                                          -2017]
                         IN THE SUPREME COURT OF PENNSYLVANIA
                                    EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                         :   No. 727 CAP

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

MICHAEL PRUITT,

                       Appellant                      :   SUBMITTED: January 9, 2017



                                                 OPINION


CHIEF JUSTICE SAYLOR                                                   DECIDED: June 20, 2017

      This is a capital post-conviction appeal.

      On September 23, 2003, Appellant forcibly entered the Berks County home of

Greta A. Gougler, where he robbed, raped, and murdered her. Appellant was arrested,

tried, and convicted for first-degree murder, rape, robbery, and other offenses, and a

jury returned a death verdict in a capital sentencing proceeding. On direct appeal, this

Court affirmed. See Commonwealth            v.   Pruitt, 597 Pa. 307, 951 A.2d 307 (2008).

       In   2009, Appellant commenced the present proceedings under the Post

Conviction Relief Act, 42 Pa.C.S. §§9541-9546 (the "PCRA"). The post -conviction court

conducted    a        series   of   evidentiary hearings, throughout which        Appellant   was

represented by the members of the Federal Community Defender Office.                   Later, per

Appellant's request, those attorneys were removed from the representation and current

counsel was appointed in their place.
         In   2015, Appellant submitted a request to proceed pro se.           The PCRA court

scheduled a proceeding, at which Appellant agreed to continue to be represented by

counsel but was deemed by the court to have "knowingly, intelligently and voluntarily

abandon[ed] any issues raised by prior PCRA counsel and/or [current counsel] that are

not contained in [a] memorandum in support of the PCRA relief petition filed this date[.]"

N.T., Nov. 23, 2015, at 9-10.

        The PCRA court subsequently denied relief on the remaining claims for relief.

This appeal followed, in which Appellant advances six challenges, several of which fall

within the category of the claims deemed to have been abandoned by the PCRA court.


                                              Part   I



        Appellant's first three claims, pertaining to DNA evidence presented by the

Commonwealth at trial, were found by the PCRA court to have been preserved. The

relevant background is as follows.

        At trial, the prosecution offered several primary lines of evidence to address

Appellant's identity as the robber, rapist, and killer, as well as the actus reus of the rape.

First, Appellant's confession to police was introduced, in which he admitted to having

forcibly entered Ms. Gougler's home and inflicting physical violence upon her, albeit that

he denied any intention to kill and maintained that he did not rape the victim. See N.T.,

Apr. 25, 2005, at 174-177.          The Commonwealth also presented testimony from a

witness to whom Appellant had confessed, extra-judicially, to having perpetrated the

physical acts resulting in the victim's death.               See N.T., Apr. 26, 2005, at 247-48

(testimony of Sean Peterson).

         In a   second category of evidence, a forensic pathologist testified that the victim

had been beaten severely and subjected to ligature strangulation.            See id. at 355-365.

In   terms of the rape, the pathologist explained that the victim suffered lacerations and

                                          [J-1-2017]     -   2
other injuries to her vagina and anus consistent with nonconsensual penetration. See

id. at 352-355, 364. Police officers also attested that the victim's body was naked when

discovered. See, e.g., N.T., Apr. 25, 2005, at 22, 31.

       In   the third set of evidence, the Commonwealth sought to confirm the fact of the

rape, and Appellant's identity as the rapist, through testimony establishing a match

between Appellant's DNA and a sample of genetic material taken from the inner thigh of

the victim's body.    In   this regard, crime -laboratory serologist Michael Brincat testified

that this evidence sample contained both blood and sperm cells. See N.T., Apr. 26,

2005, at 290-291. Pennsylvania State Police ("PSP") forensic scientist Lisa Mihalacki

then testified that she segregated the sample into male and female components and

conducted DNA analysis. According to the witness: "Every genetic marker, every place

that we checked from this sample and [Appellant's] were identical to each other,"

resulting in between a one in 1.5 billion and a one in 39 billion chance that another

person might have contributed the sample (with the variation accounted for by racial

differences within the population).     Id. at 313-314.1      On cross-examination, Appellant's



