                                 [J-52-2013]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

          CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :              No. 657 CAP
                              :
                Appellee      :              Appeal from the Order entered on
                              :              04/04/2012 in the Court of Common Pleas,
                              :              Criminal Division of Montgomery County at
          v.                  :              No. CP-46-CR-0002785-2005
                              :
                              :
JOHN EICHINGER,               :
                              :
                Appellant     :              SUBMITTED: June 19, 2013


                                       OPINION

MR. JUSTICE EAKIN                              DECIDED: December 31, 2014
      Appellant, John Eichinger, appeals from the order denying him collateral relief

from his criminal convictions and death sentences, pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On March 25, 2005, appellant drove to the Montgomery County home of Heather

Greaves, planning to murder her if she did not break up with her boyfriend. Appellant

later told police he pre-arranged to meet with Heather so she would be expecting him at

her house. He came armed with a concealed knife and a pair of rubber gloves.

      Almost immediately after appellant arrived at Heather’s residence, an argument

broke out between them in the kitchen. As Heather turned to walk away, appellant pulled

out the knife and stabbed her repeatedly in the stomach. Appellant later admitted he

stabbed Heather in the stomach because he knew from movies and books it was easier to

puncture organs that way than stabbing her in the chest, where he would hit bone.
       Avery Johnson, Heather’s three-year-old daughter, witnessed the stabbing.

Heather called out to Avery to call 911. In an attempt to prevent the call, appellant

slashed the child in the neck. Avery ran down the hallway and fell. Lisa Greaves,

Heather’s sister, stepped out of the bathroom. Appellant overpowered Lisa and stabbed

her repeatedly to eliminate her as a witness. Appellant then turned back to Avery and

stabbed her through the back, momentarily pinning her body to the floor. Appellant then

returned to the kitchen, stabbed Heather in the diaphragm, and slit her throat.

       While washing his hands in the sink, appellant noticed he was cut. He used one

of his rubber gloves to prevent his blood from being left at the crime scene. Before

leaving, appellant cut open Lisa’s shirt to confuse police into thinking she had been the

target of the killings. Appellant was spotted by a neighbor when he left the house. He

subsequently drove to work.

       Heather and Lisa’s father found the three bodies later that day and notified the

police. The police tracked appellant to his workplace at the Somers Point Acme market

in New Jersey.     Appellant agreed to be interviewed, and after a few initial false

statements, confessed to the murders. During the same conversation, appellant also

confessed to the July 6, 1999, murder of Jennifer Still, in which he used the same knife as

in the Greaves/Johnson murders.       In a written statement, appellant recalled killing

Jennifer because she romantically rejected him, and described slitting her throat in

graphic detail.

       The police arrested appellant and kept him in a local jail in New Jersey over the

weekend. The following Monday, police transported appellant back to Pennsylvania for

arraignment. In transit, appellant made another incriminating statement describing the

1999 and 2005 murders. Later, while in jail awaiting trial, appellant wrote journal entries

and letters in which he recorded graphic details of both incidents in his own hand.




                                     [J-52-2013] - 2
        Trial counsel was appointed1 and filed an omnibus pre-trial motion to suppress

appellant’s numerous statements to the police, and to sever the trials for the 1999 and

2005 murders.      Following a hearing, the trial court denied appellant’s suppression

motion, but deferred ruling on the severance claim.

        Following the denial of the suppression motion, trial counsel began considering a

remorse-based strategy. The plan called for appellant to stipulate to the evidence of

both sets of murders at a bench trial, rather than plead guilty, thereby preserving his right

to appeal the admission of his numerous confessions. Thereafter, trial counsel would

put appellant on the stand and seek to ingratiate him with the penalty phase jury in order

to avoid the death penalty.

        The trial court granted appellant’s previously deferred motion for severance. Jury

selection for the separate trials began the same day. The following day, appellant

withdrew his severance motion, and the trial court vacated its severance order by

agreement of the parties. Appellant then waived his right to a guilt phase jury. See N.T.

Trial, 10/18/05, at 3-7. Later the same day, appellant stipulated to the Commonwealth’s

evidence and was found guilty of four counts of first degree murder at a consolidated guilt

phase bench trial. The Commonwealth sought the death penalty for all three of the 2005

murders; the trial court imposed a life sentence for the 1999 murder.

        Following conviction, trial counsel filed numerous motions, including a request for

a presumption of life instruction, preclusion of victim impact statements, a request for a

life without parole instruction, 2 preclusion of the killing of a witness aggravator, 3

1 Following the appointment of trial counsel, additional counsel was appointed to handle
the guilt phase of each trial in the event of severance.

2   See Simmons v. South Carolina, 512 U.S. 154 (1994).

3   See 42 Pa.C.S. § 9711(d)(5).



                                      [J-52-2013] - 3
preclusion of the cross-examination of appellant, preclusion of the use of autopsy photos,

and preclusion of the use of multiple confessions. See N.T. Pre-trial Motions, 10/31/05,

at 3-16.

       Following a three-day penalty phase hearing, the jury found at least two

aggravating circumstances in the deaths of each victim. See N.T. Trial, 11/3/05, at

80-81. As to Heather, the jury found two aggravating circumstances: (1) appellant had

been convicted for another offense for which a sentence of life is imposable, 42 Pa.C.S. §

9711(d)(10); and (2) appellant had committed another murder at the time of the offense,

id., § 9711(d)(11).   As to Lisa, the jury found three aggravating circumstances: (1)

appellant was convicted of another offense for which a sentence of life was imposable,

id., § 9711(d)(10); (2) appellant had committed another murder at the time of the current

offense, id., § 9711(d)(11); and (3) Lisa was a witness to a murder committed by appellant

and was killed for the purpose of preventing her testimony in any criminal proceeding

involving such offenses, id., § 9711(d)(5). As to Avery, the jury found four aggravating

circumstances: (1) appellant had been convicted of another offense for which a sentence

of life imprisonment could have been imposed, id., § 9711(d)(10); (2) appellant had been

convicted of another murder that was committed before or at the time of the offense at

issue, id., § 9711(d)(11); (3) Avery was a witness to a murder and was killed to prevent

her testimony in any criminal proceeding concerning the offense, id., § 9711(d)(5); and (4)

Avery was a child less than 12 years of age at the time of her murder, id., § 9711(d)(16).

The jury also determined each murder had one mitigating circumstance; appellant was

under the influence of extreme mental or emotional disturbance at the time of the

murders, caused by his father’s recent Alzheimer’s diagnosis. See id., § 9711(e)(2).

On those findings, the jury found the aggravating circumstances outweighed the

mitigating circumstances, and returned three consecutive death sentences for the 2005




                                     [J-52-2013] - 4
murders. This Court affirmed on direct appeal, Commonwealth v. Eichinger, 915 A.2d

1122 (Pa. 2007), and the United States Supreme Court denied certiorari, Eichinger v.

Pennsylvania, 552 U.S. 894 (2007).

      Three weeks later, the Federal Community Defender Office (FCDO) filed a motion

in the United States District Court for the Eastern District of Pennsylvania seeking

appointment as federal habeas counsel in this case.             Once appointed, the FCDO

obtained a stay of the federal habeas proceeding. At about the same time, appellant

filed a pro se PCRA petition in state court naming the FCDO as his counsel. The FCDO

subsequently filed an amended petition on his behalf raising 27 claims of error, each with

numerous sub-issues. The PCRA court held 22 days of evidentiary hearings. The

FCDO presented testimony of prior counsel, appellant, five mental health experts, and 14

other witnesses. In rebuttal, the Commonwealth presented two mental health experts.

Following final argument, the PCRA court dismissed appellant’s petition in a 129-page

opinion. PCRA Court Opinion, 7/25/12, at 129. Appellant presents 12 issues for this

Court’s review:

      I.     Was [a]ppellant denied a full and fair PCRA proceeding?

      II.     Was [a]ppellant denied effective assistance of counsel because trial
      counsel failed to investigate factual defenses, legal defenses, or whether
      [a]ppellant was able to make a knowing, intelligent and voluntary waiver
      prior to [a]ppellant’s jury waiver and stipulated bench trial?

      III.    Did trial counsels’ ineffective failure to investigate, prepare and
      develop the defense case in order to give [a]ppellant the benefit of
      counsels’ full and careful advice result in [a]ppellant’s uninformed
      agreement to a stipulated “trial” where he did not contest the charges and
      failed to present a defense?

      IV.    Was the trial court’s colloquy securing [a]ppellant’s waiver of his right
      to a jury trial and his right to contest the evidence against him
      constitutionally insufficient and were all prior counsel ineffective for failing to
      object to this colloquy?




                                       [J-52-2013] - 5
       V.      Were the statements introduced against [a]ppellant at trial
       unconstitutionally obtained, should the evidence seized based on these
       statements have been suppressed, and were prior counsel ineffective for
       failing to investigate and litigate these claims?

       VI.   Was [a]ppellant denied effective assistance of counsel because trial
       counsel failed to investigate, develop and present substantial mitigating
       evidence?

       VII. Did the prosecutor improperly inject future dangerousness into
       [a]ppellant’s trial during cross[-]examination of [a]ppellant’s mental health
       expert; and was [a]ppellant denied effective assistance of counsel because
       trial counsel failed to prevent this?

