Opinion
862 WDA 2022 J-A29032-23
01-12-2024
COMMONWEALTH OF PENNSYLVANIA v. ROBERT FERRANTE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered June 30, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at CP-02-CR-0013724-2013
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Robert Ferrante (Appellant) appeals from the order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). After careful consideration, we affirm.
This Court previously summarized:
The Commonwealth's evidence established that at 11:18 p.m., on April 17, 2013, Autumn Klein, M.D., Ph.D. ("Dr. Klein" [or the victim]), was seen leaving Presbyterian University Hospital, her place of employment. Upon arriving at her residence, Dr. Klein collapsed. At 11:52 p.m., Dr. Klein's husband, [Appellant], called for an ambulance. Pittsburgh paramedics Jerad Albaugh and Steve Mason arrived at the residence, where they found Dr. Klein unconscious on the kitchen floor. [Appellant] told the paramedics that he was upstairs when Dr. Klein had entered the home, and discovered Dr. Klein when he came downstairs. [Appellant] explained to paramedics that a zip lock bag containing a white powder, found in the kitchen, contained creatine. [Appellant] explained that Dr. Klein took the creatine to help with fertility.
At the hospital, Andrew Farkas, M.D. ("Dr. Farkas"), asked [Appellant] whether Dr. Klein had suffered previously from headaches. [Appellant] stated that right before collapsing, Dr. Klein had complained of not feeling well. When placing an IV, Dr. Farkas observed that Dr. Klein's blood was bright red. Dr. Klein was subsequently transferred to the intensive care unit ("ICU"). Three days later, the supervising physician in the emergency room, Thomas Martin, M.D. ("Dr. Martin"), told Dr. Farkas that the results of Dr. Klein's blood test indicated the presence of a high level of cyanide. Dr. Farkas contacted the Allegheny County Medical Examiner's [ACME] Office and informed them of his concerns regarding Dr. Klein. Dr. Klein was pronounced dead on April 20, 2013.
On July 24, 2013, [Appellant] was charged with one count of criminal homicide for the death of Dr. Klein. A jury ultimately convicted [Appellant] of first-degree murder....Commonwealth v. Ferrante, 183 A.3d 1070 (Pa. Super. 2018) (unpublished memorandum at 1-3) (capitalization modified). On February 4, 2015, the trial court sentenced Appellant to life in prison. This Court affirmed Appellant's judgment of sentence, after which the Pennsylvania Supreme Court denied allowance of appeal. See id., appeal denied, 190 A.3d 595 (Pa. 2018)
Appellant timely filed the instant PCRA petition, his first, on July 2, 2019. Appellant asserted 17 claims of ineffective assistance of prior counsel. On August 27, 2019, the PCRA court issued an opinion notifying Appellant of its intention to dismiss most claims without a hearing. The PCRA court
The Honorable Jeffrey A. Manning, Appellant's trial judge, initially oversaw Appellant's PCRA proceedings.
determined that some of the claims raised [in the petition] do not present a genuine issue concerning any material fact, that [Appellant] is not entitled to relief on those claims[,] and that no
purpose would be served by any further proceedings as to these claims. Accordingly, pursuant to Pennsylvania Rule of Criminal Procedure 907, those claims will be dismissed without an evidentiary hearing.
The court also determined that some of the claims [were] defectively pled but that the defects may be able to be cured in an amended petition. Therefore, pursuant to Pa.R.Crim.P. 905(B), [Appellant] will be granted leave to file an amended petition curing those [claims] ….PCRA Court Opinion, 8/27/19, at 1-2 (capitalization modified).
The PCRA court additionally ordered an evidentiary hearing on Appellant's ineffectiveness claim based on his waiver of the venire change he had been granted. Id. at 3, 15-16. As the PCRA court explained, the trial court had
granted [Appellant's] motion for Change of Venire, finding "… that a fair and impartial jury cannot be impaneled in this county." (See Order of Court, May 7, 2014). The Pennsylvania Supreme Court, acting on [the trial court's] order, then directed a change of venire to Dauphin County. It was only shortly before trial that [Appellant], through counsel, indicated he no longer wished to have a change of venire and, instead, wanted to select the jury in Allegheny County. [The trial court] granted this request and jury selection took place in Allegheny County.
[Appellant's ineffectiveness] claim requires [an] evidentiary hearing to address the issues of whether counsel had a reasonable basis for withdrawing that motion and waiving [Appellant's] right to a change of venire and, if counsel did not have a reasonable basis for that action, whether [Appellant] suffered prejudice.Id. (emphasis added).
Thus, the PCRA court (a) notified Appellant of its intention to dismiss all but four ineffectiveness claims; (b) permitted Appellant to file an amended PCRA petition to cure defects in three ineffectiveness claims; and (c) ordered an evidentiary hearing regarding waiver of the venire change. See PCRA Order, 8/27/19, ¶ 4. Appellant did not request leave to include additional issues in the amended petition.
The PCRA court permitted Appellant to cure defects in his claims regarding trial counsel's failure to (1) request a Frye hearing on the Quest Diagnostic testing procedures, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (requiring novel scientific evidence be generally accepted in the relevant scientific community to be admitted as evidence); (2) impeach the testimony of [the] Quest technician on the basis the technician used an erroneous unit of measurement; and (3) produce testimony concerning the half-life of potassium cyanide. See PCRA Order, 8/27/19, ¶ 2.
Appellant filed his amended PCRA petition on December 15, 2019. Appellant's petition supplemented the claims deemed appropriate for amendment. The PCRA court observed,
[Appellant] also included the claims from the original petition that the [PCRA court] concluded would be dismissed without a hearing, withdrew or abandoned two of those claims and raised two additional claims. Nothing contained in the amended petition has caused [the court] to reconsider its conclusion as to those claims the court previously determined would be dismissed without a hearing.PCRA Court Opinion, 1/13/20, at 2-3 (footnote omitted, capitalization modified).
On January 13, 2020, the PCRA court notified Appellant of its intention to dismiss the three claims amended in accordance with the court's prior order. PCRA Court Order, 1/13/20, at ¶¶ 1-2. Regarding Appellant's claim based on counsel's venire-change waiver, the PCRA court (Judge Manning) revisited the prior determination. The court indicated that Appellant
would be granted an evidentiary hearing on the issue of his decision to withdraw his request for a change of venire and proceed to trial with a jury selected from Allegheny County. At the time [the PCRA court] made that determination, the [c]ourt did not have the transcript from the in-chamber discussion where this withdrawal was discussed. [Appellant] has supplied a copy of that transcript and it does establish that counsel advised the [trial court] that [counsel] discussed the matter of the withdrawal with [Appellant] and [Appellant], at least according to counsel, agreed to proceed with a local jury. Most importantly, during that discussion[,] defense counsel stated that he was prepared to conduct a colloquy with [Appellant] over that decision and the [trial court] responded, "If [Appellant is] here, we can do it." NT, 9/2/14, p. 52. According to the [c]ourt's recollection, [Appellant] was brought to the courtroom and was asked by both the [c]ourt and defense counsel about the decision to withdraw [] the request for a change of venire and the [c]ourt was satisfied that [Appellant's] decision to do so was knowing and voluntary.
[Appellant], however, has averred in his affidavit that no such colloquy took place; that he was never brought before [the trial court] prior to trial and asked about this decision. Moreover, the [c]ourt reporter who took the notes of testimony on September 2, 2014 … is now deceased….Id. at 21-22 (emphasis added).
Judge Manning's law clerk confirmed the deceased court reporter's "standard record keeping practices revealed no indication that she took any notes of testimony that day other than what has been transcribed." Id.
The PCRA court directed the Commonwealth to answer Appellant's claim "that counsel was ineffective in advising [Appellant] to withdraw the request for a change of venire[.]" Id. The PCRA court instructed the Commonwealth to address the missing transcript of the waiver colloquy, and how the record of that proceeding may be recreated. Id. at 23. The Commonwealth complied with the PCRA court's order, filing its answer on February 5, 2020.
