                                   [J-1-2017] [MO: Saylor, C.J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                       EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                     :   No. 727 CAP

                        Appellee                  :   Appeal from the Order entered on May
                                                  :   25, 2016 in the Court of Common Pleas,
                                                  :   Berks County, Criminal Division at No.
                 v.                               :   CP-06-0006003-2002.

                                                  :   SUBMITTED: January 9, 2017
MICHAEL PRUITT,

                        Appellant


                                     DISSENTING OPINION


JUSTICE WECHT                                                            DECIDED: June 20, 2017
       I    share the learned Majority's view that there is arguable merit in Michael Pruitt's

challenge to the effectiveness of his trial counsel, and that counsel could have had no

reasonable strategic basis for failing to investigate, to understand, or to rebut the

Commonwealth's presentation of DNA evidence at trial.          I       part ways with the Majority in

regard to the analysis of prejudice. Unlike the Majority,          I   conclude that Pruitt suffered

prejudice from his trial counsel's manifest dereliction, because there exists a reasonable

probability that, but for that dereliction, the jury would have been left with reasonable

doubt as to Pruitt's culpability for rape and involuntary deviate sexual intercourse

("IDSI").

       Regardless of any concomitant impact upon Pruitt's conviction for first -degree

murder, acquittal of those felony sexual offenses would have been likely to alter the

ultimate outcome of the proceedings, in that the jury may have assigned lesser weight

to the sole aggravating circumstance that it found during the penalty             phase-that Pruitt
killed Greta Gougler while in the perpetration of a felony. See 42 Pa.C.S. § 9711(d)(6).

Identification       and     exploitation      of weaknesses          in    the       Commonwealth's forensic

evidence-and recognition that the Commonwealth's expert overstated the strength of
that evidence at trial-could have raised a reasonable doubt regarding Pruitt's guilt of

these    heinous            sexual      offenses,      and,    in   turn,     weakened       substantially   the

Commonwealth's capital case at the penalty phase.                      It   follows that there is a reasonable

probability that counsel's failure to challenge the DNA evidence made the difference

between a sentence of life imprisonment and a sentence of death.                                  As this was

"sufficient to undermine confidence in the outcome of the proceeding,"1 so as to

establish prejudice,         I   conclude that Pruitt's trial counsel was constitutionally ineffective.

Accordingly,     I   respectfully dissent.

                                                 I.    The DNA Evidence

        Pruitt was convicted of first -degree murder, robbery, burglary, rape, and IDSI. To

prove the sexual offenses, the Commonwealth presented evidence relating to the

testing of genetic material that was recovered from Greta Gougler's inner thigh.                             Full

comprehension of Pruitt's claims regarding this evidence requires a brief description of

the testing methodology and the conclusions that may be drawn from that testing.

        "DNA is genetic material found in most types of cells of the human body,

including white          blood cells and              cells   contained in semen and             hair follicles."

Commonwealth           v.   Blasioli, 713 A.2d 1117, 1119-20 (Pa. 1998). DNA is organized in

twenty-three pairs of chromosomes, with one half of each pair inherited from the mother

and the other half from the father.                       David H. Kaye, DNA Evidence: Probability,

Population Genetics, and the Courts, 7 HARV. J.L. & TECH. 101, 107 n.35 (1993). The



        Commonwealth              v.   Laird, 119 A.3d 972, 978 (Pa. 2015).




                                         [J-1-2017] [MO: Saylor, C.J.]        -   2
functional components of DNA are groups of molecules known as "nucleotides," which

join in predictable pairs known as "base pairs" and, when organized in a particular

sequence, serve as a code for a specific biological trait.             Blasioli, 713 A.2d at 1120.