       VIII. Was [a]ppellant denied effective assistance of counsel because trial
       counsel failed to effectively cross-examine Commonwealth witness
       Timothy Michals?

       IX.   Was the prosecutor’s closing argument in the penalty phase grossly
       improper and was [a]ppellant denied effective assistance of counsel
       because trial counsel failed to object and raise these instances of improper
       argument, in violation of [a]ppellant’s constitutional rights?

       X.      Did the penalty phase jury instructions deprive [a]ppellant of a
       constitutionally reliable sentence in multiple respects and did prior counsel
       ineffectively litigate these errors, in violation of [a]ppellant’s constitutional
       rights?

       XI.     Are [a]ppellant’s death sentences unconstitutional because the
       sentencing jury’s ability to consider and give effect to the relevant mitigating
       evidence was impaired, violating his constitutional rights, and was
       [a]ppellant denied effective assistance of counsel because all prior counsel
       failed to raise this claim?

       XII.    Was [a]ppellant denied due process, reliable sentencing and
       effective assistance of counsel because of the cumulative prejudicial effect
       of all errors described in [appellant’s b]rief?
Appellant’s Brief, at 1-2.

       “[A]s a general proposition, we review a denial of PCRA relief to determine whether

the findings of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA

court’s credibility findings are to be accorded great deference, and where supported by



                                       [J-52-2013] - 6
the record, such determinations are binding on a reviewing court. Id., at 305 (citations

omitted). Before addressing each of appellant’s particular claims of error, we note that

many of them rely on his assertion he suffers from cognitive impairment, incompetency,

and mental illness. Much of the 22 days of evidentiary hearings on appellant’s PCRA

petition was dedicated to his mental health. The PCRA court listened to mental health

experts from both sides and found none of appellant’s evidence compelling. PCRA

Court Opinion, 7/25/12, at 2-3. It further found appellant “was competent, did not suffer

from any cognitive limitations and L was not brain damaged either at the time of the

murders or at the time of trial.” Id. Those findings are consistent with record testimony,

and therefore binding on this Court.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

       With the exception of issue I, which we save for last for ease of explanation, each

of appellant’s issues criticizes the effectiveness of his trial counsel. To obtain relief

under the PCRA, the conviction or sentence must have resulted from one or more of the

errors specifically enumerated in 42 Pa.C.S. § 9543(a)(2), including ineffective

assistance of counsel.     Id., § 9543(a)(2)(ii).   To establish ineffective assistance of

counsel, a petitioner must demonstrate, by a preponderance of the evidence, that: (1) the

underlying claim is of arguable merit; (2) no reasonable basis existed for counsel's action

or omission; and (3) there is a reasonable probability that the result of the proceeding

would have been different absent such error. Commonwealth v. Chmiel, 30 A.3d 1111,

1127 (Pa. 2011) (employing ineffective assistance of counsel test from Commonwealth v.

Pierce, 527 A.2d 973, 975-76 (Pa. 1987)).4 If a petitioner fails to satisfy any prong of the


4 Pierce reiterates the preexisting three-prong test for ineffective assistance of counsel in
Pennsylvania and holds it to be consistent with the two-prong performance and prejudice
test provided by the United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). Pierce, at 976-77.



                                       [J-52-2013] - 7
ineffectiveness inquiry, a claim of ineffective assistance of counsel will be rejected.

Commonwealth v. Sattazahn, 952 A.2d 640, 653 (Pa. 2008) (citation omitted).                   As

explained in detail below, each of appellant’s ineffective assistance claims fails on one or

more of the elements of the Pierce test.

A. Ineffectiveness Based on Counsel’s Failure to Contest Trial Error

       Issues IV, V, VII, VIII, IX, X, and XI contest prior counsel’s effectiveness in litigating

supposed trial errors. As explained more thoroughly below, each of these claims fails on

the first element of the Pierce test because there is no merit to the underlying claims —

there was no actual error; therefore, counsel cannot be deemed ineffective for failing to

contest it. See Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007) (“Counsel

will not be deemed ineffective for failing to raise a meritless claim.”).




   Issue IV: Effectiveness of Appellant’s Waiver of Rights to Jury Trial and to
                               Contest Evidence
       Appellant waived his right to a guilt phase jury after thorough oral and written

colloquies. N.T. Trial, 10/18/05, at 4-8. He orally affirmed he understood he had a right

to a jury trial, the jury would be comprised of members of the community, he would

participate in the selection of the jury, and in order to be convicted each member of the

jury must be convinced of his guilt beyond a reasonable doubt. Id., at 5-6. He also

reviewed and signed a written jury waiver form, which reiterated the rights already

explained to him. Id., at 4-5. He repeatedly affirmed he understood the written form

and the rights explained to him by the court, and that he had not suffered from any mental

illness capable of impairing his ability to understand the proceedings. Id., at 7.

       Appellant argues the trial court’s colloquy securing the waiver of his right to a guilt

phase jury and his right to contest the evidence against him was constitutionally




                                        [J-52-2013] - 8
insufficient, and all prior counsel were ineffective for failing to object to it.    Neither

argument has merit.

       Appellant concedes the jury waiver colloquy satisfied the Pennsylvania standard

for a knowing, intelligent, and voluntary jury trial waiver.       See Commonwealth v.

O'Donnell, 740 A.2d 198, 208 (Pa. 1999) (citation omitted) (essential ingredients of jury

trial waiver colloquy are requirements that jury be chosen from members of community

(jury of one’s peers), that verdict be unanimous, and that accused be allowed to

participate in selection of jury panel). However, he argues the Pennsylvania standard is

insufficient to satisfy federal constitutional requirements because it does not ensure a

criminal defendant’s waiver is an “intentional relinquishment or abandonment of a known

right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). He argues a jury

finding each fact necessary to prove the elements of the crime charged, and to testify on

his own behalf are both rights due to a criminal defendant. He therefore argues the trial

court’s colloquy securing his guilt phase jury waiver was constitutionally insufficient for

failing to advise him concerning these additional rights.

       Appellant’s argument fails at the outset because it is built upon the faulty premise a

colloquy is constitutionally required to give effect to a defendant’s jury trial waiver.

Pennsylvania requires an on-the-record colloquy, see Pa.R.Crim.P. 620, but the rule is

merely a prophylactic measure. “A [jury trial] waiver colloquy is a procedural device; it is

not a constitutional end or a constitutional right.” Commonwealth v. Mallory, 941 A.2d

686, 697 (Pa. 2008) (internal quotations omitted). That which is not constitutionally

required cannot be constitutionally defective.

       Appellant’s argument that the colloquy was constitutionally insufficient to secure

his decision to stipulate to the evidence is also meritless. A colloquy ensuring a knowing

and voluntary decision is required any time a defendant stipulates to evidence that




                                      [J-52-2013] - 9
virtually assures his conviction because such a stipulation is functionally the same as a

guilty plea. See Commonwealth v. Davis, 322 A.2d 103, 105 (Pa. 1974).

       In order for a guilty plea to be constitutionally valid, the guilty plea colloquy
       must affirmatively show that the defendant understood what the plea
       connoted and its consequences. This determination is to be made by
       examining the totality of the circumstances surrounding the entry of the
       plea. Thus, even though there is an omission or defect in the guilty plea
       colloquy, a plea of guilty will not be deemed invalid if the circumstances
       surrounding the entry of the plea disclose that the defendant had a full
       understanding of the nature and consequences of his plea and that he
       knowingly and voluntarily decided to enter the plea.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (quoting

Commonwealth v. Fluharty, 632 A.2d 312, 314-15 (Pa. Super. 1993)).

       Guided by these principles, our review of the colloquy leads us to conclude it was

more than sufficient to show appellant understood the nature of stipulating to the

evidence and that doing so could expose him to the death penalty. The trial court

thoroughly questioned appellant, walking him step-by-step through the procedure for a

stipulated trial, and he testified he understood at every point along the way. N.T. Trial,

10/18/05, at 4-22. Specifically, appellant answered in the affirmative to the following

questions from the trial court:

       I understand that you have authorized your attorneys to not contest [the]
       trial and offer no defense to the four charges of first-degree murder and
       related offenses. This means that you will not be confronting the witnesses
       against you, and you are giving up your right to cross-examine those
       witnesses and to otherwise seek to impeach their testimony. L Do you
       understand that?

                                    *       *     *

       This means that you will be exposed to the death penalty. That a
       penalty-phase only jury will be selected, and that jury will be told by your
       attorney that you did not contest and offered no defense to the first-degree
       murder charges in the guilty or not guilty proceedings. They will then argue
       these facts as mitigation. Do you understand this and agree to it?




                                        [J-52-2013] - 10
Id., at 9-10. The trial court explained the law on murder, and appellant replied he

understood the law as explained. Id., at 11-15. The trial court asked appellant, “Now

then, do you understand the charges that you are [faced with] today and the possible

penalties?”   Appellant replied that he did.     Id., at 15.    The trial court, with the

prosecutor’s assistance, described the other crimes with which appellant was charged

and their penalties. Id., at 15-18. The trial court stated, “[A]ll the penalties could be

imposed consecutively. Do you understand that?” Id., at 18. Appellant responded he

did. Id.