The PCRA court explained:
Prior to a PCRA hearing being scheduled before Judge Manning, the case was reassigned to [The Honorable Bruce R. Beemer] …. A status hearing was conducted on April 12, 2021 …. PCRA counsel Christopher Eyster, Esq.[,] argued on April 12, 2021 that [Judge Beemer] should expand the upcoming evidentiary hearing to include claims that were dismissed without a hearing by Judge Manning in his August, 27, 2019 and January 13, 2020 Opinions and Orders. [Appellant] filed a supporting brief on June 9, 2021. On June 10, 2021, counsel appeared before [the court] to argue the applicability of the Law of the Case Doctrine[,] in light of [Appellant's] argument that additional claims should be heard at the upcoming evidentiary hearing. On June 16, 2021[,] the [c]ourt entered an order finding that the two opinions authored by Judge [] Manning addressed and resolved substantive legal issues, thereby implicating the Law of the Case Doctrine….. Consequently, the only single issue framed by the original PCRA [c]ourt in the August 28, 2019 Opinion would be heard on the July 6, 2021 hearing date…..PCRA Court Opinion, 6/30/22, at 4-5 (footnotes and citation omitted).
On July 5, 2021, Appellant filed a motion for the "summary grant" of his PCRA petition under Pa.R.Crim.P. 907(2). Motion, 7/5/21. Appellant claimed there was no evidence of a "valid waiver of an out-of-county jury," and therefore he was entitled to a new trial as a matter of law. Id. ¶ 2. The PCRA court denied Appellant's motion on July 6, 2021.
Also on July 6, 2021, the PCRA court conducted an evidentiary hearing on Appellant's ineffectiveness claim based on the venire-change waiver. On June 30, 2022, the PCRA court denied Appellant's claims and dismissed the PCRA petition. Appellant timely appealed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues:
1. Whether the trial court's failure to change the venire was constitutionally deficient because Appellant did not make an intelligent, voluntary, and knowing decision to waive his court-ordered change in venire.
2. Whether trial counsel's failure to limit [the] bias of Allegheny County jurors was without a reasonable basis and resulted in prejudice to Appellant.
3.Whether trial counsel's failure to understand the scientific and medical evidence in the case and effectively attack the Commonwealth's scant evidence was without reasonable basis and resulted in prejudice to Appellant.
4. Whether appellate and PCRA counsel's failure to challenge trial counsel's ineffective assistance and the structural errors of Appellant's trial was without a reasonable basis and resulted in prejudice to Appellant.
5.Whether the PCRA court failed to consider the combined impact of the trial court and trial counsel's errors.
6. Whether the PCRA court failed to consider Appellant's actual innocence claim.
7. Whether the PCRA court failed to hold an evidentiary hearing regarding the issues raised in the amended PCRA petition.Appellant's Brief at xi-xii.
Appellant's argument does not correspond with his statement of questions involved. Appellant addresses the above issues (and numerous sub-issues) in five sections:
1. Whether the trial court's failure to change the venire was constitutionally deficient because Appellant did not make an intelligent, voluntary, and knowing decision to waive his court-ordered change in venire.
2. Whether all prior counsel rendered ineffective assistance in not preserving the issue regarding the venire-change waiver.
3. Whether trial counsel's failure to limit bias of Allegheny County jurors was without a reasonable basis and resulted in prejudice to Appellant.
4. Whether trial counsel rendered ineffective assistance by failing to understand the science and medicine involved in [Appellant's] case.
5. Whether the PCRA court erred in the treatment of Appellant's case.
Our discussion will correspond to Appellant's argument.
SCOPE/STANDARD OF REVIEW
Our review of an order denying a PCRA petition "is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation and internal quotation marks omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citation omitted).
1. Whether the trial court's failure to change the venire was constitutionally deficient because Appellant did not make an intelligent, voluntary, and knowing decision to waive his court-ordered change in venire.
Appellant argues he "was denied his constitutional right to a fair trial by an unbiased jury." Appellant's Brief at 39. Appellant explains that the trial court initially granted a change of venire because "pervasive and prejudicial pre-trial publicity" tainted the jury pool. Id. at 40 (citation omitted). Further, the Supreme Court directed that a jury be impaneled from Dauphin County. Id.
Appellant further observes that the trial court conducted an in-chambers, pre-trial status conference regarding the venire change and its cost. Id. at 41. At that time, Appellant's counsel waived the venire change and agreed to colloquy Appellant immediately after the conference. Id. Appellant claims "[n]o colloquy of [Appellant] ever occurred." Id. Appellant directs our attention to the affidavits of his counsel indicating the absence of any waiver colloquy in the record. Id. at 41-42.
Appellant argues that he, "not his counsel, must knowingly, intelligently and voluntarily waive his constitutional right to an impartial jury." Id. at 42 (capitalization modified). Although Appellant's counsel waived the venire change, Appellant claims "[n]othing in the record confirms [Appellant] was consulted about this changed position-especially not on the record." Id. at 45.
We first address whether Appellant's claim of an unknowing and involuntary venire-change waiver was preserved for review. Appellant's initial PCRA petition challenged his venire-change waiver in the context of an ineffectiveness claim. Appellant averred, "defense counsel misadvised his client to waive an out-of-town jury. Consequently, no voluntary, intelligent, and knowing waiver of [Appellant's] right to a fair trial by an unbiased jury occurred." PCRA Petition, 7/29/19, at 4. Appellant claimed pre-trial publicity had tainted the jury pool. Id. at 16-20.
In its August 27, 2019, opinion, the PCRA court found Appellant's ineffectiveness claim, based on counsel's waiver of the venire change,
requires an evidentiary hearing to determine whether counsel had a reasonable basis for withdrawing that motion and waiving [Appellant's] right to a change of venire and, if counsel did not have a reasonable basis for that action, whether [Appellant] suffered prejudice.PCRA Court Opinion, 9/27/19, at 15-16.
The PCRA court permitted Appellant to amend three issues:
(a) Whether trial counsel was ineffective for failing to request a Frye hearing on the Quest Diagnostic testing procedures, see id. at 7-10;
(b) Whether trial counsel was ineffective for failing to impeach testimony of a Quest technician on the basis of his use of an erroneous unit of measurement, see id. at 10-11;
(c) Whether trial counsel was ineffective for failing to produce testimony concerning the half-life of potassium cyanide, see id. at 14-15.
See Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005).
The PCRA court's order confirmed its permission to amend only three issues. PCRA Court Order, 8/27/19. The PCRA court did not grant Appellant leave to amend his ineffectiveness claim regarding the venire-change waiver. See id. Further, Appellant never requested permission to amend that claim. See id.
In his amended petition, Appellant repeated his assertion of trial counsel's ineffectiveness as to the venire change:
Defense counsel was ineffective for waiving [Appellant's] right to an unbiased jury and fair trial by allowing the jury to be selected from Allegheny County even though the Court found that [Appellant] could not receive a fair trial with Allegheny County jurors.
Amended PCRA Petition, 12/15/19, at 22. Appellant asserted, trial counsel violated McCoy v. Louisiana because "[n]o voluntary, intelligent, and knowing waiver from [Appellant] occurred." Id. at 22-23. According to Appellant, the lack of a knowing, voluntary, and intelligent waiver "constitutes 'structural error' as well and the [c]ourt should grant a new trial without a hearing." Id. at 27.
See McCoy v. Louisiana, U.S., 138 S.Ct. 1500, 1512, 200 L.Ed. 2D 821 (2018) ("Some decisions … are reserved for the client-notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal.").
On January 13, 2020, the trial court directed the Commonwealth to answer Appellant's claim
that counsel was ineffective in advising [Appellant] to withdraw the request for a change of venire and this matter will be addressed at a hearing to be scheduled upon the receipt of the Commonwealth's answer. The Commonwealth should address in its answer the issue of the missing transcript of the colloquy [the trial court] conducted with [Appellant] and how the record of that proceeding may be recreated. This will also be addressed at the hearing in this matter….N.T., 1/13/20, at 22-23. Appellant did not request leave to amend his venire-change issue at that time.
