Opinion
J-S15008-18 No. 2785 EDA 2017
01-25-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. ERNEST TROY FREEBY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 23, 2017
In the Court of Common Pleas of Carbon County
Criminal Division at No: CP-13-CR-0000539-2009 BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY STABILE, J.:
Appellant, Ernest Troy Freeby, appeals from an order of the Court of Common Pleas denying him relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.
Appellant was convicted for murdering his wife, Edwina. The same attorneys, whom we will refer to as "trial counsel" or "defense counsel," represented Appellant during trial and on direct appeal. The PCRA court summarized the factual and procedural history of this case as follows:
The marriage between [Appellant] and Edwina on March 20, 2001, was a marriage of convenience: [Appellant] wanted a wife to increase his chance of gaining custody of his two children from a previous relationship, and Edwina, a native of Kenya whose legal status in this country was in question, hoped to increase her chance of becoming a United States citizen by marrying [Appellant]. From this shaky beginning, it was perhaps not unexpected that the two separated sometime in 2003. Edwina remained in the Allentown area where she and [Appellant] first lived after their marriage, and [Appellant] moved to Carbon
County and set up residence at 207 West Bertsch Street, Lansford, Pennsylvania.
After [Appellant] and Edwina separated, [Appellant] began a romantic relationship with Julianne Sneary with whom he fathered three children. Although [Appellant] claimed this was an open relationship of which Edwina was aware, the Commonwealth's evidence was that Edwina only became aware of the relationship and the fact that [Appellant] and Julianne Sneary had children together shortly before her disappearance in December of 2007. Before then, [Appellant] attempted to keep Ms. Sneary's presence hidden from Edwina—Ms. Sneary would leave [Appellant]'s home on Sundays before Edwina arrived to routinely visit [Appellant]—and [Appellant] had others tell Edwina the children [Appellant] had with Ms. Sneary were [Appellant]'s sister's children. In contrast to Edwina, Ms. Sneary knew of Edwina's existence and that [Appellant] and Edwina were married; in fact, this was the reason [Appellant] gave Ms. Sneary for why he was unable to marry her. [Appellant] disclosed to Ms. Sneary the nature of his marriage to Edwina, told Ms. Sneary that he could not get divorced because he had made a promise to Edwina to stay married until she obtained United States citizenship, discussed with Ms. Sneary the status of deportation proceedings that had been brought against Edwina and the parallel proceedings for Edwina to gain United States citizenship, and repeatedly promised Ms. Sneary that the end was in sight and that as soon as Edwina became a United States citizen, he would obtain a divorce and could marry Ms. Sneary.
As this situation dragged on, Ms. Sneary's parents increasingly disapproved of their daughter's relationship with [Appellant], of her having children with a married man, and urged Ms. Sneary to leave [Appellant]. At one point when [Appellant] and Ms. Sneary were discussing their wedding plans, and the impossibility of this occurring as long as [Appellant] was married to Edwina, and the pressure Ms. Sneary's parents were placing on her to leave [Appellant], [Appellant] told Ms. Sneary that the only way he could rid himself of Edwina was to kill her. This conversation occurred approximately one year prior to Edwina's disappearance.
Edwina was last seen or heard from by her blood relatives on Sunday morning, December 9, 2007, at approximately 11:00 A.M. Edwina told her sister, Phoebe Onyango, and a family friend, Ester Ouma, that she was going to visit [Appellant] at his home in
Lansford and would be returning home later in the day. This never happened. Prior to her December 9, 2007 disappearance, Edwina had maintained regular, almost daily contact, either in person or by telephone, with family and friends. When this ceased, Edwina's family reported her missing to the police. As part of a police investigation into Edwina's whereabouts, [Appellant] told the police that Edwina had been to his home with a friend on December 9, 2007, at around noon, and stayed approximately two to two and a half hours. [Appellant] told the police that Edwina no longer wanted her 2000 Dodge Neon and had given it to him to keep, that Edwina left his home in her friend's vehicle. In Edwina's car were numerous personal items which would normally be removed by the owner before transferring ownership of a car. [Appellant] also denied that he had ever used Edwina's credit card, yet the police later learned that Edwina's credit card had been used eight times after her disappearance, all eight times by [Appellant].