      The trial court then asked:

      You understand that by waiving a jury trial and proceeding in accordance
      with the advice of your attorneys, that you will be found guilty beyond a
      reasonable doubt of four counts of first-degree murder and related
      offenses. Do you understand that?

Id. Appellant replied he understood. Id. To be sure, the trial court asked him again,

“You understand and agree to that?” Id. Appellant said yes again. Id., at 19. The

trial court then asked, “And you understand the consequences of your decision today?”

Id. Appellant said yes. Id. The trial court then went through the procedure of the

prospective capital sentencing hearing. Id. Appellant replied yes every time the court

paused to ask if he understood what was explained. The trial court gave appellant an

opportunity to ask questions; he declined. Id. Once the trial court finished its colloquy,

trial counsel examined appellant on the record. Trial counsel asked whether appellant

understood the juries would be dismissed, whether he and trial counsel had reviewed the

rights implicated by the trial court’s colloquy prior to coming to court, whether appellant

had understood those rights, and whether he had any questions.              Id., at 20-21.

Appellant replied yes to every question and declined to ask further questions. Id.




                                     [J-52-2013] - 11
        The trial court’s colloquy was exhaustive. Appellant was not under the influence

of an intoxicant or mental defect that inhibited his ability to meaningfully participate in, or

understand the colloquy. See id., at 7. There is no merit to the argument the process

used to secure appellant’s guilt phase jury waiver, or the process by which appellant

elected to stipulate to the evidence, was constitutionally defective. Accordingly, counsel

cannot be deemed ineffective regarding this issue. See Washington, at 603.

                    Issue V: Admission of Appellant’s Statements

        Appellant alleges the statements used against him at trial5 were unconstitutionally

obtained and counsel was ineffective for failing to contest the admission of his statements

and all evidence obtained therefrom. First, appellant contends the police violated his

Sixth Amendment right to an attorney when they took his March 28, 2005, confession in

the absence of counsel after the prosecution against him had already commenced.

Second, he argues his waiver of his right to remain silent was ineffective as to all of his

confessions because his impaired mental health prevented it from being knowing,

intelligent, and voluntary.

        Appellant gave three written statements to police during their first interview at his

workplace at the Somers Point Acme market in New Jersey on March 25-26, 2005. On

the evening of March 25, after an initial interview in which appellant made a false

5   The statements presented at trial included:

        (1) a 12 page statement given by [a]ppellant at the Somers Point Acme in
        New Jersey on March 25, 2005 [CS-4], (2) pages 13 through 20 of the
        Somers Point Acme statement made on March 25, 2005 [CS-6], (3) an 8
        page statement given at the Somers Point Acme on March 26, 2005 [CS-7,]
        and (4) a 9 page statement given by [a]ppellant at the Upper Merion police
        department on March 28, 2005 [CS-11].

PCRA Court Opinion, 7/25/12, at 60 (footnote omitted).




                                      [J-52-2013] - 12
statement, the police confronted him with the evidence against him, and he confessed.

He was arrested and given Miranda 6 warnings, but continued to participate in the

interview, eventually signing the two written inculpatory statements at issue. Because

March 26 was a Saturday, the police decided not to transport appellant back to

Pennsylvania over the weekend. Instead, sometime after the interview concluded in the

early hours of March 26, they brought appellant before a New Jersey magistrate as a

fugitive from justice, and he was detained in a local prison in Atlantic County, New Jersey

over the weekend. On the morning of March 28, 2005, appellant appeared before

another local magistrate and waived extradition. The police then transported appellant

back to Montgomery County, Pennsylvania, where he was set to appear at a preliminary

arraignment. In transit, police reissued appellant his Miranda warnings and asked him

additional questions. Appellant gave additional inculpatory statements in response to

those questions, but police were not able to record those statements while in the moving

car. On arrival in Pennsylvania, police took appellant immediately to his preliminary

arraignment. Thereafter, they took appellant back to the police station for processing

and fingerprinting. At that point, they typed up appellant’s statements from the car,

which he signed.

        Appellant argues at least one of his three appearances before a judicial officer

between March 26-28 caused his Sixth Amendment right to counsel to attach, and any

statements elicited from him by the police thereafter were unconstitutionally obtained.

Regardless of whether appellant’s statements were unlawfully obtained, trial counsel was

not ineffective for failing to raise those claims because trial counsel did, in fact, raise

them. Although trial counsel never mentioned the words “Sixth Amendment,” and used

New Jersey case law because that is where appellant was detained, questioned, and

6   Miranda v. Arizona, 384 U.S. 436 (1966).



                                     [J-52-2013] - 13
appeared before the magistrate, counsel clearly argued at the suppression hearing that

appellant’s statements to the police during his transport to Pennsylvania should have

been suppressed for violating his right to counsel. N.T. Pre-trial Motions, 9/15/05, at

92-94. Accordingly, this ineffectiveness claim fails.

       Appellant’s Miranda argument also lacks merit. On direct appeal, we decided the

statements in question were voluntary and therefore admissible. Eichinger, at 1131-36.

In his PCRA petition, appellant alleges counsel was ineffective for failing to contest the

statements on mental health grounds. He avers these issues are distinct, and therefore

this issue was not previously litigated.

       The issues are not distinct. A defendant’s mental state, including his mental

health, is at the heart of the voluntariness inquiry. See Commonwealth v. DeJesus, 787

A.2d 394, 403 (Pa. 2001) (citation omitted) (test for determining voluntariness of

confession and validity of waiver looks to totality of circumstances, including defendant’s

physical and psychological state). Since we have already decided the voluntariness of

appellant’s confession, we have also impliedly decided the impact his alleged mental

health problems may have had on the voluntariness of his Miranda waiver.

       Even if the distinction was valid, the argument lacks merit. As we discussed

supra, the record supports the PCRA court’s finding appellant suffered from no

meaningful mental defect at any time relevant to this case. Therefore, that finding is

binding on this Court. If appellant was not suffering from a mental defect, trial counsel

could not have been ineffective for failing to contest the admissibility of his confessions on

that basis.

                      Issues VII & IX: Prosecutorial Misconduct
       In issue VII, appellant argues the prosecutor engaged in misconduct during his

questioning of Dr. Gillian Blair, a defense expert witness, and then used Dr. Blair’s




                                      [J-52-2013] - 14
testimony to make an improper argument during his closing argument.             He further

argues trial counsel was ineffective for failing to object to the misconduct and improper

argument. During the penalty phase, Dr. Blair testified about tests she performed on

appellant to diagnose his supposed psychological disorders.         See N.T. Sentencing,

11/2/05, at 44-62. On cross-examination, the following exchange took place between

the prosecutor and Dr. Blair:

      Q. On the last page of your report there is a sentence which reads, “He
      has poor coping skills and is susceptible to decompensation at times of
      heightened stress.” In other words, when he’s under stressful situations,
      bad stuff might happen.

      A. Right.

      Q. Including killing people, right?

      A. Well, certainly he has very poor coping skills, and when he is very, very
      stressed he will decompensate and will not be able to control his behavior.

      Q. Which might result in murdering people, right?

      A. Absolutely.

      Q. And you can’t tell this jury what it is we should look for to make sure that
      he doesn’t decompensate and kill someone else, can you?

      A. No.

Id., at 83. During his closing argument, the prosecutor made this comment:

      Do you remember when I cross-examined Dr. Gillian [sic]. She said that
      when the defendant is under stress, he might tend to decompensate. And
      I said, [t]hat means when when something bad happens in his life, he might
      kill people, right? And she said yes. And I said, [y]ou can’t tell us what to
      look for so that we’ll know when he is about to kill somebody in the future.
      You’re right I can’t.

      How many more people must die at this man’s hands? Is it going to be a
      nurse [in] prison? A doctor? An inmate? A guard? A visitor? How
      many more people must die at this man’s hands?




                                     [J-52-2013] - 15
N.T. Sentencing, 11/3/05, at 24-25. Appellant argues this cross-examination of Dr. Blair

and the closing argument derived from her responses constitute prosecutorial

misconduct because they were misleading, irrelevant, and unfairly prejudicial.              In

support, appellant cites Commonwealth v. Marrero, 687 A.2d 1102, 1108 n.19 (Pa. 1996),

for the proposition a death sentence cannot be based on future dangerousness because

it is not a statutory aggravating circumstance.

       In Simmons, a plurality of the United States Supreme Court held “where the

defendant’s future dangerousness is at issue, and state law prohibits the defendant’s

release on parole, due process requires that the sentencing jury be informed that the

defendant is parole ineligible.” Simmons, at 156. Future dangerousness is not an

enumerated aggravating circumstance in Pennsylvania, see 42 Pa.C.S. § 9711(d), and,

unlike the statutory aggravating circumstances, it may not be used by a jury as the sole

reason for imposing a death sentence. See Marrero, at 1108 n.19. While “[i]t is not per

se error for a prosecutor to argue a defendant’s future dangerousness,” Commonwealth

v. Smith, 995 A.2d 1143, 1163 (Pa. 2010), where future dangerousness is at issue and a

capital defendant requests a specific instruction that his first degree murder conviction

precludes his eligibility for parole, it is a denial of due process to refuse that instruction,

see Commonwealth v. Chambers, 685 A.2d 96, 106 (Pa. 1996). Thus, a prosecutor is

permitted to discuss a defendant’s future dangerousness during rebuttal, after a

defendant places his future conduct at issue.

