonetheless contended that the Commonwealth violated Brady by failing to
disclose to the defense similar (and, in some instances, seemingly overlapping)
impeachment evidence concerning these witnesses. PCRA Petition, 1/12/2012, at 103-
14.
For instance, Appellant recognized that, “[a]t trial, it was revealed on cross-
examination that Marley cooperated with the Pennsylvania Attorney General’s Office in
April of 2003 in exchange for leniency in his own case.” Id. at 106. Appellant, however,
contended that the Commonwealth violated Brady by failing to disclose that Marley also
cooperated with the Commonwealth in a 1992 drug case. Id. (citing Commonwealth v.
Marley, No. 215 CA 1992 (York County)).
Regarding an alleged Brady violation involving Stephens, despite acknowledging
all of the evidence and testimony detailed above and the fact that Stephens stated at
trial that Attorney Chardo never promised him anything (see, e.g., Trial Transcript at
553), Appellant surmised that the circumstances strongly suggest that Attorney Chardo,
in fact, promised Stephens leniency in exchange for his cooperation and that the
Commonwealth violated Brady by failing to disclose this alleged deal. PCRA Petition,
1/12/2012, at 114.
As an example of an alleged Brady violation relating to Meddings, Appellant
recognized that Meddings testified at trial that his cooperation in Appellant’s case led to
a reduction in his sentence in his federal case, but he argued that the Commonwealth
violated Brady by failing to inform Appellant that Meddings’ federal sentence was further
reduced due to his cooperation with the Federal Bureau of Investigation concerning
drug trafficking in West Virginia. Id. at 110-11.
In the alternative, Appellant argued that, if trial counsel was aware of all of the
allegedly undisclosed Brady material or failed to obtain and use it to impeach these
[J-34-2017] - 30
witnesses, then counsel rendered ineffective assistance. Id. at 121-24. On September
4th and 5th of 2014, the PCRA court held a hearing to address, inter alia, these Brady
and ineffective-assistance-of-counsel claims. Among others, Marley, Meddings,
Stephens, and Attorney Chardo testified at the hearing. Thereafter, the PCRA court
rejected Appellant’s claims in its September 22, 2015, memorandum. PCRA Court
Memorandum, 9/22/2015, at 9-21.
According to the court, the Commonwealth conceded that it inadvertently did not
disclose to Appellant that Marley had been convicted of a summary retail theft. Id. at
11-12. The PCRA court deemed that error harmless, reasoning that any prejudice
Appellant may have suffered as a result of that error was de minimus. Id. at 12. As to
the remainder of Appellant’s Brady claims involving Marley, relying primarily on Attorney
Chardo’s hearing testimony and related exhibits, the court concluded that the
Commonwealth did not violate Brady, as claimed by Appellant. Id. at 12-16. In the
process of reaching this conclusion, the court also found meritless Appellant’s claims of
ineffective assistance of counsel. Id.
The court similarly determined that the Commonwealth met its Brady obligations
with regard to Stephens and Meddings and that trial counsel did not render ineffective
assistance in his questioning of these witnesses, essentially because counsel employed
a reasonable strategy by thoroughly and successfully cross-examining the witnesses at
trial. Id. at 16-21.
3. Arguments to this Court
In his brief to this Court regarding these contentions, Appellant reiterates his
various Brady and ineffective-assistance-of-counsel claims, and he makes a variety of
allegations of error regarding the manner in which the PCRA court disposed of these
issues. Appellant’s Brief at 53-67. Appellant contends, inter alia, that the PCRA court
[J-34-2017] - 31
erred by: addressing his claims in isolation rather than considering the cumulative
impact of all of the allegedly undisclosed evidence; making a number of unsupported
findings of fact; and failing to address several of his assertions. Id. at 64-67. For its
part, the Commonwealth offers an argument that essentially mirrors the rationale
employed by the PCRA court in rejecting Appellant’s claims. Commonwealth Brief at
36-41.
4. Discussion
Before discussing the merits of these claims, we pause to address, again, the
troubling manner in which Appellant presents issues and arguments throughout his brief
to this Court. By way of example, in an attempt to bolster his Brady claims, Appellant
states that, in exchange for Meddings’ cooperation in Appellant’s case, “Meddings was
assured that his mother and girlfriend would not be charged” in connection to his federal
drug case. Appellant’s Brief at 58 (citing N.T., 9/5/2014, at 169-71). Appellant then
baldly asserts that this “promise was honored, yet never disclosed to trial counsel.” Id.
What is most disconcerting regarding this averment is that Appellant
misrepresents the record. In support of his statement regarding the alleged deal
between Meddings and presumably someone from law enforcement, Appellant cites to
a portion of Meddings’ testimony at the September 5, 2014, PCRA hearing. Appellant’s
Brief at 58 (citing N.T., 9/5/2014, at 169-71). A review of that portion of the transcript,
however, reveals that at no point was Meddings asked, nor did he ever testify, about a
deal regarding his cooperation in Appellant’s case in exchange for his fiancée and
mother avoiding criminal charges. This is but one example of how the advocacy in
Appellant’s brief has hampered this Court’s review of his myriad issues on appeal.
Despite these deficiencies, we dispose of Appellant’s Brady and ineffective-assistance-
of-counsel claims as follows.
[J-34-2017] - 32
The crux of the Brady rule is that due process is offended when the prosecution
withholds material evidence favorable to the accused. Commonwealth v. Weiss, 81
A.3d 767, 783 (Pa. 2013). The Brady rule extends to impeachment evidence including
any potential understanding between the prosecution and a witness, because such
information is relevant to the witness’ credibility. Id. To establish his alleged Brady
violations, Appellant had to prove that the Commonwealth willfully or inadvertently
suppressed impeachment evidence and that prejudice ensued. Id.Regarding the prejudice prong of this standard, “favorable evidence is material,
and constitutional error results from its suppression by the government, if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Id. (citations omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at
783-84 (citation omitted). “In determining if a reasonable probability of a different
outcome has been demonstrated, ‘[t]he question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.’” Id. at 784 (citations omitted). “The mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish materiality in the constitutional sense.” Id.
(citation omitted). Moreover, as explained above, for purposes of his claims of
ineffective assistance of counsel, Appellant was required to demonstrate, inter alia, that
he suffered prejudice as a result of counsel’s deficient performance, “that is, a
reasonable probability that but for counsel’s act or omission, the outcome of the
proceeding would have been different.” Cooper, 941 A.2d at 664.
[J-34-2017] - 33
Assuming arguendo that the Commonwealth failed to disclose the
aforementioned impeachment evidence, there is perhaps some possibility that the
evidence would have been favorable to Appellant’s case. However, Appellant has failed
to meet his burden of demonstrating the necessary level of prejudice to establish an
overarching Brady violation. As suggested above, through discovery, trial counsel was
able to gather evidence which revealed that Marley, Stephens, and Meddings were
convicted criminals with ongoing legal issues who had incentives to provide information
to the Commonwealth, and that the witnesses could and, to some extent, did benefit
from cooperating with the Commonwealth in this case.
The record indicates that counsel utilized this evidence to challenge forcefully
these witnesses’ credibility. Indeed, counsel seized upon the impeachment evidence
and the witnesses’ trial testimony during his guilt-phase closing arguments, where he
attacked the jailhouse witnesses’ credibility and characterized them as criminals eager
to assist the Commonwealth for their personal benefit. Trial Transcript at 1034-40; id. at
1046-49. Given the breadth of the impeachment evidence disclosed, discovered and
used effectively, anything unknown to the defense can be characterized as de minimus
and would have been cumulative. There is no reasonable potentiality that another
example or two of these witnesses’ rewards for their cooperation would have changed
the jurors’ view of their credibility. For these reasons, we are unpersuaded that, in the
absence of any further impeachment evidence regarding these witnesses, Appellant did
not receive a fair trial. In other words, Appellant has failed to demonstrate that, in the
absence of this evidence, the jury’s verdicts are unworthy of confidence.
Concomitantly, to the extent that trial counsel knew of or should have discovered
any of this alleged Brady material and failed to utilize it to Appellant’s satisfaction, we
discern no prejudice to Appellant, as that term is understood within the ineffective-
[J-34-2017] - 34
assistance-of-counsel standard, for all of the same reasons explored in our rejection of
Appellant’s due process/Brady contentions. Because counsel thoroughly attacked
these witnesses’ credibility as described above, we are unconvinced that, but for any
failure by counsel to undermine further these witnesses’ credibility, there is a
reasonable probability that the outcome of Appellant’s trial would have been different.
This issue, therefore, warrants no relief.
Issue VII: “Did the PCRA court err in denying Appellant’s claim that the prosecutor
engaged in repeated acts of misconduct pretrial and at trial in violation of his
constitutional rights, [and] that prior counsel were ineffective for failing to preserve and
adequately litigate this issue?” Appellant’s Brief at 5.
In his PCRA petition and brief to this Court, Appellant alleges that, pre-trial and
during trial, the prosecutor committed a litany of acts which qualify as misconduct.
PCRA Petition, 1/12/2012, at 234-37; Appellant’s Brief at 67-70. Several of these
claims of misconduct are re-stylized issues that Appellant raised elsewhere in his
petition and appellate brief. For instance, under Appellant’s “Issue VI,” we rejected his
argument that the Commonwealth violated Brady by failing to disclose that the
prosecutor allegedly made deals with jailhouse witnesses who testified at Appellant’s
trial. Supra at 26-35. In argument on the present issue, Appellant baldly asserts that
this failure-to-disclose constitutes prosecutorial misconduct. PCRA Petition, 1/12/2012,
at 234-35; Appellant’s Brief at 68. Appellant also recasts the previously discussed
claims regarding the expert trial testimony of Kersten Jackson (handwriting analysis
expert) and Dr. Ross (pathologist), see supra at 14-21, by now suggesting that the
prosecutor committed misconduct by presenting these witnesses’ allegedly unreliable
forensic testimony. PCRA Petition, 1/12/2012, at 235; Appellant’s Brief at 68-69.