Appellant first raised his present challenge to the venire-change waiver on July 5, 2021, by filing a motion for "summary grant" of his PCRA petition. Motion, 7/5/21. Appellant claimed that because there is no evidence of a "valid waiver of an out-of-county jury", he is entitled to a new trial as a matter of law. Id. ¶ 2. Appellant purportedly filed this motion under Pa.R.Crim.P. 907(2) (Summary Grant Motion). However, Rule 907(2) does not permit a petitioner to raise new grounds for relief in a summary grant motion:
(2) A petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.Pa.R.Crim.P. 907(2) (emphasis added). Appellant's petition and amended petition did not challenge the validity of the waiver. Consequently, the PCRA court denied the Summary Grant Motion. PCRA Court Order, 7/6/21. Following this order, Appellant did not request leave to amend his petition to include this claim.
Our review confirms Appellant's claim of an unknowing and involuntary waiver was not raised in his PCRA petition, amended petition, or answer. In its opinion, the PCRA court explained:
At the outset, the court recognizes that Appellant continually attempted to reframe the issue at the evidentiary hearing and continued this effort in his September 8, 2021 court-ordered brief. The parties were to brief the single ineffectiveness claim ....
However, in his forty-one page brief, Appellant only tangentially addressed the issue, and instead used the bulk of his brief to raise new claims. These new claims are not only impermissible, but ignore the court's briefing directive. [Appellant] did so despite the fact that his own claim ... alleges the ineffectiveness of defense counsel for waiving [Appellant's] change of venire. This claim[,] as framed by [Appellant,] was the only one the [prior PCRA judge] reviewed and determined an evidentiary hearing was needed, further narrowing it to the 2nd and 3rd prongs of the ineffectiveness standard. Despite this, it is readily apparent from the record that [Appellant] attempted to redefine the claim by alleging that because there is no record of an on-the-record colloquy, his waiver of a change of venire was not knowingly, intelligently, or voluntarily made[,] in violation of his 6th and 14th Amendment rights. Not only is that a new claim from those raised within his PCRA petition, but [it] is contrary to his witness certification wherein [Appellant] stated, "I believe I was coerced, placed under great duress, and provided false promises into waiving my rights to a change of venire." ....PCRA Court Opinion, 6/30/22, at 11-12 (emphasis added, capitalization modified).
After careful review, we agree with the PCRA court. Appellant did not preserve his claim in his initial PCRA petition or amended petition. See id.; see also Commonwealth v. Roney, 79 A.3d 595, 615-16 (Pa. 2013) (stating a PCRA petition cannot be amended without the permission of the court, and claims any claims raised in an unauthorized petition are waived); Pa.R.Crim.P. 907 cmt. ("Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred."). As such, this issue does not warrant relief.
2. Whether all prior counsel were ineffective for not preserving Appellant's claim regarding the venire change waiver.
Appellant next argues that all prior counsel rendered ineffective assistance by not pursuing his challenge to his venire-change waiver. See Appellant's Brief at 50.
Appellant did not raise this claim in his statement of questions. See Pa.R.A.P. 2116(a) (providing, "No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). As our review is not impeded by Appellant's violation of Rule 2116, we address his claim.
Generally, a PCRA petitioner claiming ineffective assistance of prior counsel must establish (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice befell the petitioner from counsel's act or omission. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001); accord Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). "Failure to prove any prong of this test will defeat an ineffectiveness claim." Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
See also Strickland v. Washington, 466 U.S. 668, 687 (1984) (recognizing two components to an ineffectiveness claim: "First, the defendant must show that counsel's performance was deficient. … Second, the defendant must show that the deficient performance prejudiced the defense.").
"[C]laims of ineffectiveness are not self-proving [.]" Commonwealth v. Jones, 811 A.2d 994, 1003 (Pa. 2002) (emphasis added). As this Court explained,
[a] claim has arguable merit where the factual averments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, [and whether counsel's strategy] offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019) (citations and some quotations omitted).
"Where a petitioner alleges multiple layers of ineffectiveness, he is required to plead and prove, by a preponderance of the evidence, each of the three prongs of ineffectiveness relevant to each layer of representation." Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022). "In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue." Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
When an appellant claims PCRA counsel ineffectiveness for the first time on appeal, this Court has "the ability to grant or deny relief on straightforward claims, as well as the power to remand to the PCRA court for the development of the record." Commonwealth v. Bradley, 261 A.3d 381, 403 (Pa. 2021). The Bradley Court explained,
[i]n some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel's ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel's stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded.Id. at 402 (emphasis added, citations and footnote omitted and formatting altered).
See also Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010) (stating, as "a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion" and noting the Supreme Court's "strong preference that counsel be heard from before being found ineffective"), abrogated on other grounds by Bradley, 261 A.3d at 401.
Appellant challenges, inter alia, the performance of Chris Rand Eyster, Esquire, who served as both direct appeal and PCRA counsel. See id. Regarding Attorney Eyster's performance on direct appeal, Appellant claims counsel failed to appeal the "unknowing, unintelligent, involuntary waiver of [Appellant's] constitutional right to an impartial jury." Id. According to Appellant,
the arguments and supporting evidence available to appellate counsel was extensive and compelling. Thus, a direct appeal claim based on the trial court's erroneous deviation from its previously granted change of venire was meritorious. The claim's support was immediately within reach: a simple review of the record (both existent and non-existent) as well as consultation with [Appellant] and trial counsel was sufficient. There was therefore no strategic advantage or reason for appellate counsel not presenting such a claim on direct appeal. Given the breadth and depth of the available arguments and supporting evidence, it is reasonably probable that [Appellant's] direct appeal would have had a different result if the change of venire issue was presented....Id. at 59-60 (emphasis added).
Appellant further challenges the PCRA court's denial of relief, "despite not making an independent finding on whether a colloquy or waiver occurred." Id. at 53. Appellant disputes the PCRA court's conclusion that, without trial and direct-appeal counsel's testimony regarding their basis for not pursuing this claim, Appellant's ineffectiveness claim fails. Id. at 53-54.
In assessing Appellant's claim, we are cognizant that appellate counsel is entitled, as a matter of strategy, to forgo even meritorious issues in favor of issues he believes pose a greater likelihood of success. See Commonwealth v. Robinson, 864 A.2d 460, 479 n.28 (Pa. 2004) ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (citation omitted)). "[Experienced advocates since time beyond memory emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Notwithstanding, "in very clear cases, an absence of reasonable strategy may be evident based on an attorney's conduct alone[.]" Commonwealth v. Shaw, 247 A.3d 1008, 1017 (Pa. 2021). Upon review, we do not view this as such a case.
During the PCRA proceedings, the parties disputed whether a waiver colloquy had occurred. The lack of a colloquy, alone, does not render Appellant's waiver invalid, and Attorney Eyster's performance ineffective. As our Supreme Court explained in the context of a jury-trial waiver,
[a] waiver colloquy is a procedural device; it is not a constitutional end or a constitutional "right." Citizens can waive their fundamental rights in the absence of a colloquy; indeed, waivers can occur by conduct or by implication .... Moreover, the absence of an on-the-record colloquy concerning the fundamentals of a trial by jury does not prove, in an absolute sense, that a defendant failed to understand the right he waived by proceeding non-jury. … The record colloquy contemplated by Pa.R.Crim.P. 620 serves a salutary prophylactic purpose, as it makes it plain that a jury waiver is knowing and voluntary, and it creates a record in the event of a later, collateral attack upon the waiver. For the same twin reasons, an on-the-record colloquy is a useful procedural tool whenever the waiver of any significant right is at issue, constitutional or otherwise, e.g., waiver of a trial, waiver of the right to counsel, waiver of the right to call witnesses, waiver of the right to cross-examine witnesses, waiver of rules-based speedy trial time limits, etc. But the colloquy does not share the same status as the right itself.Commonwealth v. Birdsong, 24 A.3d 319, 338 (Pa. 2011).