       Here, appellant injected his future dangerousness into the penalty phase through

the testimony of a correctional counselor, who stated appellant conformed to the

correctional facility’s regulations. See N.T. Sentencing, 11/2/05, at 6. This testimony

opened the door for the prosecution to explore appellant’s conformance and was

therefore a “fair response” to appellant’s argument regarding his status as a model




                                      [J-52-2013] - 16
prisoner. See Marrero, at 1109; see also People v. Brady, 236 P.3d 312, 342 (Cal. 2010)

(“The prosecutor’s argument concerning defendant’s dangerousness in prison was

proper rebuttal of an expert witness’s testimony about defendant’s ability to function in a

highly structured environment.”).

       It is well established that “a prosecutor is free to present his argument with logical

force and vigor so long as there is a reasonable basis in the record for the prosecutor’s

remarks.” Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (citation omitted).

This Court recently held a similar statement made during closing arguments was

permissible. See Commonwealth v. Cam Ly, 980 A.2d 61, 93-95 (Pa. 2009).7 While

we acknowledge the prosecution’s statement here was a step beyond the statement in

Cam Ly, this Court has set a high bar for reversal on grounds of prosecutorial misconduct

where the trial court has issued appropriate instructions.       Moreover, in light of the

compelling aggravating circumstances and appellant’s failure to present convincing

mitigating evidence on post-conviction review, we conclude appellant is not entitled to

relief on this claim.




7 The statement held to be permissible was made by a prosecutor during closing
arguments:

       You L know the past history of Cam Ly and the fact that he has committed
       violent acts on a number of occasions in the past. Will you be satisfied with
       the sentence of life imprisonment? Or do you believe death is necessary
       L for the protection of all of us[?]

Id.



                                     [J-52-2013] - 17
       In issue IX, appellant attacks several other arguments made by the prosecutor in

his penalty phase opening statement and summation. However, none of the arguments

appellant takes exception with were remotely objectionable.

       “A prosecutor has great discretion during closing argument; indeed, closing

‘argument’ is just that: argument.” Commonwealth v. Brown, 911 A.2d 576, 580 (Pa.

Super. 2006). “[T]he prosecutor must limit his argument to the facts in evidence and

legitimate inferences therefrom.” Commonwealth v. Gilman, 368 A.2d 253, 257 (Pa.

1977) (citation omitted). However, the prosecutor “must have reasonable latitude in

[fairly] presenting [a] case [to the jury,] and must be free [to present] his [or her closing]

arguments with logical force and vigor.” Commonwealth v. Johnson, 533 A.2d 994, 996

(Pa. 1987) (citation omitted) (internal quotations omitted). Therefore, “[c]omments by a

prosecutor constitute reversible error only where their unavoidable effect is to prejudice

the jury, forming in the jurors’ minds a fixed bias and hostility toward the defendant such

that they could not weigh the evidence objectively and render a fair verdict.”

Commonwealth v. Bryant, 67 A.3d 716, 727 (internal markings and citations omitted).

       Appellant begins by arguing, without citation, “[t]he prosecutor’s duty to avoid

improper argument applies with particular force to the penalty phase of a capital case.”

Appellant’s Brief, at 64. Actually, the law states quite the opposite: “A prosecutor has

more latitude in presenting argument at the penalty phase since the presumption of

innocence no longer applies.” Commonwealth v. Bridges, 757 A.2d 859, 880 (Pa. 2000)

(citation omitted). Even if that were not the case, the arguments of which appellant

complains were completely acceptable under the circumstances.

       First, appellant takes issue with the prosecutor emphasizing his role as a

representative of the state and, claiming the prosecutor expressed his personal belief that




                                      [J-52-2013] - 18
seeking death was required by his oath of office. Specifically, appellant takes issue with

the following remark:

       Members of the jury, for twenty years I have stood in courtrooms, this one
       and others, and asked jurors to do justice between the Commonwealth and
       someone who committed a foul crime, usually a murder. Every time I do
       that I am reminded of the awesome responsibility that is given to us by the
       people to represent them in cases of this sort. I do that and I do it willingly.
       When I became an Assistant District Attorney and then later as District
       Attorney, I put my hand on the Bible and swore I would protect the citizens
       of this country, and it is because I swore those oaths that I stand before you
       today.

N.T. Sentencing, 11/3/05, 7-8. Appellant argues such language wrapped the prosecutor

in the cloak of state authority. However, he cites no authority for that proposition and

fails to make a logical argument regarding how the comment was unfairly prejudicial. It

is even less prejudicial in light of what was said next, which appellant declined to quote:

       But, members of the jury, I am not the only one here who took an oath.
       Each of you actually twice took an oath. Last week you swore that you
       would answer truthfully the questions that we put to you to determine
       whether you would be seated in one of those chairs. Do you remember
       that? L Well, you know last week when a judge of the Court of Common
       Pleas of Montgomery County, in his robe, on the bench, and then the
       District Attorney of this county asked you if the law required you to impose
       the death penalty, you all said you would follow the law.

Id., at 8. Read together, these passages can only be characterized as the prosecutor

reminding the jury of his duties and its obligation to sentence appellant according to the

law, rather than emotion. Thus, when read in context, there is nothing objectionable

about the comment.

       Next, appellant takes issue with the following language from the prosecutor’s

closing statement:

       Remember I told you in my opening to look at everything in this case
       through two prisms. Remember? The first that he is a malicious killer;
       hardness of heart, cruelty, wickedness, and that you should consider
       everything that is said knowing that as a fact. Make no mistake. There is


                                      [J-52-2013] - 19
      no chance that an innocent man is seated there. No chance. And there is
      no chance that we are asking you to sentence an innocent man to death.
      He is a malicious killer and everything you heard has to be viewed knowing
      that as a fact.

                                      *     *     *

      Conscious, malicious, volitional decision to murder her. If I can’t have her,
      no one can. He murdered these people maliciously; in other words, with a
      stone rock-hard heart, wickedness of disposition, evilness and a complete
      and utter indifference to the value of human life.

Id., at 15, 26. Appellant contends these arguments, along with the prosecutor’s reading

of passages from appellant’s own journal in which he memorialized the murders, id., at

21-24, urged the jury to find and weigh non-statutory aggravating factors such as

maliciousness, wickedness, the victims’ fear, the number of times each victim was

stabbed, the manner in which each was stabbed, and his amusement about the crimes as

recorded in his journal. He cites Marrero and Commonwealth v. Fisher, 681 A.2d 130,

146 (Pa. 1996), for the proposition that Pennsylvania capital sentencing juries are not

permitted to consider such non-statutory aggravating circumstance.

      Appellant’s characterization of these comments as urging a finding of

non-statutory aggravating factors is wholly irrational. “A prosecutor does not engage in

misconduct when his statements are based on the evidence or made with oratorical flair.”

Commonwealth v. Carson, 913 A.2d 220, 237 (Pa. 2006) (citing Commonwealth v.

Marshall, 633 A.2d 1100, 1110 (Pa. 1993)). The prosecutor’s comments were merely a

review of evidence properly admitted into the record and were within permissible

characterization of the facts proven by that evidence.

      Next, appellant takes issue with the Commonwealth’s numerous arguments

offered to contradict his mitigation evidence.    Specifically, he protests the following

statements from the prosecutor’s closing argument:

      [T]here is no mitigation in this case. There is no mitigation in this case.


                                    [J-52-2013] - 20
                                      *      *      *

      And all of the psycho-babble you heard from the defense psychiatrists, that
      ought to a scream [sic] at your common sense and say, Hey, wait a minute,
      that’s nonsenseL. That is all nonsense and you should consider it as
      complete and utter nonsense.

                                      *      *      *

      Now, in addition to the psycho-babble the defense asked you to find as
      mitigation, the defense is asking you to consider that he is an Eagle Scout
      and that he managed to graduate from high school and that his father has a
      terrible disease, and I don’t know, he loves his dog. I don’t know what it is.
      Everybody, members of the jury, has things in their lives that they would
      rather were not there and everybody has things in their lives that they have
      done that are achievements. But that is not mitigation of sentence,
      members of the jury. That can’t possibly be considered a reasonable thing
      to mitigate, that tends to make these killings less severe than they are. I
      suggest to you that that is the last vestige of the scoundrel. Well, I’m not
      such a bad guy because I love my mother and I graduated from high school
      and I worked for Acme. Come on. That is complete and utter nonsense
      and you should treat it as such.

N.T. Sentencing, 11/3/05, at 10, 12-3, 16.       Appellant argues these comments offend

rulings from the United States Supreme Court that any aspect of a defendant’s character

proffered as a basis for a sentence less than death should be considered as a mitigating

factor, see Lockett v. Ohio, 438 U.S. 586, 604 (1978), and that there need not be any

nexus between a defendant’s mitigation and the crime, see Tennard v. Dretke, 542 U.S.

