J-S66019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

WILLIAM R. LANDIS, JR.,

                        Appellee                    No. 28 MDA 2016


             Appeal from the PCRA Order December 18, 2015
              In the Court of Common Pleas of Berks County
           Criminal Division, at No(s): CP-06-CR-0005405-2009


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED NOVEMBER 30, 2016

     This is an appeal by the Commonwealth from the order granting

William R. Landis Jr., (“Landis”) a new trial in response to his first timely

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546. We affirm.

     The PCRA court summarized the pertinent facts as follows:

            On October 28, 2009, at approximately 9:20 p.m., Berks
     County Radio dispatched Spring Township police officers to
     [Landis’s] residence to investigate a possible shooting. [Landis]
     had called to report that a woman had been shot. [Landis’s] wife
     was found dead on the second floor from a gunshot wound to
     the head. While performing a clearing operation of the residence,
     officers discovered [Landis] barricaded in the basement. [He]
     had a knife and two guns in his possession and threatened to
     shoot anyone who came down into the room. [Landis] became
     increasingly intoxicated as the evening progressed. Throughout
     the evening, [he] expressed suicidal ideas and asked about his
     wife’s condition.
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PCRA Court Opinion, 12/18/15, at 1. Appellant ultimately surrendered to the

police and was charged with the murder of his wife as well as various

charges as a result of his standoff with the police. Although Landis was to be

tried separately on the latter charges, the trial court permitted the

Commonwealth to present testimony regarding the standoff as evidence of

Landis’s consciousness of guilt. Landis did not testify, but presented fifteen

character witnesses.

      On April 5, 2013, a jury convicted Appellant of first-degree murder,

and the trial court sentenced him to life in prison. Appellant filed a timely

appeal to this Court. In an unpublished memorandum filed on April 10,

2014, we affirmed Landis’s judgment of sentence. See Commonwealth v.

Landis, 1018 MDA 2013 (Pa. Super., filed April 10, 2014). Landis did not file

a petition for allowance of appeal.

      On December 22, 2014, Appellant filed a timely counselled PCRA

petition in which he asserted that his trial attorneys were ineffective

because: 1) “despite sensational pre-trial publicity slanted toward conviction

[that] was so extensive, sustained and pervasive that the community was

saturated with it, there was never a motion to change venue or to enlist an

out-of-county venire;” 2) “despite a defense expert prepared to testify that

[he] lacked the requisite intent necessary to support a finding of guilt for

first degree murder, trial counsel failed to present the expert and failed to

articulate a clear diminished capacity defense at trial;” and 3) “trial counsel

failed to collectively investigate the case before trial, failed to prepare [him]

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for trial, failed to properly prepare witnesses to testify, and, despite having

received $250,000 to represent [him] ‘through the Common Pleas stage,’

demanded an additional $50,000 on the first day of trial under threat of

withdrawal from the case as evincing a decision not to present any defense

at all.” PCRA Petition, 12/22/14, at 3-4. In addition, Landis claimed that his

appellate counsel was ineffective for failing to raise an issue regarding the

denial of a mistrial in his statement of errors complained of on appeal,

thereby resulting in waiver.

      The PCRA court held evidentiary hearings over two days in June 2015,

and the parties agreed to file written closing arguments. By opinion and

order entered December 18, 2015, the PCRA court granted Landis a new

trial based on his claim that trial counsel failed to present the available

expert testimony in support of a diminished capacity defense. This timely

appeal follows. The Commonwealth raises the following issue on appeal:

      A. Did the PCRA court err in granting [Landis] PCRA relief after
         finding [his] trial counsel ineffective for deciding not to call a
         psychiatrist who would have offered an opinion to the jury
         that [Landis] was acting under diminished capacity and/or
         voluntary intoxication when he murdered his wife, despite
         evidence at the PCRA hearing that:

      1. Trial counsel’s strategy was based on Landis’s own decision to
         seek a full acquittal?

      2. Trial counsel’s strategy was based upon avoiding a second
         mental health evaluation by a Commonwealth expert which
         would have heightened a risk of further inconsistencies in the
         version of events provided by [Landis]?