What we refer to as a "gene" is a specific sequence of base pairs that is responsible for

the expression of an individual human characteristic.          Id.     "Genes are the functional

units of the DNA molecule." JUSTICE MING W. CHIN         ET AL.,   DNA BIOLOGY, FORENSIC DNA

EVIDENCE: SCIENCE AND THE LAW § 2:2 (2017 ed.)         (hereinafter "CHIN"). Each gene may

be found at a particular "locus," which "represents a specific physical location of a gene

on a chromosome." Kimberly Cogdell Boies, Misuse of DNA Evidence Is Not Always A

"Harmless Error": DNA Evidence, Prosecutorial Misconduct, and Wrongful Conviction,

17 TEX. WESLEYAN L. REV. 403, 408 (2011) (hereinafter "Boies").

       Most of a person's DNA is identical to that of every other person, with only

approximately three million out of a total of three billion base pairs varying between

individuals.   Blasioli, 713 A.2d at 1121.   These variations are called "polymorphisms,"

and they serve as the basis for DNA identification. Id. A particular variation is known as

an "allele," an "alternative form of a gene that can occupy a particular chromosomal

locus." Boies at 408 (quoting United States     v.   Chischilly, 30 F.3d. 1144, 1153 (9th Cir.

1994)). An allele also may be described as a "specific pattern of base pairs at a given

location on a given chromosome." CHIN at § 2.2.           Because individuals inherit genetic

material from both parents, there are exactly two alleles at any given polymorphic locus

on any given set of complementary chromosomes.               Id.       One allele comes from an

individual's mother, and the other comes from the individual's father.

       Most commonly, DNA testing is conducted through the identification of alleles by

analyzing repeating sequences of base pairs at a particular locus, called "short tandem

repeats" ("STR"). Comparison of DNA samples involves the identification of STRs at




                              [J-1-2017] [MO: Saylor, C.J.]    -   3
standardized, designated loci on certain non -coding areas of the DNA strand. These

areas are not responsible for the expression of any particular biological trait, but

nonetheless contain allelic variations that can be compared to a sample of DNA from a

known source. CHIN at §§ 2.2, 2.3.

       The variability of STR patterns between people is due to the fact that while
       every person has short repeating sequences of base pairs at the loci used
       for forensic identification  . the number of repeats differs. For example,
                                        .   .


       at a particular locus, a person may have inherited 12 repeats from her
       mother and 14 repeats from her father. STRs are "short" because they
       are only two to six chemical letters long, "tandem" because they are on
       adjacent chromosomes, and "repeat" because the pattern repeats. One
       would say that this person's alleles at that locus are "12,14." A person
       may receive the same allele from both mother and father at a locus,
       resulting in a "homozygous" allele pairing of, for example, "16,16." A locus
       where the two alleles differ is called "heterozygous," for example, "12,14."

        Inforensic DNA laboratory reports, a homozygous locus is often indicated
       with a single number, e.g., "16." When two DNA profiles are compared
       side -by-side, a match means that the DNA could have come from the
       same source, a determination that is informed .. by the statistical rarity of
                                                            .


       the DNA profile at issue.


Id. at § 2.3.

       Although the term "match" often is employed when comparing the results of STR

analysis, the "more accurate description is that the individual is 'included' as opposed to

`excluded.'"    Boies at 413.     Using the above example of possible allele pairings, if

testing of Sample A and Sample B reveals an allele pairing of "12, 14" at a given locus

for both samples, then the samples could have come from the same source, and

continued matches at additional loci increase the probability that the samples originated

from the same individual, or, rather, decrease the probability that the samples came

from different individuals.     The individual from whom Sample A was taken remains

"included" within the set of individuals who could have provided Sample    B.   If,   however,

Sample A reveals an allele pairing of "12, 14" at a specified locus, and Sample B



                                [J-1-2017] [MO: Saylor, C.J.]   -   4
reveals an allele pairing of "16" (indicating a homozygous pairing of "16, 16"), then there

is no match between the samples at that locus.        Because identical samples will have

identical allele pairings, it follows necessarily that the individual from whom Sample A

was taken is not the same individual from whom Sample B was taken, so the former is

"excluded" as a possible source of the latter.

