J-S50036-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA

              v.


 JAMES W. VANDIVNER,

                    Appellant.                No. 295 WDA 2018


              Appeal from the PCRA Order, January 17, 2014,
             in the Court of Common Pleas of Fayette County,
           Criminal Division at No(s): CP-26-CR-0001229-2004.


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED DECEMBER 31, 2018

      James W. VanDivner appeals from the order denying his first petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. This appeal comes to us after our Supreme Court’s remand. For

the reasons that follow, we affirm in part and vacate in part.

      VanDivner was originally sentenced to death for killing his former

girlfriend, Michelle Cable (“the victim”). In his direct appeal, our Supreme

Court summarized the pertinent facts as follows:

         Jessica Cable, [her brother, Billy,] and her mother [the
         victim], lived at 100 East Second Street, Grindstone,
         Fayette County. On July 5, 2004, Jessica was babysitting at
         a neighbor’s home. Between 8:30 and 9:00 p.m., Jessica
         saw [VanDivner] driving in the direction of her home and
         immediately ran home. When she arrived, she saw
         [VanDivner] get out of his vehicle and walk to the back
         porch of her home.     As Jessica followed, [VanDivner]
J-S50036-18


       entered the home through the back door, and, while walking
       through the home, encountered a family friend, Larry
       Newman, in the living room. [VanDivner] asked Larry
       where [the victim] was, and Larry pointed to the front door.
       [VanDivner] then opened the door and walked onto the sun
       porch.

          On the steps leading to the sun porch from the outside,
       [VanDivner] met [the victim] and her son, Billy Cable. As
       [VanDivner] walked onto the porch, Billy told him, “Dude,
       get off of my property.” [VanDivner] then pointed a gun at
       [the victim], at which point Billy pounced on [VanDivner] in
       an attempt to wrestle the gun from his hand. [VanDivner]
       managed to keep the gun and pointed it at Larry Newman’s
       head. Larry’s relative, Kenneth Newman, then rushed
       [VanDivner] and the gun fired. [VanDivner], who still had
       the gun, walked quickly to [the victim] and told her he was
       going to kill her. He grabbed her by the hair, shot her in
       the head, and, as she fell to the ground, stated, “There, you
       bitch, I said I was going to kill you.” [VanDivner] smiled
       and walked away. A motorist who was passing by saw
       [VanDivner] grab [the victim] by the hair and shoot her in
       the head.

          Meanwhile, after unsuccessfully attempting to take the
       gun from [VanDivner], Billy had gone inside the home to
       look for a weapon to protect his family. When he was unable
       to find a weapon, he left the home. As he stepped off the
       back porch, Billy saw [VanDivner] walking toward him with
       a gun in his hand. [VanDivner] pointed the gun at Billy, who
       turned to run away. [VanDivner] shot Billy in the neck and
       then left the scene. Police subsequently apprehended
       [VanDivner] in a field and recovered a Jennings J22
       handgun. As [VanDivner] was being taken into an interview
       room at the Pennsylvania State Police barracks, he blurted
       out to Trooper James Monkelis, “This is a death penalty case
       and I don’t want the needle, life for a life. Tell the DA I will
       plead guilty to life. I would have killed myself if I knew [the
       victim] was dead.”

          On July 8, 2004, Dr. Cyril Wecht performed an autopsy
       on [the victim] and determined that the manner of death
       was homicide in that she “died as a result of anoxic and
       cephalopathy, diminution of oxygen to the brain tissue with
       degeneration, early necrosis, death of the brain tissue,

                                    -2-
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        produced as a result of the gunshot wound to the head.” Dr.
        Wecht recovered the bullet from [the victim’s] brain and
        provided it to the State Police for analysis. Corporal David
        J. Burlingame, an expert in the field of firearm and toolmark
        examination determined that the bullet recovered from [the
        victim’s] brain was fired from the Jennings 22 handgun
        found in [VanDivner’s] possession at the time of his
        apprehension.

Commonwealth v. VanDivner, 962 A.2d 1170, 1173-74 (Pa 2009)

(“VanDivner I’).

     Our Supreme Court further summarized the procedural history following

VanDivner’s arrest as follows:

           Prior to trial, [VanDivner] filed a petition to bar the death
        penalty, alleging that he is [intellectually disabled] and has
        significant limitations in adaptive skills. He argued that,
        pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
        2242, 153 L.Ed.2d 335 (2002), the execution of [an
        intellectually disabled] person constitutes cruel and unusual
        punishment and requested a pretrial hearing to determine
        whether the death penalty should be barred in this instance.
        [The Honorable Gerald R. Solomon] held a four-day hearing
        on [VanDivner’s] petition at which [VanDivner] presented
        the testimony of two expert witnesses and several lay
        witnesses, and the Commonwealth offered the testimony of
        a psychiatrist and an official of the Department of
        Transportation.        Judge Solomon determined that
        [VanDivner] failed to meet his burden of proving that his
        limitations, if any, began before he was 18 years of age, as
        required by the standards for determining [intellectual
        disability] endorsed by this Court in Commonwealth v.
        Miller, 585 Pa. 144, 888 A.2d 624 (2005). Thus, based
        upon [VanDivner’s] failure to establish this element, the
        court denied the petition.