Instantly, at the September 2, 2014, status conference, Attorney Difenderfer informed the trial court that Appellant wished to waive the venire change. N.T., 9/2/14, at 3. Attorney Difenderfer stated, "We met extensively last night with [Appellant] about that very issue[.]" Id. Attorney Difenderfer explained, "We are fine with Allegheny County. We're prepared to be colloquied and everything like that on that." Id. Significantly, Attorney Difenderfer confirmed,
we're willing to go on the record to colloquy [Appellant] of the discussion of the change of venire and to withdraw our Motion and he has been fully advised. We spent a lot of time going over things….Id. at 5 (emphasis added).
Attorney Diffenderfer's affidavit confirmed his pre-conference discussion regarding the waiver:
We discussed the need to colloquy [Appellant] on the issue of changing venire. It is my belief that, inadvertently, a colloquy did not occur as there certainly would be a record of it and I would remember it. I don't recall my client ever being colloquied by the court or counsel, nor do I believe he ever was on this issue.
The issue was, however, [was] reviewed with [Appellant] and by myself and [his other trial counsel] - I believe - the night before this conference.
It is my belief that issues such as this change of venire should be independently explained to a defendant by the court to ensure that a knowing, voluntary, and intelligent decision is made by the defendant alone.
Affidavit of Attorney Difenderfer, 5/1/23, ¶¶ 6-7 (paragraph designations omitted, emphasis added). Attorney Williams's affidavit similarly confirms counsel's pre-conference discussion with Appellant. See Affidavit of Attorney Williams, 5/1/23, ¶ 6. Thus, the lack of a knowing and intelligent waiver is not evident from the record. See Shaw, 247 A.3d at 1017. As such, we review Appellant's claim under the Pierce standard.
Beyond a general assertion, Appellant fails to sufficiently develop his claim regarding Attorney Eyster's representation on direct appeal. Appellant baldly asserts Attorney Eyster had "no strategic advantage or reason for" "not presenting such a claim on direct appeal." Appellant's Brief at 60. Appellant had not included an affidavit or statement by Attorney Eyster regarding his basis for not pursuing this claim. Appellant also fails to indicate that Attorney Eyster would confirm his lack of reasonable basis for not pursuing this issue on direct appeal. As such, Appellant's claim of ineffective assistance of direct appeal counsel fails. See Parrish, 273 A.3d at 1003 n.11 (requiring a petitioner pleading layered ineffectiveness to prove each of the three prongs of ineffectiveness relevant to each layer of representation); Bradley, 261 A.3d at 402 (explaining that an appellant must "provide more than mere boilerplate assertions of PCRA counsel's ineffectiveness" to obtain relief on a such a claim or for this Court to remand the matter to the PCRA court (citation and quotation marks omitted)); see also Sandusky, 203 A.3d at 1044. Further, there is no merit to his claim of ineffectiveness as to PCRA counsel. No relief is due.
Appellant's argument regarding the PCRA court's application of the coordinate jurisdiction rule does not alter our result. Appellant failed to establish direct-appeal counsel's ineffectiveness.
3. Whether trial counsel's failure to limit bias of Allegheny County jurors was without a reasonable basis and resulted in prejudice to Appellant.
Appellant next argues his trial counsel rendered ineffective assistance by failing to limit the alleged bias of Allegheny County jurors. Appellant argues trial counsel improperly failed to voir dire jurors regarding their connections to UPMC and Quest Diagnostics and limit jurors' media and external exposure. Id. at 61, 64. Appellant asserts trial counsel had no reasonable basis for not limiting bias, and it resulted in prejudice. See id. at 66, 67.
Appellant did not raise this issue(s) in his PCRA petition or amended petition. Accordingly, it is waived. See Pa.R.A.P. 302(a) (stating a claim cannot be raised for the first time on appeal).
We note, Appellant does not argue the ineffective assistance of all prior counsel for not preserving these claims.
4. Whether trial counsel rendered ineffective assistance by failing to understand the science and medicine involved in [Appellant's] case.
Appellant next presents multiple, sometimes layered, claims of ineffective assistance by trial counsel. Appellant claims trial counsel rendered ineffective assistance by failing to (a) present evidence regarding the victim's potential causes of death, see Appellant's Brief at 70; (b) seek an "alternative hypothesis" jury charge, see id. at 74; (c) obtain the testimony of a transplant surgeon to demonstrate the absence of cyanide in the victim's donated organs, see id. at 77; (d) establish the impossibility of the diagnostic test results, see id. at 79; (e) effectively present the testimony of a physician toxicologist about the absence of cyanide in the victim's organs, see id. at 82; (f) impeach Quest employees, see id. at 83; (g) challenge the errors and conclusions reached by ACME, see id. at 84; (h) seek the exclusion of the Quest test results, see id. at 90; (i) obtain independent third-party testing, see id. at 96; and (j) object to prejudicial and bias-inducing evidence, see id. at 99. We address each issue in turn.
(a) Trial counsel's ineffectiveness for not presenting evidence regarding the victim's cause of death
Appellant claims trial counsel rendered ineffective assistance by not presenting evidence regarding the victim's health issues and potential causes of death. Appellant's Brief at 70. Appellant references the victim's various medical conditions, and trial testimony regarding those conditions. See id. at 71 (testimony regarding, inter alia, cardiac conditions, syncope, and a mitochondrial abnormality). Appellant's own argument disproves his claim that counsel failed to present such evidence.
Appellant's expert, Dr. Cyril Wecht, testified about the victim's health issues. Dr. Wecht testified that he reviewed, inter alia, the victim's hospital records, the police report, interviews of paramedics and hospital personnel, and records from the medical examiner. N.T., 11/7/14, at 153-54. He examined tissue slides from the victim's lungs, uterus, pancreas, and spleen. Id. at 154. Dr. Wecht also reviewed reports from the Center for Organ Recovery & Education (CORE), which harvested the victim's organs, as well as medical reports from "various medical/scientific experts, those consulted by the prosecution and those consulted by" trial counsel. Id.
Dr. Wecht expressly addressed the victim's various medical conditions. See id. at 164-67 (detailing abnormalities found in the post-death exam of the victim's heart, a combination of which "could lead to a cardiac arrythmia or dysrhythmia"), 167 (opining that arrythmia could lead to sudden collapse), 169 (disagreeing with opinions of the Commonwealth witnesses), 170-71 (detailing effects of the victim's long-term ingestion of creatine and the possibility that a chemical reaction caused by an impurity in the creatine could produce cyanide, but not in an amount to cause death). As trial counsel presented evidence about the victim's health issues, Appellant's ineffectiveness claims as to trial and PCRA counsel's ineffectiveness lack arguable merit. See Fears, 86 A.3d at 804.
(b) Trial counsel's ineffectiveness for failing to seek an "alternative hypothesis" instruction
Appellant next claims that, because the Commonwealth presented only circumstantial evidence of the victim's cause of death, trial counsel was ineffective for failing to request an "alternative hypothesis" jury instruction. Appellant's Brief at 74. Appellant states, "When a party on whom the burden of proof in either a criminal or civil case offers evidence consistent with two opposing prongs, he proves neither." Id. at 74-75 (quoting Commonwealth v. Woong Knee New, 47 A.2d 450, 467-68 (Pa. 1946)).
According to Appellant, the Commonwealth's key evidence (the Quest test result) "was undermined by the inconsistencies between Quest's testing and its" standard operating procedures. Id. at 75. Appellant claims there was equal if not more evidence demonstrating the victim died from non-cyanide causes. Id. In support, Appellant points to the report from the Jesse E. Edwards Registry of Cardiovascular Disease located in St. Paul, Minnesota. Id. Appellant cites the report statement that the victim's heart was "not normal for a 41-year-old person." Id. at 75-76.