       In   the instant case, the sample at issue was collected from Gougler's inner thigh,

and contained DNA from multiple individuals, ostensibly from both Gougler and her

rapist. To obtain usable information from this sample, the Pennsylvania State Police's

forensic scientist, Lisa Mihalacki, extracted two DNA fractions.              Mihalacki's report

explained: "The non -sperm fraction (F) is enriched for DNA from sources such as white

blood cells or epithelial cells (as found in vaginal fluid).          The sperm fraction (M) is

enriched for DNA from spermatozoa." DNA Report, 5/5/2003, Commonwealth's Exhibit

No. 65, at 1. STR analysis of the fractions, revealing the allele pairings at specified loci

for both the male and female contributors, then could be compared to known blood

samples from both Gougler and Pruitt.       Of the fifteen loci tested, Mihalacki's analysis

produced no data whatsoever for three loci of the sperm fraction sample, and the data

at two loci did not match the results from Pruitt's known blood sample.               Mihalacki

reported that the results at all five of these loci were "inconclusive due to an insufficient

amount of DNA." Id. at 2.

       Nevertheless, as the Majority notes, Mihalacki testified at Pruitt's trial that, with

regard to the sperm fraction sample, "[e]very genetic marker, every place that we

checked from this sample and Michael Pruitt's were identical to each other." See Maj.

Op. at 3; Notes of Testimony ("N.T."), 4/26/2005, at 313.             As Mihalacki's own report

demonstrated, her statement was false. Mihalacki proceeded to opine that, based upon

her calculations, the odds of the sperm fraction sample coming from anyone other than




                              [J-1-2017] [MO: Saylor, C.J.]   -   5
Pruitt were between one in 1.5 billion and one in 39 billion.             /d.2    Pruitt's trial counsel

failed to confront Mihalacki with the inconsistencies between her testimony and the

conclusions that she drew in her report, failed to challenge Mihalacki's methodology or

the reasoning behind her conclusions, and failed to present an expert witness to provide

an alternative interpretation of the DNA evidence.3

       In   the post -conviction proceedings, Pruitt presented an expert opinion regarding

the Commonwealth's DNA evidence from Randal T. Libby, Ph.D., a forensic geneticist.

Dr. Libby opined that Mihalacki's analysis of the DNA testing reflected too many

inconsistencies to permit reliable conclusions.          Dr. Libby observed that, even with

regard to the comparison between a known sample of Gougler's DNA and the female

fraction of the thigh swab, which should have produced a perfect match, there were

troubling inconsistencies.        For instance, at locus "Penta E," Gougler's known sample

revealed an allele pairing of "5, 13."       However, no "13" allele was discovered at that

locus in either fraction of the thigh swab sample.        For Dr. Libby, that was a "red flag"

that there were "some problems with the testing procedure."                      N.T., PCRA Hearing,

8/21/2013, at 54.

       With regard to the sperm fraction, which Mihalacki attributed to Pruitt, Dr. Libby

noted that the absence of any data at three loci confirmed that the testing process was

deficient, in that those loci represented "three significant sites in which there's a failure

of the system."          Id.   He noted further that the results of the testing of the sex

chromosome revealed additional problems. Although every male has both an "X" and a



2    Mihalacki explained that this statistic actually represents "the probability that
somebody     in the world could have the same genetic profile." N.T., 4/26/2005, at
             .   .   .


321
3
       As the Majority notes, Pruitt was represented by two attorneys at trial.




                                  [J-1-2017] [MO: Saylor, C.J.]   -   6
"Y" sex chromosome, the sperm fraction produced only a "Y" chromosome. Because an

"X" chromosome should have been detected regardless of whether the sample came

from a male or a female, its absence was "significant" and suggested that "they're not

detecting all of the DNA which could be present in the sample." Id. at 57. This failure

cast doubt upon the results at all of the tested loci. Id. at 57.

         Most significantly, Dr. Libby observed that, at locus "FGA," Pruitt's known sample

revealed an allele pairing of "22, 23," but the sole allele detected in the sperm fraction

was "22." Taken at face value, Dr. Libby explained, the results could indicate that the

source of the sperm fraction was homozygous at that locus, with an allele pairing of "22,

22."   Because Pruitt has a "23" allele that was not present in the sperm fraction, the

testing results at locus FGA potentially excluded Pruitt as a contributor to the DNA

sample collected from Gougler's thigh.      Id. at 57-58.   Mihalacki reported the results at

locus FGA as "inconclusive" due to an insufficient quantity of DNA.                However,

