                          [J-84A-2018 and J-84B-2018]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

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


COMMONWEALTH OF PENNSYLVANIA,                :   No. 749 CAP
                                             :
                    Appellant                :   Appeal from the Order entered on
                                             :   May 22, 2017 in the Court of Common
                                             :   Pleas, York County, Criminal Division,
             v.                              :   granting PCRA relief at No. CP-67-
                                             :   CR-0003183-1998.
                                             :
MILTON NOEL MONTALVO,                        :
                                             :   SUBMITTED: October 3, 2018
                    Appellee                 :

COMMONWEALTH OF PENNSYLVANIA,                :   No. 750 CAP
                                             :
                    Appellee                 :   Appeal from the Order entered on
                                             :   May 22, 2017 in the Court of Common
                                             :   Pleas, York County, Criminal Division,
             v.                              :   granting PCRA relief at No. CP-67-
                                             :   CR-0003183-1998.
                                             :
MILTON NOEL MONTALVO,                        :
                                             :   SUBMITTED: October 3, 2018
                    Appellant                :


                                      OPINION


JUSTICE BAER                                          DECIDED: March 26, 2019
      In this capital murder case arising under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546, both the Commonwealth and Milton Noel Montalvo have filed

cross-appeals from the order of the Court of Common Pleas of York County (“PCRA

Court”), which denied relief on Montalvo’s guilt phase claims, but granted him a new
penalty hearing based on two separate claims of ineffective assistance of counsel. For

the following reasons, we affirm the PCRA court’s order.1

                           I. Factual and Procedural Background

      While a factual recitation was set forth in the Court’s decision on direct appeal,

Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), we reiterate those facts relevant to

the instant PCRA matter. In April of 1998, Appellant2 was in a grocery store when he had

a telephone conversation with his wife, Miriam Ascensio. At the time, the couple had

recently separated. After the call, Esther Soto, the owner of the grocery store, heard

Appellant tell his brother, Noel Montalvo, that he would kill his wife. Later that night,

witnesses observed Ascensio and her coworker, Nelson Lugo (a/k/a Manuel Rodriguez

Santana), together at a local bar. Hours later, two neighbors from the apartment directly

below Ascensio’s apartment heard Appellant shouting outside, demanding entry into

Ascensio’s residence. The neighbors then heard a window break and Ascensio say, “Call

the police.” Two other neighbors heard some disturbance occurring on Ascensio’s porch,

and one neighbor saw a Hispanic male banging on her door. The neighbors explained

that they heard people arguing and loud banging noises coming from the apartment

throughout the night, albeit no one summoned the authorities.

      The following morning, one neighbor observed broken glass on Ascensio’s porch,

knocked on the door, and received no response. After looking into the window and

observing a male lying on the floor, the neighbor instructed his wife to call the police.

Upon their arrival, the police discovered the bodies of Ascensio and Lugo inside the

residence. Ascensio’s neck was slashed several times, her skull fractured by a blunt

1The PCRA court’s final order in this capital case is directly appealable to this Court
pursuant to 42 Pa.C.S. § 9546(d).
2 Although both Montalvo and the Commonwealth are appellants herein, for ease of
discussion we refer to Montalvo as “Appellant.”


                                  [J-84A&B-2018] - 2
object, and her eye punctured. Ascensio’s body was naked from the waist down with a

high-heeled shoe in her genital area and panties on her face. Lugo’s body had a fatal

stab wound to the chest, and a tube of lipstick was protruding from his teeth. Crime scene

investigators collected a blood sample on a window blind hanging inside the broken pane

of glass in Ascensio’s porch door and another blood sample on a cloth bag found on a

sofa bed. Both samples were later determined to be Appellant’s blood.

      Esther Soto thereafter gave a tape-recorded statement to police, relaying what she

heard at the grocery store. She further indicated that Appellant and his brother appeared

at her home the morning after the murders and that Appellant stated, “We killed my wife.”

Soto also told police that the men explained that Appellant killed Lugo and his brother

killed Ascensio, and that they intended to flee to Florida or the Dominican Republic. More

than eight months later, in January of 1999, police apprehended Appellant in Florida.3 In

a recorded statement to police, Appellant denied any involvement in the murders.

      The Commonwealth subsequently charged Appellant with two counts of murder,

and trial commenced in January of 2000. The prosecution’s trial theory was that Appellant

and his brother, who was still at large at the time, committed the murders of Ascensio and

Lugo. The Commonwealth presented the testimony of Ascensio’s neighbors to establish

Appellant’s presence at the crime scene.        It further presented forensic evidence

establishing that Appellant’s blood was found on the window blind and on a fabric bag in

Ascensio’s apartment. The Commonwealth additionally presented the testimony of Soto,


3 Appellant’s brother Noel remained a fugitive for several years. Federal authorities
apprehended Noel in New Jersey in 2002, and the Commonwealth subsequently charged
him with two counts of murder. Following trial in 2003, Noel was convicted of the first
degree murder of Ascensio, the second degree murder of Lugo, conspiracy to commit
homicide, and burglary. He was sentenced to death. This Court affirmed his judgment
of sentence, Commonwealth v. (Noel) Montalvo, 956 A.2d 926 (Pa. 2008), and the United
States Supreme Court denied his petition for certiorari. Montalvo v. Pennsylvania, 556
U.S. 1186 (2009).


                                   [J-84A&B-2018] - 3
who stated that she remembered Appellant coming into her store on the day of the

murder, but recanted her earlier statement that she heard Appellant say that he would kill

his wife. Soto further testified that while Appellant and Noel came to her home on the day

after the murders, they did not confess to the killings. Soto explained that she had lied to

Detective Roland Camacho when she told him that Appellant and Noel had confessed

because the detective had threatened to send her to jail, close down her business, and

take away her children if she did not implicate Appellant in the murders.

       Detective Camacho also testified at Appellant’s trial, disputing Soto’s claim in this

regard.   The Commonwealth thereafter entered into evidence Soto’s tape-recorded

statement to police, indicating that Appellant had told her prior to the murders that he

planned to kill his wife, and confessed that he and Noel had done so after the murders

had been committed. Additionally, germane to an issue herein, the Commonwealth

presented the testimony of Detective Michael Hose of the York City Police Department

who stated that when he arrived at the crime scene, he observed “a high-heel shoe

jammed up into [Ascensio’s] crotch area that protruded through her legs that was visible.”

N.T., 1/14/2000, at 756.

       The defense’s trial theory was that Appellant was not involved in the murders and

that his brother had committed the offenses. In support of this theory, Appellant presented

character witnesses attesting to his law-abiding reputation and argued to the jury that the

Commonwealth did not establish his participation in the killings beyond a reasonable

doubt. During his closing argument, the prosecutor referenced the placement of the high-

heeled shoe in Ascensio’s genital area, stating, “Then someone, still out of anger, took a

shoe and violated Miriam Ascensio again; and that someone was Defendant.” N.T.,

1/19/2000, at 1206.




                                   [J-84A&B-2018] - 4
       Following trial, the jury convicted Appellant of two counts of first degree murder.

Before the penalty hearing commenced, Appellant’s trial counsel petitioned the trial court

for the appointment of a mental health expert, but the trial court denied the request.

Nevertheless, Dr. Allan Tepper, J.D., Ph.D, met with Appellant for more than three hours

on January 16, 2000, during the guilt phase of trial, to conduct a screening evaluation for

major mental illness, but not a comprehensive evaluation for mitigation evidence.

Appellant told Dr. Tepper that he was not involved in the killings. Following the evaluation,

Dr. Tepper concluded that Appellant did not display any signs of major mental illness and

possessed intellectual functioning in the average range. Accordingly, Dr. Tepper did not

recommend further neuropsychological testing.

       During the penalty hearing, relating to Ascensio’s murder, the Commonwealth

presented, inter alia, evidence in support of three aggravating circumstances: commission

of the killing during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), commission of

multiple murders, id., § 9711(d)(11), and commission of the killing by means of torture,

id., § 9711(d)(8). The defense presented, inter alia, evidence supporting the mitigating

circumstances that Appellant had no significant history of prior criminal convictions, id., §

9711(e)(1), and other evidence of mitigation, id., § 9711(e)(8), including Appellant’s prison

record, education, ability to be productive, and positive character evidence.

       Germane to an issue on appeal, during the penalty proceeding the prosecutor

repeatedly stated to the jury that its role was to “recommend” a sentence of death. The

trial court subsequently reaffirmed this notion when responding to an objection, stating to

the jury, “I am the sentencing person. Your decision is a recommendation to the court.”

N.T., 1/21/2000, at 136. Trial counsel did not object to these comments.

       Ultimately, the jury found all of the aforementioned aggravating and mitigating

factors relating to Appellant’s conviction for the murder of Ascensio. The jury further found




                                    [J-84A&B-2018] - 5
the identical aggravating and mitigating factors relating to the conviction for Lugo’s

murder, with the exception of the torture aggravator. Finding that the aggravating factors

outweighed the mitigating circumstances, the jury returned two verdicts of death for the

murders of Ascensio and Lugo.

       Represented by new counsel, Appellant filed a direct appeal in this Court, raising

thirty-seven issues for review, twenty of which challenged trial counsel’s effectiveness.4

This Court affirmed Appellant’s judgment of sentence of death on December 28, 2009.

Montalvo, supra. The United States Supreme Court denied Appellant’s petition for a writ

of certiorari on October 4, 2010. Montalvo v. Pennsylvania, 562 U.S. 857 (2010).

       On August 30, 2011, Appellant timely filed a pro se motion for post-conviction

relief. The PCRA court denied relief on September 26, 2011, mistakenly believing that

Appellant had already received PCRA review because he had litigated ineffectiveness

claims on direct appeal. Appellant subsequently filed a notice of appeal to this Court. By

per curiam order dated April 5, 2012, this Court granted the parties’ joint motion to

relinquish jurisdiction and remanded the matter to the PCRA court with “directions to

permit [A]ppellant to file a first, of-right, counseled petition pursuant to the [PCRA].”