274, 289 (2004).

      Appellant grossly mischaracterizes the cited cases. Those cases hold evidence

relevant to a defendant’s character must be admitted in a capital sentencing if a

defendant offers it. In no way do those cases say the jury is required to give it any

weight, or that the Commonwealth is not permitted to argue against it or produce contrary

evidence.   It is well settled “[a] prosecutor may rebut mitigation evidence in his

arguments and may urge the jury to view such evidence with disfavor.” Chmiel, at 1185.




                                    [J-52-2013] - 21
That is precisely what the prosecutor did with the comments about which appellant now

complains.

      Last, appellant takes issue with the prosecutor’s arguments against the jury having

mercy on appellant, specifically, “He is already trying to create and manufacture some

sympathy from you. The psychiatric evidence. That should really, really offend you.”

N.T. Sentencing, 11/3/05, at 10-11.      Appellant argues the comment was improper

because a sentencing jury must be free to consider mitigating evidence and show mercy

to the defendant. He cites no authority in support of the argument, and in fact, it has no

merit. A prosecutor is allowed to argue that a sentencing jury in a capital case should

show no mercy. See Chmiel, at 1184.

      There is no merit to any of appellant’s critiques of the prosecution’s closing

statements.   All the arguments appellant takes issue with were based on facts in

evidence, and none were unfairly prejudicial. Since none of the arguments appellant

highlights were objectionable, trial counsel cannot be deemed ineffective for failing to

object. See Washington, at 603-04.

 Issue VIII: Cross-Examination of Commonwealth Witness Dr. Timothy Michals

      Appellant argues trial counsel was ineffective for failing to contest several flaws in

the expert psychiatric testimony of Commonwealth witness Dr. Timothy Michals. First,

he argues Dr. Michals committed a violation of the ethics rules of the psychiatric

profession by opining on appellant’s mental state at the time of the murder without

qualifying his comments by revealing he had never personally examined appellant.

Appellant further argues Dr. Michals misinformed the jury as to what constitutes mitigating

circumstances.

      Appellant argues Dr. Michals was bound by the rules of the psychiatric profession

before testifying regarding appellant’s mental health. This argument fails on numerous




                                     [J-52-2013] - 22
levels.     First, appellant cites no authority; he does not cite the ethics rule of the

psychiatric profession Dr. Michals supposedly violated, and he cites no legal authority for

the proposition that such a violation renders his testimony inadmissible. The reason

appellant is unable to provide citation in support of his argument is because none exists.

An extensive search of authority from all United States jurisdictions reveals none in

support of the proposition a violation of the ethics rules for an expert witness’s profession

is objectionable. This Court is no authority on the ethical constraints of the psychiatric

profession, so we cannot comment on Dr. Michals’s supposed ethical violation.

However, assuming such a violation did occur, it has no bearing on the admissibility of Dr.

Michals testimony. That Dr. Michals had never personally examined appellant is a fact

that may have legitimately degraded the weight of his testimony.              Trial counsel

recognized as much and cross-examined him on it. N.T. Sentencing, 11/2/05, at 175-76.

In doing so, they satisfied their obligation to challenge his testimony.

          Appellant further argues Dr. Michals misled the jury as to what constitutes

mitigation evidence. Appellant first complains Dr. Michals wrongly claimed the extreme

mental or emotional disturbance mitigator, 42 Pa.C.S. § 9711(e)(2), did not apply

because such distress was not present during the Jennifer Still homicide, the non-capital

offense. Specifically, he takes issue with the following testimony from Dr. Michals’s

direct examination:

          Q. Do you agree with Dr. Weiss that there are two mitigating factors shown
          by [appellant’s] testing and analysis?

          A. I don’t think there are any mitigating factors. Under extreme emotional
          distress, the first killing, he was able to postpone for 24 hours, then he
          acted. So he had an intent and plan. There was a reason for his
          postponing that first killing. I don’t think that is a mitigating factor.

N.T. Sentencing, 11/2/05, at 174-75.




                                       [J-52-2013] - 23
       The argument lacks merit. Appellant has cherry-picked testimony to support a

specious argument. Immediately after the testimony cited above, Dr. Michals continued:

       There are three deaths in the second charge, in which basically the first was
       the assault of the first victim, the second victim and third victim, and they
       were killed in reverse order. They were killed by slashing their throats,
       causing exsanguination, which is the cause of death there.

       I think my opinion, which I express with a reasonable degree of psychiatric
       certainty, is that he had substantial capacity. He knew what he was doing,
       and he just acted despite the knowledge that his actions were taking the
       lives of these three people.

Id., at 175. When Dr. Michals’s response is read in its entirety, it is reasonably clear he

was examining appellant’s behavior in both sets of murders in order to conclude appellant

had substantial capacity in both. That appellant had substantial capacity in the first

murder was not necessarily relevant to the sentencing proceedings for the latter three,

but it was not prejudicial either. The jury had already heard the trial court’s opening

instructions in which it was explicitly told its decision between death and life imprisonment

only applied to the latter three murders and not to the murder of Jennifer Still. N.T.

Sentencing, 11/1/05, at 16-17. Therefore, there is little chance the jury was confused by

Dr. Michals’s testimony. Even if there was confusion, it was cured when the trial court

instructed the jury in accordance with the Pennsylvania capital sentencing statute, 42

Pa.C.S. § 9711(c), prior to closing statements, as discussed further below.

       Appellant also argues Dr. Michals confused the jury by mistakenly claiming the

mental-state mitigator outlined in 42 Pa.C.S. § 9711(e)(2)-(3) only pertains to a

defendant’s mental state at the time of his offense. Specifically, he takes issue with Dr.

Michals’s comment that, “the mitigating factors have to do with mental state at the time of

the commission of the crime.” N.T. Sentencing, 11/2/05, at 185.

       Appellant’s argument lacks merit for numerous reasons.           First, Dr. Michals’s

statement was accurate — the two mitigating factors from Pennsylvania’s death penalty


                                      [J-52-2013] - 24
statute dealing with a defendant’s mental state pertain to his mental state at the time of

the offense. See 42 Pa.C.S. § 9711(e)(2)-(3)8; Commonwealth v. Rice, 795 A.2d 340,

354-55 (Pa. 2002) (citations omitted) (discussing extreme emotional distress mitigator);

Commonwealth v. Henry, 569 A.2d 929, 939-40 (Pa. 1990) (discussing impaired-capacity

mitigator). While the “catch-all” mitigator permits a defendant to introduce evidence of

his good character throughout his life or any unique aspect of his crime to off-set evidence

of one or more of the statutory aggravating circumstances, see 42 Pa.C.S. § 9711(e)(8),

Dr. Michals’s comment cannot reasonably be read as addressing the nuances of that

mitigator. Read in the context of Dr. Michals’s other responses to questions asked

moments prior — language appellant conveniently omits — it is clear the comment was

directed at the statutory mitigators dealing specifically with a defendant’s mental state.

        Appellant’s argument also lacks merit because the trial court fully and accurately

explained the process the jury was to use in determining whether to return death

sentences during its jury instructions.       If the jury was confused by Dr. Michals’s

comment, however unlikely that may be, the confusion was cured by the instructions

issued in accordance with 42 Pa.C.S. § 9711(c), as discussed below.




8   42 Pa.C.S. § 9711(e) states, in relevant part:

        Mitigating circumstances shall include the following:

                                          *   *      *

        (2) The defendant was under the influence of extreme mental or emotional
        disturbance.

        (3) The capacity of the defendant to appreciate the criminality of his conduct
        or to conform his conduct to the requirements of law was substantially
        impaired.

Id.



                                       [J-52-2013] - 25
       Also, it is unlikely the jury relied on Dr. Michals’s interpretations of the law, as the

trial court had already instructed it, “Now, as the trial judge, it is my responsibility to decide

all questions of law. L. You should consider all of my instructions taken together as a

connected series, because [they] constitute the law which you are obligated by your oath

to follow.” N.T. Sentencing, 11/1/05, at 19-20 (emphasis added).

       There is no merit to any of appellant’s complaints about Dr. Michals’s testimony.

Therefore, trial counsel cannot be deemed ineffective for failing to make the objections

appellant suggests. See Washington, at 603-04.

                       Issue X: Penalty Phase Jury Instructions

       Appellant argues the penalty phase jury instructions were constitutionally deficient,

and trial counsel was ineffective for failing to properly litigate challenges to the defects.

At the outset, we note appellant fails to cite any legal authority for his various complaints

about the jury instructions. Accordingly, his claims fail. See Pa.R.A.P. 2119.

       Appellant first argues the jury instructions were improper for not including an

instruction that life in prison is presumed to be the appropriate punishment for capital

murder. He argues the jury instructions given “adopted a structural primacy for death

over life[.]” Appellant’s Brief, at 68. Appellant’s argument is unreasonable.

       It may be acknowledged that in some sense there is a “presumption of
       life”—this from the fact that the prosecution is limited to specific aggravating
       circumstances which must be proven beyond a reasonable doubt, while the
       defendant is permitted great latitude in demonstrating mitigating
       circumstances, and then by the lesser preponderance standard.