1 The DNA analysis discussed at trial and in the post -conviction proceedings was
presented in the form of numerical expressions of the length of repeat DNA sequences
found at discrete locations, or loci, on a chromosome. At each locus, testing generally
produces measurements for two DNA fragments, or allele, one contributed by each of
the subject's parents.      See N.T., Apr. 26, 2005, at 316-17.         See generally
Commonwealth v. Blasioli, 552 Pa. 149, 154-58, 713 A.2d 1117, 1119-23 (1998)
(discussing the science underlying forensic DNA analysis); 1 KENNETH S. BROUN, 1
MCCORMICK ON EVIDENCE §205 (2013) (explaining the use of DNA profiling to detect the
number of repeats, at given locations, for different alleles on a graph known as an
electropherogram).

For example, the expression "D135317 11, 12," taken from Ms. Mihalacki's report as it
concerns the male component of the evidence sample taken from the victim's thigh,
signifies that, at the loci denominated D135317, a particular genetic sequence repeated
itself 11 times in one of two DNA fragments, and 12 times for the other.


                                         [J-1-2017]   -   3
lawyer initially pointed out that the DNA data reflected that there was more than one

contributor to the portion of the evidence sample denominated as the male component.

See id. at 316-320.2           The remainder of the cross-examination focused on racial

differences in the population samples and the handling of the evidence samples.           See

id. at 320-323.

        In    the post -conviction proceedings, Appellant contended that there were multiple

flaws in the Commonwealth's DNA analysis and that his trial counsel were derelict in

failing to apprehend and capitalize upon such deficiencies.3           In   support, Appellant

presented testimony from Randal T. Libby, PhD, a forensic geneticist.               Dr. Libby

testified that the "male" component of the evidence sample taken from the victim's thigh

was of a low -template quality and, accordingly, generated a great deal of subjectivity in

interpreting the testing result. See, e.g., N.T., Aug. 21, 2013, at 32-38, 59, 62, 64-65,

80.4

        Indeed, it was Dr. Libby's opinion that the sample contained insufficient DNA to

yield a reliable analysis. See id. at 51, 87. This, the geneticist explained, was reflected,

inter alia,   in the   absence of any data whatsoever in Ms. Mihalacki's report pertaining to


2 As noted, ordinarily, each genotype found at a particular chromosomal location will
generate two numbers, one deriving from the DNA strand inherited from the
contributor's mother and one from the father. See supra note 1. However, several of
the genotypes reflected in Ms. Mihalacki's report assigned to the female component of
the evidence sample taken from the victim's thigh contained more than two numbers,
thus indicating the presence of multiple contributors.

3Appellant was represented at trial by two attorneys, one of which took the lead at the
guilt phase. See N.T., Dec. 19, 2013, at 1049.

4 See generally Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the
Subjectivity Inherent in Forensic DNA Typing, 58 EMORY L.J. 489, 503-08 (2008)
(discussing stochastic effects such as allelic dropout in terms of introducing subjectivity
in DNA analysis of low -template samples).


                                           [J-1-2017] - 4
alleles at three loci for the male evidence sample. See id. at 54, 65-66. Additionally,

Dr. Libby affirmed          that this report itself indicated that results at five loci were

"[i]nconclusive due to an insufficient amount of DNA." Id. at 62-63.

          Dr. Libby also found the interpretive enterprise to have been further complicated

by the obvious presence of multiple contributors (as was alluded to during cross-

examination at trial). See id. at 47, 68-70; see also supra note 2. Moreover, he posited

that the results of Ms. Mihalacki's analysis in fact suggested that Appellant should be

excluded as a contributor to the evidence sample. See, e.g., N.T., Aug. 21, 2013, at 51,

54-55, 95.      It   was also the geneticist's opinion that there were too many inconsistencies

in the   data to justify the use of a statistical analysis to support the probability estimates

that Ms. Mihalacki offered in her testimony. See id. at 94.5

         In   terms of Ms. Mihalacki's assertion at trial of a match at every genetic marker,