Commonwealth v. Montalvo, No. 639 CAP (filed Apr. 5, 2012).




4  At the time Appellant filed his direct appeal in 2000, this Court had not yet decided
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that challenges to trial
counsel’s performance should generally be deferred until collateral review. Accordingly,
we remanded the ineffectiveness claims that Appellant presented on direct appeal to the
trial court for an evidentiary hearing. By the time the direct appeal returned to this Court
after the evidentiary hearing, Grant had been decided. Nonetheless, we addressed
Appellant’s ineffectiveness claims on direct appeal based upon our holding in
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), which recognized a limited exception
to Grant’s general deferral rule in pre-Grant cases where there had been a hearing in the
trial court on the ineffectiveness claims and the trial court had issued an opinion
addressing those claims.


                                   [J-84A&B-2018] - 6
       On July 16, 2012, Appellant, again represented by new counsel, filed an amended

PCRA petition, raising ten claims for relief. Notably, Appellant’s defense theory of the

case changed dramatically from that presented at trial. Rather than denying participation

in the murders, Appellant disclosed to Julie Kessel, M.D., who had been retained by

PCRA counsel, that he committed the murders of Ascensio and Lugo after looking into

Ascensio’s porch window and seeing her walking naked from her bedroom with a partially-

clothed man in the apartment. Believing that Ascensio was having sex with the man in

the apartment, Appellant told Dr. Kessel that he broke the door open and entered the

apartment. Appellant relayed that the man pulled a knife and lunged towards him, and

that Appellant turned that knife towards the man, fatally stabbing him in the chest. He

then explained that he seized a two-by-four piece of wood from underneath an exercise

machine, and continually struck Ascensio in the head until she fell to the ground. He then

retrieved the knife and fatally stabbed her while in an intense rage. Appellant made a

similar statement to Ricardo Weinstein, Ph.D., another mental health expert retained by

PCRA counsel. As explained infra, Appellant did not testify to this altered account of the

murders at the PCRA hearing; rather, his mental health experts conveyed his narrative to

the court.

       Based on this new theory, Appellant raised various contentions in his July 15, 2012

PCRA petition, including that trial counsel’s performance during the guilt phase of trial

was constitutionally deficient because he failed to investigate, develop, and present

evidence of defenses to first degree murder, such as voluntary manslaughter and self-

defense. He also argued that trial counsel was ineffective for failing to challenge the

evidence and the statements made by the prosecutor allegedly suggesting that Appellant

had sexually assaulted Ascensio with a high-heeled shoe.




                                   [J-84A&B-2018] - 7
       Regarding the penalty phase of trial, Appellant contended in his PCRA petition that

trial counsel was ineffective for failing to investigate and present mitigation evidence

relating to Appellant’s mental health and his life history. He further alleged that trial

counsel was ineffective for failing to object when the prosecutor informed the jury that its

task was to “recommend” a sentence of death to the court and the trial court acquiesced

in that sentiment, thereby diminishing the jury’s sense of responsibility in determining the

sentence in violation of Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (holding that

“it is constitutionally impermissible to rest a death sentence on a determination made by

a sentencer who has been led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere”). Appellant also contended

that he was entitled to relief from his conviction and sentence because of the cumulative

effect of the trial errors. Finally, as he had presented ineffectiveness claims in his direct

appeal prior to this Court’s adoption of the general deferral rule in Grant, Appellant further

alleged in his PCRA petition that all prior counsel were ineffective for failing to pursue the

enumerated claims of trial counsel ineffectiveness.

       On January 23, 2015, Appellant supplemented his PCRA petition, developing

further his appellate counsel ineffectiveness claims by analyzing each level of counsel’s

representation under the Pierce ineffectiveness standard.5 Appellant also filed a post-

hearing PCRA memorandum with the PCRA court on June 3, 2016, in which he expanded

upon the legal arguments relating to the claims previously raised.

       The PCRA court held a series of evidentiary hearings on July 27-28, 2015;

December 1-2, 2015; March 28, 2016; and May 3, 2016. During these hearings, Appellant

presented, inter alia, the testimony of Dr. Julie Kessel, who opined that Appellant’s most


5 As noted infra, this Court set forth the three prongs of the ineffective assistance of
counsel standard in Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).


                                    [J-84A&B-2018] - 8
recent account of the murders established two grounds of serious provocation for the

killings that rendered Appellant incapable of cooling down and acting with reason: (1)

Appellant’s recognition of Ascensio’s sexual relationship with Lugo; and (2) Appellant’s

resultant confrontation with Lugo. N.T., 12/1/2015, at 44. Relating to the penalty phase

of trial, Dr. Kessel testified that mental health mitigation evidence could have been

presented at Appellant’s penalty hearing to support two additional mitigating

circumstances, i.e., that at the time of the killings Appellant was under extreme emotional

disturbance, 42 Pa.C.S. § 9711(e)(2), and that his capacity to appreciate the criminality

of his conduct was substantially impaired, id., § 9711(e)(3). N.T., 12/1/2015, at 48-49.

       Appellant also presented the testimony of Ricardo Weinstein, Ph.D., a psychologist

who conducted various neuropsychological tests on Appellant. Dr. Weinstein concluded

that Appellant suffered from brain dysfunction in that his frontal lobes had not matured

properly or had been damaged, resulting in serious issues with planning and organizing

behavior, impulse control, and understanding complex situations. N.T., 7/28/2015, at

171, 177.6 Further, based on a similar account of the events that Appellant provided to

Dr. Kessel, Dr. Weinstein opined that seeing Ascensio naked in the apartment with

another man caused a sudden and intense passion and served as a provocation for the

killings. Id., at 184-86. Finally, Dr. Weinstein opined that, at the time of the killings,

Appellant was under extreme mental or emotional disturbance and lacked the capacity to

appreciate the criminality of his conduct. Id., at 187.

       Appellant further presented the testimony of Dr. Tepper, who had screened

Appellant for major mental illness prior to the penalty hearing and found none, although

he did not conduct a full-blown mitigation investigation. N.T., 12/2/2015, at 93. Dr. Tepper

6The PCRA court did not find credible the testimony that Appellant suffered from a brain
dysfunction and did not rely on this testimony in granting a new penalty hearing. PCRA
Court Opinion, 5/22/2017, at 67.


                                    [J-84A&B-2018] - 9
testified at the PCRA proceeding that he reviewed the post-conviction reports of Drs.

Kessel and Weinstein and asserted that if he had known that Appellant confessed to the

killings, he would have explored defenses such as heat of passion or self-defense. Id.,

at 99. Dr. Tepper further explained that if he had been given sufficient time for a complete

investigation into mitigation evidence, he would have been able to testify at the penalty

hearing that Appellant was under extreme emotional distress at the time of the killings

and that his capacity to appreciate the criminality of his conduct was substantially

impaired. Id., at 95-96.

       Relevant here, Appellant also presented the expert testimony of Charles Wetli, a

forensic pathologist, who testified that the crime scene and Ascensio’s injuries were

consistent with a killing committed pursuant to a “rage reaction,” while Lugo died from a

single knife wound to the chest. N.T., 7/27/2015, at 122. Finally, Robert Tressel, an

expert in homicide investigation, crime scene analysis, and medical-legal death

investigation, testified that Ascensio’s injuries were typical of a passion-related homicide

investigation where the killing occurs from a sudden anger. N.T., 3/28/2016, at 32.

Additionally, Appellant presented evidence at the PCRA hearing of his life history to

support the catchall mitigating factor. 42 Pa.C.S. § 9711(e)(8).

       In rebuttal, the Commonwealth presented, inter alia, the testimony of Stephen M.

Mechanick, M.D., who disagreed with the post-conviction defense experts’ opinions that

Appellant demonstrated impulsivity. N.T., 5/3/2015, at 110, 112. Further, Dr. Mechanick

disagreed that Appellant experienced an intense passion resulting from serious

provocation immediately prior to the murders, leaving him incapable of cool reflection.

Id., at 113. Dr. Mechanick explained that he could not reach such a conclusion to a

reasonable degree of psychiatric certainty because Appellant had offered different

versions of what occurred at the time of the murders, and, thus, he was not a reliable




                                   [J-84A&B-2018] - 10
informant. Id. Notably, even assuming that Appellant was truthful in his post-conviction

account of the events leading to the murders, Dr. Mechanick testified that it would be

inconsistent to assert that Appellant was acting reasonably in self-defense when he fatally

stabbed Lugo, but that moments later he was incapable of cool reflection when he fatally

stabbed Ascensio. Id. Dr. Mechanick additionally disagreed that Appellant suffered any

brain damage. Id., at 123-24. Dr. Mechanick emphasized that Appellant was able to

maintain relationships, work, and complete school without any notable cognitive

impairment.   Id., at 126.   Finally, Dr. Mechanick opined that there was insufficient

evidence to support the mitigating circumstances that Appellant was under extreme

emotional distress at the time of the killings and that he had substantially impaired

capacity to conform his conduct to the requirements of law. Id., at 131-134.

       Appellant’s trial counsel, Daniel Rendine, Esquire, testified at the PCRA hearing

that he discussed with Appellant alternative defenses to the first degree murder charges

that required the admission of culpability, but that Appellant denied involvement in the

murders and was adamant that he did not want to assert those defenses. N.T., 7/27/2015,

at 42, 52. While counsel acknowledged that Appellant stated, “I did this shit” to one of his

investigators, counsel explained that he was uncertain what Appellant meant by this

statement, as he never indicated to counsel that he killed the victims and was in absolute

agreement with the defense presented. Id., at 48, 53, 57. Attorney Rendine further

testified that he did not pursue mental health mitigation evidence during the penalty phase

of trial because Dr. Tepper had indicated to him that Appellant did not suffer from any

major mental illness. Id., at 22. He testified that there was no evidence suggesting that

Appellant was mentally or emotionally impaired and that if Dr. Tepper had recommended

neuropsychological testing, he would have pursued such course of action. Id., at 54.