Appellant then bolsters his claims of prosecutorial misconduct by averring that,
during closing arguments, the prosecutor “argued well beyond the bounds of the
[J-34-2017] - 35
evidence, misstated the law and improperly vouched for the credibility of
Commonwealth witnesses.” PCRA Petition, 1/12/2012, at 235; Appellant’s Brief at 69.
Lastly, Appellant, in cursory fashion, takes the position that trial and appellate counsel
rendered ineffective assistance by failing to raise or litigate properly these claims of
prosecutorial misconduct. PCRA Petition, 1/12/2012, at 237-39; Appellant’s Brief at 70-
71. In response, the Commonwealth argues, in part, that several of Appellant’s claims
of prosecutorial misconduct are waived because he failed to develop them properly. 22
Commonwealth’s Brief at 41-42.
Appellant is not entitled to relief on these claims. The Rules of Appellate
Procedure require appellants to support their arguments with pertinent discussion and
citation to authority. Pa.R.A.P. 2119(a). Contrary to this rule, Appellant’s arguments
are undeveloped and are supported, in significant part, by references to arguments
made elsewhere in his brief. See, e.g., Appellant’s Brief at 68 (“As argued above in
Claim VI, the Commonwealth made secret deals with at least three jailhouse
cooperators to gain their testimony against Appellant.”). Regarding citation to pertinent
authority, Appellant’s brief makes passing mention of only one proposition of law,
namely, that courts “must consider the ‘cumulative effect’ of each instance of
misconduct on Appellant’s trial.”23 Appellant’s Brief at 68. While this principle may be
true, it fails to lend legal support to any of the individual instances of misconduct alleged
22
The PCRA court rejected Appellant’s claims of prosecutorial misconduct without
holding an evidentiary hearing. PCRA Court Memorandum, 1/8/2013, at 55-58. Given
the manner in which we dispose of this issue, we need not summarize the court’s
reasons for rejecting the claims.
23
In support of this proposition of law, Appellant provides an erroneous citation, as
follows: “Commonwealth v. Anderson, 38 A.3d 828, 839 (Pa. 2011).” Appellant, thus,
represents that Anderson is an opinion from this Court, when in fact the opinion in
Anderson is the product of the Superior Court.
[J-34-2017] - 36
by Appellant, none of which are facially meritorious. Aggregating these undeveloped
claims does not transform them into claims worthy of this Court’s intervention. Having
failed to offer a developed argument for any specific instance of prosecutorial
misconduct and having failed to raise a persuasive contention of cumulative prejudice,
Appellant’s arguments fail. This issue, therefore, warrants no further consideration.
Issue VIII: “Did the PCRA court err in denying Appellant’s claim that the trial court
improperly struck a potential juror for cause, and that appellate counsel was ineffective
for failing to raise and litigate this issue on direct appeal?” Appellant’s Brief at 5-6.
Richard Badesso was a potential juror for Appellant’s trial. When questioned by
the prosecutor during voir dire, Badesso indicated that he had a moral, religious, and
ethical belief that would prevent him from considering the death penalty. N.T., 6/2/2004,
at 149. The prosecutor asked Badesso, “Is your opposition to the death penalty such
that you would feel morally compelled, in spite of the law, to vote against the death
penalty regardless of the facts of the case?” Id. Badesso responded, “It would be
difficult for me morally to do that, yes.” Id. He further expressed that his moral beliefs
would substantially impair his ability to discharge his duty as a juror if the law called for
the imposition of the death penalty. Id. at 150-51. Accordingly, the prosecutor moved
to excuse Badesso for cause. Id. at 151.
When questioned by Appellant’s counsel, Badesso explained that he thought he
would be able to follow directions and guidelines but that it would be difficult for him to
impose the death penalty. Id. Badesso became confused when trial counsel explained
how Badesso would be required to discharge his duties, but after additional explanation,
Badesso stated that he could probably impose the death penalty in a case like the
Oklahoma City bombing. Id. at 151-53. When trial counsel asked Badesso whether he
would have to make his decision based upon the specific case and evidence, he
[J-34-2017] - 37
responded, “Yes.” Id. at 153. Trial counsel, therefore, opposed the challenge for
cause; however, the trial court ultimately granted the Commonwealth’s motion and
excused Badesso. Id. at 153-54. Appellant did not challenge this determination on
direct appeal.
In his PCRA petition, Appellant claimed that appellate counsel was ineffective for
failing to argue on direct appeal that the trial court erred by excusing Badesso for cause.
PCRA Petition, 1/12/2012, at 124-34. In terms of the arguable merit prong of his claim,
Appellant primarily relied upon Witherspoon v. Illinois, 391 U.S. 510, 522 (1968),
wherein the United States Supreme Court held that “a sentence of death cannot be
carried out if the jury that imposed or recommended it was chosen by excluding
veniremen for cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against its infliction.” Appellant
posited that Badesso’s answers to trial counsel’s questions revealed that he could set
aside his personal beliefs regarding the death penalty and follow the law as instructed.
PCRA Petition, 1/12/2012, at 130-31. Thus, in Appellant’s view, the trial court
improperly excluded Badesso from the jury as he simply voiced personal objections to
the death penalty. Id. at 132.
The PCRA court disposed of this issue without holding an evidentiary hearing. In
so doing, the court observed that this Court has consistently held that it is not
unconstitutional to exclude potential jurors who are morally opposed to the death
penalty. PCRA Court Memorandum, 1/8/2013, at 29-30 (citing, inter alia,
Commonwealth v. Hudson, 314 A.2d 231 (Pa. 1974)). Moreover, according to the
PCRA court, the United States Supreme Court has abandoned the Witherspoon
standard in favor of the view that “a juror may not be challenged for cause based on his
views about capital punishment unless those views would prevent or substantially
[J-34-2017] - 38
impair the performance of his duties as a juror in accordance with his instructions and
his oath.” PCRA Court Memorandum, 1/8/2013, at 30 (quoting Adams v. Texas, 448
U.S. 38, 45 (1980)) (emphasis added by the PCRA court). The PCRA court opined that
the trial court properly struck Badesso for cause because he stated that his beliefs
regarding the death penalty would substantially impair his ability to impose the death
penalty, even if the law called for such a sentence. Id.In his brief to this Court, Appellant renews his claim that appellate counsel was
ineffective for failing to argue on direct appeal that the trial court erred by excusing
Badesso for cause. Appellant’s Brief at 72-74. In terms of the PCRA court’s rationale
for rejecting this claim, Appellant submits that the “court misinterpreted the law and
insufficiently examined the relevant facts.” Id. at 74. As to the law, Appellant contends
that the PCRA court improperly relied upon cases from this Court, such as Hudson.
According to Appellant, those cases are irrelevant to this matter because the juries in
those cases imposed sentences of life in prison, not death. Id. Regarding the facts,
Appellant insists that the PCRA court ignored that, when questioned by trial counsel,
Badesso expressed that he would be able to act in accordance with the law and his
oath. Id. at 74-75. The Commonwealth, on the other hand, takes the position that
Badesso stated that he believed his ability to discharge his duty as a juror would be
substantially impaired if the law called for the death penalty; accordingly, in the
Commonwealth’s view, the trial court properly excused him for cause. Commonwealth’s
Brief at 44.
As this Court recently explained, the United States Supreme Court has “clarified
that an individual may be excused for cause whenever his views on capital punishment
‘would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” Commonwealth v. Baumhammers, 92
[J-34-2017] - 39
A.3d 708, 740 (Pa. 2014) (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)). This
Court has elaborated that a “juror’s bias need not be proven with unmistakable clarity.”
Baumhammers, 92 A.3d at 741 (quoting Commonwealth v. Morales, 701 A.2d 516, 525
(Pa. 1997)). Importantly, “the decision whether to disqualify a juror for cause lies within
the sound discretion of the trial court and error will not be found absent an abuse of
discretion.”24 Baumhammers, 92 A.3d at 740.
Badesso’s responses during voir dire demonstrate that his moral beliefs would
substantially impair his ability to discharge his duty as a juror if the law called for the
imposition of the death penalty. N.T., 6/2/2004, at 149. This undeniably meets the Witt
standard for disqualification of a juror in a capital case. To the extent that Badesso’s
responses were equivocal, we are satisfied that the trial court appropriately exercised its
discretion by resolving any credibility issues and by granting the Commonwealth’s
24
This Court noted the following in Baumhammers:
In Witt, the Supreme Court clarified that the governing standard, whether
the juror’s views would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath:
does not require that a juror’s bias be proved with unmistakable
clarity. This is because determinations of juror bias cannot be
reduced to question-and-answer sessions which obtain results in the
manner of a catechism. What common sense should have realized
experience has proved: many veniremen simply cannot be asked
enough questions to reach the point where their bias has been made
unmistakably clear; these veniremen may not know how they will
react when faced with imposing the death sentence, or may be
unable to articulate, or may wish to hide their true feelings. Despite
this lack of clarity in the printed record, however, there will be
situations where the trial judge is left with the definite impression that
a prospective juror would be unable to faithfully and impartially apply
the law. [T]his is why deference must be paid to the trial judge who
sees and hears the juror.
Baumhammers, 92 A.3d at 741 n.24 (quoting Witt, 469 U.S. at 424-25).
[J-34-2017] - 40
motion to excuse Badesso for cause. See Baumhammers, 92 A.3d at 742 (explaining
that venirepersons’ “equivocal answers and serious apprehensions about imposing the
death penalty . . . are adequate . . . to support a conclusion by the trial court that the
Witt standard was satisfied - particularly in light of the deference accorded to the
common pleas court in these types of decisions”); Commonwealth v. Gibson, 951 A.2d
1110, 1129–30 (Pa. 2008) (agreeing with the Commonwealth’s position that, when a
trial court is called upon to determine whether to excuse a juror for cause when death-
qualifying a jury, “it was within the trial court’s discretion to resolve the credibility issue
arising from the prospective juror’s contradictory responses”). For these reasons,
Appellant’s claim that appellate counsel rendered ineffective assistance fails for lack of
arguable merit.