While executing a search warrant at [Appellant]'s residence on January 17, 2008, the police discovered human blood on steps leading to the basement, on the basement floor, on the door leading to the coal bin, and on several areas inside the coal bin. A large area of blood was discovered on the dirt floor of the coal bin and hair was found nearby embedded in blood on the concrete wall. Subsequent DNA testing disclosed that the blood found in three areas of the basement was Edwina's and that the hair matched Edwina's maternal bloodline. During their investigation of [Appellant]'s home on January 17, 2008, the police noticed that the steps leading to the basement had recently been painted. When this paint was stripped, the police found additional blood underneath the paint. [Appellant] admitted to painting the steps. Additionally, after the police discovered blood on the dirt floor of the coal bin, [Appellant] removed the dirt to a depth of approximately eight to ten inches and also removed a 2 x 4 wooden support beam that had previously been found to contain blood.
At trial, the Commonwealth's experts testified that the blood pattern on the floor of the coal bin was created by a large quantity or pooling of blood and that this was consistent with a substantial or significant wound. The Commonwealth's experts further opined that the blood pattern in the coal bin floor was consistent with a stationary body bleeding while at that location, and that the hair embedded in blood on the concrete wall was consistent with the
head of this body resting against the wall. The Commonwealth's experts further testified that the scene in [Appellant]'s basement was indicative of injury resulting from trauma or violence, rather than accidental means. (N.T. 1/23/12 (Trial), pp.148-50; N.T. 1/24/12 (Trial), pp.140-43).PCRA Court Opinion, 6/23/17, at 2-6. Notably, in the course of affirming Appellant's judgment of sentence on direct appeal, we observed:
At the conclusion of the evidence, and following jury instructions, [Appellant] was convicted of murder in the first degree and tampering with physical evidence. He was sentenced to life imprisonment on the charge of murder and a consecutive term of two years' probation on the charge of tampering with physical evidence. Post-trial motions were filed by the [Appellant] on May 24, 2012, and denied by the court on October 22, 2012. On direct appeal to the Pennsylvania Superior Court, [Appellant]'s judgment of sentence was affirmed by that Court on December 4, 2013. Re-argument was denied on February 6, 2014. On July 9, 2014, the Pennsylvania Supreme Court denied [Appellant]'s Petition for Allowance of Appeal.
The Commonwealth's evidence established that: (1) [Appellant] was the last person to see Edwina alive; (2) the circumstances of her disappearance and the results of the investigation to find her suggested death; (3) [Appellant] had a motive and expressed a reason for killing Edwina; and (4) subsequent to her disappearance, Edwina's blood and hair was found in sufficient quantity throughout [Appellant]'s basement to indicate a serious bodily injury. This evidence supports the conclusion that Edwina is dead, her death resulted from criminal agency, and [Appellant] is responsible. Although unable to produce direct evidence linking [Appellant] to the Edwina's murder, the totality of the Commonwealth's circumstantial evidence was more than sufficient to support the jury's verdict.Commonwealth v. Freeby , No. 3294 EDA 2012, at 2-3 (Pa. Super., 12/4/13) (unpublished memorandum). We further observed that the record contained "overwhelming evidence of a homicide." Id. at 6.
On April 2, 2015, Appellant filed a timely pro se PCRA petition. The court appointed counsel, who filed an amended PCRA petition alleging ineffectiveness of trial counsel. On June 23, 2017, following an evidentiary hearing, the court denied Appellant's amended petition. Appellant filed a timely notice of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises four arguments in this appeal, which we have reordered for the sake of convenience:
A. Whether trial counsel was ineffective in allowing [A.N.] to serve on the jury where she expressed a fixed opinion that she would not follow the court's instructions regarding [Appellant] not testifying[.]Appellant's Brief at 3.