                                   [J-84A&B-2018] - 11
       By opinion dated May 22, 2017, the PCRA court denied Appellant relief on his guilt

phase claims, but granted him a new penalty hearing.7 Relevant here, the court rejected

Appellant’s claim that trial counsel was ineffective for failing to investigate and present

the defenses of self-defense and heat of passion at trial. The PCRA court reasoned that

because Appellant denied participating in the murders and steadfastly agreed with the

defense theory that his brother committed the offenses, trial counsel had a reasonable

basis for not investigating and pursuing defenses that required Appellant to admit

culpability. PCRA Court Opinion, 5/22/2017, at 53-54. The court also found unpersuasive

Appellant’s contention that trial counsel was ineffective for failing to object to evidence

that Appellant had sexually violated Ascensio with a shoe. The court found that the

prosecutor’s reference during closing arguments was a reasonable inference arising from

the testimony of Detective Hose as well as the testimony of the forensic expert, both of



7  As referenced supra, new counsel represented Appellant on direct appeal and raised
claims of ineffective assistance of counsel, as was his right at that time. See Grant, supra.
Thus, the cognizable claims before the PCRA court were “layered” claims of
ineffectiveness based upon appellate counsel’s failure to allege trial counsel’s
ineffectiveness on the various grounds. Commonwealth v. McGill, 832 A.2d 1014, 1021
(Pa. 2003). In analyzing Appellant’s claims, however, the PCRA court did not focus on
appellate counsel’s failure to present claims of trial counsel ineffectiveness on appeal,
although the court recognized generally that Appellant framed his claims as such.
Instead, the PCRA court generally adjudicated the claims of trial counsel ineffectiveness.
Accordingly, Appellant’s brief to this Court assigns error to the PCRA court’s holdings in
relation to the claims of trial counsel ineffectiveness, without concentrating on appellate
counsel’s performance. The Commonwealth now contends that Appellant’s brief is
deficient in this regard and seeks a ruling deeming all ineffectiveness claims waived. See
Attorney General’s Consolidated Reply Brief for Appellant and Brief for Cross-Appellee,
at 67-68. We decline the Commonwealth’s request. As noted, Appellant layered his
claims of ineffectiveness properly in his counseled PCRA petition, developed each claim
of appellate counsel ineffectiveness in his amended PCRA petition filed on January 23,
2015, and merely focused his brief to this Court on the deficiencies in the PCRA court’s
adjudication of his claims.


                                   [J-84A&B-2018] - 12
whom observed the placement of the shoe in Ascensio’s genital area. PCRA Court

Opinion, at 61.

       As to the penalty phase claims, the PCRA court found two separate grounds to

grant a new penalty hearing. First, the court held that trial counsel was ineffective for

failing to present mental health expert testimony to support the additional mitigating

circumstance that Appellant was laboring under extreme mental or emotional disturbance.

Id., at 69. The court expressed concern over its failure to grant Appellant’s request for

pretrial funding for a mental health expert, which, in its view, “severely crippled counsel’s

ability to timely obtain favorable mitigation evidence.” Id., at 68. The PCRA court

concluded that the combination of the court’s denial of funds for an expert and the failure

of counsel to explore properly the mitigation issue prior to the eve of the penalty phase

hearing deprived Appellant of a fair proceeding. Id., at 68-69.

       Second, the PCRA court held that trial counsel was ineffective for failing to object

when the prosecutor repeatedly told the jury that its sentencing verdict was only a

“recommendation,” and the trial court agreed with this sentiment by stating that the jury’s

sentencing decision “is a recommendation to the court.”           N.T., 1/21/2000, at 136.

Acknowledging that the trial court noted correctly in its final jury charge that the jury’s

sentencing verdict was not a mere recommendation, N.T., 1/21/2000, at 168, the PCRA

court found that this latter statement served only to confuse the jury as to its role in

sentencing. PCRA Court Opinion, at 72-73 (citing Caldwell, supra).

       As noted, Appellant has filed an appeal challenging the PCRA court’s denial of his

guilt phase claims, and the Commonwealth has filed an appeal challenging the grant of a

new penalty hearing. In his appeal, Appellant claims that trial counsel was ineffective for

failing to present evidence of defenses to first degree murder and for not objecting to

evidence that Appellant sexually assaulted Ascensio with a shoe. He further contends




                                   [J-84A&B-2018] - 13
that the cumulative effect of the trial errors entitled him to relief from his conviction and

sentence. In its cross-appeal, the Commonwealth contends that the PCRA court made

multiple errors of law in granting a new penalty hearing on the ground that trial counsel

was ineffective for failing to present mental health mitigation evidence. 8               The

Commonwealth also argues that the PCRA court erred in granting a new penalty hearing

on the ground that trial counsel was ineffective for failing to object when the prosecutor

repeatedly informed the jury that its sentencing verdict was only a “recommendation” and

the trial court reaffirmed this misstatement of the law.

                                  II. General Principles of Law

       To be eligible for PCRA relief, a petitioner must prove by a preponderance of the

evidence that his conviction or sentence resulted from one or more of the circumstances

enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a constitutional

violation or ineffectiveness of counsel which “so undermines the truth-determining

process that no reliable adjudication of guilt or innocence could have taken place.” Id., §

9543(a)(2)(i) and (ii). A petitioner must further establish that his claims have not been

previously litigated or waived. Id., § 9543(a)(3). An issue has been previously litigated if

“the highest appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue.” Id., § 9544(a)(2). A claim is waived under the

PCRA “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.” Id., § 9544(b).




8 Specifically, the Commonwealth contends that there was insufficient evidence to support
the mitigating factor of extreme mental or emotional disturbance; there was insufficient
evidence to augment the trial evidence supporting the catch-all mitigator; the PCRA court
failed to acknowledge the testimony of the Commonwealth’s mental health expert; and
the PCRA court erred by imposing the current standard for presenting mental health
mitigation evidence onto trial counsel’s duty, which arose twenty years ago.


                                    [J-84A&B-2018] - 14
         Appellant’s primary claims challenge the effectiveness of counsel.           It is well

established that counsel is presumed to have rendered effective assistance.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012). To obtain relief on a claim

challenging counsel’s performance, a PCRA petitioner must satisfy the performance and

prejudice test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). In

Pennsylvania, we apply the Strickland test by examining whether: (1) the underlying claim

has arguable merit; (2) counsel lacked a reasonable basis for his actions or failure to act;

and (3) the petitioner was prejudiced by counsel’s deficient performance such that there

is a reasonable probability that the result of the proceeding would have been different

absent counsel’s error or omission. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.

1987).

         A petitioner’s failure to satisfy any prong of the ineffectiveness test is fatal to the

claim. Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018). We are not required

to analyze the elements of an ineffectiveness claim in any particular order; if a claim fails

under any prong of the ineffectiveness test, the Court may proceed to that element first.

Sepulveda, 55 A.3d at 1117-18. Moreover, counsel cannot be deemed ineffective for

failing to raise a meritless claim. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa.

2015). Further, where, such as here, a petitioner must “layer” claims of ineffective

assistance of counsel, he “must plead in his PCRA petition that his prior counsel, whose

alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the

counsel who preceded him was ineffective in taking or omitting some action.”

Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003). The petitioner must further

“present argument, in briefs or other court memoranda, on the three prongs of the Pierce

test as to each relevant layer of representation.” Id.




                                     [J-84A&B-2018] - 15
       Upon reviewing an order in a PCRA matter, we must determine whether the

findings of the PCRA court are supported by the record and whether the court’s legal

conclusions are free from error. Commonwealth v. Hannibal, 156 A.3d 197, 206 (Pa.

2016). The findings of the PCRA court and the evidence of record are viewed in a light

most favorable to the prevailing party. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012). The PCRA court’s credibility determinations, when supported by the record, are

binding; however, this court applies a de novo standard of review to the PCRA court’s

legal conclusions. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). We must

keep in mind that the petitioner has the burden of persuading this Court that the PCRA

court erred and that such error requires relief. Wholaver, 177 A.3d at 144-45. Finally,

this Court may affirm a valid judgment or order for any reason appearing of record. Id. at

145.

                                          III. Discussion

                              A. Appellant’s Guilt Phase Claims

                 (1) Failure to Investigate Defenses to First Degree Murder

       Appellant contends that the PCRA court erred by rejecting his claim that trial

counsel was ineffective for failing to investigate and present the defenses of heat of

passion (relating to Ascensio) and self-defense (relating to Lugo) at his trial. See 18

Pa.C.S. § 2503(a)(1) (providing that a “person who kills an individual without lawful

justification commits voluntary manslaughter if at the time of the killing he is acting under

a sudden and intense passion resulting from serious provocation by . . . the individual

killed”); id., § 2503(b) (providing that a “person who intentionally or knowingly kills an

individual commits voluntary manslaughter if at the time of the killing he believes the




                                   [J-84A&B-2018] - 16
circumstances to be such that, if they existed, would justify the killing under Chapter 5 of

this title (relating to general principles of justification), but his belief is unreasonable”).9

       Essential to Appellant’s claim is his assertion that he admitted his guilt to trial

counsel prior to trial, and that trial counsel ignored his confession, choosing instead to

present a defense that was unsupported by the evidence, without advising him of the

defenses of heat of passion and self-defense. Appellant argues that the PCRA court

likewise failed to acknowledge that he admitted his guilt to trial counsel. He concludes

that the PCRA court’s finding that he denied involvement in the killings was, therefore,

unsupported by the record and its legal conclusion, that trial counsel acted reasonably in

refusing to pursue defenses that required him to admit culpability, was erroneous.