Issue IX.: “Did the PCRA court err in denying Appellant’s claim that the trial court
denied his right to present a defense and violated Pa.R.E. 803(2) by excluding an
‘excited utterance’ made by Appellant, and that appellate counsel was ineffective for
failing to federalize this claim?” Appellant’s Brief at 6.
Appellant’s brother, Scott, testified for the Commonwealth at trial. His testimony
revealed that, on the night of the murders, he and Appellant drove from their home in
Cambria County to Jean’s residence in Middletown. Upon arriving at the home in
Middletown, Appellant exited the vehicle, and Scott remained behind. During cross-
examination, Appellant’s counsel elicited testimony from Scott about Appellant’s
demeanor when he returned to the vehicle. According to Scott, Appellant was nervous
and upset. Trial Transcript at 409. Counsel then asked Scott if Appellant said anything
to him.
At that point, the trial court held a sidebar discussion. The prosecutor reminded
the court that, pre-trial, it had ruled as inadmissible a statement that Scott previously
had attributed to Appellant at the time he re-entered the vehicle, specifically, “I only
[J-34-2017] - 41
looked in the window, and you won’t believe what I saw[.]” Id. at 410. Trial counsel
argued that the statement was admissible under the excited utterance exception to the
hearsay rule. Id. The trial court allowed Appellant’s counsel the opportunity to lay a
foundation for his question. Counsel attempted to do so and eventually asked Scott
again if Appellant said something to him when he returned to the vehicle. Id. at 413.
The Commonwealth objected, and the court sustained the objection. Id.
On direct appeal to this Court, Appellant argued that the trial court erred by
precluding him from introducing the statement Appellant allegedly made to Scott under
the present sense impression or excited utterance exceptions to the hearsay rule.
Wholaver, 989 A.2d at 906. Because Appellant failed to argue the present sense
impression exception at trial, we found that portion of his argument to be waived. Id. at
906 n.19. As to Appellant’s argument regarding the excited utterance exception, this
Court concluded that the trial court did not abuse its discretion by excluding this
statement. Id. at 907.
In his PCRA petition, Appellant contended that appellate counsel “was ineffective
for failing to raise and litigate the federal constitutional grounds for admissibility of”
Appellant’s alleged statement to Scott. PCRA Petition, 1/12/2012, at 175. The PCRA
court denied this claim without holding an evidentiary hearing. The court highlighted
that Appellant previously litigated the underlying issue of the admissibility of his
statement on direct appeal and that Appellant failed to assert what federal constitutional
grounds his appellate counsel could have raised on direct appeal. PCRA Court
Memorandum, 1/8/2013, at 40-41.
In his brief to this Court, Appellant asserts that appellate counsel failed to argue
that the trial court’s ruling violated his constitutional rights to due process and to present
a defense. Appellant’s Brief at 76. He also seems to suggest that appellate counsel
[J-34-2017] - 42
should have argued that his statement was admissible because it was probative of his
claim of innocence. Id. at 76-77. The Commonwealth maintains, inter alia, that
Appellant has waived this issue by failing to develop it appropriately. Commonwealth’s
Brief at 45.
Appellant fails to appreciate that trial counsel’s sole argument at trial was that
Appellant’s alleged statement to Scott was admissible as an excited utterance. Trial
counsel did not seek admission of this statement under the various theories that
Appellant now presents. Thus, had appellate counsel raised those theories of
admissibility on appeal, this Court would have deemed them waived. Pa.R.A.P. 302(a)
(“Issues not raised in lower court are waived and cannot be raised for first time on
appeal.”). Accordingly, Appellant’s claim that appellate counsel was ineffective for
failing to pursue these issues on direct appeal lacks arguable merit.
Issue X: “Did the PCRA court err in denying Appellant’s claim that he was denied due
process because the court failed to instruct the jury that Scott Wholaver was a corrupt
and polluted source, and by giving a defective reasonable doubt instruction, and that
trial counsel was ineffective in relation to these errors?” Appellant’s Brief at 6.
Under this issue, Appellant raises two claims of ineffective assistance of trial
counsel, both relating to the trial court’s guilt-phase instructions to the jury. More
specifically, Appellant contends that trial counsel rendered ineffective assistance by
failing to request that the trial court give the jury a “corrupt and polluted source”
instruction regarding Scott’s trial testimony. In addition, Appellant maintains that the
trial court’s “reasonable doubt” instruction was erroneous and that counsel was
ineffective for failing to object.
1. Corrupt and Polluted Source Jury Instruction
As noted above, Appellant’s brother Scott testified for the Commonwealth at trial.
In short, Scott’s testimony revealed, inter alia, that he accompanied Appellant on the
[J-34-2017] - 43
night and morning of the murders, though Scott maintained at trial that he did not know
that Appellant killed the victims. Prior to Appellant’s trial, Scott pled guilty to three
counts of third-degree murder and to burglary and criminal conspiracy, in connection
with the killings of Jean, Victoria, and Elizabeth.
In his PCRA petition, Appellant took the position that, because Scott was an
accomplice to the murders, trial counsel was ineffective for failing to ask the trial court to
give the jury a “corrupt and polluted source” instruction regarding Scott’s trial testimony.
PCRA Petition, 1/12/2012, at 208-11. Such an instruction is required when an
accomplice’s testimony implicates the defendant; the instruction informs the jury “that
the accomplice is a corrupt and polluted source whose testimony should be viewed with
great caution.” Commonwealth v. Smith, 17 A.3d 873, 906 (Pa. 2011) (quoting
Commonwealth v. Chmiel, 639 A.2d 9, 13 (Pa. 1994)). This instruction is necessary if
the trial evidence is sufficient to present an inference that a Commonwealth witness was
an accomplice.25 Smith, 17 A.3d at 906.
25
The Crimes Code defines “accomplice” as follows:
(c) Accomplice defined.--A person is an accomplice of another person in
the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the
offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in
planning or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
18 Pa.C.S. § 306.
[J-34-2017] - 44
The PCRA court rejected this claim without holding an evidentiary hearing. The
court first reasoned that, because Scott was not an accomplice to the murders, there
was no need to provide the jury with a “corrupt and polluted source” instruction. PCRA
Court Memorandum, 1/8/2013, at 51-52. The court also concluded that the instruction
was unnecessary because Scott’s testimony was corroborated by other evidence
presented at trial. Id. (citing Commonwealth v. Johnson, 416 A.2d 1065, 1068 (Pa.
Super. 1979) (explaining that the “corrupt and polluted source” instruction “pertains only
to the uncorroborated testimony of an accomplice”)).
In his brief to this Court, Appellant contends that the PCRA court erred by
concluding that Scott was not an accomplice to the murders. Appellant’s Brief at 81.
Appellant, however, fails to address the PCRA court’s additional conclusion that a
“corrupt and polluted source” instruction was unnecessary because Scott’s testimony
was corroborated by other evidence of record.26 Putting aside Appellant’s failure in this
regard and assuming arguendo that Appellant’s claim has arguable merit, for the
reasons that follow, Appellant’s bald assertion of prejudice does not entitle him to PCRA
relief. See Appellant’s Brief at 80 (“Counsel’s failure with regard to these charges
prejudiced Appellant. Had the jury been charged correctly, there is a reasonable
probability of a different outcome.”).
As an initial matter, Scott’s testimony on both direct and cross-examination fully
apprised the jury that he had an interest in testifying for the Commonwealth.
Specifically, Scott’s testimony on direct examination revealed that he had entered into a
plea agreement whereby he agreed to plead guilty to three counts of third-degree
murder and to one count each of burglary and criminal conspiracy. Trial Transcript at
26
The Commonwealth’s argument tracts the PCRA court’s rationale for rejecting
Appellant’s claim. Commonwealth’s Brief at 45-46.
[J-34-2017] - 45
320-21. For one count of third-degree murder, Scott already had received a sentence
of 12.5 to 25 years in prison, and his sentences on the remaining counts remained
pending. Id.During cross-examination, Scott conceded that, as part of his plea agreement, he
was required to testify for the Commonwealth and that, if the prosecutor found his trial
testimony to be untruthful, then his plea agreement would be cancelled. Id. at 401-03
and 430. Scott also testified that, if his testimony satisfied the prosecutor, then his
sentences on his remaining charges would run concurrently with his already-
established sentence of 12.5 to 25 years in prison; thus, Scott acknowledged that his
agreement contemplated that he would receive an aggregate sentence of 12.5 to 25
years in prison, despite that he otherwise faced up to 160 years in prison. Id. at 432-33.
In addition to the jury being aware of Scott’s interest in testifying for the
Commonwealth, the trial court provided the jury with general instructions regarding how
to assess witnesses’ testimony. For instance, the court instructed the jury that they
were the sole judges of the credibility of witnesses and that they must decide whether to
believe witnesses’ testimony. Id. at 1100. In providing factors for the jury to consider
when assessing the credibility of a witness, the court instructed the jury to contemplate,
inter alia, whether the witness had “any interest in the outcome of the case, any bias,
prejudice, or other motive that may affect his testimony including the fact that they had
entered into a plea bargain as part of their indication that they would testify in this case.”
Id. at 1100-01. We further observe that the trial court instructed the jury that Appellant
was charged with entering into a conspiracy with Scott. Id. at 1121-24.
Given the trial court’s instructions to the jury and the fact that the jury was fully
aware of Scott’s interest in testifying for the Commonwealth, we conclude that Appellant
has failed to establish that, but for counsel’s failure to seek and obtain a “corrupt and
[J-34-2017] - 46
polluted source” jury instruction, there was a reasonable probability that the outcome of
his trial would have been different. See also Smith, 17 A.3d at 904-07 (concluding that,
in light of the totality of the jury charge and the trial evidence demonstrating the
appellant’s accomplices’ interest in testifying for the Commonwealth, the appellant failed
to establish the prejudice prong of his claim that appellate counsel was ineffective for
not pursuing a claim regarding a “corrupt and polluted source” instruction).