Dr. Libby testified that such testimony was demonstrably false according to her own

report. See id. at 73-75.          Dr. Libby further attested that the conclusion that the male

component of the evidence sample contained sperm was unverifiable, since sperm tails


5 For example, Dr. Libby observed an inconsistency in Ms. Mihalaki's interpretive
assumptions pertaining to potentially homozygous alleles. In this regard, assuming a
robust sample of genetic material, where a single allele is detected at a particular
location, it is generally appropriate to assume the subject has two of the same alleles at
that location, which are termed homozygous. See N.T., Aug. 21, 2013, at 45.

The inconsistency in assumptions arose as follows. At one locus Ms. Mihalaki assumed
that the genotype for the evidence sample was homozygous because the testing
revealed a single length allele; whereas, at another locus, Ms. Mihalaki assumed that a
result reflecting a single length allele was incomplete. See id. at 64. Notably,
Appellant's genotype reflected two different alleles at the marker location, thus
indicating a mismatch (and concomitant exclusion of Appellant as a contributor to the
evidence sample), were the evidence sample alleles to be deemed homozygous.

Dr. Libby opined that there was no scientific reason, nor anything appearing in the
scientific data, to explain Ms. Mihalaki's shifting assumptions. See id. at 64-65.


                                            [J-1-2017]   -   5
were undetectable upon microscopic examination. See id. at 75-79. Finally, Dr. Libby

noted that data from Ms. Mihalaki's initial analysis of the evidence sample, which she

apparently had discounted in favor of further testing, had resulted in an affirmative

exclusion of Appellant as a possible contributor to the evidence sample. See id. at 133.

In   this regard, Dr. Libby suggested that Ms. Mihalaki's methodology conflicted with the

scientific norm of reproducibility. See id. at 130-134.

         Appellant also presented testimony from his lawyer primarily responsible for his

representation at the guilt phase of trial.              The attorney testified that he was not

significantly concerned with the DNA evidence, because the Commonwealth already

had adduced compelling physical evidence demonstrating the fact of rape via the

testimony of a forensic pathologist, and moreover, "there was only [Appellant] in the

room."     N.T., Dec. 19, 2013, at 1201; see also id. at 1196 ("[A]ll the DNA did was

identify, really identifying [Appellant] as the person who committed the rape. But, you

know, the fact of the rape was there, though, and there was no evidence of anybody

else being there, so   I   didn't think   it   added much."); id. at 1219. Counsel explained that

he did not wish to draw undue attention to evidence that he considered unimportant.

See id. at 1202.

         Nevertheless, the lawyer affirmed that the Commonwealth's DNA evidence

presented a strong indication of Appellant's culpability for rape.                 See id. at 1208.      In

spite of such materiality, counsel testified that he did not understand the data in Ms.

Mihalaki's report and merely relied on her representation of a genetic match between

the evidence sample and the sample taken from Appellant.                        See id. at 1207.      With

reference to the data reflected in the report, the attorney also indicated:              "I   don't imagine

any lawyer would know how that got from A to             B       or what that means." Id. at 1208.




                                                [J-1-2017]   -   6
A. Failure to Investigate, Effectively Cross-examine, and Present an Expert

        Presently, based on the above, Appellant contends that his counsel failed to

conduct a professionally reasonable investigation and rendered deficient stewardship at

trial. Appellant argues that, at a minimum, his trial counsel had an obligation to garner

at least some rudimentary understanding of the evidence being used against him.                 He

also takes the position that counsel should have consulted with and presented

testimony from a defense expert.      See Brief for Appellant at 16-17 (collecting cases).