Mihalacki's testing of the sperm fraction at locus "D18S51" similarly indicated the

presence of only one allele, "16." Yet, Mihalacki did not determine that the results at

this locus were inconclusive; she concluded that the source of the sperm fraction was

homozygous ("16, 16") at that locus, which was consistent with the allele pairing from

Pruitt's known DNA sample. Dr. Libby found no support for Mihalacki's conclusion that,

where an apparent homozygous allele pairing matched Pruitt's profile, there was a

match, but, where the same test of the same sample revealed a homozygous allele

pairing that was inconsistent with Pruitt's profile, the results were "inconclusive." Id. at

64-65.

         Further highlighting the tenuousness of Mihalacki's conclusions, Dr. Libby noted

the possibility that some of Gougler's DNA could have been present in the sperm

fraction, allowing for misattribution of certain alleles in the sperm fraction.    Dr. Libby




                              [J-1-2017] [MO: Saylor, C.J.]   -   7
noted that "there's oftentimes spillover of fractions, especially if they're disproportionate

[in the] quantities of one type of DNA      ...   versus another source. So it would not be

unusual to find a victim's profile in the [sperm] fraction." Id. at 69. As such, Dr. Libby

opined that, where the results at certain loci revealed alleles common to Gougler's

sample, Pruitt's sample, and the sperm fraction, "it's not probative at all since Ms.

Gougler's profile would be consistent with the evidence sample as would Mr. Pruitt['s]."

Id. at 70.   After redacting the alleles that Gougler shared with the sperm fraction and,

thus, eliminating the alleles that Gougler could have contributed, Dr. Libby concluded

that there were only three unique loci in the sperm fraction that were consistent with

Pruitt's genetic profile. Id. at 72.

       Dr. Libby attributed many of the inconsistencies in Mihalacki's analysis to an

insufficient quantity of DNA in the tested samples.              Notably, Dr. Libby personally

examined the slides of the tested genetic material, and he was unable to confirm the

presence of any sperm. Id. at 79. Dr. Libby explained that, generally, accurate testing

requires at least "a couple of hundred" sperm cells, but Pennsylvania State Police

scientists reported that they identified possibly one sperm cell. Id. at 28, 80. Dr. Libby

further noted that Mihalacki had conducted tests to quantify the amount of DNA

available for analysis, and those "tests show that there [were] essentially undetectable,

unquantifiable levels of DNA."         Id. at 80.     Dr. Libby opined that the testing of an

insufficient quantity of DNA does not allow for a justifiable interpretation of the results,

and "when you get results which are clearly inconclusive or absent, that tells you that

the test results are probably not reliable due to the fact that          ...   all the DNA is not

represented at all the loci."    Id. at 87-88.      With regard to the population statistics that

Mihalacki related to the jury, reflecting the astronomical odds against the sperm fraction

coming from any individual other than Pruitt, Dr. Libby testified that he understood how




                                [J-1-2017] [MO: Saylor, C.J.]    -   8
Mihalacki calculated those numbers, but opined that they were unreliable.          Dr. Libby

reasoned that "there are too many inconsistencies in the [sperm fraction] and too many

possibilities for the results being not reproducible and not reliable. Too many instances

in which there are no   data whatsoever which could have resulted in exclusion       .   .   .   and

too many instances of problems that found through the data." Id. at 94.
                                         I




         By way of conclusion, Dr. Libby opined that, to a reasonable degree of scientific

certainty, the data generated through Mihalacki's testing was unreliable, and that he

would characterize the DNA analysis, overall, as "inconclusive." Id. at 95. Finally, Dr.

Libby stated that he likely was available for consultation at the time of Pruitt's trial, and

that any competent geneticist should have been able to provide a similar opinion. Id. at

95-96.