      3. Trial counsel’s strategy was based upon an informed decision
         to prevent the jury from hearing testimony concerning

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          [Landis’s] unfavorable admissions to the defense expert which
          included heavy drug use and shooting the firearm that killed
          his wife?

Commonwealth’s Brief, at 4-5.1

       This Court has recently summarized the applicable standard of review

as follows:

               We review an order granting a petition under the PCRA in
       the light most favorable to the prevailing party at the PCRA
       level. This review is limited to the findings of the PCRA court and
       the evidence of record. We will not disturb a PCRA court’s ruling
       if it is supported by evidence of record and is free of legal error.
       Further, we afford great deference to the factual findings of the
       PCRA court and will not disturb those findings unless they have
       no support in the record. Instantly, [Landis], the defendant, was
       the prevailing party at the PCRA level. Thus, we must review the
       record in a light most favorable to him, not the Commonwealth.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en

banc) (citations omitted). In addition, we note that PCRA court made

credibility determinations in Landis’s favor. “We are bound by a PCRA court’s

credibility decisions.” Id. at 708 (citation omitted).

       To be entitled to relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that the conviction or sentence



____________________________________________


1
   The Commonwealth also raises issues regarding Landis’s other claims of
trial counsel’s ineffectiveness as enumerated above. The PCRA court did not
grant relief on any of these claims, and Landis has not filed a cross-appeal.
Thus, although both the PCRA court and the parties discuss these additional
claims, we confine our review to the only reason given by the trial court for
granting post-conviction relief in the form of a new trial.




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arose from one or more of the errors enumerated in § 9543(a)(2) of the

PCRA. One such error involves the ineffective assistance of 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.

See   42   Pa.C.S.A.   §      9543(a)(2)(ii).      This      requires    the   petitioner   to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner was prejudiced by counsel's act or omission. See Stewart, 84

A.3d at 706. In this context, a finding of “prejudice” requires the petitioner

to show “there is a reasonable probability that, but for the error of counsel,

the   outcome     of    the        proceeding      would          have    been    different.”

Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999) (citation

omitted). The law presumes counsel’s effectiveness; it is the petitioner’s

burden to prove the contrary. See Commonwealth v. Payne, 794 A.2d

902, 906 (Pa. Super. 2002). Counsel does not render ineffective assistance

for failing to pursue a meritless claim. See id.

      In order to establish that trial counsel was ineffective for failing to

investigate   and/or   call    a    witness   at    trial,    a    PCRA    petitioner   must

demonstrate that:




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     (1) the witness existed; (2) the witness was available; (3) trial
     counsel was informed of the existence of the witness or should
     have known of the witness’s existence; (4) the witness was
     prepared to cooperate and would have testified on appellant’s
     behalf; and (5) the absence of the testimony prejudiced
     appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation

omitted).

     In its opinion accompanying its order granting Landis a new trial the

PCRA court discussed the evidence presented at the PCRA hearings. The

court summarized the evidence relevant to Landis’s claim of failure to call

the defense expert as follows:

           At the request of [Landis’s] pretrial counsel, Larry A.
     Rotenberg, M.D., a criminal forensic psychiatrist, examined
     [Landis] for a total of six hours at Berks County Prison (BCP)
     during March 2010. Dr. Rotenberg also interviewed [Landis] for
     one hour on April 30, 2010 and an additional hour on May 12,
     2010.