According to Appellant, trial counsel "essentially conducted the cross-examination of the

Commonwealth's DNA expert on the fly." Id. at 15.              In   terms of the materiality of the

DNA evidence and its prejudicial impact, Appellant couches it as the "sole forensic

evidence linking [him] to the crime" and posits that it played a pivotal role at trial. Id. at

16.   He concludes that there is a reasonable probability that the jury would have found

reasonable    doubt    to   exist   had     counsel        investigated    and    challenged   the

Commonwealth's DNA evidence in an effective manner.6

       At the outset, we find arguable merit in Appellant's challenge to his lawyer's

stewardship and conclude that counsel could have had no reasonable strategy to

support his failure to gain a better understanding of Ms. Mihalaki's report.' Contrary to

6The Pennsylvania test for ineffective assistance of counsel is, in substance, the same
as the two-part performance -and -prejudice standard set forth by the United States
Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984), although this Court has divided the performance element into two sub-
parts dealing with arguable merit and reasonable strategy. Accordingly, to succeed on
an ineffectiveness claim, a petitioner must establish that: the underlying legal claim has
arguable merit; counsel had no reasonable basis for her action or inaction; and the
petitioner suffered prejudice as a result. See Commonwealth v. Pierce, 515 Pa. 153,
158-60, 527 A.2d 973, 975-76 (1987).

7 Accord Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) (explaining that "a reasonable
defense lawyer would take some measures to understand the laboratory tests
performed and the inferences that one could logically draw from the results" linking his
(continued...)
                                          [J-1-2017]   -   7
counsel's comment that no lawyer would apprehend the underlying data, see N.T., Dec.

19, 2013, at 1208, the present record reflects that Appellant's post -conviction lawyers

amply comprehend it, including the multiple problems stemming from Ms. Mihalaki's

interpretation of a partial genetic profile taken from a low -template evidence sample.8

Moreover, counsel's failure to appreciate -- and exploit -- the fact that the data in Ms.

Mihalaki's initial report apparently indicated an affirmative exclusion of Appellant as a

contributor to the male evidence sample, see N.T., Aug. 21, 2013, at 133-134, is simply

inexplicable. To the degree that counsel was unable to understand the test results on

his own, plainly he should have consulted an expert.9

      Given the potency of DNA evidence, see, e.g., McDaniel     v.   Brown, 558 U.S. 120,

136, 130 S. Ct. 665, 675 (2010) (commenting upon the "persuasiveness of [DNA]

evidence in the eyes of the jury"), were this a case in which identity was in controversy,

we would likely find prejudice to be manifest. Here, however, Appellant's identity as the

robber and killer has never seriously been put into contest, even at the post -conviction

(... continued)
client to a murder weapon); Couch v. Booker, 632 F.3d 241, 246 (6th Cir. 2001) ("To
make a reasoned judgment about whether evidence is worth presenting, one must know
what it says.").

8 See generally DAVID L. FAIGMAN, JEREMY A. BLUMENTHAL, EDWARD K. CHENG, JENNIFER
L. MNOOKIN, ERIN E. MURPHY & JOSEPH SANDERS, 4 MOD. SCI. EVID. § 31:32 (2013-2014)
("It is fair to say that [low copy number DNA] typing is the subject of great dispute
among some of the leading lights in the forensic community."); BROUN, 1 MCCORMICK ON
EVIDENCE §205 ("Even with existing systems, efforts to push [an amplification technique]
to its limits in copying only DNA fragments from a few cells (low template or touch DNA
samples) have generated controversy."); Bruce Budowle, Arthur J. Eisenberg & Angela
van Daal, Low Copy Number Typing Has Yet to Achieve "General Acceptance",
FORENSIC SCIENCE INT'L: GENERAL SUPPLEMENT SERIES 2 551-52 (2009).


9 Accord Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005) (determining that an
attorney was ineffective when he "failed to consult or call an expert  or to educate
                                                                         .   .   .




himself sufficiently on the scientific issues.").