In New, our Supreme Court explained,
[w]hen two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty. When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither. [The Supreme Court has held that] [t]he evidence in this case was utterly insufficient if submitted under adequate and proper instructions to convince an intelligent and fair-minded jury of the defendant's guilt to a moral certainty so strong as not to be weakened or disturbed by any reasonable doubt.New, 47 A.2d at 468 (emphasis added). In New, the Court reversed the defendant's judgment of sentence
(a) because the charge of the trial [c]ourt was so inaccurate and misleading, and (b) also because the Commonwealth's evidence was so weak and the evidence of alibi was so strong, [the Supreme Court] said: "The jury must also be instructed that 'the evidence in support of the alibi may, with other facts in the case, raise the reasonable doubt of guilt which entitled a defendant to acquittal.'" The opinion of [the Supreme] Court was predicated upon the failure of the trial [j]udge to "make it clear to the jury that the evidence as to an alibi may generate in the minds of the
jury a reasonable doubt of the defendant's guilt." The trial [j]udge's charge in that case was filled with statements which, because of inaccuracy or ambiguity, were highly prejudicial, and the language of this Court's opinion must be considered in connection with the facts of that case.Commonwealth v. Richardson, 140 A.2d 828, 839 (Pa. 1958) (explaining New) (some punctuation modified, citations omitted).
Regardless of the validity of New, Appellant cites no inaccuracies in the trial court's jury instructions. Our review discloses that the trial court properly instructed the jury about the presumption of innocence, the Commonwealth's burden of proof, reasonable doubt, and the proper consideration of circumstantial and direct evidence. See N.T., 11/4-7/14, at 434-39. "The law presumes the jury will follow the instructions of the court." Commonwealth v. Eichinger, 108 A.3d 821, 846 (Pa. 2014). Under these circumstances, Appellant has failed to establish that his underlying claim has arguable merit. See Fears, 86 A.3d at 804. Accordingly, Appellant's claim of ineffectiveness as to trial and PCRA counsel merits no relief.
In Commonwealth v. Martin, 142 A.2d 467 (Pa. 1958), our Supreme Court questioned the validity of New "to the effect that the evidence required to sustain the conviction must produce a moral certainty of the guilt of the accused beyond a reasonable doubt." Id. at 415-16.
The language of … the whole line of cases on which the moral certainty doctrine was based, have been repudiated by the courts of this Commonwealth, and it is now clearly established that the moral certainty test has no place in the criminal law of Pennsylvania….Id. at 416.
(c) Trial counsel's ineffectiveness for failing to obtain the testimony of the transplant surgeon to demonstrate the absence of cyanide in the victim's organs
Appellant next presents a layered ineffectiveness claim based on trial counsel's failure to present testimony from the surgeon who transplanted the victim's donor organs. Appellant's Brief at 77. Appellant claims the transplant surgeon would testify to the absence of cyanide in the victim's organs. Id. According to Appellant, lethal cyanide levels would have damaged the victim's organs, rendering them compromised in transplant recipients. Id. at 77-78. Appellant claims the transplant surgeon's testimony would have undermined the results from the Quest test, and supported Appellant's defense. Id. at 78.
As stated above, to be entitled to relief on a claim of ineffectiveness for failure to call a witness, Appellant must demonstrate that the witness existed, was available and willing to cooperate, counsel knew of the witness, and prejudice resulting from the lack of the witness' testimony. Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016).
[an] appellant must demonstrate: the witness existed, was available, and willing to cooperate; counsel knew or should have known of the witness; and the absence of the witness's testimony prejudiced [the] appellant.Id. (citations omitted)
Appellant fails to identify in the PCRA record where he met these requirements, and fails to discuss the requirements in his brief. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) ("This Court will not act as counsel and will not develop arguments on behalf of an appellant." (citation omitted)). Consequently, the claim does not merit relief. See Johnson, 139 A.3d at 1284.
Alternatively, we agree with the PCRA court's conclusion that the underlying claim was previously litigated and not cognizable under the PCRA. PCRA Court Opinion, 8/27/19, at 14; see also 42 Pa.C.S.A. § 9543(3) (requiring PCRA petitioner to plead and prove that the allegation of error has not been previously litigated or waived). Appellant raised a similar issue on direct appeal in an application for special relief. See Commonwealth v. Ferrante, 183 A.2d 1070 (Pa. Super. 2018) (unpublished memorandum at 16). We explained,
[i]n his Application, [Appellant] asks this [C]ourt to remand the case for an evidentiary hearing. Application for Relief, 10/20/17. [Appellant] contends that at an evidentiary hearing, he would present evidence related to the testing of Dr. Klein's liver, prior to the transplant of that organ. [Appellant] directs our attention to testimony, by Dr. Wecht and another expert, that cyanide is not limited to blood, but is deposited in organs and tissues throughout the body.
....
Our review of the record discloses that the evidence related to Dr. Klein's transplanted organ is not "newly discovered," but cumulative to other evidence presented at trial. During opening arguments, defense counsel informed the jury that
[t]he samples and the blood that [were] sent to CORE, the transplant people, [tested] negative, negative for cyanide. The organs, there is a liver and a healthy kidney in two people as we talk. Dr. Martin thought it was so critical when he heard about the cyanide level of 3.4, he frantically called CORE to hold off on the transplantation. Where do we clean our blood from? Our liver and kidneys. Well, they are in two healthy people for all we know because
there was successful transplantation and the blood testing was negative.
Dr. Wecht also testified regarding two tests performed by CORE on body tissues from Dr. Klein. Dr. Wecht stated that the two tests on Dr. Klein's tissues came back "negative."
Contrary to [Appellant's] assertion, the letter from a transplant recipient, regarding the condition of his/her organ, is merely cumulative of the results of the CORE test. As such, we decline [Appellant's] request for a remand on this issue.Id. (unpublished memorandum at 16-17) (citations omitted).
Addressing Appellant's present ineffectiveness claim, the PCRA court recognized,
[a] PCRA petitioner cannot avoid the effect of the previous litigation bar by raising a claim already disposed of under an alternate theory.
Not only was this claim previously litigated, but this jury actually was presented with evidence establishing that the transplanted organs were not damaged by cyanide poisoning. Trial counsel argued in his closing the significance of this:
Ladies and gentlemen, the CORE blood samples were taken. Cyanide can be stable in blood for up to three months. The CORE blood records were negative. ... [W]hat did Dr. Martin do? What did he do when he found out the tests from Dr. Farkas? Dr. Martin was the one treating with Dr. Farkas in the hospital. What did he do? He didn't call the medical examiner, Farkas did that. He ran to the phone and called CORE. Why? Oh my God, someone is going to get a liver or kidney laced with cyanide. There are two people walking around healthy with a liver and kidney from [the victim]. Her gift of life has been accomplished. The blood samples were all negative. The liver cleans toxins out of your system. Just saying. When I asked Dr. Wecht, he was dumbfounded. Those are the concerns.
(TT. Vol. 4, p. 402). Both because the claim was previously litigated and because the jury was presented with evidence establishing that the transplanted organs were undamaged, this claim will be dismissed without a hearing.PCRA Court Opinion, 8/27/19, at 12-13. We agree, and affirm on this basis as well. See id. No relief is due.
(d) Trial Counsel's ineffectiveness for failing to demonstrate the impossibility of the Quest test result
Appellant argues trial counsel rendered ineffective assistance by failing to demonstrate the "impossibility" of the Quest test result. Appellant's Brief at 79. Appellant relies on testimony about cyanide levels in Appellant's blood and the half-life of cyanide. Id. Appellant claims the Quest test results are impossible because of cyanide's half-life. Id. at 79-82.
In his amended PCRA petition, Appellant averred that trial counsel rendered ineffective assistance by failing to produce testimony regarding the half-life of cyanide. Amended PCRA Petition, 12/15/19, at 20. Appellant argued that, had counsel presented testimony from Dr. Christopher Long, a forensic toxicologist, "the jury would have rejected the Commonwealth's theory about the inaccuracy of half-life calculations and found the Quest blood test result unbelievable." Id. at 21.