Eichinger, at 1137 (quoting Commonwealth v. Travaglia, 467 A.2d 288, 300-01 (Pa.

1983)). However, a specific jury instruction containing the words ‘presumption of life’ is

not required. Id., at 1138. “An explanation of the deliberately disparate treatment of the

aggravating and mitigating circumstances under the applicable standards of proof and a




                                        [J-52-2013] - 26
clear indication that life in prison is the sentence unless the Commonwealth meets its high

burden is sufficient to convey the fact that life is presumed.” Id.

       In this case, trial counsel asked for a jury instruction with the specific words

“presumption of life.” N.T. Pre-trial Motions, 10/31/05, at 3-5. The trial court rejected

that phrasing, id., at 23-24, but issued numerous, redundant, and clear instructions

adequately outlining the proper procedures and standards for the jury’s choice between

life and death. The trial court’s opening instructions included the following:

       Now, in this sentencing trial evidence will be presented on the question of
       the sentence to be imposed, either death or life imprisonment. Counsel
       may present additional evidence and make further arguments, and then you
       will decide whether to sentence the defendant to death or life imprisonment
       without parole.

       Your sentence will depend on what you find about aggravating and
       mitigating circumstances. The sentencing code defines aggravating and
       mitigating circumstances, and I will explain these concepts to you in more
       detail later.

       Your verdict must be a sentence of death if you unanimously find, that is all
       of you find, at least one aggravating and no mitigating circumstance[s], or if
       you unanimously find one or more aggravating circumstances which
       outweigh any mitigating circumstance or circumstances. If you do not all
       agree on one or the other of these findings, then the only verdict that you
       may return is a sentence of life imprisonment.

N.T. Sentencing, 11/1/05, at 17. The trial court reiterated and expanded upon those

opening instructions when it charged the jury prior to its deliberation:

       First, L you must understand that your verdict must be a sentence of death,
       if and only if, you unanimously find, that is all of you find, at least one
       aggravating circumstance and no mitigating circumstance, or if you
       unanimously find one or more aggravating circumstances that outweigh any
       mitigating circumstance or circumstances. If you do not all agree on one or
       the other of these findings, then the only verdict that you may return is a
       sentence of life imprisonment without parole.

       The Commonwealth must prove any aggravating circumstance beyond a
       reasonable doubt. This does not mean that the Commonwealth must



                                      [J-52-2013] - 27
       prove the aggravating circumstance beyond all doubt or to a mathematical
       certainty.

       A reasonable doubt is the kind of doubt that would cause a reasonable and
       sensible person to hesitate before acting upon a matter of importance in his
       or her own affairs. A reasonable doubt must be a real doubt and may not
       be one that a juror imagines or makes up to avoid carrying out an
       unpleasant duty.

       By contrast, the defendant must prove any mitigating circumstance;
       however, the defendant only has to prove it by a preponderance of the
       evidence, that is, by the greater weight of the evidence, which is a less
       demanding standard of proof than beyond a reasonable doubt. Facts are
       proven by a preponderance of the evidence when the evidence shows that
       it is more likely than not that the facts are true.

N.T. Sentencing 11/3/05, at 45-47. The court then proceeded to discuss, in detail, the

criteria for each aggravating and mitigating circumstance that could possibly have applied

to each of the three victims, reiterating the beyond a reasonable doubt standard for each

possible aggravator and the preponderance of the evidence standard for each possible

mitigator. Id., at 47-54. The court then gave a lengthy instruction on how the jury was to

complete the verdict slip:

       As I told you earlier, you must unanimously agree on one of two general
       findings before you can sentence the defendant to death. They are a
       finding that there is at least one aggravating circumstance and no mitigating
       circumstance, or a finding that there are one or more aggravating
       circumstances that outweigh any mitigating circumstance or circumstances.

       In deciding whether aggravating outweigh mitigating circumstances, do not
       simply count the number. Compare the seriousness and importance of the
       aggravating with the mitigating circumstances. If you all agree on either
       one of the two general findings, then you can and must sentence the
       defendant to death.

       When voting on the general findings, you are to regard a particular
       aggravating circumstance as present only if you all agree that it is present.
       On the other hand, each of you is free to regard a particular mitigating
       circumstance [as] present, despite what other jurors may believe. This is
       different from the general findings to reach your ultimate sentence of either
       life in prison or death.




                                     [J-52-2013] - 28
      The specific findings as to any particular aggravating circumstance must be
      unanimous. All of you must agree that the Commonwealth has proven it
      beyond a reasonable doubt.           That is not true for any mitigating
      circumstance. Any circumstance that any juror considers to be mitigating
      may be considered by that juror in determining the proper sentence.

      This different treatment of aggravating and mitigating circumstances is one
      of the law’s safeguards against unjust death sentences. It gives the
      defendant the full benefit of any mitigating circumstance or circumstances.
      It is closely related to the burden of proof requirement.

      So remember, the Commonwealth must prove any aggravating
      circumstance beyond a reasonable doubt, while the defendant only has to
      prove any mitigating circumstance by a preponderance of the evidence.

      Your final sentence, life imprisonment without parole, or death, must be
      unanimous. All of you must agree that the sentence should be life
      imprisonment or that the sentence should be death, because there is at
      least one aggravating circumstance and no mitigating circumstance, or
      because the aggravating circumstance or circumstances outweigh the
      mitigating circumstance or circumstances found by any juror.

      Now, if you do not agree unanimously on the death sentence and on one of
      the two general findings that will support it, then you have two immediate
      options. You may either continue to discuss the case and deliberate the
      possibility of a death sentence; or, if you all agree to do so, you may stop
      deliberating and sentence [appellant] to life imprisonment.

      If you come to a point where you have deliberated conscientiously and
      thoroughly and still cannot all agree either to sentence [appellant] to death
      or to stop and sentence him to life imprisonment, you would report that to
      me. If it seems to me that you are hopelessly deadlocked, it will be my duty
      to sentence [appellant] to life imprisonment.

Id., at 56-59. Appellant’s contention the instructions created a “primacy for death over

life” is plainly unreasonable.   Appellant’s Brief, at 68.   The instructions effectively

explained how the jury was to come to a sentence of life imprisonment or death under the

death penalty statute. See 42 Pa.C.S. § 9711(c).

      Appellant next argues the trial court’s preliminary jury instructions misled the jury

because they informed the jury appellant had been convicted of first degree murder and

described the elements of that offense, elaborating on the legal meaning of “malice,”



                                    [J-52-2013] - 29
“specific intent,” and “premeditation.” Specifically, he protests the following language

from the trial court’s opening instructions:

       First degree murder in Pennsylvania is described as follows: First degree
       murder is murder in which the killer has the specific intent to kill.

       The following three elements have been proven previously beyond a
       reasonable doubt: First, that the particular victim is dead. Second, that
       [appellant] killed her. And third, that [appellant] did so with the specific
       intent to kill and with malice.

       Now, a person who kills must act with malice to be guilty of any degree of
       murder, and malice is what separates murder from manslaughter.

       The word malice as I am using it has a special legal meaning. It does not
       mean simply hatred, spite or ill will. Malice is a shorthand way of referring
       to any of three different mental states that the law regards as being bad
       enough to make a killing murder. Thus, a killing is with malice if the killer
       acts with, first, an intent to kill; second, an intent to inflict serious bodily
       harm; or third, a wickedness of disposition, hardness of heart, cruelty,
       recklessness of consequences, and a mind regardless of social duty,
       indicating an unjustified disregard for the probability of death or great bodily
       harm, and an extreme indifference to the value of human life.

       Now, a person has the specific intent to kill if he has a fully formed intent to
       kill and is conscious of his own intention. As my earlier definition of malice
       indicates, a killing by a person who has the specific intent to kill is a killing
       with malice. Stated differently, a killing is with a specific intent to kill if it is
       willful, deliberate and premeditated, such as, but not limited to, by means of
       poison or by lying in wait.

       The specific intent to kill, including the premeditation needed for first degree
       murder, does not require planning or previous thought [f]or any particular
       length of time. It can occur quickly. All that is necessary is that there be
       time enough so that the defendant can and does fully form an intent to kill
       and is conscious of that intention.

       When deciding whether [appellant] had the specific intent to kill, the jury
       would consider all the evidence regarding his words and conduct and the
       attending circumstances that may show his state of mind. If the jury
       believed that [appellant] intentionally used a deadly weapon on a vital part
       of the victim’s body, the jury may regard that as an item of circumstantial
       evidence from which they may, if they choose, infer [appellant] had the
       specific intent to kill.




                                        [J-52-2013] - 30
N.T. Sentencing, 11/1/05, at 25-27. Appellant further argues the prosecutor improperly

referred to those instructions during his opening and closing statements. Specifically, he

takes issue with the following language from the prosecutor’s summation:

      There are two things that I want you to keep in mind when every witness
      testifies and when every piece of evidence is presented, two things, two
      prisms I want you to view this case through and all of the evidence that
      comes from the stand. Number one, that [appellant] is a malicious killer.
      Malice. You heard what the judge said. Wickedness of disposition.
      Hardness of heart. Cruelty. An extreme indifference to the value of
      human life. Wickedness. Another word for wickedness is evilness.