           Dr. Rotenberg testified that [Landis] had a history of
     excessive use of drugs and alcohol. Although [Landis] thought
     about AA meetings, he never went to any. According to his
     report, [Landis] attended AA meetings at BCP. [Landis] told Dr.
     Rotenberg that he had used cocaine on the night of the incident.
     His urine was positive for cocaine at the time of his arrest. He
     had used more than his usual amount. His average use was
     between $200.00 and $350.00 per week. He had used cocaine
     on and off for five years. He smoked marijuana between the
     ages of nineteen and twenty-five and had taken “speed pills”
     approximately twenty-five years before his examination by Dr.
     Rotenberg. At the time of his arrest, [Landis] was fifty-one years
     old.

           Dr. Rotenberg concluded that [Landis] did not have the
     capacity to form the specific intent for the commission of
     murder. [Landis] was intoxicated with a Blood Alcohol Content of
     .230, nearly three times the definition of intoxication in the
     Commonwealth of Pennsylvania. According to Dr. Rotenberg,

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     [Landis’s] behavior on the night of this incident fits the criteria
     for diminished capacity.

           Dr. Rotenberg also believed that [Landis] fits the
     M’Naghten criteria for not guilty by reason of insanity with
     regard to the charges arising from the standoff with the police
     when he was in the basement. [Landis] had taken two sleeping
     pills and a Xanax. He was drowsy and in such a state of
     disorganization, that he was incapable of understanding that his
     actions were wrong. After he was incarcerated, the prison
     psychiatrist found that [Landis] had disorganizing anxiety. Dr.
     Rotenberg testified that it was “impossible” to compartmentalize
     the events of the shooting of [Landis’s] wife and the subsequent
     basement standoff with the police.

            Dr. Rotenberg did not testify at [Landis’s] trial. He was
     astonished that [Landis’s] trial attorneys did not use him as a
     witness. He believed that his report had a chance of being of
     significant assistance to [Landis]. Dr. Rotenberg believes that he
     may have had a telephone call with trial counsel. The only
     correspondence [from trial counsel] he could recall was an email,
     stating that he would not be called to testify, sent to him right
     before [Landis’s] trial.

           Dr. Rotenberg opined that [Landis’s] behavior had been so
     bizarre, so delusional, so purposeless, and so out of keeping with
     his personality when he was not intoxicated and on drugs, that it
     only showed that he wanted his own annihilation. Dr. Rotenberg
     made his medical/psychiatric conclusions to a reasonable degree
     of medical certainty.

          According to Dr. Rotenberg’s report, by the time of the
     murder, [Landis] had consumed three doubles of [Ketel] One
     vodka. Although the police said four shots were fired, [Landis]
     remembered only two shots. [Landis] told Dr. Rotenberg that he
     has no recollection of shooting at the police, “It is as if to him it
     never happened” (Dr. Rotenberg’s Report, [at] 12). [Landis] had
     wanted to hurt himself, but he told Dr. Rotenberg that he would
     never want to harm anyone else.

           Both trial counsel, Fortunato N. Perri, Jr., Esquire, and
     William J. Brennan, Esquire, testified at the PCRA hearing[s].
     Both could not recall details of Dr. Rotenberg’s report. Mr.
     Brennan testified that some things were good in the report, and
     some things were not. Mr. Perri disagreed with Mr. Brennan that
     overall Dr. Rotenberg’s conclusions were helpful. The attorneys

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     agreed that a classic M’Naghten defense could result in an
     acquittal.

            Mr. Perri further testified that the decision not to call Dr.
     Rotenberg was made sometime in September 2012, six months
     prior to the actual trial conducted in April 2013. Mr. Perri stated
     that his concern with the report was that [Landis] had made
     admissions to Dr. Rotenberg that he had not wanted the jury to
     hear. He had talked to Dr. Rotenberg. He testified that the
     attorneys had agreed not to call him because there had been
     inconsistencies between [Landis’s] statements to Dr. Rotenberg
     and to them. Mr. Brennan was also concerned that the
     Commonwealth would have called an “anti-Rotenberg” [expert] if
     trial counsel had used Dr. Rotenberg.