       To develop the arguable merit of his ineffectiveness claim, Appellant relies

primarily upon the testimony of his mental health experts, as Appellant did not testify to

his new defense theory at the PCRA evidentiary hearing. Appellant argues that the post-

conviction record demonstrates that he believed Lugo was trying to harm him with a knife,

and that Appellant was able to turn the knife and drive it into Lugo’s chest. Cross Brief of

Appellee, at 61 (citing N.T., 12/1/2015, at 30-33 (Dr. Kessel opining that after observing

Ascensio naked with a man, a physical altercation ensued between Appellant and Lugo

whereby Appellant believed Lugo was trying to harm or kill him and Appellant was able

to turn Lugo’s knife and drive it into Lugo’s chest)). Regarding Ascensio’s murder,

Appellant submits that the post-conviction record demonstrates a textbook account of a


9 Appellant does not expressly characterize his claim as involving “imperfect” self-defense
as set forth in 18 Pa.C.S. § 2503(b), which encompasses an unreasonable, as opposed
to a reasonable belief that the killings were justified. Nevertheless, the general theme of
Appellant’s argument is that trial counsel’s performance was constitutionally deficient
because he did not present defenses to the charges of first degree murder, which could
have reduced his convictions to voluntary manslaughter. As demonstrated infra, whether
Appellant is alleging a reasonable or unreasonable belief that the killing of Lugo was
justified has no impact on our ultimate analysis of this claim.


                                     [J-84A&B-2018] - 17
frenzied heat of passion killing after he became enraged after witnessing his wife in what

appeared to be a sexual encounter. See id., at 62 (citing N.T., 12/1/2015, at 44-45 (Dr.

Kessel opining that Appellant’s observation of Ascensio naked with Lugo in the apartment

caused a sudden and intense passion that resulted in Appellant becoming incapable of

cooling down and acting in a reasonable manner)).          See also N.T., 7/28/2015 (Dr.

Weinstein opining that neuropsychological testing performed upon Appellant established

that he suffered from brain dysfunction and difficulties with planning and organizing

behavior and with impulse control).10

       Appellant’s argument on the reasonable basis prong of the ineffectiveness test is

likewise dependent upon his assumption that trial counsel knew that Appellant committed

the murders and that he would have consented to admitting culpability at trial. He

contends that trial counsel’s defense strategy to blame the murders on Appellant’s brother

was unreasonable because trial counsel declined to investigate other defenses,

notwithstanding that police discovered Appellant’s blood at the crime scene and there

was purportedly little credible evidence of his brother’s guilt.11 Appellant concludes that

reasonable counsel would have discussed possible defenses with him and would have

informed the mental health expert that Appellant confessed to the murder and directed

such expert to explore mental health defenses. See Cross Brief of Appellee, at 73 (citing


10   As additional support for the arguable merit prong of the ineffectiveness claim,
Appellant relies upon the testimony of Charles Wetli, a forensic pathologist who opined
that Ascensio’s injuries were consistent with a killing committed pursuant to a “rage
reaction,” see Cross Brief of Appellee at 63-64 (citing N.T., 7/27/2015, at 122), as well as
the testimony of Robert Tressel, a homicide investigation expert who opined that
Ascensio’s injuries were typical of a passion-related homicide investigation where the
killing results from sudden anger. Id., at 64 (citing N.T., 3/28/2016, at 32).
11As noted supra at n. 3, a jury subsequently convicted Appellant’s brother of the first
degree murder of Ascensio, the second degree murder of Lugo, conspiracy to commit
homicide, and burglary. See Commonwealth v. (Noel) Montalvo, 956 A.2d 926 (Pa.
2008).


                                   [J-84A&B-2018] - 18
Commonwealth v. McCusker, 292 A.2d 286, 289 (Pa. 1972) (holding that mental health

expert testimony is admissible to establish a defendant’s state of mind in relation to a heat

of passion defense)).

       Finally, addressing the prejudice prong of the Pierce ineffectiveness standard,

Appellant posits that had trial counsel investigated and presented a self-defense theory

for Lugo’s murder and a heat of passion defense for Ascensio’s murder, there is a

reasonable probability that the outcome of the trial would have been different.            In

Appellant’s view, the jury would not have returned two verdicts of first degree murder if it

had heard expert testimony regarding his admission of the killings and how they took

place in the heat of passion and in response to life-threatening provocation.

       The Commonwealth responds that Appellant’s ineffectiveness claim fails for lack

of a factual predicate.    It argues that the post-conviction record does not support

Appellant’s assertion that he confessed his guilt to trial counsel or communicated to trial

counsel the rendition of the facts upon which he now relies.           The Commonwealth

characterizes Appellant’s new defense theory as “revisionist history” based upon his self-

serving rendition of events that he conveyed only to post-conviction mental health experts

years after his convictions and to which Appellant did not testify during the PCRA

evidentiary hearing. Attorney General’s Consolidated Reply Brief for Appellant and Brief

for Cross-Appellee, at 69. According to the Commonwealth, the accounts of the murders

that Appellant disclosed to the various post-conviction mental health experts were

inconsistent with each other in material detail; thus, there is no way to discern whether

there was any credible evidence of self-defense or serious provocation.

       Even accepting as true the factual account of the murders that Appellant provided

to Dr. Kessel, the Commonwealth contends that there was no evidence suggesting that

Appellant killed the victims in self-defense or in the heat of passion. To demonstrate that




                                   [J-84A&B-2018] - 19
Appellant killed Lugo in self-defense, the Commonwealth argues, Appellant would have

to admit that he intentionally killed Lugo to protect himself. It points out that under

Appellant’s new factual narrative of the events, however, he conceded that he broke into

Ascensio’s apartment, as demonstrated by the physical evidence of the broken

windowpane in the front door. Thus, the Commonwealth submits, Appellant would have

this Court conclude that Lugo was, in fact, the aggressor, despite the fact that Appellant

took the couple by surprise by making a violent, forced entry into the residence in the

middle of the night.

       Further, the Commonwealth contends, Appellant’s post-conviction factual

recitation does not suggest that Appellant killed Ascensio in a frenzied heat of passion.

The Commonwealth argues that the facts, as conveyed to Dr. Kessel, suggest a

calculated killing of Ascensio. It highlights that, according to Appellant, he removed a

two-by-four from under an exercise machine, struck Ascensio several times in the head,

and proceeded to stab her fatally, after which he replaced the two-by-four beneath the

exercise machine, washed and tended to the cuts on his hand, retrieved the knife, and

locked the apartment door before leaving.            Under these circumstances, the

Commonwealth finds no arguable merit to Appellant’s ineffectiveness claim for failing to

present the enumerated defenses to first degree murder.

       The Commonwealth additionally refutes Appellant’s assertions regarding the

second prong of the ineffectiveness test, i.e., that trial counsel’s performance was

unreasonable because he failed to investigate or present defenses of heat of passion and

self-defense, and failed to inform the mental health expert of Appellant’s confession for

purposes of investigating mental health defenses. It reiterates that there is no evidence

in the record demonstrating that Appellant informed trial counsel of the alleged facts in

support of the defenses at issue. The Commonwealth concludes that the record, instead,




                                  [J-84A&B-2018] - 20
supports the PCRA court’s findings that trial counsel advised Appellant of all relevant

defenses, after which Appellant adamantly informed counsel that he would not admit

culpability at trial, and wanted to proceed with the defense that his brother was the

perpetrator. The Commonwealth asserts that under circumstances where Appellant

denied involvement in the murders in his statement to police, in discussions with trial

counsel, and again during his mental health evaluation with Dr. Tepper, his challenge to

counsel’s performance based on the failure to present defenses that admitted his

culpability should not succeed. Considering the lack of merit of the ineffectiveness claim

and that trial counsel had a reasonable basis for failing to pursue the defenses of heat of

passion and self-defense, the Commonwealth concludes that Appellant cannot

demonstrate prejudice arising from trial counsel’s performance in this regard.

       In his reply brief, Appellant acknowledges that he did not admit his involvement in

the killings at the time police arrested and interrogated him, but asserts that he did so by

stating, “I did this shit,” to one of trial counsel’s investigators during a meeting at prison

before trial. See Cross Reply Brief of Appellee, at 6 (citing N.T., 7/27/2015, at 47-49).

Appellant discounts as incredible trial counsel’s testimony at the PCRA evidentiary

hearing that Appellant made such statement to the investigator and never to counsel, and

that trial counsel was uncertain as to what Appellant intended by the statement. He

reiterates his contention that trial counsel failed to probe into why Appellant made such a

statement and discuss the relevant defense options with him.

       We begin our analysis by emphasizing the PCRA court’s credibility findings. As

noted, the PCRA court found that trial counsel meaningfully discussed with Appellant the

Commonwealth’s evidence against him, as well as potential defenses to the first degree

murder charges, but Appellant insisted that he did not commit the killings. PCRA Court

Opinion, at 53-54. Based on this factual finding, the PCRA court held as a matter of law




                                    [J-84A&B-2018] - 21
that trial counsel acted reasonably by not investigating and pursuing defenses of heat of

passion and self-defense, which would have required Appellant to admit culpability. Id.,

at 54. Upon careful review, we conclude that the PCRA court’s factual findings on this

issue are supported by the record and that the court did not commit an error of law in

rejecting Appellant’s ineffectiveness claim on the reasonable basis prong of the

ineffectiveness standard.

       Germane to the heat of passion component of the ineffectiveness claim, we

observe that “a defendant charged with murder may establish that he is guilty, not of

murder, but rather of voluntary manslaughter, by proving that, at the time of the killing, he

was acting under a sudden and intense passion resulting from serious provocation by the

victim.” Commonwealth v. Busanet, 54 A.3d 35, 55 (Pa. 2012) (citing Commonwealth v.