                               II.   Ineffectiveness of Trial Counsel
         As the Majority notes, Pruitt's lead trial counsel conceded that he did not

understand the data contained within Mihalacki's report, and that he actually and merely

relied upon Mihalacki's assertions that the sperm fraction matched the known sample of

Pruitt's DNA.    See Maj. Op. at 6.     Despite counsel's failure to appreciate the multiple,

endemic deficiencies in Mihalacki's analysis, counsel did not consult with a single DNA

expert. Absent a rudimentary understanding of the DNA analysis, counsel was unable

to conduct an effective cross-examination.       Even without a basic familiarity with STRs,

allele pairings, and the like, counsel should have been able to recognize and to call

attention to the disparity between Mihalacki's assertion at trial of a perfect genetic match

and her previous reporting of inconclusive results at five loci. The Majority concludes

that Pruitt's trial counsel failed to conduct a professionally reasonable investigation

regarding the DNA evidence, and that no reasonable strategy may be discerned from

counsel's failure to gain a better understanding of that evidence. See Maj. Op. at 7.              I




                              [J-1-2017] [MO: Saylor, C.J.]   -   9
agree.     Counsel's inattention to the DNA evidence, and particularly the failure to

highlight the potentially exculpatory results at locus FGA, is "simply inexplicable." Id. at

8.

         Nonetheless, the Majority concludes that Pruitt's claim falls short of the standard

for ineffectiveness of counsel because Pruitt cannot establish that he was prejudiced by

his counsel's deficient performance.4 The Majority acknowledges the uniquely powerful

nature of DNA evidence in the eyes of a juror, and notes that, "were this a case in which

identity was in controversy, we would likely find prejudice to be manifest." Id. This is

not the case, the Majority holds, because Pruitt's "identity as the robber and killer has

never seriously been put into contest, even at the post -conviction stage."         Id. at 8-9

(emphasis added).       For its finding that there was no reasonable probability that able

representation would have affected the verdict, the Majority relies upon Pruitt's

consistent admission that he perpetrated the violent attack upon Gougler, upon the fact

that the physical evidence made it apparent that a rape occurred, and upon the fact that

Pruitt "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." Id. at 9.

         The trial burden never was upon Pruitt, whether to provide a "plausible

explanation" to suggest another individual's involvement in the crimes or otherwise.

4
         To establish ineffectiveness of counsel:

         [A] petitioner must demonstrate that: the underlying claim is of arguable
         merit; counsel had no reasonable basis for the act or omission in question;
         and he suffered prejudice as a result, i.e., there is a reasonable probability
         that, but for counsel's error, the outcome of the proceeding would have
         been different. A reasonable probability is a probability sufficient to
         undermine confidence in the outcome of the proceeding.
Laird, 119 A.3d at 978 (citations omitted).




                              [J-1-2017] [MO: Saylor, C.J.]   -   10
The burden always was upon the Commonwealth to establish Pruitt's guilt beyond a

reasonable doubt as to each crime charged.5 Regardless, information was available to

defense counsel that could have raised the possibility that a different individual

committed the rape, especially in light of the inconsistencies in the DNA evidence. As

the Majority notes, Pruitt gave a statement to police detailing his actions that resulted in

Gougler's death. That statement was memorialized in writing and submitted to the jury

at trial.   Pruitt explained that the incident began when he and another man were

smoking crack cocaine in an alley near Gougler's home, but ran out of crack and sought

to find money to purchase more. Pruitt's statement began:

        I was getting high, smoked a lot of bags of crack. Me and this guy was in
                           I



        the alleyway smoking and we just came from the 600 block of 9th street
        and bought 3 bags of crack from there. Me and the guy was with were     I


        smoking it and we smoked it all and we were looking at each other and
        saying we want more. So we keep walking up the alley and noticed the        I


        lady in the yard and stopped and told the guys [sic] was going to try and
                               I                                      I


        get some money and he said he was going to try to get some money.
        [T]hen he kept walking and stopped and was watching the lady in the
                                           I


        yard and waited for her to go towards her door, pushed her inside and [I]
                                                               I


        went inside.