                                      [J-1-2017]   -   8
stage. Accord N.T., Dec. 20, 2013, at 1298 (reflecting the attestation of Appellant's trial

counsel that Appellant consistently confirmed the facts that he had related to the police,

which included his perpetration of a violent attack upon the victim). Although Appellant

did not admit to having perpetrated the rape, the fact of such crime was apparent from

the physical evidence, and Appellant has never provided any plausible explanation that

would persuasively suggest any other person's involvement in the relevant events that

took place in the victim's house. Accord N.T., Dec. 20, 2013, at 1298 (memorializing

trial counsel's testimony that Appellant never indicated that anyone other than he and

the victim was present during their encounter).1° For these reasons, in our considered

judgment   - while trial counsel should have provided       more able stewardship relative to

the DNA    evidence - Appellant has not established         a reasonable probability that the

verdict would have been different had counsel done so, i.e., a probability sufficient to


1°  At the post -conviction stage, Appellant did adduce some evidence that Appellant was
in the presence of a Hispanic man when he decided to "get more money," presumably
in a timeframe in temporal proximity to the murder. See N.T., Jan. 16, 2014, at 1452-
1453. Moreover, trial counsel affirmed that, after the murder, a "tipster" apparently had
reported to police that he had seen black and Hispanic males in the victim's yard on the
night of the killing. N.T., Dec. 20, 2013, at 1198-1199. No evidence was introduced at
trial or in the post -conviction proceedings, however, to the effect that a second intruder
ever entered the victim's house, and Appellant does not make any allusion to such a
person in the present briefing.

Justice Wecht takes the opportunity to explain that the burden at trial was never on
Appellant to suggest another's involvement in the crimes. See Dissenting Opinion, slip
op. at 10. As we have indicated, however, in the present posture of the case            -
                                                                                        on
review of claims of deficient stewardship at the post -conviction stage -- the burden lies
squarely with Appellant. See supra note 6.

As also discussed above, the circumstantial evidence of Appellant's perpetration of the
rape is very strong, again, arising out of his forcible entry into the victim's residence and
his otherwise brutal treatment of the victim, and in the absence of evidence that any
other potential perpetrator had entered the home during the time frame in which the
victim was brutalized, raped, and killed.


                                       [J-1-2017]   -   9
undermine confidence in the outcome of the proceedings. See Commonwealth                 v.   Laird,

632 Pa. 332, 343, 119 A.3d 972, 978 (2015).



B.   Assertedly False Testimony and Alleged Concealment of Evidence

       In    his second line of argument, Appellant focuses on Ms. Mihalaki's testimony

that "[e]very genetic marker, every place that we checked from this sample and

[Appellant's] were identical to each other."   N.T., Apr. 26, 2005, at 313.         According to

Appellant, he was denied due process and the effective assistance of counsel on the

basis of this assertedly false attestation.

       Appellant supplements this argument with a series of allegations concerning the

involvement of a former PSP serologist, Ranae Houtz, in the forensic analysis.

Appellant explains that trial counsel was aware that Ms. Houtz bore the responsibility for

submission to the DNA laboratory of the samples taken from the victim, see N.T., Dec.

19, 2013, at 1209, and that her job performance previously had been questioned by her

superiors and others, ultimately resulting in her termination.           See id. at 1212-1213.

Appellant points to one error made by Ms. Houtz in his case, in which she had

mislabeled one of the evidence samples. See Brief for Appellant at 44-45. Appellant

also charges that "[t]he testimony of Ms. Mihalacki and Mr. Brincat was crafted to

conceal the involvement    - and errors - of [Ms.]       Houtz, who was initially assigned to the

case and who resigned from the [PSP] after repeated errors were detected in her work."

Id. at 43.    According to Appellant, his lawyers should have sought discovery regarding

Ms. Houtz's performance, undertaken to have her work reviewed by a defense expert,

and impeached the testimony of Commonwealth expert witnesses based on Ms.

Houtz's involvement, which those witnesses failed to disclose to the jurors. See id. at

45 ("Ms. Mihalacki and Mr. Brincat testified falsely regarding Ms. Houtz's involvement


                                       [J-1-2017]    -   10
and error in this case, concealing from the jury that crucial evidence was processed and

tested by a forensic scientist whose repeated errors forced her resignation and called

into question her work in over 600 cases.").