B. Whether trial counsel was ineffective for failing to appeal the court's striking jurors for cause on the basis that their ability to be fair and impartial would be "affected" due to the Commonwealth's inability to produce a body in a homicide case[.]
C. Whether trial counsel was ineffective for failing to request a mistrial following Dr. Isadore Mihalakis's statement that the crime scene was consistent with a "homicide[.]"
D. Whether trial counsel was ineffective for failing to call Dr. Cyril Wecht as a witness[.]?
Our scope of review in a PCRA appeal is well established.
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted). All of Appellant's assertions of error on appeal are allegations of ineffective assistance of trial counsel. "It is well-established that counsel is presumed effective, and a [PCRA petitioner] bears the burden of proving ineffectiveness." Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 779-80 (Pa. Super. 2015) (en banc) (quoting Commonwealth v. Ligons , 971 A.2d 1125, 1137 (Pa. 2009) (additional citations omitted)). "To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the petitioner suffered resulting prejudice." Reyes-Rodriguez , 111 A.3d at 780 (citations omitted). Furthermore, in order to prevail the petitioner must prove all three prongs of the Pierce test or the claim fails. Id. (citing Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987)).
We begin with Appellant's first issue, wherein he argues that his trial counsel was ineffective in "allowing [A.N.] to serve on the jury where she expressed a fixed opinion that she would not follow the court's instructions" regarding Appellant's refusal to testify at trial. Id. at 9-14. As a result, Appellant argues that his trial counsel was ineffective because he did not raise a challenge for cause or strike A.N. using a peremptory challenge. Id. at 10.
At the outset, we note that, despite his argument that his ineffectiveness claim meets the arguable merit prong of the Pierce test, Appellant's brief is bereft of any discussion or argument with respect to the last two prongs of the Pierce test regarding a reasonable basis and prejudice. As we recently emphasized, "[a] petitioner must prove all three factors of the Pierce test, or the [ineffectiveness] claim fails. In addition, on appeal, a petitioner must adequately discuss all three factors of the Pierce test, or the appellate court will reject the claim." Reyes-Rodriguez , 111 A.3d at 780 (emphasis added) (citing Commonwealth v. Fears , 86 A.3d 795, 804 (Pa. 2014)). It appears that Appellant likely has premised his argument on a mistaken belief that alleged violations under Article 1, Section 9 of the Pennsylvania Constitution give rise to a presumption of prejudice triggering a new trial. See Commonwealth v. Pou , 2018 WL 4925254 (Pa. Super. October 11, 2018) (the rationale for granting relief on direct appeal without any showing of prejudice does not necessarily warrant the same result in the PCRA context). Our Supreme Court in Commonwealth v. Reaves , 923 A.2d 1119 (Pa. 2007), explained that, upon collateral review, a presumption of prejudice has been extended only in circumstances where (1) counsel failed to file a requested direct appeal, (2) counsel failed to file Rule 1925(b) statement of errors complained of on appeal resulting in waiver of all claims asserted on direct appeal, and (3) counsel failed to file a requested petition for allowance of appeal thereby depriving client of his or her right to seek discretionary review. Reaves , 923 A.2d at 1128 (citations omitted).
Upon review of the record, we must reject Appellants first issue principally because Appellant misstates juror A.N.'s response to questioning during the voir dire process and hence, the framing of his first issue. Juror A.N. never expressed a view that she would not follow the trial court's instructions.