Statement, 10/2/2002, Commonwealth's Exhibit No. 61, at                   1.   Pruitt explained that he

demanded money from Gougler and restrained her.                    He then tied her up with her

5
       While Pruitt bears the post -conviction burden of establishing prejudice, see Maj.
Op. at 7 n.6, 9 n.10, that burden does not require Pruitt to demonstrate that he could
have persuaded the jury of his actual innocence of the sexual offenses. One need not
prove innocence to obtain an acquittal-it is more than sufficient to show that the
Commonwealth has not met its burden to prove guilt beyond a reasonable doubt. Here,
we are evaluating the effect of counsel's dereliction, and Pruitt need only demonstrate
that there is a reasonable probability that, but for the deficient advocacy, the outcome
would have been different. The point here, as discussed infra, is that effective
representation with regard to the DNA evidence would have called Pruitt's identity as
the rapist into question, and would have cast doubt upon the Commonwealth's ability to
meet its burden to prove Pruitt's guilt as to that charge. It does not translate into a
requirement that Pruitt must have proven the opposite.




                                   [J-1-2017] [MO: Saylor, C.J.]   - 11
clothes and a telephone wire so that he could search for money upstairs. He stated that

he tied a rag or towel around Gougler's mouth, and that he thought he punched her in

the head. After he located some money in a room upstairs, he returned downstairs and

discovered that Gougler was dead. He explained that he used the money to purchase

more crack, smoked some of        it,   then returned to the scene, where he untied Gougler's

body, began to clean up the scene, and apologized to Gougler's lifeless body.            Pruitt

then fled the scene.

         Notably, Pruitt's confession involved no admission to rape or any kind of sexual

offense. At the end of the statement, an investigator asked, "Did you rape the victim?"

Pruitt replied, "No." Id. at 3. The Majority certainly is correct in noting that, following the

introduction of this statement, Pruitt's identity as the robber and killer was not seriously

in   dispute.    However, the statement does not establish Pruitt's identity as the rapist.

Although Pruitt admitted both to the police and to other individuals that he committed

the acts that constituted burglary, robbery, and murder, and although the fact that a

sexual assault occurred was apparent from a medical examination of Gougler's body,

Mihalacki's DNA analysis was the sole physical or forensic evidence that purported to

connect Pruitt to the sexual offenses.

         Had Pruitt's counsel put forth a professionally reasonable effort to undermine the

Commonwealth's DNA evidence, Pruitt's identity as the rapist would have been in

doubt.    It   was apparent from Pruitt's confession that he was in the company of another

man with whom he was smoking crack immediately before the commission of the

crimes. Had Pruitt's counsel demonstrated to the jury that the DNA evidence was too

unreliable to inculpate Pruitt in the rape, or that it potentially exculpated him, it naturally

would follow that the DNA may have come from another individual, perhaps the man

who was with Pruitt just before Pruitt entered Gougler's home.           Had counsel exposed




                                [J-1-2017] [MO: Saylor, C.J.]   -   12
the weaknesses in the Commonwealth's DNA evidence and the obvious resultant

inaccuracy of the asserted population statistics, and highlighted the fact that no other

physical or forensic evidence suggested that Pruitt committed the sexual offenses, a

significant doubt likely would have remained as to whether the Commonwealth met its

burden of proving Pruitt's culpability for rape and IDSI.

       Why did this matter?         Both Pruitt's trial counsel and today's Majority appear to

have ascribed relatively lesser significance to Pruitt's convictions for rape and IDSI,

given the weight of the evidence suggesting Pruitt's culpability for murder. At the time

of Pruitt's trial, counsel largely disregarded the DNA evidence in favor of focusing upon

the elements of first -degree murder. During his closing argument, Pruitt's lead counsel

stated expressly:

       Now, I'm also not here to tell you that Michael Pruitt's not responsible for
       all these horrible things you've heard. Michael Pruitt gave a statement to
       the police in which he admitted committing offenses. . .. And I'm also not
       here to talk about the other offenses. There's only one thing want to talk
                                                                            I


       about. And that is whether we have second degree murder or first degree
       murder.


N.T., 4/28/2005, at 631-32.          Today's Majority concludes that diligent advocacy with

regard to the DNA evidence would not have affected the verdict because, in part, it was

clear that Pruitt was the robber and killer. See Maj. Op. at 8.