      To the degree that Appellant attempts to frame the issue as one of direct trial

court error, the claim is waived for failure to advance it at trial.               See, e.g.,

Commonwealth     v.   Keaton, 615 Pa. 675, 693, 45 A.3d 1050, 1060 (2012) (explaining

that an issue is waived "if the petitioner could have raised   it   but failed to do so before

trial, at trial, during unitary review, on appeal, or in a prior state postconviction

proceeding" (quoting 42 Pa.C.S. §9544(b)).        Moreover, despite the aspersions cast

upon the Commonwealth, Ms. Mihalacki's report straightforwardly disclosed, inter alia,

the absence of data at five loci.    See N.T., Aug. 21, 2013, at 62-63 (reflecting the

report's admonition that the report itself indicated that results at five loci were

"[i]nconclusive due to an insufficient amount of DNA"). While clearly she should have

been more careful in her testimony at trial, affording her the benefit of the doubt, Ms.

Mihalacki's overstatement may have reflected an attempt to express her belief that

Appellant's profile matched the evidence sample at the genetic markers for which data

was present.    Notably, Appellant's own expert recognized that, although there is

disagreement concerning the scientific validity of such an approach, various laboratories

will declare DNA matches based on partial profiles. See N.T., Aug. 21, 2013, at 60.11

      With regard to Ms. Houtz, before trial the Commonwealth discussed her

involvement with defense counsel and explained that the serology testing had been


11This author has previously expressed the concern that the methodology used in the
profiling of low -template DNA samples may not have gained the degree of general
acceptance in the scientific community required to meet the standard of admissibility for
novel scientific evidence in Pennsylvania. See Commonwealth v. Treiber, 632 Pa. 449,
539-40 & n.18, 121 A.3d 435, 489 & n.18 (2015) (Saylor, C.J., dissenting); see also
supra note 8. Appellant, however, has not invoked that standard in this appeal.


                                     [J-1-2017]   - 11
repeated by Mr. Brincat.     See, e.g., N.T., Dec. 19, 2013, at 1398-1399.           Mr. Brincat's

report also indicated -- in bold capital type -- that the relevant samples of genetic

material had been submitted to the DNA laboratory in October 2002, about five months

before Mr. Brincat testified that he began his own testing of samples pertaining to

Appellant's case.     See N.T., Apr. 26, 2005, at 301. This too, then, was information

readily available to counsel.

       In   terms of the ineffectiveness dynamic, we express reservations concerning trial

counsel's performance similar to those indicated in our treatment of Appellant's initial

claim, above.     Plainly, in response to Ms. Mihalacki's assertion of a match at every

genetic marker incorporated into the testing, counsel should have confronted the

witness with her own report disclosing missing data at five loci.              Counsel was also

armed with enough information to disclose Ms. Houtz's involvement in the initial testing

and in the chain of custody underlying the DNA analysis.

       In   any event, our resolution of the issue again turns on Appellant's inability to

establish prejudice in light of the compelling other evidence establishing his identity as

the robber and killer and the fact of a rape, and the absence of any plausible alternative

theory to discount that Appellant was also the rapist.


C. Cumulative Effect of Alleged Napue and           Brady Violations
       Appellant    next   characterizes the assertedly false testimony and alleged

concealment of evidence as violations of Napue          v.   Illinois, 360 U.S. 264, 269, 79 S. Ct.

1173, 1177 (1959) (holding that the knowing use of false testimony to obtain a

conviction violates due process), and Brady      v.     Maryland, 373 U.S. 83, 87, 83 S. Ct.

1194, 1196-97 (1963) (reflecting the obligation, on the part of prosecutors, to disclose

exculpatory information material to the guilt or punishment of an accused).              Appellant

catalogues the asserted taints as follows:

                                       [J-1-2017]   -   12
                 The Commonwealth presented Ms. Mihalacki's false and
                 misleading testimony that [Appellant's] DNA matched the
                 perpetrator's DNA;

                 The Commonwealth presented Mr. Brincat's false and
                 misleading testimony concealing the involvement of Ms.
                 Houtz in preparing samples used in DNA testing;

                 The Commonwealth presented Ms. Mihalacki's false and
                 misleading testimony concealing the involvement of Ms.
                 Houtz in preparing samples used in DNA testing;