           A jury found [VanDivner] guilty of the first-degree
        murder of [the victim], criminal attempt to commit criminal
        homicide [and aggravated assault] with respect to Billy and
        the aggravated assault of Larry Newman. At the penalty
        phase hearing, the Commonwealth presented evidence of

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          two aggravating circumstances: (1) that, in the commission
          of the offenses [VanDivner] knowingly created a grave risk
          of death to another person in addition to the victim, 42
          Pa.C.S. § 9711(d)(7); and (2) that [VanDivner] had a
          significant history of felony convictions involving the use or
          threat of violence, id. § 9711(d)(9). The jury found both
          aggravating circumstances and one mitigating circumstance
          related to [VanDivner’s] character and the circumstances of
          his offense, id. § 9711(e)(8) (the “catchall” mitigator), and
          determined that the two aggravating circumstances
          outweighed the mitigating circumstance. Thus, the jury
          returned a sentence of death. On February 12, 2007, the
          trial court formally imposed the death sentence as well as a
          consecutive sentence of 20 to 40 years for the attempted
          homicide of Billy Cable, [a consecutive 10 to 20 years for
          the aggravated assault of Billy Cable,] and a sentence of 10
          to 20 years to run consecutively to [VanDivner’s] sentence
          for first-degree murder and attempted murder, for the
          aggravated assault of Larry Newman.

VanDivner, 962 A.2d at 1174-75.1

       VanDivner filed a direct appeal to our Supreme Court in which he raised

eight issues, including a challenge to the sufficiency and weight of the

evidence supporting his convictions, and three instances of trial court error—

limiting the testimony of his psychological expert, Adam Sedlock; determining

that VanDivner was not intellectually disabled; and failing to appoint an expert


____________________________________________


1 In the subsequent decisions in this case, our Supreme Court explained its
use of the term “intellectually disabled” instead of “mentally retarded.” See
Commonwealth v. VanDivner, 130 A.3d 676, 679 n.1 (Pa. 2013)
(“VanDivner II”); Commonwealth v. VanDivner, 178 A.3d 108, 110 n.1
((Pa. 2018) (“VanDivner III”). We shall use the term “intellectually
disabled” throughout this memorandum.




                                           -4-
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on intellectual disability who could have testified at the Atkins2 hearing.

Finding no merit to any of VanDivner’s claims, our Supreme Court affirmed

VanDivner’s death sentence.3

       On July 20, 2010, VanDivner filed a pro se PCRA petition. The PCRA

court appointed counsel, who twice filed amended petitions raising numerous

issues, including claims of ineffective assistance of trial counsel and a claim

involving VanDivner’s mental capacity. Following four days of hearings, the

PCRA court denied post-conviction relief. VanDivner then filed a timely appeal

to our Supreme Court.4

       The Court first addressed VanDivner’s ineffective assistance claim

involving his ineligibility for the death penalty pursuant to Atkins/Miller.

Following two remands so that the PCRA court could explain its reasoning vis-

à-vis the three prongs of the ineffective assistance of counsel test, our

Supreme Court ultimately concluded that

          the PCRA court’s determination that [VanDivner] failed to
          prove that he has significant adaptive limitations—which, in
          combination with his limited intellectual functioning and
____________________________________________


2See Atkins v. Virginia, 536 U.S. 304 (2002); see also Commonwealth
v. Miller, 888 A.2d 624 (Pa. 2005) (establishing procedure for applying the
decision in Atkins in Pennsylvania).

3 Justice Baer, in a concurring and dissenting opinion joined by Justice
McCaffery, took issue with the Majority’s rejection of VanDivner’s claim that
he is ineligible for the death penalty because he is intellectually disabled.

4 The Pennsylvania Supreme Court has exclusive jurisdiction over appeals
from the grant or denial of post-conviction relief in death penalty cases. 42
Pa.C.S.A. § 9546(d).


                                           -5-
J-S50036-18


          prior to age 18 onset, would render him ineligible for the
          death penalty under [Atkins/Miller]—is unsupported in
          both law and fact.

VanDivner, 178 A.3d 108, 122 (Pa. 2018).             Our Supreme Court further

concluded that “trial counsel’s performance was the result of insufficient

investigation, and not any reasonable strategy” and that VanDivner

established the requisite prejudice. Id. at 130. Finding he met his burden on

his ineffectiveness claim, the Court therefore, reduced VanDivner’s judgment

of sentence from a death sentence to a life sentence and transferred

VanDivner’s remaining PCRA claims to this Court for disposition. Id.5

       VanDivner raises the following issues:

          I.     Were trial counsel ineffective for failing to discover
                 and present the testimony of multiple eyewitnesses
                 who each supported a degree of guilt lesser than first-
                 degree [murder]?

          II.    Were trial counsel ineffective for failing to introduce
                 already-available evidence on diminished capacity?

          III.   Were trial counsel ineffective for failing to investigate
                 and develop the available evidence which supported a
                 voluntary manslaughter instruction that trial counsel
                 had requested?

          IV.    Did the PCRA court err by not permitting VanDivner to
                 amend his petition to include Brady violations first
                 revealed during the PCRA hearing? Did those Brady
                 violations deprive VanDivner of a fair trial?