       This misses the point.           The sexual offenses, and the DNA evidence that

purported to prove them, were of undeniable importance to the proceedings, and of

particular significance   in   the penalty phase of the trial. Testifying in the post -conviction

proceedings, one of Pruitt's attorneys described what he perceived to be the impact of

the DNA evidence and the sexual offenses that it suggested:

       Q: How would you describe [the DNA] evidence in terms of impact on the
       jury? Do you have an impression?



                                 [J-1-2017] [MO: Saylor, C.J.]   -   13
      A: Devastating.

      Q: Devastating?

      A: Yes.

      Q: Why was it devastating?

      A: think it established for the jury beyond a reasonable doubt the charge
           I


      of rape.




      Q:   Have you represented Defendants who have been charged with rape
       before?

      A: Yes.

      Q:   Does that have any        in your experience, does that [play] any
      emotional role in the atmosphere of the case that there's a rape charge?

      A: Yes.

      Q: To the detriment of the client?

      A: To the detriment of the client, yes.


N.T., PCRA Hearing, 8/22/2013, at 323-24.

      The abhorrent nature of the sexual offenses in this case, and their impact upon

the jurors, doubtlessly carried over into the penalty phase of the trial. The prosecutor

capitalized upon those offenses in arguing for the existence of the statutory aggravating

circumstance under 42 Pa.C.S. § 9711(d)(6), to wit, that the killing occurred while Pruitt

was perpetrating a felony.   In   his closing argument during the penalty phase of the trial,

the prosecutor mentioned Pruitt's culpability for rape or IDSI nine times.         See N.T.,

5/3/2005, at 156, 158, 165-66, 168.        Unsurprisingly, given Pruitt's contemporaneous

convictions for robbery, burglary, rape, and IDSI, the jury unanimously found the

Subsection 9711(d)(6) aggravator beyond a reasonable doubt. However, the particular

felony or felonies that the jury considered were not enumerated. The jury also found


                             [J-1-2017] [MO: Saylor, C.J.]   -   14
one mitigating circumstance under the "catch-all" provision of 42 Pa.C.S. § 9711(e)(8),

that Pruitt had a long history of cocaine use.

       Assuredly, even if Pruitt's counsel had been effective in discrediting the

Commonwealth's DNA evidence, and potentially obtaining acquittals on the rape and

IDSI charges, the jury nonetheless could have found the Subsection 9711(d)(6)

aggravator due to Pruitt's contemporaneous convictions for burglary and robbery. Were

that the case, however, the jury may have placed lesser weight upon the sole

aggravating circumstance.      This Court has recognized that "the weighing process

involves an assessment of the relative strength and weakness of the aggravating and

mitigating evidence, which is necessarily a qualitative and not a quantitative approach,

especially when the catchall mitigator is at issue." Commonwealth     v.   Daniels, 104 A.3d

267, 304 (Pa. 2014) (discussing Commonwealth v. Tharp, 101 A.3d 736 (Pa. 2014)). In

the instant case, the jury weighed one aggravating circumstance against one "catch-all"

mitigating circumstance. We cannot know whether, absent Pruitt's convictions for two

heinous sexual offenses, and left with the less emotionally charged offenses of robbery

and burglary, the jury's qualitative assessment of the relative strength of the aggravating

and mitigating evidence would have led to the same outcome. Perhaps it would have.

Perhaps not. The truth revealed about the DNA evidence undermines my confidence in

the result.

       Had Pruitt's trial counsel provided effective representation with regard to the DNA

evidence, there is a reasonable probability that Pruitt's culpability for rape and IDSI

would not have been taken for granted during the penalty phase.            In   turn, there is a

reasonable    probability that the jury's weighing      of aggravating          and   mitigating

circumstances    would have produced a different result, i.e., a sentence of life

imprisonment rather than a sentence of death.      Because this prospect is "sufficient to




                             [J-1-2017] [MO: Saylor, C.J.]   -   15
undermine confidence" in the outcome of these proceedings, Laird, 119 A.3d at 978,    I




would hold that Pruitt is able to demonstrate prejudice, and that he thus has shown the

ineffectiveness of his trial counsel.   I   would remand for further proceedings.     I




respectfully dissent.




                           [J-1-2017] [MO: Saylor, C.J.]   -   16