                 The Commonwealth suppressed evidence that would have
                 revealed the false and misleading testimony of Mr. Brincat;

                 The Commonwealth suppressed evidence that would have
                 revealed the false and misleading testimony of Ms.
                 Mihalacki;

                 The Commonwealth suppressed evidence that would have
                 exposed at least one error by Ms. Houtz during her
                 preparation of samples for DNA testing; and

                 The Commonwealth suppressed evidence indicating that
                 other errors may have been made in the handling and
                 testing of the samples.
       We reiterate that the Commonwealth had disclosed to the defense both that the

evidence sample taken from the victim's thigh resulted in an incomplete DNA profile and

that Mr. Brincat was tasked with repeating the serology analysis previously undertaken

by Ms. Houtz.       Particularly since this information was known (or, at the very least,

should have been known) to counsel, the attorney apparently could have presented at

trial precisely the same challenges as are reflected in the present briefing. As such, we

find the instant claim to be unpreserved in its entirety. See Commonwealth v. Cousar,

     Pa.     ,          154 A.3d 287, 301 (2017) ("Brady claims    .   .   .   may be subject to

waiver."); cf. Routly   v.   Singletary, 33 F.3d 1279, 1286 (11th Cir. 1994) ("There is no


                                         [J-1-2017]   -   13
violation of due process resulting from prosecutorial non -disclosure of false testimony if

defense counsel is aware of it and fails to object.").


                                           Part   II


       The PCRA court deemed all remaining claims to have been abandoned by

Appellant, who, in the present briefing, vigorously challenges this conclusion.12 With

reference to the abandonment, the PCRA court conducted a discussion with post -

conviction counsel and a colloquy with Appellant which unfolded as follows.

       The court had scheduled a proceeding to address Appellant's request to proceed

pro se. At the outset, the attorney for the Commonwealth announced that the defense

intended to withdraw all claims for relief pertaining to the penalty phase of trial and

requested a colloquy to confirm Appellant's wishes.              See N.T., Nov. 23, 2015, at 2.

Appellant's counsel responded that the parties were in agreement that counsel could file

a revised memorandum elaborating upon specific claims for relief, and that counsel

would continue to represent Appellant. See id. at 3.

       In   the ensuing colloquy, Appellant confirmed that he was satisfied for counsel to

continue with the representation and stated:               "I'm asking for a ruling on the DNA

evidence; that's the issue I'm asking for the ruling."          Id. at 5.   Counsel then confirmed

this assertion.   See id. ("We're asking for a new trial based upon ineffective assistance

of counsel in handling the various aspects of the DNA evidence through the course of




12 Appellant seeks to present three claims in addition to those discussed in Part I,
above. These include: an allegation of prosecutorial misconduct; a challenge asserting
due process violations and ineffective assistance in the failure of trial counsel to contest
the admission of Appellant's pretrial statements; and a final claim of deficient process
and attorney stewardship relating to counsel's failure to locate and retain a credible
pathologist to assist the defense.


                                       [J-1-2017]      -   14
trial.").    According to the post -conviction lawyer, Appellant was "making a knowing,

conscious decision to abandon those issues that are not contained in the pages of [the]

brief" that was to be filed that day. Id.

            The PCRA court read into the record the headings of each issue to be preserved,

which mirror the titles of the three subparts of Part            I   of this opinion. See id. at 6-7. The

court then told PCRA counsel: "You now have three issues. Three issues. They are all

DNA related. That's all you need to discuss because the defendant has said that he's

not pursuing anything else." Id. at 8. The court then dictated the following order without

objection:

                  AND NOW, this 23rd day of November, 2015, the Court
                  having conducted a colloquy with regard to the status of the
                  defendant's amended PCRA petitions with the defendant's
                  defense counsel [and the attorney for the Commonwealth],
                  we find that the defendant is knowingly, intelligently and
                  voluntarily abandoning any issues raised by prior PCRA
                  counsel and/or [present counsel] that are not contained in
                  the memorandum in support of the PCRA relief petition filed
                  this date by [present counsel]. The issues raised in this
                  memorandum relate to the DNA evidence presented at trial.