____________________________________________


5 See Commonwealth v. Gibson, 925 A.2d 167, 171 (Pa. 2007)(explaining
that non-capital PCRA cases are within the jurisdiction of the Superior Court).


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            V.    Did the trial court violate double jeopardy in
                  sentencing VanDivner for both the attempted
                  homicide and aggravated assault of Billy Cable?

            VI.   Is VanDivner entitled to relief because of the
                  cumulative prejudicial effect of all of errors?

VanDivner’s Brief at 3.

         Our scope and standard of review is well settled:

            In PCRA appeals, our scope of review is limited to the
            findings of the PCRA court and the evidence on the record
            of the PCRA court's hearing, viewed in the light most
            favorable to the prevailing party. Because most PCRA
            appeals involve questions of fact and law, we employ a
            mixed standard of review. We defer to the PCRA court's
            factual findings and credibility determinations supported by
            the record. In contrast, we review the PCRA court's legal
            conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

         VanDivner’s first three issues allege the ineffective assistance of trial

counsel. To obtain relief under the PCRA premised on a claim that counsel

was ineffective, a petitioner must establish, by a preponderance of the

evidence, that counsel's ineffectiveness so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.     Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no


                                        -7-
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reasonable strategic basis for his or her action or inaction; and (3) counsel’s

act or omission prejudiced the petitioner. Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).      Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).          A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at

707. A PCRA petitioner is not entitled to post-conviction relief simply because

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d

576, 582 (Pa. Super. 1995).


                                      -8-
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       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

       Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

       At trial, VanDivner was represented by one attorney at the guilt phase,

and a different attorney for the death penalty phase. At the PCRA evidentiary

hearings, both counsel testified that, although they generally cooperated in

discussing and investigating various aspects of VanDivner’s case, each




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attorney performed separate duties at trial.6 VanDivner did not testify at any

of the evidentiary hearings.

      I.     Failure to Investigate and Present Testimony of Multiple

                                          Eyewitnesses

       In his first issue, VanDivner claims that “[t]rial counsel were ineffective

for failing to investigate and present evidence regarding the circumstances of

the crime that indicated [he] was not guilty of first-degree murder.”

VanDivner’s Brief at 18.        Specifically, VanDivner cites Jessica Cable’s trial

testimony that Jessica saw him grab her mother’s hair while he shot her at

point-blank range and then afterwards said, “There you, bitch, I said I was

going to kill you.”      Id.   According to VanDivner, “[a]t the PCRA hearing

multiple eyewitnesses testified this was not an execution-style shooting, and

furthermore, Jessica was not present when her mother was shot.” Id.

       In arguing that the trial court’s pre-trial investigation was inadequate,

VanDivner essentially argues that trial counsel was ineffective for failing to

investigate, interview, and call or subpoena for trial, five neighbor-

eyewitnesses who saw the “actual version” of the incident—sisters Cheree and

Jessica Parrill, their mother Kim Ropejko, as well as Chrissy Newman—who all

lived across the street, and Victor Chamberlain, who lived next door to the


____________________________________________


6 VanDivner refers to both counsel in his ineffectiveness claims and the PCRA
court refers to both counsel’s PCRA hearing testimony when addressing some
of VanDivner’s issues.


                                          - 10 -
J-S50036-18


victim’s home. This Court has noted that such a claim actually raises two

distinct issues:

             Neglecting to call a witness differs from failing to
         investigate [and/or interview] a witness in a subtle but
         important way. The failure to investigate presents an issue
         of arguable merit where the record demonstrates that
         counsel did not perform an investigation.            It can be
         unreasonable per se to conduct no investigation into known
         witnesses. Importantly, a petitioner still must demonstrate
         prejudice.     Id.    To demonstrate prejudice where the
         allegation is the failure to interview a witness, the petitioner
         must show that there is a reasonable probability that the
         testimony the witness would have provided would have led
         to a different outcome at trial.

            In this respect, a failure to investigate and interview a
         witness claim overlaps with declining to call a witness since
         the petitioner must prove: (i) the witnesses existed; (ii) the
         witness was available to testify; (iii) counsel knew of, or
         should have known of, the existence of the witness; (iv) the
         witness was willing to testify; and (v) the absence of the
         testimony was so prejudicial as to have denied the
         defendant a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en

banc) (citations omitted).

      As to the first part of VanDivner’s initial ineffectiveness claim, the

adequacy of pre-trial investigation and trial preparation, our Supreme Court

has explained that the reasonableness of the investigation depends upon the

information supplied to counsel, and that a hindsight analysis is inappropriate:

         Counsel has a duty to undertake reasonable investigations
         or to make reasonable decisions that render particular
         investigations    unnecessary.       See     Strickland     v.
         Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80
         L.Ed.2d 674 (1984). Where counsel has made a strategic
         decision after a thorough investigation of law and facts, it is


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          virtually unchallengeable; strategic choices are made
          following a less than complete investigation are reasonable
          precisely to the extent that reasonable professional
          judgment supports the limitation of investigation. See id.
          at 690, 691, 104 S.Ct. at 2066. As noted, an evaluation of
          counsel’s performance is highly deferential, and the
          reasonableness of counsel’s decisions cannot be based upon
          the distorting effects of hindsight. Id. at 689, 104 S.Ct. at
          2065. Furthermore, reasonableness in this context
          depends, in critical part, upon the information
          supplied by the defendant. See Commonwealth v.
          Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986),
          cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010
          (1987). Thus, assuming a reasonable investigation,
          where there is no notice to counsel of particular
          mitigating evidence, he cannot be held ineffective for
          failing to pursue it. See Commonwealth v. Howard,
          553 Pa. 266, 276, 719 A.2d 233, 238 (1998).

Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000) (emphasis

added).

      As to the adequacy of trial counsel’s pre-trial investigation, the PCRA

court, after hearing testimony from both counsel at the evidentiary hearing,

concluded that the pre-trial preparation and strategy in VanDivner’s case was

reasonable. It explained counsel’s efforts in detail:

             Attorney Susan Ritz Harper was appointed as counsel for
          [VanDivner] for proceedings post-arrest through his state
          court appeals, and Attorney Dianne Zerega was appointed
          to represent [VanDivner] during the penalty phase. At the
          hearing on [VanDivner’s PCRA petition], Attorney Zerega
          testified credibly that Attorney Harper and the investigator
          through the public defender’s [office] “went to the location
          and interviewed people in the community” and that
          [Attorney Zerega] “focused more on getting evaluators,
          talking to the family, trying to find records, that would help.”

             Attorney Harper testified convincingly that: At the time
          our investigator in the Public Defender’s Office was Mr. Judy,


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       and Mr. Judy and I went down into Grindstone, and knocked
       on all the doors of all the houses around [. . .] where the
       incident happened. We spoke to the people. If we didn’t, if
       there [was] no one home, no one who answered, we left
       Public Defender cards in the door with the telephone number
       to please contact us.        I believe Mr. Judy also did
       investigation with phone records. If someone contacted us,
       we would follow up on that.

          When questioned as to who Attorney Harper spoke to in
       the community, she responded from her notes, and named
       multiple people [whom] she and the investigator, Mr. Judy,
       interviewed. Attorney Harper stated that Jessica Parrill was
       contacted and that “she had nothing to say and wouldn’t
       speak to us.” Further, they attempted to contact Cheree
       Parrill, but “the numbers [they] were given—she didn’t live
       there” and Jessica Parrill would not provide any contact
       information for Cheree Parrill. Still further, Attorney Harper
       testified credibly that, “[f]rom all the cards I left on people’s
       doors, no one was calling back.”

           Other neighbors claimed to have memory loss or that
       they “knew [VanDivner] and “would not help us in any way,
       and hoped he never got out of jail.” Attorney Harper
       identified a community member, Ms. Mitchell, who
       witnessed [VanDivner] in a fight with William Cable,
       shooting him, chasing him, and then firing more shots.
       Based on that statement, Attorney Harper made a trial
       strategy decision to not call Ms. Mitchell as a witness since
       such testimony would admit [VanDivner] was shooting a
       gun and pursuing the minor victim. Attorney Harper was
       unable to find any eyewitnesses to refute the
       Commonwealth’s evidence that [VanDivner] shot the victim
       [. . .] at a close range, or any witness who told her that
       Jessica Cable was not present during the homicide of her
       mother.

                                     ***

          Further, the reasonableness of counsel’s investigative
       decisions depends critically on the information supplied by
       the defendant. We also find no evidence that [VanDivner]
       provided any name of witnesses to assist in his defense.

                                     ***


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            From the testimony, we conclude that Attorney Harper’s
         investigation was reasonable, including her utilization of an
         investigator, her visiting the crime scene to attempt to
         locate eyewitnesses to provide testimony to assist in her
         defense of [VanDivner], and her leaving business cards to
         contacted if any member of the community wanted to testify
         in aid of the defense of [VanDivner].

PCRA Court Opinion, 1/17/14, at 7-10 (citations omitted).

      Our review of the record supports the PCRA court’s conclusion that the

extent of trial counsel’s investigation was reasonable, given that the people

interviewed were either unwilling to testify or their proposed testimony would

have been detrimental to VanDivner’s defense.        While in hindsight, PCRA

counsel posits other measures trial counsel could have taken to locate the

eyewitnesses at issue, this hindsight analysis cannot form the basis of an

ineffectiveness claim. Basemore, supra.

      As to the second part of VanDivner’s initial claim of ineffectiveness, the

failure to call these eyewitnesses at trial, the PCRA court concluded that

VanDivner did not meet his burden of establishing all of the factors identified

above in Pander, supra:

         Based on the testimony of Attorney Harper, which we found
         to be credible, we cannot find that Jessica Parrill, Cheree
         Parrill, Kimberly Ropejko, Chrissy Newman, and Victor
         Chamberlain, were available or were willing to testify for the
         defendant at the time of trial.

                                      ***

         [VanDivner] has failed to show how the absence of the
         proposed testimony by these witnesses was so prejudicial
         to him to have denied him a fair trial. Specifically, there is
         no evidence to dispute that [VanDivner] intentionally shot



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         the victim at close range, whatever the actual distance may
         have been.

PCRA Court Opinion, 1/17/14, at 9-10. We agree. Because VanDivner did not

testify at any of the PCRA hearings, as correctly noted by the PCRA court,

there is no evidence of record that he provided trial counsel with the names

of any potential witnesses.