During jury selection, the following exchange took place between trial counsel and the prospective jurors:
[Trial counsel]: The law, our Constitution, our Bill of Rights do not require [Appellant] to take the stand in his defense. That being said, my experience with juries has been that there is a substantial number of people that will raise their hands and say; I want to hear from the defendant. If I do not hear from the defendant, then I will hold that against him. If that is your thought, or if that is even your inkling, or if in any way, shape or form you could even imagine that, I would like to hear from you on that. It is very critical. It is not a criticism of you. It is only me trying to look into human nature.N.T., Jury Selection, 1/9/12, at 55-57 (emphasis added). Based on the foregoing exchange, it is clear that A.N. did not express a fixed opinion indicating her inability to follow the trial court's instructions. To the contrary, A.N. simply responded to trial counsel's question whether she would prefer Appellant testify on his own behalf.
Now, that being said, should [Appellant] not take the stand, would any of you hold that against him? Or would you still give him the presumption of innocence and still look at the evidence as we present it and as the Commonwealth presents it and make your decision on the evidence that is before you and still believe in that presumption of innocence of [Appellant]?
Now, that being said, does anyone here have a problem with a defendant not testifying on his own defense? Anyone have a problem with [Appellant] not testifying on his own behalf?
JUROR 17: [P.F.], number 17.
[Trial counsel]: Now, if the judge instructed you, just as I did—well, I didn't instruct you. I told you. I told you the background information. The defendant is presumed innocent. If the judge instructs you that [Appellant] does not need to get up and take an oath and testify, would you still feel that you prefer he testify?
. . . .
JUROR 5: [A.N.], five.
As indicated infra, P.F. did not serve on the jury. In any event, Appellant does not raise any argument relating to P.F. in this appeal.
Trial counsel told prospective jurors that the Constitution does not require the defendant to testify in his own defense, and that there is a presumption of innocence. Counsel asked whether any juror would "hold [it] against" Appellant if he did not take the stand. Juror 17, but not A.N., answered in the affirmative. Again, as stated, A.N. did not answer trial counsel's question in the affirmative, but rather remained silent. Counsel proceeded to tell the prospective jurors that "[t]he defendant is presumed innocent." N.T., 1/9/12, at 57. He then asked "[i]f the judge instructs you that he does not need to get up and take an oath and testify, would you still feel that you prefer he testify?" Id. (emphasis added). A.N. answered in the affirmative. When read collectively, it is clear that while A.N. preferred that Appellant testify, her silence in response to counsel's first question demonstrated that she would not hold it against him if he declined to testify. As the PCRA court aptly explained, "[a]t most, [A.N.]'s responding to the question actually asked indicates only the personal view of what most people asked this question would likely and honestly say, that they would "prefer" to hear from [Appellant]." PCRA Court Opinion, 6/23/17, at 13. In other words, the fact that A.N. expressed a general preference for hearing Appellant's testimony does not mean that A.N. would find Appellant guilty for failing to testify or that she would not follow the law as instructed by the court. Appellant therefore, incorrectly claims that juror A.N. expressed a fixed opinion that she would not follow the trial court's instructions regarding a defendant's right not to testify at trial.
Counsel's question mirrored question number 11 of the juror questionnaire contained in Pa.R.Crim.P. 632(H), which provides: "Would you have any problem following the court's instruction that the defendant in a criminal case does not have to take the stand or present evidence, and it cannot be held against the defendant if he or she elects to remain silent or present no evidence?"