Miller, 987 A.2d 638, 649 (Pa. 2009); 18 Pa.C.S. § 2503(a)). A defense of heat of passion

is available to a defendant who admits criminal liability at trial, but contests the degree of

guilt. The defense of self-defense requires the defendant to admit that the killing was

intentional, but warranted to protect one’s self. Commonwealth v. Philistin, 53 A.3d 1, 12

(Pa. 2012).

       The record before us does not establish that Appellant admitted culpability to

counsel prior to trial. Rather, it supports the PCRA court’s findings that trial counsel

discussed alternative defenses to the first degree murder charges and that Appellant

knowingly rejected defense strategies that required him to admit criminal liability. Initially,

the record discloses that trial counsel informed Appellant that the Commonwealth made

a pretrial offer of two life sentences in exchange for his guilty pleas to both counts of first

degree murder. N.T., 7/27/2015, at 17. Trial counsel asserted that, considering the

Commonwealth’s evidence against Appellant, he explained to Appellant that he thought




                                    [J-84A&B-2018] - 22
it was in his best interests to accept the offer and plead guilty, but that Appellant “wanted

no parts of it” and refused the offer. Id., at 49.

       Trial counsel further testified that he explained to Appellant the defenses of

diminished capacity and voluntary manslaughter, but that Appellant “was adamant that

he wanted to fight the case and did not want to plead guilty.” Id., at 51. He asserted that

he discussed the defense of heat of passion with Appellant, but that he “was not interested

in admitting his guilt and not interested in [counsel] admitting his guilt on his behalf.” Id.,

at 52. Trial counsel testified that Appellant was one hundred percent in agreement with

the defense that his brother committed the killings and expressed no reservations about

pursuing that defense. Id., at 52-53. He confirmed that at no time during the course of

the trial did Appellant indicate to counsel that he killed the victims. Id., at 57. While trial

counsel acknowledged that Appellant stated, “I did this shit,” to his investigator, trial

counsel explained that he was uncertain exactly what Appellant meant by that statement,

emphasizing that Appellant “was absolutely bent” on pleading not guilty and insisted that

he was innocent without a doubt. Id., at 48, 58.

       The PCRA court credited trial counsel’s testimony in this regard.             It is well

established that a PCRA court’s credibility findings are to be afforded great deference

and where, as here, they are supported by the record, such determinations are binding

on an appellate court. Commonwealth v. Treiber, 121 A.3d at 444. Additionally, we

emphasize that Appellant did not refute trial counsel’s assertions at the PCRA hearing by

testifying on his own behalf; thus, the record is devoid of any evidence establishing that

Appellant informed trial counsel of the particular account of the murders upon which he

now asserts would support claims of heat of passion and self-defense.

       In determining whether counsel lacked a reasonable basis, the court “does not

question whether there were other more logical courses of action which counsel could




                                    [J-84A&B-2018] - 23
have pursued; rather, [the court] must examine whether counsel’s decisions had any

reasonable basis.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014) (citing Roney,

79 A.3d at 604). We have no hesitation in concluding that trial counsel had a reasonable

basis for declining to pursue defenses that required the admission of culpability when

Appellant fervently rejected such defense strategy. See Commonwealth v. Weaver, 457

A.2d 505, 506 (Pa. 1983) (holding that the authority to present a defense conceding

general liability is solely within the province of the accused). Accordingly, the PCRA court

committed no error of law in concluding that trial counsel’s performance was reasonable,

and, thus, his claim of trial counsel ineffectiveness fails. Similarly, the derivative claim of

appellate counsel ineffectiveness for failing to raise this issue on appeal fails for lack of

arguable merit.

             (2) Failure to Challenge Evidence of a Sexual Assault with a Shoe

       Appellant next contends that the PCRA court erred by rejecting his claim that trial

counsel was ineffective for failing to challenge, during the guilt-phase of trial, the

admission of evidence that he sexually violated Ascensio with a high-heeled shoe.

Appellant relies on comments made during opening statements to the jury, where the

prosecutor referenced that Ascensio’s injuries included “a woman’s shoe shoved into her

genital region.” N.T., 1/13/2000, at 440. Appellant further cites the testimony of Detective

Michael Scott Hose, who stated that while processing the crime scene he observed

Ascensio’s body in a staged position, half-dressed, lying on her back with her arms at her

sides, with her head resting on a pillow and “a high-heel shoe jammed up into her crotch

area.” N.T., 1/14/2000, at 756. Notably, Detective Hose gave no opinion as to who placed

the shoe in that manner. Finally, Appellant relies on the following statement made during

the prosecutor’s closing argument, “Then someone, still out of anger, took a shoe and




                                    [J-84A&B-2018] - 24
violated Miriam Ascensio again, and that someone was the Defendant.” N.T., 1/19/2000,

at 1206.

       Viewing    these   references   as   though   they   were   substantive   evidence

demonstrating that he sexually assaulted Ascensio with a shoe, Appellant contends that

trial counsel was ineffective for failing to challenge the admission of this purported bad

act evidence and for failing to refute such evidence with expert testimony.            To

demonstrate the arguable merit of his ineffectiveness claim, Appellant relies on the post-

conviction testimony of Dr. Charles Wetli, who opined that the photographs of Ascensio’s

body were inconsistent with sexual assault with a shoe or any type of penetration and

depicted, instead, that Ascensio was lying on the shoe, and that the shoe was impressed

between her buttocks. N.T., 7/27/2015, at 117. Appellant maintains that Dr. Wetli further

opined that the autopsy report supported his conclusion as the report indicated that there

were no injuries to Ascensio’s anal or vaginal areas. Id. He contends that crime scene

investigator, Robert Tressel, offered a similar opinion. Cross Brief of Appellee, at 89

(citing N.T., 3/28/2016, at 47).

       In light of this testimony, Appellant contends that trial counsel had no reasonable

basis for failing to challenge the evidence suggesting that he sexually assaulted Ascensio

with a shoe.     Finally, Appellant contends that if trial counsel had objected to the

challenged evidence or refuted it with expert testimony, there is a reasonable probability

that at least one juror would have given more weight to the defense’s good character

evidence and found that the Commonwealth failed to meet its burden of proving guilt

beyond a reasonable doubt.

       The Commonwealth’s straightforward response is that the trial court never

admitted any evidence of Appellant’s uncharged sexual assault; thus, trial counsel cannot

be deemed ineffective for failing to take steps to exclude or refute the same. It contends




                                   [J-84A&B-2018] - 25
that while the prosecutor stated in closing arguments that Appellant violated Ascensio

with a shoe, arguments are not evidence and the prosecutor’s reference emanated from

Detective Hose’s testimony that when he discovered Ascensio’s body, there was a high-

heeled shoe protruding from her genital region. Thus, the Commonwealth submits,

Appellant’s ineffectiveness claim lacks arguable merit, and trial counsel had a reasonable

basis for not pursuing the issue. Further, according to the Commonwealth, it strains logic

to conclude that Appellant was prejudiced or that the jury would have given more weight

to the character evidence had trial counsel refuted the evidence of the shoe’s placement.

        The PCRA court denied Appellant relief, although it did not address specifically

whether the court admitted evidence at trial that Appellant sexually assaulted Ascensio

with a shoe or whether trial counsel was ineffective for failing to object to or refute the

same.    Instead, the court viewed Appellant’s contention, perhaps too narrowly, as

challenging only trial counsel’s failure to object to the closing remarks of the prosecutor,

holding that trial counsel was not ineffective because the challenged comment could

reasonably be inferred from Detective Hose’s testimony that he observed the shoe

protruding from Ascensio’s genital area. See PCRA Court Opinion, at 61. 12, 13


12 To be precise, Appellant’s claim on appeal is not that trial counsel was ineffective for
failing to object to improper comments by the prosecutor, but that trial counsel was
ineffective for failing to object to evidence that he sexually assaulted Ascensio with a
shoe. Appellant does not challenge the PCRA court’s holding that the prosecutor’s
closing remarks in this regard were permissible as they could reasonably be inferred from
Detective Hose’s testimony.
13 Appellant also contends that the PCRA court erred by deeming this claim waived as
previously litigated. Cross Brief for Appellee, at 91-93. We do not interpret the PCRA
court’s opinion as so holding. While the court deemed waived as previously litigated a
claim captioned “Evidence of Uncharged Sexual Assault,” the several claims discussed
in that portion of the opinion related to trial counsel’s ineffectiveness for failing to
challenge the admission of evidence of sexual activity between Ascensio and Appellant’s
brother. See PCRA Court Opinion, at 62. The claims deemed previously litigated did not
involve an uncharged sexual assault committed upon Ascensio by Appellant with a shoe.


                                   [J-84A&B-2018] - 26
       We find no legal error in the trial court’s ultimate denial of relief on this claim. As

the Commonwealth cogently notes, Appellant identifies no substantive evidence admitted

at trial establishing that he violated Ascensio with a shoe. Rather, the prosecutor only

suggested the same during closing arguments, based upon Detective Hose’s trial

testimony regarding the placement of the shoe in Ascensio’s genital area. As statements

made during counsel’s closing arguments do not constitute evidence, there is no factual

predicate for Appellant’s ineffectiveness claim. See Commonwealth v. Freeman, 827

A.2d 385, 413 (Pa. 2003) (holding that “to the extent appellant alleges that the

prosecutor’s argument served to introduce ‘evidence,’ he is mistaken;” “[i]t is well settled

in the law that attorneys’ statements or questions at trial are not evidence”) (internal

citation omitted). Absent a factual basis, there is no arguable merit to Appellant’s claim

that trial counsel was ineffective for failing to challenge or refute evidence of an uncharged

sexual assault. Accordingly, the derivative claim of appellate counsel ineffectiveness

likewise fails for lack of arguable merit.