The PCRA court denied relief, citing Dr. Wecht's testimony "that the reported level of cyanide found in the victim's blood would had to have come from a substantial amount ingested, considering the half-life of cyanide." PCRA Court Opinion, 1/13/19, at 20. The PCRA court explained,
[w]hat is missing from the report of Dr. Long is any opinion as to what the half-life of cyanide is. [Appellant] again cites to literature from the CDC but offers no expert explanation for how the half-life would be calculated. More importantly, there was plenty of evidence from the defense that called into question whether the victim died from cyanide poisoning. Having Dr. Long testify consistently with what had already been presented would not have affected the outcome of the trial. As this opinion evidence was merely cumulative of that which was presented, [Appellant] suffered no prejudice.Id. at 20-21 (emphasis added).
On appeal, for the first time, Appellant presents evidence regarding the half-life of cyanide. Appellant's Brief at 79-82. Appellant attached to his brief the Affidavit of Dr. Richard B. Silverman. Id., Appendix H. Appellant argues this evidence establishes the impossibility of the Quest test result. Id. at 79-82.
Our review discloses that Dr. Silverman's affidavit was not presented to the PCRA court, nor is it part of the certified record. Thus, we may not consider it. See Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995) (stating appellate courts may only consider that which is duly certified in the record). In addition, the PCRA court's analysis is supported by the record and legally sound. See PCRA Court Opinion, 1/13/19, at 20-21. There is no evidence regarding trial counsel's chosen trial strategy and the basis for that strategy. For this reason as well, Appellant's ineffectiveness claim fails. See Fears, 86 A.3d at 804.
In his brief, Appellant claims trial counsel's ineffectiveness; he does not claim ineffectiveness of PCRA counsel.
(e) Trial Counsel's ineffectiveness for failing to present a physician toxicologist to explain the complexity and errors of the Quest test result, and how cyanide affects the human body
Appellant argues, "Testimony from a physician toxicologist was necessary to explain the complexities and errors of the Quest result, as well as how cyanide affects the human body." Appellant's Brief at 82. Appellant asserts:
A toxicologist would have explained the half-life of cyanide, how quickly cyanide breaks down in the body, how it would have been impossible for [the victim] to consume the purported amount of cyanide to yield the Quest result 14 hours after admission without immediately dying, and [the victim's] symptoms inconsistent with cyanide poisoning. See Silverman Aff.Id. at 82 (citation omitted). Appellant claims a toxicologist would have provided evidence to refute the Quest test result. Id.
Again, Appellant fails to establish ineffective assistance of counsel. See Johnson, 139 A.3d at 1284. Appellant does not identify a toxicologist who was available to testify at trial. See Johnson, 139 A.3d at 1284. Appellant also fails to explain how counsel knew or should have known of the witness. See id. As such, this ineffectiveness claim, based upon the failure to present a physician toxicologist's testimony, merits no relief. See id.
Dr. Silverman averred, "If I were called to testify at a future hearing, I would testify consistent with the above." Appellant's Brief at Appendix H (Affidavit of Richard B. Silverman at 2) (emphasis added).
(f) Trial counsel was ineffective for failing to impeach Quest employees
Appellant claims trial counsel "failed to effectively impeach the testimony of Quest employees, despite ample opportunity." Appellant's Brief at 83. Appellant describes the tests performed by various Quest employees. Id. He points out that Quest employee, Ryan Bartolotti (Bartolotti), testified to reviewing the blood test results and improperly adjusting the results to reflect a cyanide level of 3.4 mg/L. Id. According to Appellant, the calculation was changed in an amended report, in the absence of further testing; the results were altered again when another employee changed the units of measurement for the results from 2.2 mg/L to 2.2 mcg/dL. Id. Appellant challenges Bartolotti's testimony that mg/L and mcg/dL are equivalent. Id. Appellant argues that with the appropriate conversion, the victim's blood would have shown normal cyanide levels. Id. at 84.
The PCRA court explained its disagreement:
[Appellant] claims that counsel was ineffective for failing to impeach the testimony of Quest technician [] Bartolotti when he said, "The micrograms per liter - - sorry, milligrams per liter and micrograms per deciliter are equivalent." [Appellant] contends that this testimony reveals that the actual cyanide level in the blood was .022 mg/L rather than the 2.2 mg/L reported and that counsel failed to properly impeach this witness on that basis.
In the August 27th Memorandum Opinion, the [PCRA] court pointed out that defense counsel did, in fact, cross-examine this witness on this issue. Given the opportunity to
supplement the record to support this claim, [Appellant] had each of the experts discuss this in their reports. They each cited this single sentence from Mr. Bartolotti as among the reasons they questioned the validity of the Quest test results. In doing so, they ignored the testimony of two other witnesses from Quest who testified that the test result of 2.2 milligrams per liter was accurate.
This claim is without merit. The single sentence they cite is ambiguous. It is not known what [Bartolotti] meant when he said that mg/L is "equivalent" to mcg/dl. He was being asked about a handwritten change to the first page of Exhibit 8 where it appears that "Ug/mil" (microgram per milliliter) is struck out and "mg/L" (milligram per liter) is written. …[T]he science director for Quest[] explained why this change was made:
That refers to the concentration limit that is there. Now, micrograms per deciliter were the old units that were used in the SOP. There was a change made to go to milligrams per liter in order to standardize our units across the laboratory as much as we could. Microgram per mill, which are struck out, are equivalent to milligrams per liter. When we asked for the change, they changed the units but forgot to change the numbers. The number five micrograms per deciliter is equivalent to .05 milligrams per liter.
[N.T., 10/27-28/14, at] 414. When asked if that changed the cyanide level, she said: "It does not, because the SOP clearly states the units of the calibrators are milligrams per liter, the report states they're milligrams per liter and it is correct." [Id. at] 414-415. [Appellant's] counsel was not ineffective for failing to impeach Bartolotti's testimony because there was nothing to impeach. Frankly, counsel was able, through effective cross-examination, to suggest that there may have been an error where, clearly, there wasn't. It was for the fact-finder to determine what affect this had on the credibility of this witness. Even if he was incorrect, such an error goes to the weight of the evidence, not its admissibility. This claim is without merit ….PCRA Court Opinion, 1/13/20, at 19-20. The record supports the PCRA court's analysis. See id. We agree that Appellant's underlying claim lacks arguable merit and, thus, his ineffectiveness claim fails. See Fears, 86 A.3d at 804.
(g) Trial counsel was ineffective for failing to challenge the errors and conclusions of the ACME
Appellant raises multiple claims regarding testimony and conclusions reached by the ACME. Appellant argues that trial counsel should have cross-examined ACME witnesses about their errors in judgment and disregard of "significant pathological findings (inconsistent with cyanide poisoning) when performing" the victim's autopsy. Appellant's Brief at 84. According to
Appellant, the errors prevented an accurate explanation for the victim's cause of death. Id. Appellant challenges the procedures of the ACME, including the failure to retain the contents of the victim's stomach, and failure to test the victim's bodily fluids or organs for cyanide. Id. at 85.
Appellant claims counsel should have challenged testimony about tests performed by the ACME, which indicate only whether cyanide was present, not the amount of cyanide. Id. at 86. Appellant argues, "the qualitative test conducted … on behalf of ACME is not confirmatory or supportive for the inaccurate Quest result." Id. Appellant asserts trial counsel failed to effectively challenge the result of ACME's tests "and undermine it as a qualitative, not quantitative, test." Id. According to Appellant, counsel also failed to cross-examine ACME employees about the possibility of false positives, or subpoena the error rate for Quest. Id.
Regarding the failure to challenge the ACME's procedures, Appellant asserts that the ACME uses "microdiffusion," "which is outdated technology, prone to false positives." Id. Appellant maintains that the industry standard is high pressure liquid chromatography. Id. at 87.
Appellant argues that trial counsel should have objected to the ACME's testimony regarding their test result. Id. at 89. Appellant claims:
Had counsel effectively undermined this result via objections and cross-examination, the jury would have understood that the cyanide tests were unreliable. Trial counsel's failure was neither strategic nor reasonable.Id. at 89.