      VanDivner further claims that these witnesses gave “compelling,

synchronized evidence” which would have led to a conviction of only third-

degree murder. VanDivner’s Reply Brief at 10. This claim is belied by not

only our review of the record, but also by our Supreme Court’s rejection of

VanDivner’s challenge to his first-degree murder conviction in his direct

appeal. The Court summarized:

            The trial evidence overwhelmingly established that
         [VanDivner] killed [the victim] and it was amply sufficient
         to prove that he acted with a specific intent to kill. Four
         separate eyewitnesses to the murder testified that
         [VanDivner] shot [the victim] in the head with a handgun.
         Upon apprehension, [VanDivner] freely admitted to police
         that he had killed [the victim]. Dr. [Cyril] Wecht testified
         that [the victim’s] manner of death was homicide, caused
         by the gunshot wound to her head. Specific intent [was]
         also supported by the very fact that [VanDivner] went
         to [the victim’s] home with a loaded handgun, his
         contemporaneous statement that he told [the victim] that
         he would kill her, and the fact that he promptly followed
         through on this threat. Finally, the jury could infer
         specific intent from [VanDivner’s] use of a handgun
         upon [the victim’s] head.

VanDivner I, 962 A.2d at 1176 (emphasis added).




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      VanDivner’s claims to the contrary are without merit. Initially, we note

that VanDivner’s challenge to Jessica’s trial testimony ignores the testimony

of Patrick Rimel, who consistent with Jessica, testified that as he drove by he

saw VanDivner with a handgun, saw VanDivner grab the victim’s hair, and

shoot her in the head. See N.T., 2/7/07, at 114-19. Even if VanDivner shot

the victim in the head from a distance of ten to twelve feet, rather than, as

consistent with the expert medical testimony, in close contact to her, this in

no way vitiates the inference of a specific intent to kill. As noted by the PCRA

court, regardless of the distance from which VanDivner fired at the victim, the

inference of specific intent remains because VanDivner shot her in a vital part

of her body. PCRA Court Opinion, 1/17/14, at 10. Indeed, our Supreme Court

found the fact that VanDivner brought a loaded gun to the house established

his intent to kill. VanDivner I, supra. Thus, VanDivner cannot establish

prejudice from trial counsel’s failure to call these witnesses and his first

ineffectiveness claim fails.

         II.    Failure to Introduce Already-Available Evidence of

                                Diminished Capacity

      In VanDivner III, our Supreme Court found that testimony VanDivner

presented to establish his intellectual disability, both at the pre-trial Atkins

hearing and during the PCRA evidentiary hearings, rendered him ineligible for

the death penalty. Id. 178 A.3d at 122. In his second issue, VanDivner claims

that trial counsel were ineffective for failing to use the same evidence


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presented at the pre-trial Atkins hearing to establish a diminished capacity

defense to first-degree murder. See Commonwealth v. Taylor, 876 A.2d

916, 926 (Pa. 2005) (explaining that a successful diminished capacity defense

can reduce a murder conviction from first to third degree).            In short,

VanDivner claims that these same experts should have be used in order to

establish his inability to form the specific intent to kill.

      At his Atkins hearing, VanDivner presented the testimony of two

experts, Adam Sedlock, and Lawson Bernstein, M.D., to support his claim that

he was intellectually disabled. At his subsequent murder trial, VanDivner’s

trial counsel called only Sedlock, a local psychologist, who testified regarding

tests he performed on VanDivner, that indicated a low IQ of 66 and other

mental limitations. According to Sedlock, these tests showed that VanDivner

“has impairment, that there are organic traits, that he has problems with

impulsivity and that his cognitive problems he is experiencing indicate a poor

prognosis.” N.T., 2/8/07, at 291.

      VanDivner argues that trial counsel erred in failing to call Dr. Bernstein

and in failing to further question Sedlock about his ability to form the specific

intent to kill. He claims that since both Sedlock and Dr. Bernstein previously

testified that he was intellectually disabled, their testimony would show he

lacked the ability to form the specific intent to kill. VanDivner’s Brief at 36-

37. Using testimony from Kristine M. Jaquin, Ph.D., given at a PCRA hearing,

VanDivner claims that “both Bernstein and Sedlock’s opinions could have


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[easily] been developed to support the diminished capacity defense[.]”

VanDivner’s Brief at 38.

      After our careful review of the record, we find no merit to VanDivner’s

claim because he inappropriately applies a hindsight analysis to support his

claim of trial counsel’s ineffectiveness. See Commonwealth v. Fisher, 813

A.2d 761, 767 (Pa. 2002) (explaining “[s]peculation by hindsight that a

different strategy might possibly have been successful is not the test which

establishes ineffectiveness of counsel”). The fact that VanDivner now believes

that he should have relied on different portions of the experts’ previous

testimony does not establish that trial counsel’s performance was ineffective.

      Moreover, in VanDivner I, the Court outlined the parameters of the

diminished capacity defense:

         Diminished capacity, however, is an extremely limited
         defense. Psychiatric testimony that addresses mental
         disorders affecting the cognitive functions of deliberation
         and premeditation necessary to formulate a specific intent
         is admissible.     However, psychiatric evidence that a
         defendant lacked the ability to control his actions or that he
         acted impulsively is irrelevant and inadmissible on the issue
         of the defendant’s specific intent to kill.