                                       (3) Cumulative Error

       In his final claim, Appellant submits that he is entitled to relief from his conviction

because the cumulative effect of the two trial errors discussed supra denied him a fair

trial.14 The Commonwealth views this contention as an undeveloped, “boilerplate” claim

that should be dismissed. Consolidated Reply Brief for Appellant and Brief for Cross-

Appellee, at 99. In Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009), this Court

held that cumulative prejudice from multiple instances of deficient performance may

properly be assessed in the aggregate when the individual claims have failed due to lack

14Appellant raises a similar claim of cumulative error based on errors that occurred in the
penalty phase of trial, which allegedly denied him a reliable capital sentencing
proceeding. As we are affirming the PCRA court’s grant of a new penalty hearing on a
single claim, we need not address any penalty phase argument based upon cumulative
error.


                                    [J-84A&B-2018] - 27
of prejudice. As we have not denied Appellant relief on any claims due to lack of

prejudice, he is not entitled to relief based upon cumulative error.

                                   B. Commonwealth’s Appeal

                             1. Violation of Caldwell v. Mississippi

       The Commonwealth first contends that the PCRA court erred by granting Appellant

a new penalty hearing based on a violation of Caldwell v. Mississippi, supra.               To

understand the parties’ arguments and the PCRA court’s holding, we begin with a

discussion of that decision. In Caldwell, the defendant was charged with capital murder

and was tried pursuant to Mississippi’s capital punishment statute. In defense counsel’s

closing argument, counsel emphasized that it was the jury’s responsibility to choose

whether the defendant received life imprisonment or the death sentence. In response,

the prosecutor sought to minimize the importance of the jury’s role by stating to the jury

that the defense “would have you believe that you’re going to kill this man and they know

-- they know that your decision is not the final decision . . . . Your job is reviewable.” Id.,

at 325. The trial court overruled defense counsel’s objection to that statement, deeming

it “proper that the jury realizes that [its verdict] is reviewable automatically as the death

penalty commands.” Id. When closing arguments continued, the prosecutor reiterated

that the state was not asking the jury to kill the defendant, and that the decision the jury

reaches is automatically reviewable by the Supreme Court. Id., at 325-26. The jury

thereafter convicted the defendant and returned a sentence of death.

       On appeal to the Mississippi Supreme Court, the defendant contended that the

prosecutor’s argument rendered the capital sentencing proceeding unfair and violated the

Eighth Amendment to the United States Constitution.15 The Mississippi Supreme Court


15 The Eighth Amendment provides “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST., amend. VIII.


                                    [J-84A&B-2018] - 28
could not reach consensus on the Eighth Amendment claim and affirmed the death

penalty by an equally divided court.

       The United States Supreme Court granted certiorari to address “whether a capital

sentence is valid when the sentencing jury is led to believe that responsibility for

determining the appropriateness of a death sentence rests not with the jury but with the

appellate court which later reviews the case.” Caldwell, 472 U.S. at 323. The Court

answered this inquiry in the negative, holding that “it is constitutionally impermissible to

rest a death sentence on a determination made by a sentencer who has been led to

believe that the responsibility for determining the appropriateness of the defendant’s

death rests elsewhere.” Id., at 328-29.

       The Court explained several ways that unreliability and bias could pervade a

capital sentencing determination in violation of the Eighth Amendment where the

prosecution suggests that the sentencing jury may shift its sense of responsibility to an

appellate court. Id., at 330. First, the Court recognized that bias against the defendant

could arise because the jury is unaware of the institutional limits placed on an appellate

court that render it ill-suited to evaluate the propriety of a death sentence in the first

instance. Id. These limitations include the inability of an appellate court to examine the

intangibles that a jury might consider in its sentencing determination, the inability to

examine the individuality of the defendant, and the inability to afford mercy to a defendant.

Id., at 330-31. Second, even when a jury may not be convinced that a death sentence is

appropriate, if the jury feels less responsibility for the verdict, it may wish to “send a

message” of disapproval for the defendant’s acts, believing that the appellate court could

correct its error on appeal. Id., at 331. Third, the Court found that bias could result from

a jury’s lessened sense of responsibility where the jury returns a death sentence based

on the belief, unrelated to a legitimate sentencing concern, that delegation of sentencing




                                   [J-84A&B-2018] - 29
authority from the jury to the appellate court occurs only where a death sentence is

rendered. Id. at 332. Finally, the Court explained that a jury may impermissibly minimize

the importance of its sentencing role when told by the prosecutor that its decision is

automatically reviewable as such argument would be highly attractive to jurors who are

placed in an unfamiliar situation and who are called upon to make a life and death

decision. Id., at 332-33.

       Notably, the Court rejected the State’s contention that the prosecutor’s improper

argument was “corrected” by a subsequent prosecutorial statement, informing the jury

that it played an important role in the sentencing process. Id., at 340 n.7. The Court

emphasized that the prosecutor did not retract or undermine his earlier suggestion that

the appellate court would review the jury’s verdict of death to guarantee its correctness.

Id. The Court held that “the prosecutor’s argument sought to give the jury a view of its

role in the capital sentencing procedure that was fundamentally incompatible with the

Eight Amendment’s heightened ‘need for reliability in the determination that death is the

appropriate punishment in a specific case.’” Id., at 340 (citing Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (plurality opinion)). If left undisturbed, the High Court reasoned,

such comments “might so affect the fundamental fairness of the sentencing proceeding

as to violate the Eighth Amendment.” Id.

       Based on Caldwell, Appellant contended in his PCRA petition that comments made

by the prosecutor and the trial court during the penalty phase opening and closing

arguments led the sentencing jury to believe that the responsibility for determining the

appropriateness of his death sentence rested with the trial court, and not within the

exclusive domain of the jury. He asserted that the prosecutor repeatedly informed the

jury that its verdict was a mere “recommendation” to the court and the trial court expressly

endorsed that view. Appellant submitted that trial counsel was ineffective for failing to




                                   [J-84A&B-2018] - 30
object to these statements, and that appellate counsel was ineffective for failing to

challenge trial counsel’s performance on appeal.

       The record establishes that on six occasions during the opening statements and

closing arguments of the penalty phase of trial, the prosecutor referred to the jury’s verdict

as a “recommendation.” See N.T., 1/20/2000, at 21 (stating to the jury in penalty phase

opening statements that “you are about to consider whether or not to recommend a

sentence of death” and “your only response in this matter is to recommend a sentence of

death”); id., at 22 (stating that if the jury finds that the aggravating factors outweigh the

mitigating circumstances the jury “must return a verdict of death and recommend death

for the killing”); N.T., 1/21/2000, at 127 (stating during closing arguments that the jury’s

duty is “solemn in that you are recommending, if you find that the aggravating

circumstances outweigh the mitigating circumstances, the death penalty in this case”);

id., at 134 (stating that when the judge asks the jury what the sentence is, the jury should

respond, “we recommend that the Defendant be imposed with a sentence of death”); id.,

(stating that “[t]he law requires a recommendation of death”).

       Following these references, during defense counsel’s closing argument, the

following exchange occurred wherein the trial court agreed with the prosecutor’s

misstatement of the law.

       DEFENSE COUNSEL: But again, that is why I chose you folks because I
       thought you would all try to be fair. So don’t look at him and say I hate that
       guy, he’s got to get the death sentence. That is not what this is all about.
       And [the prosecutor] certainly gave an impassioned plea. But you don’t
       have to kill anybody. You don’t have to kill anybody.

       PROSECUTOR: I object to that argument. They are not doing it. They are
       recommending the sentence.

       THE COURT: Objection sustained. That is an improper statement, ladies
       and gentlemen. I am the sentencing person. Your decision is a
       recommendation to the court.


                                    [J-84A&B-2018] - 31
N.T., 1/21/2000, at 136.
       Later the same day, in direct contravention of the trial court’s sentiment above, the

court included in its final charge to the jury the following statement, “Remember that your

verdict is not merely a recommendation. It actually fixes the punishment of life or death,

life imprisonment or death.”     Id., at 168.   The trial court did not acknowledge its

inconsistent statement made hours earlier or convey to the jury that the court’s prior

statement was erroneous.

       As noted, the PCRA court granted Appellant a new penalty hearing on his claim

that counsel was ineffective for failing to object to the Caldwell violation. Based on the

record summarized above and the clear pronouncement in Caldwell, the PCRA court

found merit to the ineffectiveness claim, thereby satisfying the first prong of the

ineffectiveness standard. PCRA Court Opinion, at 72. Regarding the reasonable basis

prong, the trial court observed that trial counsel candidly recognized at the PCRA

evidentiary hearing that he failed to object to the Caldwell violation. See N.T., 7/27/2015,

at 33-34 (trial counsel acknowledging that he technically should have objected when the

court indicated that the jury’s verdict was a recommendation, but opining that he believed

the jurors knew what they were doing because the trial court explained it to them during

voir dire).

       The PCRA court recognized that the trial judge, in the midst of final penalty

instructions, stated correctly that the verdict was not a mere recommendation. PCRA

Court Opinion, at 72. The court held, however, that the latter jury charge “only served to

create confusion in the jurors’ minds as to what their role in actual sentencing was.” Id.

The court concluded that prejudice was established as “the pervasive references of the

prosecutor to the jury that they [sic] were making a sentencing ‘recommendation,’ which

was actually reinforced at one point by the [c]ourt, and trial counsel’s failure to object,



                                   [J-84A&B-2018] - 32
deprived [Appellant] of a fair penalty phase trial.” Id., at 73 (citing Caldwell, 472 U.S. at

328-29).