Consequently, this claim of ineffective assistance of counsel warrants no relief.
2. Reasonable Doubt Jury Instruction.
The trial court provided the jury with a fairly lengthy instruction regarding the
Commonwealth’s burden to prove Appellant guilty beyond a reasonable doubt. Trial
Transcript at 1097-99. Regarding the concept of “reasonable doubt,” the court
explained as follows.
Although the Commonwealth has the burden of proving the
Defendant guilty, this does not mean they must prove their case beyond
all doubt or to a mathematical certainty, nor must it demonstrate the
complete impossibility of innocence. A reasonable doubt is a doubt that
would restrain a reasonable careful and sensible person from acting upon
a matter of importance in his or her own affairs. A reasonable doubt must
fairly arise out of the evidence that was presented or out of the lack of
evidence presented with respect to some element of the crime.
A reasonable doubt must be a real doubt. It may not be an
imagined one, nor may it be a doubt manufactured to avoid carrying out
an unpleasant duty. A reasonable doubt is not merely an imagined or
passing fancy that may come into the minds of a juror. It must be a doubt
arising from the evidence that is substantial and well founded on reason,
thinking and common sense. A reasonable doubt is something
different and much more serious than a possible doubt.
Id. at 1098 (emphasis added).
In his PCRA petition, Appellant maintained that this instruction was improper in
several respects and that trial counsel was ineffective for failing to object to the
instruction. PCRA Petition, 1/12/2012, at 212-15. Appellant’s most prominent argument
[J-34-2017] - 47
regarding the instruction was that the court erred by utilizing the word “restrain,” as
emphasized above, rather than “hesitate.” Id. at 213-14. However, relevant to this
appeal, Appellant also added a cursory argument that the court erred by stating that a
doubt must be “substantial” and by explaining that a “reasonable doubt is something
different and much more serious than a possible doubt.” Id. at 214. Appellant
contended that this portion of the instruction amounted to a requirement that the jury
had to be certain that Appellant was innocent to acquit him. Id. In other words,
Appellant posited that the court’s instruction improperly lessened the Commonwealth’s
burden of proof.
The PCRA court disposed of this claim without holding an evidentiary hearing. In
so doing, the court focused its attention on Appellant’s primary argument, i.e., that the
court erred by utilizing “restrain” rather than “hesitate” in its reasonable doubt
instruction. PCRA Court Memorandum, 1/8/2013, at 52. In this regard, the court
properly observed that this Court has rejected this argument. Id. (citing Commonwealth
v. Clark, 961 A.2d 80, 95 (Pa. 2008)).
In his brief to this Court, Appellant abandons the primary argument that he raised
in his PCRA petition. He, instead, focuses on the cursory argument mentioned above,
i.e., that the court erred by stating that a doubt must be “substantial” and by explaining
that a “reasonable doubt is something different and much more serious than a possible
doubt.” In terms of error on the part of PCRA court, Appellant complains that the court
“did not specifically address Appellant’s claim that the reasonable doubt instruction
violated Due Process, and that counsel was ineffective in failing to object.”27 Appellant’s
Brief at 81.
27
As to this issue, the Commonwealth simply states, “With regard to the trial court’s
reasonable doubt instruction, the word ‘restrain’ is a permissible alternative to the word
‘hesitate.’” Commonwealth’s Brief at 46 (citing Clark, supra).
[J-34-2017] - 48
As our summary of the PCRA court’s memorandum makes clear, this contention
is unsupported. While the court did not specifically address every nuance of Appellant’s
claim, it certainly addressed and properly rejected his chief objection to the trial court’s
reasonable doubt instruction. We can hardly fault the PCRA court for not teasing out
every aspect of each of Appellant’s issues, given that his PCRA petition and various
supplements span nearly 300 pages. In any event, for the reasons that follow, this
claim warrants no relief.
“In general, we will not evaluate the adequacy of the instructions based on
isolated references; rather, the charge is reviewed as a whole, with deference accorded
the trial court's discretion in phrasing its instructions.” Commonwealth v. Hughes, 865
A.2d 761, 788 (Pa. 2004). The appellant in Hughes presented a nearly identical
argument as Appellant raises here. Hughes contended that the trial court’s “reasonable
doubt” instruction lessened the Commonwealth’s burden of proof by improperly
characterizing reasonable doubt “as being substantial, one that clouds the judgment,
and much more serious than a possible doubt.” Id. at 789 (footnote omitted). The Court
rejected this argument, explaining,
While it would have been preferable for the trial court to avoid using the
term “substantial” in its reasonable doubt charge, see Victor v. Nebraska,
511 U.S. 1, 19–20, 114 S.Ct. 1239, 1250, 127 L.Ed.2d 583 (1994), the
court’s instruction is virtually identical to that which this Court upheld in
both Commonwealth v. Murphy, 559 Pa. 71, 82–84, 739 A.2d 141, 147–48
(1999), and Commonwealth v. Stokes, 532 Pa. 242, 253–54, 615 A.2d
704, 709–10 (1992). Here, as explained in Murphy, the reference to
“substantial” was designed to distinguish the concept of reasonable doubt
from that of an imaginary or possible doubt. Accord Victor, 511 U.S. at 20,
114 S.Ct. at 1250. Thus, trial counsel cannot be deemed ineffective for
failing to challenge the reasonable doubt instruction on direct appeal.
Id. at 790.
After reviewing the trial court’s jury charge as a whole, and relying on Hughes,
we conclude that Appellant’s claim that the reasonable doubt instruction was improper
[J-34-2017] - 49
lacks merit. Consequently, counsel cannot be deemed ineffective for not objecting to
the court’s instruction. Thus, this claim warrants no relief.
Issue XI: “Did the PCRA court err in denying Appellant’s claim that trial counsel was
ineffective for conceding his guilt to the solicitation charge?” Appellant’s Brief at 6.
The Commonwealth presented trial testimony from several witnesses who
indicated that Appellant entered into a scheme to hire a hitman to kill Ramos, Victoria’s
boyfriend and baby Madison’s father. As discussed above, one of those witnesses was
James Meddings, who testified that, while he was imprisoned with Appellant, Appellant
informed him of his desire to hire someone to kill Ramos. Trial Transcript at 663.
Meddings provided this information to authorities and agreed to cooperate with the
investigation into the murders of Appellant’s family members. Id. at 666. With
Meddings’ help, Appellant communicated via letter, to a person he believed was a
hitman, his desire to have Ramos killed. Unbeknownst to Appellant, the recipient of the
letter was not a hitman; rather, it was Drug Enforcement Administration Agent Jack
Luikart, who also testified about this arrangement at Appellant’s trial. Id. at 708-18.
Also relevant to this issue is that, throughout the trial, Appellant’s counsel suggested
that Jeffrey Martin, Victoria’s ex-boyfriend, killed the victims.
During closing arguments, trial counsel conceded that Appellant solicited the
murder of Ramos, stating as follows.
I am telling you right now, those people are telling the truth. He
made those calls. He wrote that letter. He wanted to take care of the
person that he thought murdered his daughter because he knew he didn’t
do it. And someone else did and he picked the most viable suspect and
then he was blinded. He used bad information, incomplete evidence, and
a bogus theory to try to eliminate Frankie Ramos. . . .
[J-34-2017] - 50
Trial Transcript at 1049. Counsel then provided a lengthy argument in support of the
theory that Martin was the actual killer, not Ramos as Appellant previously, but
mistakenly, believed. Id. at 1050-62.
In his PCRA petition, Appellant argued that trial counsel was ineffective for
conceding his guilt to the solicitation-of-murder charge without Appellant’s consent.
PCRA Petition, 1/12/2012, at 202-07. Appellant posited that counsel could have no
reasonable strategic basis for conceding his guilt to solicitation because, inter alia, any
suggestion that he wished to kill Ramos as revenge for Ramos murdering Appellant’s
family “contradicted the defense to the murder charges actually presented by counsel -
that Jeffrey Martin killed Jean, Victoria and Elizabeth Wholaver.” Id. at 206. The PCRA
court held an evidentiary hearing on the issue. Trial counsel was the sole witness at
that hearing.
Regarding this issue, trial counsel testified that Appellant informed him that he
did attempt to have Ramos killed. N.T., 9/6/2013, at 135. According to counsel,
Appellant stated that he did so because he believed that Ramos was responsible for
murdering his family. Id. Counsel further testified that, given the strength of the
evidence demonstrating that Appellant did solicit the murder of Ramos, he decided to
use the solicitation letter in Appellant’s favor as it could be understood to suggest that
Appellant believed someone else (Ramos) committed the murders. Id. at 111-12.
Counsel stated that he discussed this strategy with Appellant. Id. at 136. When asked
whether Appellant agreed with the strategy, trial counsel explained, “[Appellant] was the
kind of client that let me run the case. And when I had a recommendation to him, his
response was generally, if not consistently, ‘Whatever you think is best. Do whatever is
best.’ That’s what I did.” Id. at 136-37. Counsel was then asked whether that was the
[J-34-2017] - 51
case as it related to conceding the solicitation charge, to which counsel answered, “I
believe it was.” Id. at 137.
Based upon this testimony, the PCRA court rejected Appellant’s claim of
ineffective assistance of counsel. PCRA Court Memorandum, 3/31/2014, at 10-12. In
so doing, the court summarized counsel’s testimony, including his statement that he
received Appellant’s consent to concede his guilt to the solicitation charge. Id. at 11.
The court then concluded that counsel had a reasonable basis for employing this
strategy - acknowledging Appellant’s authorship of the letter shifted the blame for the
murder onto Ramos. Id. In reaching this conclusion, the court implicitly credited
counsel’s testimony.