VanDivner I, 962 A.2d at 1183 (emphasis added; citations omitted).

Although VanDivner focuses on certain expert testimony from the pre-trial

Atkins hearing that tended to show he was intellectually disabled, he cites no

authority that a finding of an intellectual disability equates, in all instances, to

a “mental disorder” that would prevent him from forming the specific intent

to kill. See VanDivner’s Brief at 33-41.


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      Finally, VanDivner cannot establish prejudice.        Although VanDivner

argues Sedlock was never asked directly if VanDivner’s mental limitations

would have prevented him from forming the specific intent to kill, Sedlock did

testify as to VanDivner’s low IQ, the fact that he exhibited damages to that

part of his brain which controls thinking before acting, as well as a history of

VanDivner’s head trauma. See N.T., 2/8/07, 283-291.          In her closing, trial

counsel cited this testimony to argue that VanDivner could not develop a

specific intent to kill.   Although our Supreme Court found that Sedlock’s

testimony was in fact inadmissible, VanDivner I, 962 A.2d at 1183, the

Commonwealth did not object on this basis, and the trial court instructed the

jury regarding the diminished capacity defense.

      As previously noted by our Supreme Court, VanDivner’s “jury was not

obligated to believe his claim . . . of diminished capacity, and apparently it did

not do so.”    VanDivner I, 962 A.2d at 1177.           This is understandable,

especially because VanDivner’s “own statement to police shortly after the

murder that he killed [the victim] and recognized that this case was a death

penalty case corroborates his full awareness of what he had done.”            Id.

VanDivner does not consider the effect of his own statement on his prejudice

analysis.   Because counsel had a reasonable basis for her trial strategy and

VanDivner cannot establish prejudice, VanDivner has failed to meet his burden

of proving his second claim of ineffectiveness.




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         III.   Failure to develop evidence to support a voluntary

                             manslaughter instruction

     In his third issue, VanDivner acknowledges that trial counsel requested

a jury instruction on the crime of voluntary manslaughter (heat of passion)

and that the trial court refused. VanDivner argues that trial counsel “were

ineffective for failing to uncover and present additional, readily-available

evidence to support the voluntary manslaughter instruction they had

requested.” VanDivner’s Brief at 42-43. This claim centers around evidence

that, on the morning of the killing, the victim and Larry Newman made ten to

fifteen harassing phone calls to VanDivner.

     Our Supreme Court has recently discussed the elements of this type of

voluntary manslaughter as follows:

           In order to successfully argue heat of passion, a
        defendant must prove (1) provocation on the part of the
        victim, (2) that a reasonable man who was confronted with
        the provoking events would become “impassioned to the
        extent that his mind was incapable of cool reflection,” and
        (3) that the defendant did not have sufficient cooling off
        time between the provocation and the killing.               See
        Commonwealth v. Busanet, 618 Pa. 1, 34-35, 54 A.3d
        35, 55 (2012) (holding no evidence of provocation where
        the victim’s threats against [Busanet] were made weeks
        prior to the shooting, thereby affording [him] sufficient time
        to engage in cool reflection) . . . Further, “[i]f any element
        is     missing,     the    provocation      defense       fails.”
        [Commonwealth v. Martin, 607 Pa. 165 5 A.3d 177
        (2010)].

Commonwealth v. Mason, 130 A.3d 601, 628 (Pa. 2015).




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     Here, the PCRA Court first discussed the evidence proffered by

VanDivner that would support a voluntary manslaughter instruction:

         “Serious provocation” means conduct sufficient to excite an
        intense passion in a reasonable person. 18 Pa.C.S. § 2301.

           To support this contention, [VanDivner] presented the
        testimony of the victim’s neighbor, Kimberley Ropejko, who
        testified . . . that around 7:30 or 8:00 on the morning of the
        shooting, Larry Newman made ten to fifteen phone calls to
        [VanDivner] discussing [Newman’s] relationship with the
        victim[.] [Id. at 161]. Ropejko could hear the telephone
        calls, and stated that Larry Newman did not threaten
        [VanDivner]. Id. [VanDivner] also presented the testimony
        of Cheree Parrill, the daughter of [Ropejko], and also a
        neighbor of the victim. Cheree Parrill testified regarding the
        relationship of the victim and [VanDivner] stating that,
        “They always partied. They argued. He drove up and down
        the road a lot.” N.T., 1/30/2013 at 7.

PCRA Court Opinion, 1/17/14, at 11-12.

     The PCRA court then discussed the testimony from both VanDivner’s

trial counsel with regard to the information they received regarding these

calls. After discussing relevant case law, the PCRA court then explained why

VanDivner’s ineffective assistance claim lacked merit:

           Here, [VanDivner] fails to show a correlation between
        Larry Newman . . . calling [VanDivner] numerous times on
        the morning of the shooting and how those actions could
        incite “serious provocation” in [VanDivner] such that it led
        to him shooting the victim some twelve hours later. Most
        importantly, the provocation, if any, came from Larry
        Newman. There is no evidence that the victim provoked
        [VanDivner]. Further, the most recent evidence of alleged
        provocation occurred twelve hours before the shooting, a
        time of sufficient “cooling” period for a reasonable person to
        regain his capacity to reflect.        Finding that sufficient
        evidence of provocation did not exist, and that [VanDivner]


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J-S50036-18


         had sufficient time to “cool off” if he had felt provoked, we
         cannot find trial counsel ineffective for failing to uncover and
         develop this evidence. We also note that [trial counsel] was
         aware of this evidence and, by reason of trial strategy and
         tactics, a determination was made to not attempt to
         introduce such evidence.