       The Commonwealth challenges the PCRA court’s determination. It contends that

regardless of the comments made by the prosecutor and the trial court during the penalty

phase closing arguments, the final charge to the jury included at least fifteen references,

instructing the jury regarding its “sentence” of either life imprisonment or death. See, e.g.,

N.T., 1/21/2000, at 163 (stating that the jury must decide “whether to sentence the

Defendant to death or life imprisonment); id., (stating that the jury’s verdict “must be a

sentence of death” if you find at least one aggravating circumstance and no mitigating

circumstances); id., at 164 (stating that “[i]f 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”). The Commonwealth concludes that the trial court’s repeated use of the

term “sentence” in its final jury charge conveyed to the jury that its verdict was final and

dispelled any notion that the jury’s verdict served only as a recommendation to the court

regarding whether Appellant should be sentenced to life imprisonment or death.

Moreover, the Commonwealth points out that, consistent with Pa.R.Crim.P. 808, the

sentencing verdict slip also directed the jury to indicate “whether the sentencing verdict

is death or life imprisonment.”     Thus, it argues that there is no arguable merit to

Appellant’s ineffectiveness claim based upon a Caldwell violation.

       In support of its contention, the Commonwealth relies on this Court’s decision in

Commonwealth v. Uderra, 862 A.2d 74 (Pa. 2004), where we rejected a claim of trial

counsel ineffectiveness for failing to lodge a Caldwell objection to a statement made by

the prosecutor during closing argument in the penalty phase of trial. The challenged

prosecutorial statement in Uderra provided, “I am not going to ask you . . . to give Jose

Uderra the death penalty because you do not by your verdict give Jose Uderra the death




                                    [J-84A&B-2018] - 33
penalty.” Id., at 94. The prosecutor further stated, “What I am going to ask you to do is

not somehow give him the death penalty . . . but I am going to ask you to recognize that

he has earned the death penalty under the statutory system. . . .” Id. The Commonwealth

contends that while the Uderra Court disapproved of the statement in isolation because

it violated Caldwell, it held that when read in context, the prosecutor was merely advising

the jury that if it found one aggravating circumstance and no mitigating circumstance, a

verdict of death was required. Thus, the Commonwealth maintains, this Court in Uderra

rejected the ineffectiveness claim for lack of arguable merit.

       The Commonwealth submits that this case is akin to Uderra because, “[w]hen

viewing the penalty phase record as a whole, it is clear that the jury’s role in sentencing

was properly described by the [c]ourt.” Consolidated Reply Brief for Appellant and Brief

for Cross-Appellee, at 64-65 (citing, inter alia, Commonwealth v. Abu Jamal, 555 A.2d

846, 856 (Pa. 1989) (addressing a Caldwell claim upon review of the sentence hearing

record “in its entirety”)). Finally, the Commonwealth suggests that the word “recommend”

in connection with a jury’s verdict in a capital case “can be considered a colloquial use of

the term rather than an articulation of a standard,” and cites cases where both this Court

and the Superior Court have used such term colloquially in the recitation of facts in a

capital case. Id., at 65 (citing, e.g., Commonwealth v. Jacoby, 170 A.3d 1065, 1075 (Pa.

2017) (stating as a factual matter, “At the conclusion of the penalty phase, the jury

recommended a death sentence. On October 9, 2014, the trial court formally sentenced

Jacoby to death.”)).

       Appellant responds that the PCRA court correctly determined that trial counsel was

ineffective for failing to object to the improper comments made by the prosecutor and the

trial court, which violated his Eight Amendment right to a reliable sentencing proceeding.

Categorizing this case as a “textbook example of Caldwell error,” Appellant contends that




                                   [J-84A&B-2018] - 34
there is clear merit to the ineffectiveness claim as misleading a capital jury about its

responsibility in determining the appropriate sentence causes substantial unreliability as

well as bias in favor of death sentences. Cross Brief of Appellee, at 14. He emphasizes

that each of the six times the prosecutor mischaracterized the jury’s sentencing verdict

as a mere “recommendation,” the prosecutor encouraged the jury to view its verdict as

advisory and to believe that the court would ultimately decide Appellant’s sentence.

       Rather than issue a curative instruction, Appellant asserts, the trial court, like the

trial court in Caldwell, endorsed the prosecutor’s view that the jury’s sentencing verdict

was a mere recommendation in contravention of Pennsylvania’s capital sentencing

statute, which vests exclusive sentencing discretion in the jury. Cross Brief of Appellee,

at 17 (citing 42 Pa.C.S. § 9711(a)(1) (providing that “the jury shall determine whether the

defendant shall be sentenced to death or life imprisonment”); id., § 9711(f)(1) (providing

that “the jury shall deliberate and render a sentencing verdict”); and id., § 9711(g)

(providing that “[w]henever the jury shall agree upon a sentencing verdict,” the trial court

shall receive and record the verdict and “thereafter impose on the defendant the sentence

fixed by the jury”)).

       Appellant contends that this Court required a new penalty hearing in

Commonwealth v. Jasper, 737 A.2d 196 (Pa. 1999), which involved far less egregious

circumstances than those presented here. Appellant explains that in Jasper, the trial

court charged the jury that if it imposed a death sentence, “the case will be reviewed

thoroughly” and “the death penalty may be carried out.” Id., at 196. Notwithstanding that

the trial court advised the jury three times that its verdict was not a mere recommendation,

the Jasper Court found that, pursuant to Caldwell, the improper argument minimized the




                                   [J-84A&B-2018] - 35
jury’s sense of responsibility in determining the defendant’s sentence in violation of the

Eighth Amendment and Article I, Section 13 of the Pennsylvania Constitution.16

       Appellant submits that our holding in Jasper refutes the Commonwealth’s

contention that the trial court’s single, correct reference in its final jury charge cured any

errors arising from the repeated misstatements of the law that the prosecutor and the trial

court made during closing arguments. Citing both the High Court in Caldwell and this

Court in Jasper, Appellant posits that a strong curative instruction is required, which

expressly corrects the prior misstatement and firmly establishes that the jury alone is

responsible for the sentence. Cross Brief for Appellee, at 20 (citing Caldwell, 472 U.S. at

339; Jasper, 737 A.2d at 197-98). Here, Appellant argues, the trial court did not provide

such instruction but, rather, simply gave a contradictory statement of the law.

       Relating to the reasonable basis prong of the ineffectiveness standard, Appellant

discounts trial counsel’s assertion that while he technically should have objected to the

Caldwell violations, he believed the jury knew what it was doing, considering that the court

had explained the jury’s sentencing role during voir dire. Cross Brief of Appellee, at 22,

(citing N.T., 7/27/2015, at 33-34). Appellant argues that the record does not support this

assertion as the court gave an instruction during individual voir dire nearly identical to the

misstatement of the law conveyed to the jury during oral arguments.17              Appellant

concludes that trial counsel’s hindsight explanations cannot provide a reasonable



16Article I, Section 13 of the Pennsylvania Constitution provides that “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel punishments inflicted.” PA.
CONST., art. I, 13.
17Appellant cites the transcript from the individual voir dire of a prospective juror where
the trial court states that the court would “be the one to ultimately sentence a person who
was convicted of first degree murder and either give him life imprisonment or death . . .
you’re not actually sentencing a person. I would be the one to sentence him but I would
go along with the jury’s verdict.” N.T., 1/12/2000, at 393.


                                    [J-84A&B-2018] - 36
strategic basis for failing to comply with clear federal and state law precedent, which

prohibits the diminishing of the jury’s role in sentencing in capital cases.

       Finally, Appellant contends that prejudice arising from the failure to object to the

Caldwell violations is obvious as trial counsel’s inaction undermined the confidence in the

sentencing verdict. He reiterates the numerous times the prosecutor misstated the law,

the trial court’s express endorsement of that legally erroneous view, and the nature of the

improper remarks, which were not mere generic references to the appellate process but,

rather, were unambiguous and clear directives to the jury that it was not the final arbiter

of the sentence. Appellant points out that this is not a case where the death penalty was

required by statute, i.e., where the jury found only aggravating circumstances and no

mitigating circumstances.     He emphasizes that the jury found both mitigating and

aggravating factors, which it was required to weigh to determine the appropriate

sentence. Under these circumstances, Appellant insists that prejudice is established and

that this Court should affirm the grant of a new penalty hearing.

       Upon review, once again we conclude that the PCRA court’s findings of fact are

supported by the record and that its legal conclusions are free from error. Addressing the

arguable merit prong of the ineffectiveness standard, we keep in mind that prosecutorial

statements comprising alleged Caldwell violations “must be viewed in light of the

circumstances of the particular case to determine if those comments created a risk that

the jury’s deliberations and death penalty sentence were tainted by impermissible

considerations.” Commonwealth v. Smith, 650 A.2d 863, 869 (Pa. 1994) (citing Abu-

Jamal, 555 A.2d at 855); see also Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (explaining

that Caldwell prohibits prosecutorial comments that “mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel less responsible than it should for

the sentencing decision”) (citation omitted).




                                   [J-84A&B-2018] - 37
       We agree with Appellant’s characterization of this case as demonstrating a

“textbook example of Caldwell error.” As discussed at length supra, the prosecutor told

the jury six times, without objection or correction, that the jury’s sentencing verdict was a

mere recommendation, leading the jury to believe that it was not responsible for

determining Appellant’s final sentence. The last of these misleading comments came

during defense counsel’s closing argument, where defense counsel was attempting to

appeal to the jury’s proper sentencing role when the prosecutor interrupted with an

objection and a reminder that the jury’s “decision is a recommendation to the court.” N.T.,

1/21/2000, at 136. To compound the impact of these erroneous assertions upon the jury’s

deliberations, the trial court sustained the prosecutor’s objection, and expressly conveyed

to the jury, “I am the sentencing person. Your decision is a recommendation to the court.”

Id.