In his brief to this Court, Appellant offers a cursory argument that the PCRA court
erred by rejecting his claim. Appellant asserts,
That Appellant may have believed Ramos was the killer did not
bolster Appellant’s defense in the murder case; rather, it conflicted with it.
Trial counsel argued that Martin, not Ramos, was responsible for the
murders. Arguing that Appellant believed that Ramos was the killer and
then presenting a defense that Martin was the killer made Appellant seem
desperate and insincere.
Appellant’s Brief at 86.28
The crux of the claim that Appellant raised in his PCRA petition was that counsel
rendered ineffective assistance by conceding his guilt to the solicitation charge without
his permission. The record, specifically trial counsel’s testimony, undermines this claim,
as it demonstrates that counsel received Appellant’s permission to concede his guilt to
the solicitation charge. The PCRA court credited counsel’s testimony, and because the
28
In its brief, the Commonwealth maintains that Appellant consented to counsel’s
decision to concede his guilt to solicitation and, therefore, that Appellant’s claim of
ineffective assistance of counsel is meritless. Commonwealth’s Brief at 46-47.
[J-34-2017] - 52
record supports the PCRA court’s credibility determination, we are bound by it. Mason,
supra. Moreover, there was no apparent conflict or contradiction between counsel’s
decision to defend Appellant by implicating Martin for the murders and counsel’s
attempt to utilize the solicitation letter to show that Appellant could not have committed
the murders because he initially, but mistakenly, believed that Ramos killed his family
members. For these reasons, the PCRA court did not err by rejecting this claim of
ineffective assistance of counsel.
Issue XII: “Did the PCRA court err in denying Appellant’s claim that the trial court’s
penalty phase instructions, both individually and cumulatively, denied Appellant a fair
and reliable sentencing hearing, and that trial counsel was ineffective for failing to
object?” Appellant’s Brief at 7.
In his PCRA petition, Appellant claimed that trial counsel rendered ineffective
assistance by failing to object to several aspects of the trial court’s penalty-phase jury
instruction. Appellant first argued that the trial court’s instruction regarding the “while in
the perpetration of a felony” aggravating circumstance, 42 Pa.C.S. § 9711(d)(6),
erroneously failed to define: (1) the elements of burglary, i.e., the felony Appellant
perpetrated while committing the killings; (2) the actual phrase “while in the perpetration
of a felony”; and (3) “felony.” PCRA Petition, 1/12/2012, at 140-41. Next, as to the
“grave risk of death to another person” aggravator, 42 Pa.C.S. § 9711(d)(7), Appellant
contended that the court improperly failed to define the phrase “grave risk of death.” Id.
at 143-44. Third, Appellant posited that the trial court’s instruction concerning the “no
significant history of prior criminal convictions” mitigating circumstance, 42 Pa.C.S.
§ 9711(e)(1), was misguided insomuch as the court did not inform the jury that, when
considering this circumstance, they must disregard any evidence related to the sexual
crimes for which Appellant was acquitted. Id. at 146-47. Fourth, while acknowledging
that the court instructed the jury that, to sentence him to death, they had to determine
[J-34-2017] - 53
that the aggravating circumstances outweigh the mitigating circumstances, Appellant
relied upon Ring v. Arizona, 536 U.S. 584 (2002), and contended that the court’s
instruction was in error because it failed to inform the jury that they must find that the
aggravators outweighed the mitigators beyond a reasonable doubt to sentence
Appellant to death. Id. at 149-51. Lastly, Appellant maintained that the trial court
improperly instructed the jury that they could consider Appellant’s “future
dangerousness” as an aggravating circumstance, as “future dangerousness” is not an
aggravating circumstance in Pennsylvania, see 42 Pa.C.S. § 9711(d) (enumerating
Pennsylvania’s aggravating circumstances).29 Id. at 155-58.
Without holding an evidentiary hearing on the issue, the PCRA court rejected
these five claims of ineffective assistance of counsel. Regarding the concerns
Appellant raised in connection to the “while in the perpetration of a felony” aggravator,
the court highlighted that the trial court instructed the jury on every element of burglary
during the guilt phase of trial, which occurred the day before the court charged the jury
in the penalty phase. PCRA Court Memorandum, 1/8/2013, at 33. The court opined
that it was unnecessary “to reiterate the elements of a crime that the same jury
convicted [Appellant] of only one-day earlier.” Id. As to the definition of the phrase
“while in perpetration of a felony,” the court noted that Appellant failed to elaborate on
how the trial court should have defined the phrase. Id. Turning to the second claim
challenging the “grave risk of death to another person” instruction, according to the
PCRA court, this Court has determined that juries are capable of understanding the
meaning of “grave risk of death” without having it further defined. Id. at 34 (citing
29
As to this allegation of trial court error, which will be discussed in more detail below,
Appellant maintained that counsel was ineffective for requesting this instruction, as well
as for failing to object to it.
[J-34-2017] - 54
Commonwealth v. Wharton, 607 A.2d 710, 723 (Pa. 1992) (holding that the phrase
“grave risk of death to another person” is not unconstitutionally vague)).
The PCRA court next rejected Appellant’s third challenge to the instruction
relating to the “no significant history of prior criminal convictions” mitigator. The court
concluded that the claim is meritless, as the trial court specifically instructed the jury that
Appellant had no prior criminal convictions. PCRA Court Memorandum, 1/8/2013, at
34. Fourth, the court determined that the trial court properly instructed the jury on the
manner in which to weigh the aggravating and mitigating circumstances. Id. at 34-35.
Lastly, the PCRA court concluded that, contrary to Appellant’s contention, the trial court
did not instruct the jury that “future dangerousness” was an aggravating circumstance
that they could consider for purposes of sentencing. Id. at 36-37.
In his brief to this Court, Appellant contends that the PCRA court erred by failing
to find counsel ineffective in these five circumstances. Appellant’s Brief at 86-94. As an
initial matter, Appellant asserts generally that the court committed legal error by
dismissing each claim individually, rather than “considering the cumulative impact of the
errors.” Id. at 92-93. Next, Appellant suggests that the court made errors in its
evaluation of his individual claims. In this regard, Appellant insists that the court
“repeatedly dismissed [his] claims of impropriety by simply stating that the particular
charge at issue accorded with the Pennsylvania Suggested Standard Criminal Jury
Instructions or the Sentencing Code.” Id. at 93. According to Appellant, such reasoning
is insufficient to reject his arguments. Id.
Appellant also renews his position that the trial court’s instruction was in error
because it failed to inform the jury that to sentence Appellant to death they must find
that the aggravators outweigh the mitigators beyond a reasonable doubt. Id. at 94.
Related to his final claim as to the trial court’s reference to his “future dangerousness,”
[J-34-2017] - 55
Appellant suggests that the jury necessarily understood a portion of the jury instruction,
discussed in detail infra, to mean that they should consider Appellant’s “future
dangerousness” as an aggravating circumstance.30 Id. at 93-94.
We will address Appellant’s concerns seriatim. Before doing so, we note the
following general principles of law. This Court reviews penalty-phase jury instructions in
the same manner in which it reviews challenges to jury charges given during the guilt
phase of trial; we consider the entire charge, not just discrete portions of the instruction.
Commonwealth v. Eichinger, 915 A.2d 1122, 1138 (Pa. 2007). We further observe that
trial courts are free to use their own expressions as long as the concepts at issue are
clearly and accurately presented to the jury. Id.We begin our consideration of Appellant’s claims of PCRA court error by
highlighting that, in his PCRA petition, Appellant presented several other claims
regarding the penalty phase jury instruction that he has abandoned on appeal. He
presented nine claims in total. The PCRA court rejected each claim of error. PCRA
Court Memorandum, 1/8/2013, at 30-38. Because the PCRA court found no error in the
trial court’s penalty-phase jury instruction, it could not, as Appellant suggests, consider
“the cumulative impact of the errors.” Appellant’s Brief at 92-93. Moreover, as our
summary of the PCRA court’s reasoning demonstrates, the court did not simply reject
Appellant’s present claims by repeatedly determining that the trial court’s instructions
reflected the Sentencing Code or the Pennsylvania Suggested Standard Criminal Jury
30
In response to Appellant’s contentions, the Commonwealth offers an argument which
essentially mirrors the reasoning of the PCRA court, albeit in an abbreviated manner.
Commonwealth’s Brief at 47-49.
[J-34-2017] - 56
Instructions. While the court did mention such things at times and in passing, 31 it
certainly did not dispose of Appellant’s claims in the manner described by Appellant.
We next observe that this Court has previously rejected Appellant’s claim that,
pursuant to Ring, a trial court must instruct a jury that, to sentence a defendant to death,
they must determine that the aggravators outweigh the mitigators beyond a reasonable
doubt. E.g., Commonwealth v. Roney, 866 A.2d 351, 358-61 (Pa. 2005);
Commonwealth v. Sanchez, 82 A.3d 943, 985 (Pa. 2013). Appellant does not
acknowledge such decisions, let alone advocate that the Court should revisit them.
Lastly, regarding the alleged “future dangerousness” instruction, we highlight
that, at trial counsel’s request, the trial court instructed the jury as follows: “Now, Ernest
Wholaver’s age is a factor that may be considered in terms of whether or not he poses a
future danger to society in any respect.” Trial Transcript at 1237. While this instruction
certainly is curious as it does not seem to relate to any relevant factor that the jury was
required to consider, we can discern no error in the PCRA court’s conclusion that the
trial court did not instruct the jury to consider Appellant’s “future dangerousness” as an
aggravating circumstance. More specifically, this isolated portion of the charge does
not expressly direct that “future dangerousness” is an aggravating circumstance to be
considered for purposes of Appellant’s sentence. Moreover, when we consider the
entire jury charge, as we must, we observe that the trial court explicitly instructed the
jury as to the only aggravating circumstances at issue in the case. Trial Transcript at
1235-36. The court made no mention of “future dangerousness” as being an
aggravating circumstance at that point or at any other juncture in its instruction.