The question posed by trial counsel could very well be viewed as improper because it was a loaded question. "If the [prospective] juror replies affirmatively [,] he has indicated that he desires the defendant to take the stand. A negative reply might infer that he would disregard the defendant's evidence. An answer to the question would provide no information helpful in deciding whether to challenge the [prospective] juror" or to transform a juror's preference into a complete inability to accept a court's instructions as a matter of law. State v. Knight , 296 So.2d 800, 801 (La. 1974). --------
Moreover, as the Commonwealth points out, any potential prejudice to Appellant was cured when the trial court instructed the jury that Appellant had an absolute right not to testify at his trial. Specifically, the trial court told the jury:
In this case, [Appellant] did not take the stand to testify. It is entirely up to [Appellant] in a criminal case to choose whether or not to testify. A criminal defendant has an absolute right, founded
on the Constitution, to remain silent. His plea of not guilty is a denial of the charges against him. You must not draw any inference of guilt from the fact that [Appellant] did not testify. The Commonwealth has to prove [Appellant's] guilt beyond a reasonable doubt without any aid from the fact that [Appellant] did not testify. This is not an arbitrary rule, but it is one that is well founded in logic and in our experience in the administration of justice.N.T. Trial, 1/30/12, at 178-79. Indeed, "when examining the potential for undue prejudice, a cautionary jury instruction may ameliorate the prejudicial effect of the proffered evidence. . . . Jurors are presumed to follow the trial court's instructions." Commonwealth. v. Tyson , 119 A.3d 353, 360 (Pa. Super. 2015), appeal denied , 128 A.3d 220 (Pa. 2015). See also Commonwealth v. Speight , 854 A.2d 450 (Pa. 2004) (any prejudice which may have been created by defense counsel's reference during voir dire to a defendant's right against self-incrimination was cured by the judge's instructions at the commencement of trial). We therefore, reject Appellant's first claim.
In his second argument, Appellant contends that trial counsel was ineffective by failing to object during direct appeal to the trial court's order granting the Commonwealth's challenges for cause to venirepersons who indicated that their ability to be fair and impartial would be "affected" due to the Commonwealth's inability to produce a body.
During voir dire, the prosecutor asked: "I believe his Honor will later on instruct you that it is not necessary for the Commonwealth to produce the victim's body in order to convict someone of homicide. Are there any of you who do not agree with that or have a problem with that concept?" N.T. 1/9/12, at 29. Venirepersons 10 and 17 indicated that they could not be fair and impartial under those circumstances. Subsequently, the prosecutor asked, without objection: "If the Commonwealth produces circumstantial evidence that the victim has not been seen in a number of years and that she hasn't had contact with her family and friends, would you still be unable to convict the defendant if the Commonwealth does not produce a body?" Id. at 30. Venirepersons 18, 41, 54, 57, 62, 78, 83, 84, 90 and 93 indicated in the affirmative. Id. at 30-32. In addition, A.I., who identified himself as Juror #5 but in fact had a different juror number, indicated that he needed to see a body. During the strike conference, the prosecutor asked the court to remove for cause venirepersons who indicated that they "needed a body." Defense counsel objected to this challenge, but the trial court overruled the objection. Id. at 63-64. The court struck for cause A.I. and jurors 10, 17, 18, 41, 55, 57, 62, 63, 64, 69, 78, 83, 90 and 93. Id. at 65-71.
On direct appeal, counsel did not object to the order striking venirepersons who indicated that they "needed a body." Appellant asserted in his amended PCRA petition that counsel was ineffective for failing to challenge the decision to strike venirepersons A.I., 18, 62, 78 and 93. Since Appellant restricted his claim of ineffectiveness to these six venirepersons, we will not address the decision to strike venirepersons 10, 17, 41, 55, 57, 63, 64, 69, 83 and 90.
"[T]he 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." Commonwealth v. Wholaver , 177 A.3d 136, 162 (Pa. 2018). The record demonstrates that the trial court acted within its discretion in striking these venirepersons.
To begin, the record demonstrates that venireperson 78 was not dismissed; he was selected as an alternate juror. Moreover, the court struck A.I. and venireperson 93 for a reason unrelated to the "body" issue. The prosecutor and the court told the venirepersons that the trial would last approximately two to three weeks. N.T., 1/19/12, at 32-33. A.I. and venireperson 93 responded that it would be a personal hardship to serve on the jury panel if the trial lasted several weeks. Id. at 34-36. The court credited their responses and properly excused them on this basis.
Finally, with regard to venirepersons 18 and 62, the law is clear that the Commonwealth is not required to produce a body to sustain a conviction in a homicide case. Commonwealth v. Rivera , 828 A.2d 1094, 1104 (Pa. Super. 2003). Because venirepersons 18 and 62 indicated that they could not follow the law on this issue, the court properly struck them from the panel. Thus, Appellant's second argument lacks merit.