            [Landis] agreed with the decision not to call Dr. Rotenberg
     because he had thought that he would testify. He did not testify
     at his trial.

                                     ***

           Jonathan Kurland, Esquire, was lead counsel for the
     Commonwealth in [Landis’s] trial. . . . Mr. Kurland wanted a
     rebuttal expert opinion. He had scheduled an examination of
     [Landis] in late March 2013, but had canceled it after receiving
     an email from Mr. Perri stating that Dr. Rotenberg was not going
     to testify.

           Mr. Perri also testified that his work is ninety-five [percent]
     criminal defense. He had informed [Landis’s] family that Mr.
     Brennan had not been needed, but it had been up to them if
     they wanted both attorneys. He believed that there had been
     eleven visits to [Landis] from one of the two attorneys; however,
     his notes are different than the jail records.

           As he had talked to [Landis], [Landis’s] version of the
     incident had changed. He therefore concluded that no versions
     were justified and that [Landis] had no defense. [Landis] had
     refused to accept a manslaughter theory; he had wanted
     complete acquittal. Attorney Perri had not believed that there
     was any chance of winning the case if [Landis] had testified. He
     had not believed that [Landis] could have gotten through direct
     examination without admitting to murder. He had also been
     concerned about [Landis’s] cocaine use.

                                    ***

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           The attorneys had not hired any experts. Attorney Brennan
     had believed that Dr. Rotenberg’s conclusions were helpful, but
     he had been concerned with [Landis’s] long-term alcohol and
     drug abuse.

            Mr. Brennan had thought that [Landis] could have gotten
     through direct examination but would have folded on cross
     examination. Therefore, he had believed that it would have been
     too risky to have [Landis] testify.

           [Landis] . . . had wanted to testify but had listened to his
     attorneys’ advice and had not testified on his [own] behalf.

PCRA Court Opinion, 9/18/15, at 2-9.

     Based on this testimonial evidence, the PCRA court concluded:

           This court finds that trial counsel had no reasonable basis
     for not having Dr. Rotenberg testify. The potential damage of
     revealing through Dr. Rotenberg a history of drug and alcohol
     use does not outweigh the benefit of establishing a diminished
     capacity defense to the crucial element of specific intent to
     commit murder.

                                    ***

           There was little likelihood of avoiding a history of either
     drug or alcohol use being revealed to the jury in the course of
     the Commonwealth’s through presentation of evidence. Further,
     Dr. Rotenberg is an experienced forensic physiatrist who has
     performed thousands of psychiatric evaluations. He has testified
     many times for both the Commonwealth and defense. He is a
     compelling witness, and there is a reasonable probability that his
     testimony could have resulted in a conviction to Third rather
     than First Degree Murder.

            Most criminal trials have “anti-Rotenbergs” testifying for
     the [Commonwealth]. If the presence of an opposing psychiatrist
     were the main issue, a diminished capacity defense could not be
     presented. To avoid having a Commonwealth expert testify is not
     sufficient reason to eliminate the best witness the defense had.

          Mr. Brennan testified as to the apparent dangers of
     opening the door for anti-Rotenberg testimony. Although the
     Commonwealth had scheduled an evaluation of [Landis] by its


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     anti-Rotenberg expert, it was cancelled when the defense
     notified Mr. Kurland that they would not be calling Dr.
     Rotenberg. Therefore, missing from this entire analysis is a very
     crucial document—how helpful or harmful to the defense would
     this anti-Rotenberg report have been if the Commonwealth
     would have hired its own expert to evaluate [Landis] and issue
     his/her report.