31
See, e.g., PCRA Court Memorandum, 1/8/2013, at 33 (noting that the trial court
instructed the jury on the aggravating circumstances as they are written in the
Sentencing Code).
[J-34-2017] - 57
Because the entirety of the court’s instruction made clear that “future dangerousness”
was not an aggravating circumstance to be considered by the jury, Appellant’s claim
that counsel was ineffective lacks arguable merit. For all of these reasons, Appellant
has failed in his effort to demonstrate that the PCRA court erred by rejecting his claims
of ineffective assistance of counsel related to the penalty-phase jury instruction.
Issue XIII: “Did the PCRA court err in denying Appellant’s claim that he was denied
due process of law when the Commonwealth misrepresented commutation statistics
and led defense counsel to withdraw his request for a ‘life means life’ instruction, that
trial counsel was ineffective for failing to verify the prosecutor’s inaccurate statistical
proffer, and that appellate counsel was ineffective for failing to raise this claim?”
Appellant’s Brief at 6.
Regarding the penalty-phase jury instruction, Appellant’s counsel requested that
the trial court provide to the jury a “life means life” instruction pursuant to Simmons v.
South Carolina, 512 U.S. 154 (1994). See, e.g., Commonwealth v. Carson, 913 A.2d
220, 273 (Pa. 2006) (explaining that this Court “has held that a Simmons instruction is
mandated only if two events occur: (1) the prosecutor must place the defendant’s future
dangerousness in issue; and (2) the defendant must have requested that the trial court
issue the instruction”). In connection to this requested instruction, the parties initially
appeared to agree that the trial court should apprise the jury that, in recent years, no life
sentences had been commuted in Pennsylvania. Trial Transcript at 1216. However,
after the court took a recess, the prosecutor informed the court that he had just called
the Office of General Counsel and learned that Governor Schweiker commuted Ricky
Pinkins’ life sentence to a term of years in January of 2003. Id. at 1217. Armed with
this information, trial counsel decided to withdraw his request for a Simmons instruction.
Id. at 1218-19.
[J-34-2017] - 58
In his PCRA petition, Appellant accused the prosecutor of falsely representing
the commutation statistic. PCRA Petition, 1/12/2012, at 165-70. Appellant maintained
that the prosecutor failed to indicate that Pinkins’ life sentence stemmed from his
conviction for second-degree murder. Id. at 168. Appellant posited that Pinkins’
commutation was irrelevant to the issue before the trial court, which, according to
Appellant, was whether anyone convicted of first-degree murder and sentenced to life in
prison had received a commutation of his life sentence to a term of years. Id. at 168-69.
Appellant contended that the prosecutor’s false representation of the commutation
statistic amounted to prosecutorial misconduct. Appellant also claimed that, to the
extent that trial counsel unreasonably relied upon this alleged misrepresentation in
withdrawing his request for a Simmons instruction, counsel rendered ineffective
assistance. Id. at 170-71.
The PCRA court denied these claims without holding an evidentiary hearing. In
so doing, the court noted that it was unpersuaded that the prosecutor intended to
prejudice Appellant by failing to note that the commuted sentence related to a conviction
other than first-degree murder. PCRA Court Memorandum, 1/8/2013, at 38. The court
explained that the ultimate question at issue during the relevant discussion among the
parties and the trial court was whether any life sentences had been commuted in
Pennsylvania in recent years, not whether anyone convicted of first-degree murder and
sentenced to life imprisonment had received a commuted sentence. Id. at 38-39. In
this regard, the court highlighted that, when discussing the statistic of commuted life
sentences, the prosecutor and trial counsel referred only to the statistic of life sentences
that had been commuted in Pennsylvania and that the prosecutor accurately
represented that statistic. Id. at 39.
[J-34-2017] - 59
In his brief to this Court, Appellant renews his claims of prosecutorial misconduct
and ineffective assistance of counsel. Appellant’s Brief at 94-98. With regard to the
PCRA court’s rationale for rejecting his claims, Appellant offers only a cursory
argument. Id. at 98. Appellant asserts that the PCRA court mistakenly found that this
incident did not involve prosecutorial misconduct. Id. As to his claim of ineffective
assistance of counsel, Appellant contends that the court erred “by holding that, although
the prosecutor’s statement misled counsel into withdrawing a critical jury instruction,
counsel did not have a constitutional obligation to ensure that such a mistake did not
occur.” Id. The Commonwealth responds by arguing that the prosecutor did not falsely
represent the commutation statistic; rather, he accurately informed the court that a life
sentence, in fact, had been commuted recently in Pennsylvania. Commonwealth’s Brief
at 49-50.
As noted above, for purposes of the PCRA, “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.” 42 Pa.C.S. § 9544(b). Here, the
prosecutor’s alleged misconduct took place during trial and could have been, but was
not, raised at trial. Consequently, the issue is waived, leaving only Appellant’s claim of
ineffective assistance of counsel.32
At the heart of that claim is Appellant’s position that he was entitled to a
Simmons instruction and that trial counsel was ineffective for withdrawing his request for
32
We nonetheless observe that the PCRA court’s conclusion, as discussed supra, is
supported by the record. During the relevant conversation among the parties and the
trial court, the discussion focused on whether any life sentences had been commuted
recently in Pennsylvania, not on whether any life sentences that were the result of first-
degree murder convictions had been commuted. Trial Transcript at 1216-18. Thus,
there is no factual predicate to support Appellant’s contention that the prosecutor falsely
represented the commutation statistic to the trial court.
[J-34-2017] - 60
such an instruction. Indeed, as to the prejudice prong of his claim of ineffective
assistance of counsel, Appellant simply asserts, “Had the court given the [Simmons]
instruction to which Appellant was entitled and which the court was willing to give, there
is a reasonable likelihood of a different sentencing result.” Appellant’s Brief at 98.
Regardless of any initial expression by the trial court concerning its willingness to
provide the jury with a Simmons instruction, Appellant fails to appreciate that, to be
entitled to such an instruction, the Commonwealth had to make Appellant’s “future
dangerousness” an issue. Carson, supra. Yet, neither in his PCRA petition nor in his
brief to this Court does Appellant even suggest, let alone specifically contend, that the
Commonwealth argued Appellant’s “future dangerousness.” Indeed, if Appellant’s
“future dangerousness” was at issue at all, it was Appellant who injected the issue into
trial.33 Thus, Appellant has failed to establish that he was entitled to a Simmons
instruction and, concomitantly, that trial counsel was ineffective for withdrawing the
request for a Simmons instruction, irrespective of his reasons for withdrawing the
request.
Issue XIV: “Did the PCRA court err in denying Appellant’s claim that he was denied
due process of law and a fair capital sentencing hearing as a result of the trial court’s
33
To illustrate, in his PCRA petition and his brief to this Court, Appellant asserts that his
“future dangerousness” was placed at issue by the penalty phase jury instruction,
discussed supra, which stated, “Now, Ernest Wholaver’s age is a factor that may be
considered in terms of whether or not he poses a future danger to society in any
respect.” Trial Transcript at 1237. We reiterate that the trial court gave this instruction
at Appellant’s request and over the Commonwealth’s objection that the charge was
available only to elderly and young defendants for purposes of mitigation. Id. at 1176.
Thus, to the extent that this instruction arguably put Appellant’s “future dangerousness”
at issue, Appellant injected the issue, not the Commonwealth. Further, and perhaps
more importantly, Appellant’s undeveloped prejudice argument fails to demonstrate that,
but for counsel’s request for this instruction and his decision to withdraw the Simmons
instruction, there is a reasonable probability that the outcome of his penalty phase
hearing would have been different.
[J-34-2017] - 61
erroneous admission of prejudicial non-statutory aggravation and the prosecutor’s
improper argument during closing, and that prior counsel were ineffective for failing to
preserve and litigate these issues?” Appellant’s Brief at 6.
In his PCRA petition, Appellant presented two separate and unrelated issues
that, for unknown reasons, he has combined in his brief to this Court. Because these
issues are unconnected, we will dispose of them separately.
1. Prosecutorial Misconduct During Penalty-Phase Closing Argument
In his PCRA petition, Appellant claimed that the prosecutor committed
misconduct by making numerous improper statements, which we discuss in more detail
infra, during his penalty-phase closing argument and that trial counsel was ineffective
for failing to object to the statements. PCRA Petition, 1/12/2012, at 180-202. The
PCRA court dismissed these claims without holding an evidentiary hearing, essentially
determining that the complained-of comments either were reflective of the evidence of
record or were consistent with the law. PCRA Court Memorandum, 1/8/2013, at 42-49.
In his brief to this Court, Appellant reiterates his complaint that the prosecutor
committed misconduct during his penalty-phase argument by: (1) urging the jury to
consider non-aggravating factors; (2) telling the jury to give the aggravator found at 42
Pa.C.S. § 9711(d)(11) extra weight;34 (3) stating that the grave-risk-of-death-to-another-
person aggravator applied to all three murder victims; (4) improperly shifting the burden
of proof onto the defense; (5) repeatedly and erroneously claiming that the defense had
not presented any mitigating evidence; and (6) asserting that the jury should consider
victim-impact evidence as a super-aggravator. Appellant’s Brief at 102-08. Appellant
34
This aggravating circumstance required the jury to determine whether Appellant had
been convicted of another murder committed in any jurisdiction, either before or at the
time of the offense at issue. 42 Pa.C.S. § 9711(d)(11).
[J-34-2017] - 62
further asserts that trial counsel’s performance was deficient because he failed to object
to these allegedly improper arguments. Id. at 108.
The Commonwealth takes the position that Appellant has waived several of his
claims of prosecutorial misconduct by failing to offer a developed argument in support
thereof. Commonwealth’s Brief at 49-54. As to the remaining claims, the
Commonwealth contends that Appellant previously litigated his claims that the
prosecutor improperly urged the jury to consider non-aggravating factors and
inaccurately suggested that Appellant did not present mitigating evidence. The
Commonwealth also maintains that the prosecutor’s argument regarding the grave-risk-
of-death-to-another-person aggravator was supported by the record and that the
prosecutor did not instruct the jury to consider victim-impact evidence as a super-
aggravator. Id.