Appellant states that the neuropathy report showed global ischemic encephalopathy, "consistent with a lack of oxygen, that resulted from [the victim's] multiple cardiac failures and altered biochemistry (Lactic acidosis)." Id. Appellant again claims the victim's death resulted from heart abnormalities. Id. Appellant asserts that "[d]efense counsel did not effectively challenge these issues." Id.
As the PCRA court explained,
Appellant claims that trial counsel did not challenge [associate medical examiner Dr. Todd] Luckasevic as to "why the spleen, an organ rich in blood that would contain high levels of cyanide if ingested, was not examined." PCRA Petition at 24. While it is true that trial counsel did not cross-examine Dr. Luckasevic on why he did not test the spleen, there is no support in the record or from any other source for the assertion that the spleen would have had high levels if cyanide were ingested. Moreover, [] trial counsel did, in fact, address the questions concerning the spleen with other witnesses.PCRA Court Opinion, 8/27/19, at 24.
Our review confirms that trial counsel challenged the ACME's procedures, comparing them with those used by the National Medical Services (NMS). See N.T., 10/30/14-11/3/14, at 466-67. Appellant's expert from NMS, Dr. Robert Alan Middleberg, reviewed the ACME's report. Id. at 457. He explained that NMS used different chemical reagents for testing than those used by ACME. Id. at 475. He distinguished the test used by NMS from that used by ACME. Id. at 473-74. According to Dr. Middleberg,
[t]he reagents we use to develop the color tend to have a little bit less interferences, still subject to interferences, again, not the best test we have to offer in the world of toxicology, but a little bit less interference than the others.Id. at 473. He stated that by interference, he meant "[t]hings that can cause a false positive." Id. Dr. Middleberg further testified about the microdiffusion- based testing protocols used by ACME. Id. at 479.
Defense counsel questioned Dr. Middleberg about the corrosive effects of cyanide on the gastrointestinal tract, "from the esophagus into the stomach." Id. at 483. Dr. Middleberg stated, "it's not unusual to see what's called hemorrhagic gastritis or inflammation of the lining of the esophagus and the stomach when there's a significant cyanide salt administration." Id. at 483-84.
Regarding testing, Dr. Middleberg opined that he "would have preferred the method we have now developed which would have been a liquid chromatograph[.]" Id. at 848 (emphasis added). He stated,
[i]t would have been my recommendation to test other samples. When you get a finding like this, I guess a little bit out of the blue, from the little bit of information I have, you can buttress your findings by looking at other things in the body. In this case, I think the spleen would have been a good sample to look at because the spleen retains red blood cells and that's where the cyanide is. So that would have been a good sample. That testing should have been done proximate to the time of death …. Certainly gastric contents, small bowel contents, rectal contents, large bowel contents where cyanide might still remain.Id. at 484-85. Dr. Middleberg did not opine that Quest's procedures were scientifically invalid.
Regarding ACME's failure to preserve the spleen for testing, the PCRA court accurately observed:
It is rather disingenuous for [Appellant] to complain that he was prejudiced because the victim's spleen was not available for testing[,] when its unavailability was solely the result of his decision to cremate the victim's body.PCRA Court Opinion, 8/27/19, at 27.
It appears that Appellant disputes trial counsel's chosen strategy of challenging ACME's result and conclusion. Counsel contested ACME's test result and conclusion through the testimony of Dr. Middleberg. In asserting trial counsel's ineffectiveness, Appellant failed to present evidence regarding counsel's strategy and whether it was unreasonable. Because Appellant failed to establish trial counsel's lack of reasonable basis for challenging ACME's result and conclusion through the testimony of Dr. Middleberg, his ineffectiveness claim fails. See Fears, 86 A.3d at 804.
(h) Trial counsel was ineffective for seeking the exclusion of the Quest test results
Appellant next argues that counsel rendered ineffective assistance by failing to seek exclusion of the Quest test results. Appellant's Brief at 90. Appellant claims the results were inadmissible under Frye. Appellant's Brief at 90. According to Appellant, Quest's methodology, or lack thereof, undermined its scientific integrity and reliability. Id. at 91. Appellant argues that any one of Quest's violations of its standard operating procedures invalidated the results, making them inadmissible at trial. Id. at 92. We disagree.
A Frye hearing is necessary when there are grounds to believe that an expert witness has not applied accepted scientific methodology to reach his conclusion. Betz v. Pneumo Abex LLC, 44 A.3d 27, 45 (Pa. 2012). The purpose is to exclude "junk science." Id. Our Supreme Court has explained that (1) the Frye rule "applies to an expert's methods, not his conclusions"; (2) "the proponent of the expert scientific evidence bears the burden of proof"; and (3) "the standard of appellate review ... is the abuse of discretion standard." Grady v. Frito-Lay, Inc., 839 A.3d 1038, 1047 (Pa. 2003) (emphasis added).
The PCRA court rejected this issue, noting the trial record
established that the testing for the presence of cyanide in the blood of the victim that was conducted by Quest was based on scientific theories that are generally accepted in the relevant scientific community. Leslie E. Edinboro, Science Director for Quest Diagnostics, testified to his background, including his training and education, as well as the science that underpinned the testing of blood for the presence of cyanide. (TT, Vol. 2, 228-
251). He was cross-examined thoroughly on his direct testimony. (TT, Vol. 2, 251-279). Id. at 8-9. Further, the failure to follow standard operating procedures and any errors by Quest go to the weight of the evidence, not its admissibility:
[Appellant's] argument that the Quest technicians did not conduct the tests properly does not go to the reliability of the science, but, rather, to the credibility of the witnesses and reliability of the test results. Those questions were for the fact finder. They did not render the test results inadmissible on the basis that the science behind them was novel or untested.Id. at 9. We agree with the PCRA court's rationale. Appellant's claim lacks merit. See id. at 7-10.
(i) Trial counsel was ineffective for failing to obtain independent third-party testing, and PCRA counsel was ineffective for failing to raise that issue
Appellant next presents a layered ineffectiveness claim based on trial counsel's failure to conduct third-party testing for cyanide. Appellant's Brief at 96. Appellant's underlying claim is belied by the record.
At the pretrial-hearing, defense counsel stated her intention to send the Quest samples for independent testing:
[Defense Counsel]: And we are so confident in [NMS's] abilities we would like them to retest the samples that Quest did tests on, which is the main point.N.T., 6/10/14, at 8. Thereafter, the Quest samples were sent to NMS. Defense Exhibit 107, ¶ 10. In response to the Commonwealth's subsequent request for the NMS test results, defense counsel stated, "[n]o retesting was done by NMS as Counsel was advised due to the passage of time retesting would not be of any value." Defense Exhibit 109, ¶ 4. Thus, the record reveals no arguable merit to Appellant's claim of ineffective assistance of trial and PCRA counsel. See Fears, 86 A.3d at 804.
(j) Trial counsel was ineffective for failing to object to prejudicial and bias-inducing evidence
Appellant argues trial counsel rendered ineffective assistance by failing to object to the introduction of hearsay evidence of the victim's prior, out-of-court statements. Appellant's Brief at 99. Appellant contends trial counsel should have objected to the admission of emails which showed "difficulties between [the victim] and [Appellant]." Id. at 99-100. Appellant argues,
Trial counsel was unreasonable in allowing the admission of prejudicial and sympathy evoking evidence. Trial counsel believed it was a sly strategy to allow emails in as a basis for allowing additional inadmissible hearsay emails, against the [c]ourt's advice. The court warned that "[i]t is impossible to unring a bell." To which trial counsel indicated, "I would ask that … we get to put in a couple of e-mails." However, this is an unreasonable strategy[;] the trial court pointed out "that is the problem …. The court is not obligated if you choose not to object to something that is objectionable. That may well be some point down the road ineffective assistance of counsel."….Id. at 105 (citations and emphasis omitted).