            Did trial counsel have a valid strategy to defend their
     client? First and foremost, trial counsel did not present any
     testimony to contradict any evidence that was presented by the
     Commonwealth. Second[,] the evidence of [Landis] shooting and
     killing his wife is overwhelming. Third, defense had everything to
     gain and nothing to lose in presenting Dr. Rotenberg’s
     testimony. [Landis] needed his testimony to present [Landis’s]
     lack of intent to kill, the crucial element the defense was striving
     to disprove to raise a reasonable doubt that if and when [Landis]
     killed his wife he was not guilty of all the necessary elements of
     murder of the first degree. Without [Dr. Rotenberg’s] testimony,
     [Landis] had no real defense. With it, he had a renowned
     forensic psychiatrist who issued a 25 page report concluding
     diminished capacity of [Landis] to possess the specific intent to
     kill.

          [Landis] had no defense against the overwhelming
     Commonwealth evidence of First Degree Murder, especially
     without [Landis] having taken the stand to testify[.]

                                     ***

           Trial counsel contended [Landis] had changed his story
     over time; specifically, that [Landis’s] version changed from the
     time that he had talked to Dr. Rotenberg. That fact could
     actually help [Landis] because it could be convincing evidence of
     his diminished capacity at the time of the incident. Dr. Rotenberg
     examined [Landis] closer to the time of the shooting than
     counsel did. Dr. Rotenberg did not simply rely on [Landis’s]
     account of that evening. He consulted medical records, including
     those of the prison psychiatrist who had examined [Landis]
     shortly after his arrival at BCP. He also reviewed the incident
     reports, conducted interviews with [Landis’s] family and
     considered the results of a battery of psychological tests
     performed independently by an experienced psychologist, Dr.
     Peter Thomas.



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Id., at 12-15.

     The PCRA court further concluded that Dr. Rotenberg’s testimony was

necessary to counter the Commonwealth’s presentation of multiple police

witnesses   regarding   the   standoff    in   an   attempt   to   demonstrate

consciousness of guilt. The PCRA court reasoned:

        Dr. Rotenberg was also prepared to testify to a “M’Naghten
     defense” contrary to the Commonwealth’s theory that the
     basement standoff showed [Landis’s] consciousness of guilt for
     the killing of his wife. Dr. Rotenberg’s report also supported
     these expert opinions to a medical degree of certainty.

                                         ***

        Dr. Rotenberg, as stated previously, also concluded that
     [Landis] was legally incapacitated, fitting the classic M’Naghten
     defense, during the standoff in the basement.           Thus, this
     evidence controverted the Commonwealth’s argument of
     [Landis’s] consciousness of guilt. The Commonwealth found it
     extremely critical to its case in chief to argue to the jury
     [Landis’s] consciousness of his own guilt to the murder by his
     subsequent standoff with the police. This issue is so critical to
     the Commonwealth that the Commonwealth stated its case was
     “substantially handicapped” by this court previously granting
     habeas corpus relief to a single charge involving the basement
     standoff.

         [Landis’s] consciousness of guilt was so important to the
     Commonwealth that it filed an appeal to the Superior Court
     challenging this court’s habeas corpus ruling. Further when a
     Superior Court panel ruled against the Commonwealth and
     affirmed this court’s habeas corpus ruling[,] the Commonwealth
     appealed for a review by the entire Superior Court [which
     reversed. See generally, Commonwealth v. Landis, 48 A.3d
     432 (Pa. Super. 2012) (en banc).]

        Thus, Dr. Rotenberg’s expert opinion was essential to the
     most serious charges against [Landis], First Degree Murder of
     his wife. If the jury had heard that [Landis] was not responsible
     for his actions during this time in the basement, there is a
     reasonable likelihood that the outcome would have been

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     different; the jury would have heard an expert testify that
     [Landis] was incapable of knowing what he had been doing and
     therefore his actions did not mean that he was conscious of his
     guilt in killing his wife. The defense would argue that, if believed
     by the jury, it explained that he was not consciously fighting the
     police solely to avoid being captured and severely punished for
     his first degree murder of his wife. By defeating a consciousness
     of guilt it proves that [Landis] did not have the requisite intent,
     knowledge or state of mind to kill his wife by his actions in the
     basement.

Id., at 15-16.