PCRA Court Opinion, 1/17/14, at 14. Our review of the record, along with the

case law cited above, supports the PCRA court’s conclusions.

      VanDivner’s claims to the contrary are unavailing. He first asserts that

there was evidence of additional phone calls to which the PCRA court did not

refer, including one made by the victim in which she told VanDivner that

another male was going to perform anal sex on him. VanDivner’s Brief at 50.

As acknowledged by VanDivner, however, Attorney Zerega knew about the

content of this call, but still maintained that the call was not helpful to

VanDivner’s defense. See N.T. 1/30/13, at 110-11.

      VanDivner further alleges that trial counsel’s investigation of this

evidence fell below the reasonableness standard. We disagree. See Mason,

130 A.3d 601, 630 (rejecting as meritless Mason’s claim regarding a heat of

passion defense based upon the “stormy relationship” he had with the victim;

even considering the other evidence proffered by Mason but not used at trial,

“it was not unreasonable for counsel to forgo attempting to persuade the jury

that [Mason] acted in the heat of passion”).        In short, VanDivner did not

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized.”    Commonwealth v. Clark,

supra.


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J-S50036-18



       Finally, again, VanDivner cannot establish prejudice in this claim.

According to VanDivner, “[h]ad the jury been presented with the taunting and

teasing both Larry Newman and [the victim] inflicted on [him] the jury would

have   determined     that   [he]    was   guilty   of   voluntary   manslaughter.”

VanDivner’s Brief at 48.        VanDivner further argues that a voluntary

manslaughter verdict would have resulted since trial counsel presented

“expert testimony regarding [his] inability to control his impulses.” Id.

       In support of his argument, VanDivner claims that the PCRA court

overlooked the fact that voluntary manslaughter is often found in cases

involving failed romantic relationships and triangles. Here, VanDivner claims

that the PCRA court “ignored the sequence of events which culminated in the

homicide,” and those cases “where the romantic relationship deteriorated over

a period of time while the antagonism escalated.” VanDivner’s Brief at 50.

       We disagree.     The evidence proffered by witnesses at the PCRA

evidentiary hearings revealed little information regarding the history of the

romantic relationship between VanDivner and the victim. Moreover, had such

a relationship been established, the fact remains that a twelve-hour period

elapsed between the alleged phone calls and the victim’s murder.               See

Mason, 130 A.3d at 629 (explaining that, “the passage of time between

provocation and the ‘passion’ must be viewed as a cooling period, and killings

will not be deemed to have occurred under the heat of passion where there

was sufficient time for cooling between whatever provocation might have

existed and the actual killings”).

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J-S50036-18



        VanDivner has failed to demonstrate that trial counsel was ineffective

for failing to produce at trial additional evidence to support a voluntary

manslaughter (heat of passion) jury instruction. Thus, VanDivner’s third claim

of ineffectiveness fails.

                  IV.    Amendment of PCRA; Brady violations

        In his fourth issue, VanDivner argues that the PCRA court erred by not

permitting him to amend his pleadings to include additional alleged Brady7

violations that were only discovered when Trooper Monkelis’ testified during

one of the PCRA evidentiary hearings.

        Regarding    alleged     Brady     violations,   our   Supreme   Court   has

summarized:

              In Brady, the United States Supreme Court held that the
          suppression by the prosecution of evidence favorable to an
          accused upon request violates due process where the
          evidence is material either to guilt or to punishment,
          irrespective of the good faith or bad faith of the prosecution.
          The duty to disclose may encompass impeachment evidence
          as well as directly exculpatory evidence, and the
          prosecution’s duty under Brady extends to exculpatory
          evidence in the files of police agencies of the same
          government prosecuting the case. Evidence is material if
          there is a reasonable probability that, had the evidence been
          disclosed to the defense, the result of the trial would have
          been different. However, the mere possibility that an item
          of undisclosed information might have helped the defense,
          or might have affected the outcome of the trial does not
          establish materiality in the constitutional sense.

Commonwealth v. Smith, 985 A.2d 886, 900 (Pa. 2009) (citations omitted).

____________________________________________


7   Brady v. Maryland, 373 U.S. 83 (1963).

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J-S50036-18



      In order to establish violations of Brady, VanDivner argues:

            The Commonwealth admittedly did not turn over a
         witness statement [(Randy Lee Price)] that would have
         impeached Larry Newman’s testimony to show [Newman]
         was drunk and combative on the night of the homicide.
         During the PCRA hearing, the lead investigator revealed
         additional evidence to support Larry Newman’s impaired
         state. [Trooper Monkelis] testified that Larry was “highly,
         highly, highly intoxicated” to the point where he could not
         be interviewed about the night’s events. The trooper also
         revealed that the state police had interviewed neighbor-
         eyewitnesses but did not memorialize those interviews in
         reports or disclose that evidence to the defense. The PCRA
         court erred by not permitting VanDivner to amend his
         pleadings to incorporate this new evidence. These Brady
         violations prejudiced VanDivner’s trial.