      So bear in mind, number one, the defendant is a malicious killer.

Id., at 40.   Appellant contends if the trial court’s instructions and the prosecutor’s

comments are read together, a reasonable juror would understand malice, specific intent,

and premeditation to be aggravating circumstances weighing in favor of a death

sentence.

      Appellant’s reading of the trial court’s and prosecutor’s comments is

unreasonable. Neither the trial court nor the prosecutor ever stated malice, specific

intent, or premeditation were aggravators for the purpose of capital murder sentencing,

nor could that rationally be inferred from the trial court’s opening instructions or the

prosecutor’s arguments. The trial court’s instructions are clearly background information

meant to orient the jury as it carried out its task.    The prosecutor’s comments are

argumentation well within the bounds of permissible oratory, as discussed above. Even

if appellant’s characterization of the cited language was reasonable, any confusion the

jury may have had was corrected by the trial court’s clear and complete instruction quoted

above.

      Appellant argues the jury instructions misinformed the jury about the possibility of,

and circumstances under which he might receive, a commutation of his sentence. He

argues the trial court’s statement, “I will tell you that the governor and the Board of


                                    [J-52-2013] - 31
Pardons rarely commutes a sentence of life imprisonment,” N.T. Sentencing, 11/3/05, at

62, implied there was a chance he would eventually be released and pose a threat to

public safety if the jury did not issue a death sentence. Appellant also argues the trial

court’s instructions were incomplete because they did not include language from

“Pennsylvania’s death penalty instructions” stating, in effect, the jury can assume the

Governor and Board of Pardons will not commute the life sentence of a prisoner they

believe to be dangerous. Appellant’s Brief, at 70. As appellant concedes, the trial

court’s statement about the frequency of commuted life sentences was factually correct in

that since 1997, two people with life sentences have had those sentences commuted to a

term of years. Furthermore, it cannot reasonably be read to suggest danger to the public

should the jury forgo a death sentence; quite the opposite, it is only reasonably read as

reassurance to the jury appellant would not pose a threat to safety regardless of its

choice. The language appellant claims was missing from the jury instruction is from

Pennsylvania Suggested Standard Criminal Jury Instruction 15.2502F.                 As the title

implies, it is merely a suggestion, and the particular text to which appellant refers is further

qualified as merely “optional” within that suggested instruction.              The Suggested

Standard Jury Instructions themselves are not binding and do not alter the discretion

afforded trial courts in crafting jury instructions; rather, as their title suggests, the

instructions are guides only. See Commonwealth v. Simpson, 66 A.3d 253, 274-75 (Pa.

2013) (citations omitted). Furthermore, counsel is not deemed ineffective for failing to

object to a jury instruction given by the court where the instruction itself is justifiable or not

otherwise improper. See Commonwealth v. Rainey, 928 A.2d 215, 243 (Pa. 2007). As

none of appellant’s complaints about the penalty phase jury instructions have any merit,

trial counsel cannot be found ineffective. See Washington, at 603.




                                        [J-52-2013] - 32
       Issue XI: Sentencing Jury’s Ability to Consider Mitigating Evidence

       Appellant argues his death sentences are unconstitutional because the sentencing

jury’s ability to consider and give effect to the relevant mitigating evidence was impaired.

Specifically, he asserts three empaneled jurors interpreted the court’s instructions to

mean they could not consider mitigating circumstances if they found aggravating

circumstances. He avers the misunderstanding precluded the jury from considering the

mitigating circumstances surrounding his crimes in violation of the Eighth and Fourteenth

Amendments to the United States Constitution, as interpreted in Lockett, and

corresponding provisions of the Pennsylvania Constitution. Appellant also argues prior

counsel were ineffective for failing to raise this issue.

       There is no merit to this claim.        First, as the PCRA court properly noted,

appellant’s averment the jury did not consider mitigating circumstances because of some

supposed confusion surrounding the jury instructions is patently false. PCRA Court

Opinion, 7/25/12, at 116. The jury must have considered the mitigating circumstances of

appellant’s crimes because it recorded its finding of a mitigating circumstance on the

verdict slip. See Verdict Sheet, 11/3/05, at 3.

       Next, Lockett is not controlling. The circumstance that offended the Eighth and

Fourteenth Amendments in Lockett was a state capital sentencing scheme by which

sentencers were statutorily prohibited from considering any aspect of a defendants

character or record and any of the circumstances of the offense that the defendant

proffered as a basis for a sentence less than death as mitigating circumstances. See

Lockett, at 604-05.     Appellant does not argue the Pennsylvania capital sentencing

procedures prevented the jury from considering evidence of mitigating circumstances; he

simply asserts the jury misunderstood the jury instructions.




                                       [J-52-2013] - 33
       Moreover, even if the jury misunderstood the instructions, appellant is not entitled

to relief. As we have already discussed at length, the trial court’s instructions in this case

were more than adequate. “The law presumes the jury will follow the instructions of the

court.” Commonwealth v. Drumheller, 808 A.2d 893, 906 (Pa. 2002) (citations omitted).

The only evidence appellant offers to rebut this presumption is patently inadmissible.

Defendants are prohibited from using post-verdict statements of jurors as means to

contest their conviction in a post-conviction proceeding. See Commonwealth v. Steele,

961 A.2d 786, 808 (Pa. 2008) (citation omitted). “During an inquiry into the validity of a

verdict, a juror may not testify about any statement made or incident that occurred during

the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any

juror’s mental processes concerning the verdict.” Pa.R.E. 606(b)(1). The court may not

receive a juror’s affidavit or evidence of a juror’s statement on these matters either. Id.;

see Steele, at 808. The purpose of this so-called “no impeachment rule” is to prevent

constant relitigation of matters decided by the jury, such as the kind appellant seeks.

See Steele, at 808 (quoting Carter v. United States Steel Corporation, 604 A.2d 1010,

1013 (Pa. 1992)). For all the reasons stated, appellant’s argument regarding the jury’s

ability to consider mitigating evidence is meritless, and counsel cannot be deemed

ineffective for failing to raise that claim. See Washington, at 603.



B. Ineffectiveness Based on Counsel’s Substandard Trial Performance

       Issues II, III, and VI contest some aspect of prior counsel’s performance in the

investigation and presentation of appellant’s case. Although “optimal representation is

not required either by the constitution or common sense[,]” effective representation is

required under the Sixth Amendment. Commonwealth v. Garrity, 500 A.2d 1106, 1112

(Pa. 1985) (citing Strickland, at 687). As explained more fully below, each of appellant’s




                                       [J-52-2013] - 34
claims fail on one or more of the latter two elements of the Pierce test because a

reasonable basis existed for counsel’s act or omission, or there is no significant

probability the result of the proceeding would have been different absent the error.

                 Issues II & III: Failure to Investigate Mental Health
       Appellant argues he was denied effective assistance of counsel because trial

counsel failed to investigate his mental health before the withdrawal of his severance

request and his acceptance of a stipulated bench trial, and failed to investigate the

allegations against appellant before deciding not to present any factual or affirmative

defenses in the guilt phase. Appellant’s Brief, at 18-28. This argument fails because

there was a reasonable basis for trial counsel to omit the investigation.

       Counsel has a general duty to undertake reasonable investigations or make

reasonable decisions that render particular investigations unnecessary. Commonwealth

v. Cox, 983 A.2d 666, 692 (Pa. 2009) (citation omitted). Counsel’s strategic choices

made after less than a complete investigation are considered reasonable, on a claim of

ineffective assistance, precisely to the extent that reasonable professional judgments

support limitations on the investigation. Commonwealth v. Tedford, 960 A.2d 1, 40 (Pa.

2008) (citation omitted).   Failure to conduct a more intensive investigation, in the

absence of any indication that such investigation would develop more than was already

known, is simply not ineffectiveness. Commonwealth v. Pursell, 724 A.2d 293, 306 (Pa.

1999) (citation omitted).

       Trial counsel’s approach to the guilt phase of this case was entirely reasonable.

Upon assuming appellant’s representation, trial counsel were presented with

overwhelming evidence of his guilt, including DNA evidence, confessions to police, and

appellant’s writings describing both incidents in detail. The inculpatory statements also

militated against an insanity or diminished capacity defense because they explained




                                     [J-52-2013] - 35
appellant’s purposeful intent behind the killings, ruining any possibility of claiming he did

not understand the nature of his acts, or that he did not know they were wrong. See 18

Pa.C.S. § 315(b)9 (codifying common law M’Naghten rule10 as definition of legal insanity

in Pennsylvania). Trial counsel tried to have the statements suppressed. However, as

already discussed, the trial court properly determined they were admissible. Also, per

the PCRA court’s findings, there was no indication of any mental condition that would

have called appellant’s competence to stand trial into question. Therefore, trial counsel

declining to investigate appellant’s competence to stand trial or to pursue manifestly

unmeritorious mental health defenses was a reasonable decision and did not constitute

ineffective assistance.