Further, the Commonwealth observes that Appellant
pounces on language from [the trial court] suggesting that he thought that the emails were not admissible. What [A]ppellant is missing here is that these statements by the [court] occurred before [A]ppellant testified, and as the judge pointed out in his opinion, it was [Appellant's testimony that ultimately ensured that these emails were admissible evidence.Commonwealth's Brief at 72 (emphasis added). We agree.
Our "standard of review for a trial court's evidentiary rulings is narrow." Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation omitted).
When we review a trial court's ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.Commonwealth v. Jackson, 283 A.3d 814, 817 (Pa. Super. 2022) (citation omitted).
To be admissible, evidence must be relevant. Pa.R.E. 402. "Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact." Commonwealth v. Gallaway, 283 A.3d 217, 223 (Pa. 2022).
[A] trial court may exclude relevant evidence if its probative value is outweighed by a danger of, among other things, unfair prejudice. Pa.R.E. 403. "Unfair prejudice" is "a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Pa.R.E. 403, Comment. In determining whether evidence should be admitted, a trial court must weigh the relevance and probative value of the evidence against the prejudicial impact of that evidence.Id. (citation omitted).
The PCRA court concluded the emails were relevant and admissible:
[B]oth emails were admissible.
Exhibit 201 was copy of an email sent by the victim to Appellant's email address on February 18, 2013. In it, the victim wrote:
I think at some point in the near future we [the victim and Appellant] should go out to talk. I really don't know where to begin with all that has been going on in life recently and in my head. I have tried to talk to you but can't. I have written you many letters I have not sent. I don't know where things are going to go and you may not like what you hear but I think it is about time we talked.
TT III, p. 143-144, Exhibit 201. [Appellant] was later asked by his attorney, "At some point we saw on the screen she emailed you a note about, in essence, she is having problems with you, etc., etc., and we got to sit down and talk, you may not like what I say. Do you remember that?" [Appellant] said that he did remember receiving and reading the February 18, 2013 email. TT IV, 258-259. Accordingly, since [Appellant] did, in fact, read this email it was admissible for the effect it had on [Appellant]. In Re Shahan, 631 A.2d 1298, 1304 (Pa. Super. 1993) [(deeming admissible a hearsay statement not admitted for its truth, "but rather its effect on the listener.")].
Commonwealth Exhibit 200 was an email the victim prepared and sent to herself which she then forwarded to [Appellant's email address on February 9, 2013. TT III, p. 141. In it, the victim told [Appellant]:
… I hate to say it, … but through this entire mess, while in body you have done your duty, you have not been there for me. Sorry I am angry about all of this. Both not having another kid and your lack of interest. Yes, this is what has been telling me you do not want another kid. Anytime you want something, you are like a dog with a bone. In this case, you have not asked pertinent questions until the last minute or after it is all over. Too little and too late. It is clear you are not interested. You showed more interest in that HD researcher who got in trouble. I realize now I have been alone in this entire emotional journey. I'm going to speak my mind as you do and be angry because this is the only means of conversation you seem to get is anger. You stink at picking up on almost all other emotions, and I am
sorry I write now, I just cannot talk to you in person. I can't even speak to you without getting angry. ... I have not produced nearly enough eggs and my embryos have arrested. Scott's genetic evidence shows that this is a mitochondrial failure, embryos resting in the way mine have. He definitely recommends not continuing IVF. My eggs will likely never recover from this until they genetically determine if they can what the mitochondrial lesion is. He is trying to determine this. The only thing he can recommend is COQIO. It has not shown improvement in having babies, but does show improvement in helping the eggs if I want to try and get pregnant naturally. He also feels this is something that likely will affect [their daughter] and for her to freeze her eggs at 30 since this is inherited. Other than slightly early menopause, I likely will have no other medical repercussions he thinks. I have to get ultrasounds to follow up on the cysts in the next few months. I have an appointment with my gyne [sic] in April. I will probably get an IUD at that time. I don't know where I want to go from here. I don't know what else to say....
TT III, p. 141-142. Although [Appellant] was not asked about this specific email and the record is not clear that he did, in fact, read it; it was addressed to him and it was consistent with the concerns she expressed in Exhibit 201. Most importantly, it was entirely consistent with the discussion he had with the victim after the email was sent. He described what she complained about during this discussion: "Me not being very supportive of having another child which initially I thought I had been by going to all the clinics and just really trying to have a child, I discussed that. I guess in reality I really wasn't as supportive because I had essentially given up. We had been trying to have another child for three years." TT IV, p. 261. Accordingly, even if the record failed to establish that [Appellant] actually saw this email, any error in allowing it into evidence was harmless because [Appellant] testified that his wife expressed to him in person the same concerns she expressed in the letter.PCRA Court Opinion, 1/13/20, at 3-5 (emphasis added).
Although Appellant argues the emails were prejudicial because the Commonwealth used them to argue motive, we agree that no prejudice resulted. Appellant had testified about the discussions referenced in the victim's email. Further, the emails were admitted not for their truth, "but rather [their] effect on the listener." Shahan, 631 A.2d at 1304. As Appellant's underlying evidentiary claim lacks merit, this ineffectiveness claim fails. See Fears, 86 A.3d at 804.
Appellant additionally argues that trial counsel ineffectively failed to object to "inadmissible sympathy testimony." Appellant's Brief at 100 (capitalization modified). Appellant asserts that the sole purpose of the testimony "was to elicit improper sympathy for [the victim's] family and friends." Id. Appellant states, "This testimony did nothing to explain [the victim's] actions or support the Commonwealth's theory of the case[.]" Id. at 101.
As the PCRA court explained:
Evidence evoking sympathy for the victim is inadmissible at trial unless more probative than prejudicial. Commonwealth v. Blystone, 549 A.2d 81, 90 (1988). Such evidence will be considered probative if it is to explain the victim's actions and/or supports the Commonwealth's theory of the case. Id. In Commonwealth v. Philistin, 53 A.3d 1 (Pa. 2012), the prosecution was permitted to present evidence of a police officer's commendations, military and police careers, personnel records and excellent reputation in his profession to rebut the defendant's allegations that the officer was a rogue officer who provoked the defendant into shooting him.PCRA Court Opinion, 1/13/20, at 6-7.
The PCRA court deemed this evidence relevant based upon testimony from witnesses about the possibility the victim committed suicide. See id. at 7-8. The PCRA court explained,
[although counsel for Appellant never explicitly argued that the victim's death could have been a suicide, the repeated references to suicide was something the Commonwealth was permitted to address. They did so by presenting two witnesses who, briefly, discussed the victim's commitment to her patients and her daughter, which would be inconsistent with her having ended her own life.Id. at 8. As this evidence was relevant to address Appellant's implication that the victim committed suicide, it was not unduly prejudicial. Because this underlying issue lacks merit, Appellant's ineffectiveness claim based on this evidence, issue does not merit relief. See Fears, 86 A.3d at 804.
5. Whether the PCRA court erred in the treatment of Appellant's case.
Appellant maintains the PCRA court "failed to consider the combined impact of the errors." Appellant's Brief at 110. As our review discloses no errors, no relief is due.
Lastly, Appellant argues the PCRA court improperly failed to consider his claim of actual innocence. Appellant's Brief at 111. Appellant argues his "post-conviction petitions undermined the scant evidence purporting to connect [Appellant] to [the victim's] death and, rather, demonstrated the impossibility of the 'crime' as presented by the Commonwealth." Id.
Appellant fails to cite pertinent legal authority.
This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101.Kane, 10 A.3d at 331 (some citations omitted); see also Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. Super. 2012) (finding waiver where appellant offered no supporting caselaw or other authority). Appellant's failure to support his claim with legal authority impedes our review. Accordingly, we cannot grant relief.
For the foregoing reasons, we affirm the PCRA court's denial of relief.
No remand is necessary regarding Appellant's claim of PCRA counsel's ineffectiveness. His underlying claims of ineffective assistance of prior counsel lack merit.
Order affirmed.