It is well settled that a “prosecutor has great discretion during closing argument;
indeed, closing ‘argument’ is just that: argument.” Commonwealth v. Eichinger, 108
A.3d 821, 836 (Pa. 2014) (citation omitted). “During closing argument in the penalty
phase, a prosecutor must be afforded reasonable latitude, and permitted to employ
oratorical flair when arguing in favor of the death penalty.” Commonwealth v. Spotz, 47
A.3d 63, 97-98 (Pa. 2012) (citations omitted). “A prosecutor may make fair comment on
the admitted evidence and may provide fair rebuttal to defense arguments. Even an
otherwise improper comment may be appropriate if it is in fair response to defense
counsel’s remarks.” Id. at 97 (citations omitted).
“Any challenge to a prosecutor’s comment must be evaluated in the context in
which the comment was made.” Id. (citations omitted). “It is not improper for the
prosecutor to urge the jury to view the defense’s mitigation evidence with disfavor and
thus to impose the death penalty.” Id. at 98 (citations omitted). “Reversible error occurs
[J-34-2017] - 63
only when the unavoidable effect of the challenged comments would prejudice the
jurors and form in their minds a fixed bias and hostility toward the defendant such that
the jurors could not weigh the evidence and render a true verdict.” Id. (citations
omitted). For the reasons that follow, we conclude that the PCRA court did not err by
rejecting Appellant’s various claims.
Appellant first highlights that, during the prosecutor’s penalty-phase closing
argument, he stated that Appellant’s solicitation-of-murder conviction, which was
entered against Appellant contemporaneously with his murder convictions, “trumped”
Appellant’s proffered no-significant-history-of-prior-criminal-convictions mitigator.
Appellant’s Brief at 103 (citing Trial Transcript at 1224). Appellant maintains that there
“is no theory of admissibility that would have allowed for the argument that Appellant
deserves to die because he solicited murder after his capital offense.” Id. (emphasis in
original). Thus, according to Appellant, by making this statement, the prosecutor was
“[u]rging the jury to consider non-statutory aggravating factors.” Id.
Appellant is incorrect regarding the law, as a conviction that is entered at the
same time as a first-degree-murder conviction can be used to rebut the no-significant-
history-of-prior-criminal-convictions mitigator. See Commonwealth v. Mitchell, 902 A.2d
430, 461 (Pa. 2006) (explaining that, in Commonwealth v. Wharton, 665 A.2d 458 (Pa.
1995), this Court held “that the determining factor in whether convictions could be
considered prior criminal convictions under Section 9711(e)(1) was whether the
defendant had a particular conviction at the time of the sentencing hearing”)
(emphasis in original). Thus, contrary to Appellant’s assertion, in making the
complained-of statement, the prosecutor was not urging the jury to consider non-
statutory aggravating factors; instead, consistent with Wharton, he was utilizing
Appellant’s solicitation conviction as rebuttal to the mitigating circumstance that
[J-34-2017] - 64
Appellant did not have a significant history of prior criminal convictions. Trial Transcript
at 1224-25.
Next, Appellant challenges as misconduct the prosecutor’s statement made
during closing argument that, because Appellant killed three persons, his conduct is
“three times as terrible.” Appellant’s Brief at 104 (citing Trial Transcript at 1226).
Appellant posits that this statement violated the statutory scheme by: (1) directing the
jury to conduct a quantitative evaluation of the mitigating and aggravating factors, as
opposed to a qualitative evaluation; and (2) directing the jury to give extra weight to the
(d)(11) aggravator, which provides that the defendant has been convicted of another
murder committed in any jurisdiction, either before or after the time of the offense at
issue.
Appellant’s claim is unsupported by the record as the prosecutor did not in any
way direct the jury to compare the number of aggravating circumstances against the
number of mitigating circumstances found. Moreover, when read in the context of the
closing argument as a whole, the prosecutor did not commit misconduct by emphasizing
to the jury that Appellant’s murder of three persons outweighed the mitigating
circumstances presented.
Appellant next makes several contentions regarding a portion of the prosecutor’s
closing argument wherein he addressed the grave-risk-of-death-to-another-person
aggravator. Appellant’s Brief at 104-06. The prosecutor stated as follows:
First, I submit that the evidence shows that the Defendant fired into
the head of Victoria Wholaver at close range while she held her child in
her arms. That is knowingly creating a risk of death to Baby Girl Madison,
but he left this nine-month old child alone in this house with all of her
caregivers dead, making no effort to summon help for her. It was mere
happenstance 28 hours later she was found by police and paramedics. It
could have been much longer. And he just disregarded that, knowing that
risk to Baby Girl Madison, so that aggravating circumstance has been
proven beyond a reasonable doubt.
[J-34-2017] - 65
Trial Transcript at 1222.
Appellant first suggests that this argument improperly offered to the jury
contradictory considerations regarding Madison - one that presumes that she can crawl,
and one that presumes that she cannot crawl. Appellant’s Brief at 104-05. However,
the complained-of comments simply did not require the jury to presume anything about
Madison’s ability to crawl. The evidence of record established that Victoria had been
shot in the head at close range, Trial Transcript at 92-95, and that Madison was
discovered between Victoria’s arm and body, Trial Transcript at 69. Thus, the record
permitted the prosecutor to comment fairly that Appellant knowingly created a grave risk
of death to Madison by shooting her mother as she held the nine-month-old baby. It
was equally fair comment for the prosecutor to suggest that Appellant created a grave
risk of death to Madison by killing all of her caregivers and leaving the baby to fend for
herself.
Appellant further suggests that the prosecutor improperly argued that the grave-
risk-of-death-to-another-person aggravator applied to all three victims because the
Commonwealth failed to present “sufficient evidence to meet the (d)(7) element of ‘in
close proximity at the time of the killing’ beyond a reasonable doubt.” Appellant’s Brief
at 105. Appellant, however, fails to acknowledge that, in his initial direct appeal, this
Court specifically concluded that the Commonwealth’s evidence was sufficient to
support all of the aggravating circumstances found by the jury. Wholaver, 903 A.2d at
1183. Appellant’s failure in this regard renders further consideration of the merits of this
claim unnecessary.
Appellant subsequently offers a cursory argument that “the prosecutor improperly
shifted the burden of proof to the defense, saying that the case ‘call[ed] out for the death
penalty’ and ‘[i]f this man doesn’t deserve it, nobody does.’” Appellant’s Brief at 106
[J-34-2017] - 66
(citing Trial Transcript at 1228). Appellant’s woefully undeveloped argument fails to
convince us that these comments improperly sought to shift any burden onto Appellant
during the penalty phase.
In equally unconvincing arguments, Appellant complains that, throughout the
prosecutor’s penalty-phase closing argument, the prosecutor “repeatedly and
erroneously claimed” that Appellant had not presented any mitigation evidence,
Appellant’s Brief at 106-07, and that the jury should consider victim-impact evidence “as
a super-aggravator that ‘trumped’ all the mitigation in the case,” id. at 107-08. Our
review of the record reveals that the prosecutor did not claim that Appellant failed to
present any mitigation evidence; rather, consistent with the law cited above, he simply
made fair comment on the admitted evidence, properly sought to rebut Appellant’s
arguments, and urged the jury to view Appellant’s mitigation evidence with disfavor.
Trial Transcript at 1224-26. Moreover, the prosecutor did not instruct the jury to
consider victim-impact evidence as a “super-aggravator.” Instead, the prosecutor
properly informed the jury that they could consider the victim-impact evidence when
weighing the aggravating and mitigating circumstances. Trial Transcript at 1227; see 42
Pa.C.S. § 9711(c)(2) (explaining that a court must instruct the jury that, in weighing the
aggravating and mitigating circumstances, they shall consider victim-impact evidence).
Appellant has failed to establish that any of his claims of prosecutorial
misconduct have arguable merit. Thus, his claim that counsel rendered ineffective
assistance by failing to object to the alleged misconduct necessarily fails.
2. Incorporation of Guilt-Phase Evidence into the Penalty Phase
In his PCRA petition, Appellant argued that he is entitled to a new sentencing
hearing because the trial court erroneously granted the Commonwealth’s motion to
incorporate the guilt-phase evidence into the penalty phase. Id. at 216-17. Related to
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this claim of trial court error, Appellant acknowledged that trial counsel objected to the
wholesale incorporation of the guilt-phase evidence into the penalty phase, but he
nonetheless maintained that counsel rendered ineffective assistance by failing “to
request a cautionary instruction regarding the scope of how the jury was to consider the
incorporated evidence and testimony.” Id. at 218. Appellant also contended that
appellate counsel was ineffective for failing to litigate this issue adequately. Id. at 218-
19.
The PCRA court rejected these claims without holding an evidentiary hearing.
The court concluded that: the underlying claim was previously litigated on direct appeal;
the trial court properly exercised its discretion by granting the Commonwealth’s request
to incorporate the evidence into the guilt phase; and the trial court specifically instructed
the jury as to what they could consider as aggravating and mitigating circumstances.
PCRA Court Memorandum, 1/8/2013, at 53-54.
In his brief to this Court, Appellant again claims that the trial court erred by
granting the Commonwealth’s request to incorporate the guilt-phase evidence into the
penalty phase. Id. at 100-02. Appellant, however, abandons his claim that trial counsel
was ineffective for failing to request a cautionary instruction; instead, he contends, for
the first time, that trial counsel’s “failure to specifically identify the guilt phase evidence
he objected to incorporating . . . constituted deficient performance.” Id. at 108. Lastly,
Appellant takes the position that appellate counsel was ineffective for failing to argue on
direct appeal that the trial court erred by overruling trial counsel’s objection to the
incorporation of the guilt-phase evidence into the penalty phase. Id. at 109.