VanDivner’s Brief at 18-19.

      The PCRA court determined that, even if a Brady violation occurred

regarding the one undisclosed statement, trial counsel credibly testified at the

PCRA hearing that this information would not have changed their strategy,

and they would not have used the undisclosed statement:

             [Attorney Harper] was provided the witness statement of
         Randy Lee Price at the hearing on the instant PCRA Petition.
         After reviewing the statement, Attorney Harper testified
         that she would not have used Mr. Price as a witness at trial,
         or his statement during trial, nor would the statement have
         caused her to change her trial strategy. Under cross-
         examination, questioning as to whether the statement of
         Randy Lee Price could have corroborated the fact that Larry
         Newman was drinking, Attorney Harper agreed that it could
         have established that Larry Newman was drinking.
         Nonetheless, Attorney Harper testified, credibly, that she
         still would not have used the statement “[b]ecause if [she]
         brought Randy Price to testify, then [she] would assume he
         would be opened for [cross-examination on] his whole
         statement and [she] did not want the rest of that statement

                                     - 25 -
J-S50036-18


         to come in.      Attorney Harper explained her decision,
         “strategically I would not bring in someone to show that
         they are going to say someone is drinking if the rest of it is
         going to be, he is saying [VanDivner] called, threatened to
         kill them all. No I wouldn’t strategically bring it in for that
         limited purpose. I don’t believe [the statement] would be
         limited.”

            Attorney Zerega, who served as counsel for the penalty
         phase, was also provided the witness statement of Randy
         Lee Price at the hearing on the PCRA Petition. Having read
         the statement, Attorney Zerega testified that the statement
         of Randy Lee Price would not have changed her strategy or
         the testimony.

PCRA Court Opinion, 1/17/14, at 18-20 (citations omitted).

      Based upon the credible testimony of Attorneys Harper and Zerega that

the statement of Randy Lee Price would not have changed their trial strategy,

and that the statement would not have been used at either the trial or penalty

phase, the PCRA court concluded that VanDivner was not prejudiced by the

Commonwealth’s failure to provide Randy Lee Price’s statement. Id. at 20.

      Our review of the record supports the PCRA court’s conclusions.

VanDivner claims the PCRA court erred by not allowing him to amend his

petition to add the Brady claims. VanDivner also complains that the PCRA

court did not rule on his written request to amend. However, VanDivner was

not prejudiced by the PCRA court’s inaction because the request would have

been denied.    As noted above, the PCRA court specifically credited the

testimony from trial counsel.     As the record supports the PCRA court’s

credibility determination, the determinations are binding on this Court.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).


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J-S50036-18



         The PCRA court did not address VanDivner’s additional alleged Brady

claims regarding Trooper Monkelis’ testimony about Newman’s condition on

the night of the murder and the state police interviews other neighbor-

witnesses. Nevertheless, as these interviews were not memorialized, we find

no Brady violation.

         For the above reasons, VanDivner’s fourth claim fails. The PCRA court

did not err in refusing to allow VanDivner to amend his PCRA petition to add

Brady claims, and any Brady violation did not deprive VanDivner of a fair

trial.

                           V.      Illegality of Sentence

         The Commonwealth concedes VanDivner’s fifth issue, and acknowledges

that VanDivner’s illegal sentence claim is meritorious.         The trial court

sentenced VanDivner to 20 to 40 years of imprisonment for that attempted

homicide of Billy Cable and an additional 10 to 20 years of imprisonment for

the aggravated assault of Billy Cable. This was error; VanDivner’s convictions

for aggravated assault and attempted murder regarding Billy Cable should

have merged for sentencing purposes. See generally, Commonwealth v.

Anderson, 650 A.2d 20 (Pa. 1994). Thus, we vacate the consecutive term

of 10 to 20 years of incarceration imposed for VanDivner’s aggravated assault

conviction of Billy Cable.      The 20-40-year sentence for attempted murder

remains.     As this does not upset the trial court’s sentencing scheme, there is

no need for a remand. See Commonwealth v. Melvin, 103 A.3d 1, 56 Pa.

Super. 2014) (explaining Superior Court “has the authority to correct an illegal

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J-S50036-18



sentence directly rather than to remand the case for re-sentencing as long as

we do not disrupt the trial court’s sentencing scheme in doing so”).

                             VI.   Cumulative Prejudice

      In his sixth and final issue, VanDivner asserts that he is entitled to post-

conviction relief due to “the cumulative prejudicial effect” of the errors he

raises in this appeal. It is now well-settled that where “multiple instances of

deficient [trial counsel] performance are found, the assessment of prejudice

properly may be premised upon cumulation.”           Mason, 130 A.3d at 674

(citation omitted).    Except for VanDivner’s sentencing claim, we have

determined that all of his other claims do not merit relief. Thus, VanDivner’s

final issue fails.

      In sum, all of VanDivner’s claims on appeal, except for his fifth issue

regarding his sentence, are meritless. We therefore affirm those portions of

the PCRA court’s order denying him post-conviction relief.         However, we

vacate his 10 to 20-year sentence for the aggravated assault of Billy Cable.

      Order affirmed in part and judgment of sentence vacated in part.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018

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