             Issue VI: Failure to Investigate and Present Mitigating Evidence

          Appellant argues he was denied effective assistance because trial counsel failed

to adequately investigate, develop, and present evidence of mitigating factors that may

have outweighed the aggravating circumstances of his crime, sparing him the death

penalty. Specifically, appellant argues proper representation would have proven the

existence of three mitigating circumstances: (1) his lack of capacity to appreciate the

9    Stating, in pertinent part:

          “[L]egally insane” means that, at the time of the commission of the offense,
          the actor was laboring under such a defect of reason, from disease of the
          mind, as not to know the nature and quality of the act he was doing or, if the
          actor did know the quality of the act, that he did not know that what he was
          doing was wrong.

Id.

10 M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843) (to establish defense on ground of
insanity, it must be clearly proved that, at time of committing of act, party accused was
laboring under such defect of reason, from disease of mind, as not to know nature and
quality of act he was doing; or if he did know it, that he did not know he was doing what
was wrong).



                                        [J-52-2013] - 36
criminality of his conduct or conform his conduct to the requirements of the law was

substantially impaired; (2) his extreme emotional disturbance at the time of the crime; and

(3) the catch-all mitigator. Appellant argues trial counsel’s representation at sentencing

fell below professional norms because they failed to: (1) hire a mitigation specialist; (2)

retain certain psychological experts; (3) obtain standard social history records, including

educational and medical records, and thus failed to provide those to the mental health

experts; (4) follow up on available leads; and (5) interview available lay witnesses.

       First, the Sixth Amendment guarantees the accused’s right to effective assistance

of counsel; it does not guarantee his right to a mitigation specialist. With regard to

appellant’s other suggested indicators of trial counsel’s sub-standard performance, the

reasonable basis prong of an ineffectiveness claim does “not question whether there

were other more logical courses of action which counsel could have pursued; rather, L

whether counsel’s decisions had any reasonable basis.”          Chmiel, at 1160 (citation

omitted).

       Trial counsel conducted a reasonable investigation and put on a reasonable

mitigation defense during the penalty phase. Their investigation included compiling a

social history from appellant and his family, interviewing numerous potential lay

witnesses, and reviewing hundreds of pages of medical, school, counseling, and

employment records.       They also retained two mental-health experts to examine

appellant. From that investigation, trial counsel estimated they had a reasonable chance

of success at proving the three mitigators appellant now asserts. At sentencing, trial

counsel presented testimony from numerous lay witnesses and the two experts in support

of those three mitigators. Nevertheless, the jury was only convinced of one mitigator —

that appellant was under extreme emotional disturbance at the time of his capital crimes.

There is a possibility, however improbable, trial counsel might have had more success




                                     [J-52-2013] - 37
had they paraded a team of psychological experts onto the stand during the penalty

phase. However, reasonableness of an attorney’s strategy may not be evaluated with

the benefit of hindsight. All we must determine is whether the course of action chosen by

trial counsel had some reasonable basis designed to effectuate the client’s best interests;

if so, the court will deem counsel effective. Commonwealth v. Williams, 899 A.2d 1060,

1063-64 (Pa. 2006) (citations omitted). Therefore, this argument fails the second prong

of the Pierce test.

       Even if trial counsel’s handling of the penalty phase had been objectively

unreasonable, it did not prejudice appellant. Given the overwhelming evidence to the

contrary, it is unlikely testimony from any number of expert witnesses would have caused

the jury to find appellant did not appreciate the criminality of his conduct or have the

capacity to conform his conduct to the law.

       Furthermore, even now, with the benefit of hindsight and extensive additional

investigation, appellant only musters arguments in support of three mitigators. With

regard to the murder of Avery Johnson, the jury found four aggravating circumstances,

two of which were multiple murders and the murder of a child. See Commonwealth v.

Koehler, 36 A.3d 121, 151-52 (Pa. 2012) (multiple murders and murder of child weigh

heavy in aggravation).     Even if trial counsel’s performance in this case had been

flawless, appellant almost certainly would still have received the death penalty.

Therefore, appellant’s argument also fails the third prong of the Pierce test.

       C. Cumulative Effect of Ineffectiveness Claims

       In his final issue, appellant argues he is entitled to relief from his conviction and

sentence because of the prejudicial effect of all other errors he highlighted, even if he is

not entitled to relief on any one of those errors. No number of failed ineffectiveness

claims may collectively warrant relief if they fail to do so individually, except occasionally




                                      [J-52-2013] - 38
where the individual claims are all rejected solely for lack of prejudice. See Busanet, at

75 (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)). In this case each

of appellant’s individual ineffectiveness claims have been rejected for failing one or more

of the first two prongs of the Pierce test; none has been rejected solely for lack of

prejudice. Therefore, there is no basis for an accumulation claim.

REQUEST FOR REMAND DUE TO PROCEDURAL ERRORS BY THE PCRA COURT
       Appellant argues he was denied full, fair, and reliable PCRA review because of

numerous procedural errors by the PCRA court. Therefore, he requests a remand to

correct the deficiencies. Such relief is not required.

A. PCRA Court’s Denial of Hearing on Certain Issues

       Appellant’s first complaint concerning the PCRA proceedings is the denial of an

evidentiary hearing on issues V, VIII, IX, and XI. He claims each of these issues involved

a legitimate, material factual dispute requiring a hearing.

       A PCRA court is only required to hold a hearing where the petition, or the

Commonwealth’s answer, raises an issue of material fact. Pa.R.Crim.P. 909(B)(1)-(2).

When there are no disputed factual issues, an evidentiary hearing is not required. Id.;

Commonwealth v. Morris, 684 A.2d 1037, 1042 (Pa. 1996) (citation omitted). If a PCRA

petitioner’s offer of proof is insufficient to establish a prima facie case, or his allegations

are refuted by the existing record, an evidentiary hearing is unwarranted.                See

Commonwealth v. Hutchinson, 25 A.3d 277, 320 (Pa. 2011) (citation omitted);

Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011).

       There was sufficient information in the record for the PCRA court to decide issues

V, VIII, IX, and XI without a hearing. There was no issue of material fact in issue V

because voluminous evidence of appellant’s mental health was introduced during

hearings on other issues, and appellant’s Sixth Amendment right to counsel argument




                                      [J-52-2013] - 39
turned on a question of law. There was no issue of material fact in issue VIII because it

was frivolous as a matter of law. There was no issue of material fact in issue IX because

it pertains to closing statement comments by the prosecutor already captured in the

record. There was no issue of material fact in issue XI because the jury statements

proffered as the only evidence in support of the claim were inadmissible as a matter of

law. Thus, the PCRA court did not err by refusing a hearing on these issues.

B. Rulings at the PCRA Court Evidentiary Hearing

       Appellant argues the PCRA court interfered with his right to adequately examine

witnesses and present relevant testimony during his PCRA hearing in a number of ways,

which collectively prevented crucial fact development in support of his claims. These

issues are waived because appellant did not state them with sufficient specificity in his

Concise Statement of Matters Complained of on Appeal. See Pa.R.A.P. 1925(b)(4)(vii).

In his concise statement, appellant raised the issue:

       Whether the PCRA Court erred in denying Petitioner/Appellant’s right to a
       full and fair post-conviction proceeding by prohibiting Petitioner from fully
       developing the evidence in support of his claims as a result of the Court’s
       adverse ruling on Petitioner’s proposed witness questions and
       documentary evidence offered for admission.

Appellant’s Rule 1925(b) Statement, 5/23/12, at 7.          The PCRA court found that

statement insufficient to put it on notice of appellant’s specific complaints with its

proceedings, and therefore determined this issue to be waived. PCRA Court Opinion,

7/25/12, at 128.

       We agree. The language cited from appellant’s Rule 1925(b) statement does not

adequately outline the five discrete evidentiary issues he later raised in his brief to this

Court. The PCRA hearings in this case lasted for 22 days, fill well over one thousand

pages of testimony transcript, and involved many evidentiary rulings. No one, even the




                                     [J-52-2013] - 40
learned PCRA court, could have accurately honed in on the issues appellant attempts to

raise in his brief from the issue statement quoted above.

         In his reply brief, appellant cites Tucker v. R.M. Tours, 977 A.2d 1170, 1173 (Pa.

2009), for the proposition an appellate court should order clarification of a Rule 1925(b)

statement if the matters stated therein are not sufficiently clear. Tucker held it is within

an appellate court’s discretion to order clarification of an issue raised in a concise

statement of matters complained about on appeal, but in no sense is the court required or

even encouraged to do so. See id.           Accordingly, all of the issues appellant raises

about the quality of the PCRA proceedings in this case are meritless or waived.

         It further appears that, as in Chmiel, supra, PCRA counsel in this case have raised

numerous claims that, beyond lacking merit, are patently frivolous and deliberately

incoherent. PCRA counsel’s predictable tactics designed merely to impede the already

deliberate wheels of justice have become intolerable, and we repeat our prior warning in

clearer terms — the failure to curb further abuse may demand disciplinary action.

         The order of the PCRA court is hereby affirmed. Jurisdiction relinquished.

         Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice

Stevens join the opinion.

         Mr. Chief Justice Castille files a concurring opinion.

         Mr. Justice Saylor files a concurring opinion.

         Mr. Justice Stevens files a concurring opinion in which Mr. Chief Justice Castille

joins.




                                       [J-52-2013] - 41