     Following the above discussion, the PCRA court concluded:

           Consciousness of guilt of having killed his wife was used
     against [Landis] by the Commonwealth as evidence to prove his
     guilt of First Degree Murder. The jury was free to reject that
     argument. Expert testimony of Dr. Rotenberg was available to
     show to a degree of medical certainty that [Landis] was legally
     incapacitated to even have known that he killed his wife when he
     was in the basement holding off the police. This testimony,
     although available, was not presented by defense [counsel].

           The second legal defense, diminished capacity to possess
     the conscious intent to kill his wife, was also available through
     Dr. Rotenberg.

            The difference between first degree and third degree is, of
     course, very significant: mandatory life without parole versus a
     maximum of twenty to forty years with parole. Still trial counsel
     chose not to call a key witness to this very issue which goes
     directly to diminished capacity to have the specific intent to
     commit first degree murder. Trial counsel did not even meet with
     Dr. Rotenberg or talk with him beyond perhaps one telephone
     call. Considering the evidence against [Landis], there is far less
     risk that Dr. Rotenberg’s testimony could have harmed [him],
     compared to the greater benefit to be gained by presenting Dr.
     Rotenberg’s expert testimony to the jury.

Id., at 16-17.




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      Our careful review of the record supports the PCRA’s conclusions that

Landis’s claim that failing to call Dr. Rotenberg as a witness at his murder

trial was of arguable merit, that trial counsel had no reasonable basis for not

calling him, and that Landis sufficiently demonstrated how he was prejudiced

by its omission. As noted above, the Commonwealth presents several

reasons why the PCRA court’s conclusion is in error. We address each claim

separately.

      The Commonwealth first contends that because Landis desired an

outright acquittal on all charges, trial counsel cannot be ineffective for failing

to pursue their client’s wishes. We agree with the Commonwealth that if the

record establishes the defendant wanted only such a result, ineffectiveness

is not established. See, e.g., Commonwealth v. Spotz, 47 A.3d 63, 91

(Pa. 2012) (explaining that our Supreme Court has “consistently declined to

hold that trial counsel was ineffective for failing to advance a defense that

directly   and   irreconcilably   conflicted   with   the   accused’s   claims   of

innocence”). Our review of the PCRA hearing in this case, however, reveals

that while both trial counsel unequivocally testified that Landis wanted

nothing other than a full acquittal, the same cannot be said of Landis’s own

testimony.

      When questioned by PCRA counsel, Landis testified that he “had

basically two defenses. One would be Mr. Rotenberg’s report or testifying on

my own behalf, and the jurors wanted to hear from me.” N.T., 6/29/15, at


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193. According to Landis, “if [he] was going to be testifying, we would need

- - we wouldn’t need [Dr. Rotenberg’s] report” but if he was not going to

testify “[t]hen you need the report.” Id. at 197. Landis further testified that

his one adult daughter “had mentioned something that, you know, the

attorneys were saying to them about me not going on the stand and that I

should listen to my attorney.” Id. Although Landis expected to be called to

testify up until the last day of trial, he informed the trial court of his decision

not to, and relied upon counsel’s advice. See id. at 199-202; 214-15.

      Upon cross-examination by the Commonwealth, Landis originally

conceded that he was seeking an acquittal. See id. at 217. He then stated

that his trial counsel never understood how the struggle over the gun

occurred, and that he never intentionally shot his wife. When asked whether

his desire for going into trial “was to argue a lesser type of murder or was it

for you to be acquitted of all the charges[,]” Landis answered that he “[j]ust

wanted the truth to come out.” Id. at 219. When the Commonwealth

objected to this answer as non-responsive, and asked Landis again whether

he told his attorneys he wanted a not guilty verdict, Landis responded: “I

wanted the truth out, yes.” Id. at 220.

      The PCRA court interpreted Landis’s testimony as stating that Landis,

as with any criminal defendant, would ultimately desire a not guilty verdict.