In his third argument, Appellant claims that trial counsel was ineffective for failing to request a mistrial in response to the testimony of the Commonwealth's forensic pathologist, Isadore Mihalakis, M.D., that the crime scene was consistent with a homicide. We disagree.
The prosecutor asked Dr. Mihalakis on direct examination whether the scene in Appellant's basement was "consistent with or indicative of serious bodily injury or homicide." N.T., 1/23/12, at 150. The court sustained Appellant's objection to this question on the basis that any opinion about whether the crime scene was consistent with the occurrence of a homicide was beyond the scope of Dr. Mihalakis's report. Id. at 151-52. In response to the Commonwealth's next question, whether the scene was indicative of serious bodily injury, Dr. Mihalakis responded: "Yes, I believe it is indicative of significant bodily injury or homicide." Id. at 152-53. The court sustained Appellant's objection to this response, struck the answer and instructed the jury to disregard this testimony. Id. Appellant did not request a mistrial. On direct appeal, Appellant claimed the court erred in not declaring a mistrial sua sponte as a matter of "manifest necessity." This Court rejected Appellant's argument on the ground that the record demonstrated overwhelming evidence of a homicide. Freeby , No. 3294 EDA 2012, at 6.
Presently, Appellant claims that trial counsel was ineffective in failing to move for a mistrial. Appellant has the right to raise this argument even though he complained on direct appeal that the trial court erred in failing to order a mistrial sua sponte. "Derivative claims of ineffective assistance of counsel are analytically distinct from the defaulted direct review claims that were (or could have been) raised on direct appeal." Reaves , 923 A.2d at 1130. Such claims
deriving from an underlying claim of error that was litigated on direct appeal cannot automatically be dismissed as "previously litigated." Rather, Sixth Amendment claims challenging counsel's conduct at trial are analytically distinct from the foregone claim of trial court error from which they often derive, and must be analyzed as such. Commonwealth v. Carson , 913 A.2d 220, 234 (Pa. 2006) ("This Court recognized . . . that while an ineffectiveness claim may fail for the same reasons that the underlying claim faltered on direct review, the Sixth Amendment basis for ineffectiveness claims technically creates a separate issue for review under the PCRA").Commonwealth v. Puksar , 951 A.2d 267, 274 (Pa. 2008). Accordingly, we proceed to the substance of Appellant's argument.
The PCRA court correctly reasoned that Appellant's argument lacked arguable merit. A mistrial is an "extreme remedy" that the court must grant "only when an incident is of such a nature that its unavoidable effect is to deprive defendant of a fair trial." Commonwealth v. Vazquez , 617 A.2d 786, 787-88 (Pa. Super. 1992). In some cases, instead of granting a mistrial, the trial court may remove taint caused by improper testimony through curative instructions. Commonwealth v. Richardson , 437 A.2d 1162, 1165 (Pa. 1981). Here, trial counsel immediately objected to Dr. Mihalakis's testimony, and the court struck the testimony from the record. The court repeatedly instructed the jury to disregard any evidence stricken from the record and to refrain from basing any findings on such testimony. See , e.g., Commonwealth v. Baker , 614 A.2d 663, 672 (Pa. 1992) (our law presumes that juries follow the court's instructions as to the applicable law).
Finally, Appellant argues that trial counsel was ineffective for failing to call Dr. Cyril Wecht as a witness following Dr. Mihalakis's statement that the crime scene was consistent with a "homicide." Following the evidentiary hearing on Appellant's amended PCRA petition, the PCRA court determined that trial counsel had an objectively reasonable basis for not calling Dr. Wecht as a witness:
To counter Dr. Mihalakis's testimony, the defense had arranged for its own forensic pathologist, Dr. Cyril Wecht, to be called as a defense witness. After Dr. Mihalakis was precluded from opining that the crime scene was consistent with a homicide, as a tactical matter, [trial] counsel elected not to call Dr. Wecht. As [trial counsel] testified at the post-conviction hearing, the defense believed they had been successful in keeping a critical piece of evidence from being considered by the jury and were concerned that if Dr. Wecht were called as a defense witness, this might open the door to Dr. Mihalakis being recalled on rebuttal and risk having his opinions which were previously excluded admitted . . . .