Id. at 9-10.13

            Presently, citing to a decision involving a waiver of the right to counsel, Appellant

contends that a post -conviction court is required to conduct a specific, "probing

colloquy" before permitting any claims to be abandoned.                        Brief for Appellant at 61

(quoting Commonwealth          v.   Starr, 541 Pa. 564, 581-82, 664 A.2d 1326, 1335 (1995)).



13 Seven months after the proceeding, Appellant filed a "Nunc Pro Tunc Statement to
Correct the Record," asserting that he intended to abandon only penalty -phase claims
and that all guilt -phase claims should be deemed to be preserved. The PCRA court
found that no action was necessary on this statement, since "the record of the
November 23, 2015 colloquy speaks for itself." Memorandum to Clerk of Courts Official
File dated July 26, 2016, in Commonwealth v. Pruitt, No. 6003-02 (C.P. Berks).


                                           [J-1-2017]   -   15
Appellant takes the position that the PCRA court failed to conduct an adequate colloquy

so as to clarify what issues he was agreeing to forego.          According to Appellant, the

court proceeding was "rather confusing in its nature," as, for example, it opened with a

discussion of the abandonment of only penalty -phase issues. Id. at 63. Furthermore,

he asserts that he "expected that the Court would make a decision on his request for

Summary Judgment on the DNA claims then he would be able to proceed further with

all guilt phase PCRA issues, if necessary." Id. By way of additional support, Appellant

references Commonwealth       v.   Saranchak, 570 Pa. 521, 810 A.2d 1197 (2002), as an

instance in which this Court sanctioned the reassertion of previously abandoned post -

conviction claims.

        Initially, we differ with Appellant's position that a developed colloquy is an

essential prerequisite to the withdrawal of some claims presented in a post -conviction

petition.   To the contrary, the advancement of particular challenges to a judgment of

sentence is generally considered to be a strategic matter relegated to the sound

judgment of counsel.    See Jones     v.    Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308,

3313 (1983) ("Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one central

issue if possible, or at most on a few key issues."); accord Commonwealth       v.   Jette, 611

Pa. 166, 184, 23 A.3d 1032, 1043 (2011).

        Here, we recognize that counsel's strategic calculations may not have been the

driving force pertaining to the abandonment of at least some of the previously asserted

claims. For example, there are suggestions on the record that Appellant was opposed

to pursuing penalty -phase relief.

        Nevertheless, at the time of the relevant proceedings before the PCRA court,

counsel apparently applied his professional judgment in accommodating his client's



                                           [J-1-2017]   -   16
wishes on the subject of abandonment. Although we agree with Appellant that those

proceedings initially opened with a focus upon the abandonment of penalty -phase

claims, as reflected above, they took a different turn toward the identification of discrete

issues that counsel and Appellant agreed were to be pursued, to the exclusion of all

others.     This approach is expressly manifested in the admonitions and order of the

PCRA court, to which no contemporaneous objection was lodged.

          With regard to the Saranchak decision, in that case the petitioner had withdrawn

his post -conviction petition in its entirety.   See Saranchak, 570 Pa. at 523, 810 A.2d at

1198.     We find such scenario to be materially distinct from a winnowing of extensive

claims presented to a post -conviction court.         In   this regard, again, we also differ with

Appellant's position that a colloquy is necessary to support foregoing discrete post -

conviction claims -- indeed, such decisions are routinely made outside of the presence

of the courts.14

          We conclude that the record supports the PCRA court's determination that

Appellant abandoned claims other than those addressed in Part of this opinion.
                                                                          I




          The order of the post -conviction court is affirmed.


          Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.

          Justice Wecht files a dissenting opinion.




14
    Appellant's categorical abandonment of all penalty-phase claims presents the
circumstance most analogous to the waiver of all claims at issue in Saranchak.
Notably, however, Appellant does not seek to advance any penalty -phase issues in this
appeal.


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