       These statements reflect the precise sentiments that the High Court in Caldwell

condemned as “constitutionally impermissible” because it “rest[s] a death sentence on a

determination made by a sentencer who has been led to believe that the responsibility for

determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell,

472 U.S. at 328-29. The instant case is arguably more egregious than Caldwell because

the improper comments made herein were more pervasive and did not merely reference

the appellate court’s role in the sentencing process, but specifically directed the jurors

that the trial court, and not the jury, would determine whether Appellant would receive a

sentence of life imprisonment or death.

       We reject the Commonwealth’s contention that the trial court’s final jury charge

cured any error that arose from the improper comments of the prosecutor and the trial

court during the penalty phase closing arguments. While the final charge correctly stated

that the jury’s “verdict is not merely a recommendation” and that it “actually fixes the




                                   [J-84A&B-2018] - 38
punishment,” N.T., 1/21/2000, at 168, the trial court did not acknowledge that it had given

an entirely inconsistent directive to the jury only a few hours earlier. Significantly, nothing

in the trial court’s final charge made clear to the jury that one of the contradictory

instructions was erroneous. See Francis v. Franklin, 471 U.S. 307, 322 (1985) (holding

that “[l]anguage that merely contradicts and does not explain a constitutionally infirm

instruction will not suffice to absolve the infirmity”); Commonwealth v. Cain, 398 A.2d

1359, 1363 (Pa. 1979) (stating that “[w]here a court gives two instructions, one erroneous

and prejudicial and the other correct, reversible error occurs”).18

       In fact, as Appellant cogently notes, this Court in Jasper found a Caldwell violation

where the trial court had given an improper directive to the jury, followed by three correct

instructions. In Jasper, the trial court instructed the jury, “Somewhere down the line, if

you do impose the death penalty, the case will be reviewed thoroughly.              And after

thorough review, the death penalty may be carried out.”           Jasper, 737 A.2d at 196.

Thereafter, the trial court instructed the jury three times that its determination was not a

mere recommendation, but that it was actually deciding the sentence. Nevertheless, this

Court concluded that the trial court’s instruction violated the Eighth Amendment under

Caldwell because it minimized the jury’s sense of responsibility in determining the

defendant’s sentence. We explained that “by stating that any death sentence would be

‘reviewed thoroughly’ and ‘may be carried out,’ the [trial] court unduly and unnecessarily

emphasized the role of appellate courts and gave the impression that any mistake which

the jury may make in imposing the death penalty would be corrected by appellate review.”

18 The High Court in Caldwell reached a similar conclusion, finding unpersuasive the
State’s argument that the prosecutor’s improper comments, minimizing the jury’s role by
emphasizing appellate review, were “corrected” by later prosecutorial comments
indicating that the jury played an important role in the sentencing process. Id., at 341 n.7
(stating that “the prosecutor did not retract, or even undermine, his previous insistence
that the jury’s determination of the appropriateness of death would be reviewed by the
appellate court to assure its correctness”).


                                    [J-84A&B-2018] - 39
Id., at 197. Notably, this Court rejected the Commonwealth’s contention that the trial

court’s correct instructions cured the improper remarks, holding that “the plain import of

the court’s remarks is that although the jury may impose the death penalty, it may not be

carried out, thus removing from the jury the responsibility for imposing the death penalty.”

Id. We concluded that this minimization of the jury’s sense of responsibility for its verdict

was a clear violation of the Eighth Amendment to the United States Constitution, as well

as a violation of Article I, Section 13 of the Pennsylvania Constitution. Id., at 198. We

reach the same conclusion here.19

       Also unpersuasive is the Commonwealth’s contention that this case is akin to

Uderra, where we ultimately denied relief on a Caldwell claim. In Uderra, based on

Caldwell’s Eighth Amendment requirement of maintaining the jurors’ sense of

responsibility for the verdict, this Court disapproved of the prosecutor’s admonition to the

jurors that “you do not by your verdict give Jose Uderra the death penalty.” Uderra, 862

A.2d at 94. Nonetheless, when read in context, we concluded that the prosecutor was

referencing the statutory requirement for the jury to return a death verdict upon

determining that there was at least one aggravating and no mitigating circumstances. Id.,

at 95. Emphasizing that the trial court reminded the jury of its fundamental responsibility

for the verdict both before and after the challenged comments by the prosecutor, this

Court in Uderra held that “there is no reasonable probability that [the prosecutor’s

comments] meaningfully diminished the jurors’ understanding of their overall role as the

sentencer.” Id. For the reasons set forth above, we cannot conclude that the comments

19 We further disagree with the Commonwealth’s suggestion that because the final jury
charge employed the term “sentence” at least fifteen times, any notion that the jury’s
sentencing verdict was a mere recommendation was dispelled. The fatal defect in this
argument is that the improper comments by the prosecutor referred repeatedly to the
jury’s “recommendation” of a “sentence” of death. See N.T., 1/20/2000, at 21, 134. Thus,
references in the final jury charge to a “sentence of death” did not alter the jury’s
perception that such sentence was not final, but only a recommendation.


                                   [J-84A&B-2018] - 40
by both the prosecutor and the trial court in the case before us did not meaningfully

diminish the jurors’ realization that they were the final arbiters of Appellant’s sentence of

life imprisonment or death.     Accordingly, we find merit to the claim of trial counsel

ineffectiveness.

       Proceeding to the reasonable basis prong of the ineffectiveness standard, we

conclude that trial counsel had no strategic reason for failing to object to arguments and

court instructions that constituted clear violations of both our federal and state

constitutions. As noted by the PCRA court, trial counsel acknowledged at the evidentiary

hearing that he should have lodged a Caldwell objection, but noted his belief that the

jurors “knew what they were doing” because the trial court had explained it to the jury

during voir dire. N.T., 7/27/2015, at 33-34. We decline to find this proposed strategy

reasonable as it is unsupported by the record and is insufficient as a matter of law,

considering the pervasive nature of the misstatements of law conveyed to the jury during

closing arguments.

       We further agree with the PCRA court that Appellant was prejudiced by trial

counsel’s inaction when the jury was led to believe that its sentencing verdict was not

final and that the trial court would determine whether Appellant received a sentence of

life imprisonment or death. See Commonwealth v. Baker, 511 A.2d 777, 790 (Pa. 1986)

(recognizing “the inherent bias and prejudice” to the defendant that resulted from the

prosecutor’s argument to the jury that the ultimate responsibility for determining the

appropriateness of a death sentence rested with the appellate courts, which violated the

Eighth Amendment under Caldwell and violated Article I, § 13 of the Pennsylvania

Constitution).     As Appellant observes, this is not a case where the jury found only

aggravating circumstances and no mitigating circumstances, which would result in an

automatic sentence of death. See 42 Pa.C.S. § 9711(c)(1)(iv) (providing that “[t]he verdict




                                   [J-84A&B-2018] - 41
must be a sentence of death if the jury unanimously finds at least one aggravating

circumstance specified in subsection (d) and no mitigating circumstance). Rather, the

jury had found both mitigating and aggravating circumstances, which it was required to

weigh to determine the appropriate sentence. Because the jury was misled regarding its

most fundamental role in determining the sentence of life imprisonment or death, we

conclude that the prejudice prong of the ineffectiveness test is satisfied.

       Finally, as Appellant’s claim is a layered claim of ineffectiveness, we must examine

whether appellate counsel was ineffective for failing to present on appeal a claim of trial

counsel ineffectiveness for failing to object to the Caldwell violation. Having concluded

that trial counsel was ineffective for failing to lodge a Caldwell objection to the erroneous

statements of the prosecutor and the trial court, we find arguable merit to the claim of

appellate counsel ineffectiveness. See Commonwealth v. McGill, 832 A.2d at 1023

(holding that where the petitioner has proven the three prongs of the Pierce standard

relative to the performance of trial counsel, the arguable merit aspect of the claim of

appellate counsel ineffectiveness is per se established).

       Further, we conclude as a matter of law that appellate counsel lacked a reasonable

strategic basis in failing to raise the Caldwell claim on appeal. We reiterate that appellate

counsel raised thirty-seven issues on direct appeal, twenty of which alleged the

ineffectiveness of trial counsel. None of those issues involved a clear constitutional error

warranting the grant of appellate relief, as does the Caldwell issue. This approach to

appellate advocacy does not reflect a reasonable appellate strategy that furthered

Appellant’s interests. As the Honorable Ruggero J. Aldisert of the United States Court of

Appeals for the Third Circuit has stated, “it is rare that a brief successfully demonstrates

that the trial court committed more than one or two reversible errors. I have said in open

court that when I read an appellant's brief that contains ten or twelve points, a




                                   [J-84A&B-2018] - 42
presumption arises that there is no merit to any of them . . . [and] it is [this] presumption .

. . that reduces the effectiveness of appellate advocacy.” Aldisert, “The Appellate Bar:

Professional Competence and Professional Responsibility–A View From the Jaundiced

Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original).

       Finally, for the reasons already articulated herein, we conclude that Appellant was

prejudiced by appellate counsel’s failure to raise the Caldwell issue on appeal.20

                                            IV. Conclusion

       Accordingly, we affirm the order of the PCRA court, which denied Appellant relief

on his guilt phase claims, but vacated his death sentence and granted him a new penalty

hearing.

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

       Chief Justice Saylor joins Parts I, II, III(A)(1), III(A)(3), and III(B) of the opinion,

except for the analysis of appellate counsel ineffectiveness, and concurs in the result

relative to the balance.




20In view of our conclusion that Appellant’s death sentence must be vacated based on
the claim that counsel was ineffective for failing to object to the Caldwell violation, we
need not address the additional issues set forth in the Commonwealth’s brief, which
challenge the PCRA court’s alternative ground for granting a new penalty hearing.


                                     [J-84A&B-2018] - 43