In addition to successfully challenging Dr. Mihalakis's opinion that the crime scene in [Appellant]'s basement was consistent with a homicide, [trial] counsel raised questions regarding the quantity of blood upon which Dr. Mihalakis premised his opinion that the amount of blood found was consistent with a significant injury having occurred. When asked to estimate the amount of blood upon which he based his opinion, Dr. Mihalakis conceded he couldn't. Trooper Phillip Barletto, who testified on the Commonwealth's behalf before Dr. Mihalakis, also acknowledged on cross-examination that it was not possible to quantify the amount of blood spilled given the number of variables, including temperature, soil composition and the clothing worn by the victim. When Dr. Mihalakis was asked whether his inability to quantify the actual amount of blood involved changed his opinion, he said it didn't, explaining the blood was distributed over an area of a foot and a half in length and six to eight inches wide. In closing
argument, [trial] counsel demonstrated that even a small quantity of fluid could be dispersed over a similar area.PCRA Court Opinion at 18, 19-21. The PCRA court further explained:
Dr. Wecht was retained by the defense in this case to refute the unexpressed but implied conclusion and opinion contained in Dr. Mihalakis's expert report of February 18, 2008, that the crime scene was consistent with a homicide. Once Dr. Mihalakis was barred from rendering this opinion, the primary reason [trial] counsel had employed Dr. Wecht as a witness no longer existed and the threat of rebuttal testimony from Dr. Mihalakis undermining this victory if Dr. Wecht testified was a strategic and tactical consideration trial counsel was right to consider. See Commonwealth v. Begley , 780 A.2d 605, 635 (Pa. 2001) (finding that trial counsel may legitimately make tactical decisions not to question witnesses about alleged inconsistencies so as not to enable the witnesses to clarify their testimony and develop plausible explanations). Following Dr. Mihalakis's testimony, [trial] counsel believed they had dodged a bullet and had created reasonable doubt about [Appellant]'s guilt by highlighting a major weakness in the Commonwealth's case—over how much blood was in fact lost and whether this loss was sufficient to be life-threatening—which would be jeopardized if Dr. Wecht were called to testify.
In evaluating [trial] counsel's strategy, it is also important to understand that during the trial[,] [trial] counsel was in contact with Dr. Wecht and reviewed with him the evidence presented and trial strategy. In particular, [trial] counsel advised Dr. Wecht that the court had precluded Dr. Mihalakis from testifying that the crime scene was consistent with a homicide. Both [trial] counsel and Dr. Wecht, who has a law degree and is admitted to the Pennsylvania bar, agreed that after the court ruling and the limitations of Dr. Mihalakis's testimony, it would not be necessary for Dr. Wecht to testify.
To the extent Dr. Wecht was critical of the legitimacy of Dr. Mihalakis's conclusions and their reliance on what Dr. Wecht termed "interpersonal factors," this aspect of Dr. Wecht's report . . . was of a type readily understandable by a layperson and able to be argued directly by counsel before the jury. Moreover, as noted in our Memorandum Opinion of November 20, 2012, because the "interpersonal factors" to which Dr. Mihalakis referred
in his report of February 18, 2008, in opining that Edwina was dead—factors such as her unexplained disappearance, failure to contact friends and family, and failure to return to work—were all factors which the jury could interpret on its own, without the need for expert testimony, we declined to allow Dr. Mihalakis to make this conclusion for the jury.Id. at 20 n.7. We agree with this analysis and conclude that Appellant's argument does not warrant relief.
For these reasons, the PCRA court correctly denied Appellant's amended PCRA petition.
Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/25/2019