For its part, the Commonwealth initially contends that Appellant previously
litigated his claim. Commonwealth’s Brief at 51. It, however, also highlights that this
Court has held that, after a defendant has been found guilty, “incorporation of guilt
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phase evidence into the penalty phase is ‘purely a procedural matter carried out
pursuant to 42 Pa.C.S. § 9711.’” Id. (quoting Commonwealth v. Williams, 896 A.2d 523,
544-45 (Pa. 2006)).
To the extent that Appellant is claiming that the trial court erred by overruling trial
counsel’s objection to the guilt-phase evidence being incorporated into the penalty
phase, his claim is waived for purposes of the PCRA because he could have raised the
issue on direct appeal. 42 Pa.C.S. § 9544(b). Moreover, Appellant has waived his
claim that trial counsel was ineffective for failing to identify specifically the guilt-phase
evidence he objected to incorporating into the penalty phase, as he raises this issue for
the first time on appeal. Pa.R.A.P. 302(a). Lastly, regarding appellate counsel’s
stewardship, Appellant fails to acknowledge that this Court has repeatedly stated that
“once appellant’s guilt was determined, incorporation of guilt phase evidence into the
penalty phase was ‘purely a procedural matter carried out pursuant to 42 Pa.C.S.
§ 9711.’” Wholaver, 989 A.2d at 907 (quoting Williams, 896 A.2d at 544-45).35
Accordingly, Appellant has failed to show that appellate counsel was ineffective for
failing to argue on direct appeal that the trial court erred by incorporating the guilty-
phase evidence into the penalty phase.
Issue XV: “Did the PCRA court err in denying Appellant’s claim that, because of juror
misconduct, he was denied his right to a fair trial and an impartial jury, and that trial
counsel was ineffective in not discovering and litigating the misconduct?” Appellant’s
Brief at 6-7.
35
While this Court did cite this proposition of law in Appellant’s direct appeal, it does not
appear that appellate counsel raised the specific issue that Appellant pursued in his
PCRA petition. See Wholaver, 989 A.2d at 907 (rejecting Appellant’s contention that
“the trial court erred in allowing incorporation of evidence from the guilt phase,
concerning nine-month-old Madison Wholaver’s dehydrated condition, into the penalty
phase”).
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In his supplemental and amended PCRA petition, Appellant contended that trial
counsel was ineffective for failing to discover juror misconduct. Supplemental and
Amended PCRA Petition, 4/27/2012, at 31-34. After further discovery, Appellant
ultimately claimed that a particular member of his jury committed misconduct by
inaccurately answering her juror questionnaire where, according to Appellant, she
misrepresented that neither she, members of her family, nor close friends had ever
been a victim of a crime. Appellant maintained that trial counsel was ineffective for
failing to discover this misconduct.
The PCRA court granted Appellant an evidentiary hearing to explore the merits of
his claim. At that September 4, 2014, hearing, the juror testified that she answered her
questionnaire honestly and truthfully. N.T., 9/4/2014 at 102-03. When asked whether
anyone in her family was a sexual abuser, the juror stated, “Not that I’m aware of.” Id.
at 94. PCRA counsel specifically asked the juror if she had a brother-in-law who
molested children prior to her selection to Appellant’s jury. Id. at 97. She answered the
question in the negative. Id.
We further observe that Appellant wished to have a second juror, Gregory Stein,
testify at the PCRA hearing in support of his juror misconduct claim. The PCRA court
did not permit Stein to testify because, inter alia, his proffered testimony delved into
information regarding the jury’s deliberations. N.T., 9/4/2014, at 4-13; see Pa.R.E.
606(b)(1) (prohibiting a juror from testifying about any statement or incident that
occurred during the jury’s deliberations). The court nonetheless allowed PCRA counsel
to read Stein’s affidavit, where Stein attested, in pertinent part, that, “during
deliberations on the guilt/innocence portion of the case, one of the female jurors
disclosed that someone close to her had been the victim of inappropriate sexual
behavior.” N.T., 9/4/2014, at 8.
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The PCRA court credited the juror’s testimony and, therefore, determined that
Appellant failed to produce any credible evidence of juror misconduct. PCRA Court
Memorandum, 3/31/2014, at 21-22. Accordingly, the court rejected Appellant’s claim of
ineffective assistance of counsel. Id.
In his brief to this Court, Appellant insists that the juror who testified at the PCRA
hearing did not answer her juror questionnaire honestly or accurately, notwithstanding
her testimony. Appellant’s Brief at 111. According to Appellant, during deliberations,
this juror revealed to her fellow jurors “her prior experience with and exposure to sexual
abusers and their victims[.]” Id. In support of his position, Appellant relies on, inter alia,
Stein’s affidavit. Then, without adequately developing his claim of ineffective assistance
of counsel, Appellant baldly asserts that the PCRA court denied him a full and fair
hearing by refusing to allow Stein to testify at the PCRA hearing, which, Appellant
contends, renders the court’s merits ruling erroneous. Id. at 113. The Commonwealth,
on the other hand, submits that Appellant failed to present any evidence to support his
allegations of juror misconduct. Commonwealth’s Brief at 54-55.
This issue warrants no relief. The PCRA court’s conclusion that Appellant failed
to prove that any juror misconduct occurred in this case turned on its favorable
credibility determination regarding the juror’s testimony at the evidentiary hearing.
Because that credibility determination is supported by the record, we are bound by it.
Mason, supra. Accordingly, Appellant’s claim of ineffective assistance of counsel lacks
arguable merit.36 Moreover, to the extent that Appellant argues that the PCRA court
erred by refusing to allow Stein to testify at the evidentiary hearing, his argument is
36
In addition, Appellant has failed to meet his burden of specifically addressing each
prong of the ineffective-assistance-of-counsel standard in his brief to this Court. See
Natividad, 938 A.2d at 322 (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to this Court”).
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fatally undeveloped and, therefore, waived. See, e.g., D’Amato, 856 A.2d at 814 (“This
argument is so undeveloped that it is the functional equivalent of no argument at all.
Therefore, the issue must be deemed waived in this Court.”).
Issue XVI: “Did the PCRA court err in denying Appellant’s claim that he should be
granted relief from his convictions because of the cumulative effect of the errors
described in this appeal?” Appellant’s Brief at 7.
Under his last issue, Appellant contends that he should be granted relief based
upon the cumulative effect of the alleged errors he details in this appeal. Appellant’s
Brief at 113-14. The Commonwealth takes the position that no such relief is due, as all
of Appellant’s innumerable prolix claims of error are meritless. Commonwealth’s Brief
at 55-56.
This Court has explained that no number of claims which fail on their merits may
collectively warrant relief. Commonwealth v. Spotz, 18 A.3d 244, 320–21 (Pa. 2011).
However, “[w]hen the failure of individual claims is grounded in lack of prejudice, then
the cumulative prejudice from those individual claims may properly be assessed.” Id. at
321.
None of Appellant’s issues entitle him to relief. We have disposed of Appellant’s
issues in a number of ways, including lack of merit and Appellant’s failure to carry his
burden of persuasion on appeal. To the extent that we reject some of Appellant’s
issues based upon a prejudice analysis, we also find that collective prejudice is lacking
and, thus, deny relief on this issue.
IV. Appellant’s Open Applications
We also must dispose of two open applications filed by Appellant. In both
applications, Appellant seeks leave to file a post-submission communication with the
Court pursuant to Pa.R.A.P. 2501(a). In his initial application, which was filed on May 5,
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2017, Appellant seeks leave to file a motion for remand to the PCRA court for an
evidentiary hearing regarding allegedly newly discovered evidence, as he claims he
recently has learned that the Commonwealth has engaged in misconduct. Appellant
has attached that motion for remand to his application. While we grant the May 5th
application for leave to file the post-submission communication, for the reasons that
follow, we deny the motion for remand.
In his motion for remand, Appellant contends that his counsel just learned that
the national television network Investigation Discovery broadcasted a program
documenting the Wholaver murders and that, in the program, several government
officials, including the prosecutor in Appellant’s case, discuss their investigation of a
suspect named Stephen Chapman. Appellant contends that the Commonwealth
violated Brady by suppressing their investigation of Chapman, and he requests a
remand to explore the issue. The Commonwealth maintains that this program originally
aired in May of 2013 and that the Commonwealth did inform Appellant of the
investigation of the suspect; however, the program producer assigned a pseudonym to
the suspect to protect his identity.
Appellant is attempting to amend his PCRA petition to include a claim of after-
discovered evidence. Appellant fails to cite any authority that would allow him to amend
the petition decided herein at this late stage of litigation. Accordingly, we deny
Appellant’s motion for remand without prejudice to Appellant to attempt to raise his
after-discovered-evidence claim in a serial PCRA petition.
In his second application for leave to file a post-submission communication,
which was filed on June 8, 2017, Appellant asks for permission to file a motion
requesting that the parties be ordered to submit briefs on the impact of the United
States Supreme Court’s recent decision in McWilliams v. Dunn, 137 S.Ct. 1790 (2017).
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Appellant believes that this decision may assist the Court in resolving his second issue,
as detailed on pages 10-14, supra, because McWilliams involves the application of Ake.
After independently reviewing McWilliams and given the manner in which we disposed
of Appellant’s second issue,37 we conclude that further briefing on McWilliams is
unnecessary. Accordingly, we deny Appellant’s June 8th application for leave to file a
post-submission communication.
V. Conclusion
For the reasons set forth above, we affirm the order dismissing Appellant’s PCRA
petition.38
Chief Justice Saylor and Justices Todd, Donohue, Dougherty, Wecht and Mundy
join the opinion.
37
Appellant asserted that trial and appellate counsel improperly challenged the trial
court’s rulings regarding his requests for experts and funding simply by relying on Ake.
We determined that this assertion was belied by the record. Supra at 13-14.
38
The Prothonotary of the Supreme Court is directed to transmit the complete record of
this case to the Governor pursuant to 42 Pa.C.S. § 9711(i).
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