Nevertheless, the PCRA court noted that such an expectation “was

completely contrary to the evidence.” PCRA Court’s Opinion, 3/4/16, at 5.


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Landis informed the court of his alternative defenses—call Dr. Rotenberg or

testify on his own behalf. Trial counsel presented neither. Thus, as stated by

the PCRA court, the failure to meet with Dr. Rotenberg and then “call [him]

as a witness . . . denied [Landis] the opportunity of establishing any defense

at all.” Id. at 6. Given these circumstances, we agree that Landis is entitled

to a new trial. See, e.g., Commonwealth v. Legg, 711 A.2d 430 (Pa.

1998) (rejecting this Court’s reversal, based upon the defendant’s desire to

seek an acquittal, of the PCRA court’s grant of new trial where trial counsel

was ineffective for failing to call an expert when available expert testimony

indicated that the defendant was suffering from major depression and

anxiety that would have prevented her from rationally forming the specific

intent to kill).

       The Commonwealth next claims that trial counsel’s failure to call Dr.

Rotenberg was a reasonable strategy because “avoiding a second mental

health evaluation by a Commonwealth expert that would have heightened a

risk   of   further   inconsistencies”    in   Landis’s   version   of   the   events.

Commonwealth’s Brief, at 27 (emphasis omitted). Citing Mr. Brennan’s

testimony, it posits that “the Commonwealth’s ability to call an “anti-

Rotenberg” was enough of a deterrent to not use Dr. Rotenberg at all.” Id.

       Like the PCRA court, we find this claim to be speculative, since trial

counsel did not even have meaningful contact with the expert. As stated by

the PCRA court:


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              This Court found that any harm to [Landis] from the risk of
       sustaining [Landis’s] version of the events to be de minimus.
       First, [Landis’s] version of the events reported to Dr. Rotenberg
       was closer in time to the shooting. Second, the version was
       supported by competent expert evidence and probative facts
       [presented by the Commonwealth at trial]. Any revised versions
       would have lent credence to [Landis’s] testimony of diminished
       capacity. Even if that failed, it would have been harmless to the
       outcome because [Landis] had already admitted that he had
       shot his wife. He either did it intentionally or accidentally. The
       worst case scenario that would have resulted by the presentation
       of a [Commonwealth] expert witness was that [Landis] shot his
       wife intentionally and thus was guilty of First Degree Murder, an
       already certain result with [Landis] having presented no
       evidence to contradict the Commonwealth’s evidence. This
       concern was therefore specious.

PCRA Court Opinion, 3/4/16, at 7.

       In its final attempt to establish error with regard to the PCRA court’s

award of a new trial based upon trial counsel’s ineffectiveness in failing to

call Dr. Rotenberg to testify at trial, the Commonwealth contends that

“[c]ounsel’s strategy was based upon on an informed decision to prevent the

jury from hearing testimony concerning [Landis’s] unfavorable admissions to

[Dr.   Rotenberg]    which    included   the   shooting    of   the   firearm.”

Commonwealth’s Brief at 28 (emphasis omitted). Citing again the PCRA

hearing testimony of trial counsel, the Commonwealth asserts that trial

counsel did not want the jury to learn of Landis’s long term drug and alcohol

use because “jurors have a problem with [evidence of such conduct]

sometimes.” Id. at 29. While such evidence is generally undesirable, it

would have been consistent with, and provide the basis for, a diminished

capacity defense.



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

regarding Landis’s admission to Rotenberg that he shot the firearm. The

court explained:

             [Landis’s] admission to shooting the firearm was already
       before the jury from the very beginning of the trial. Dr.
       Rotenberg, on the other hand, could have explained [Landis’s]
       mental capacity and confusion at the time of the shooting and
       afterwards, during the standoff. These additional details, if
       proved to the jury, would have changed the result of the trial.

PCRA Court Opinion, 3/4/16, at 7.

       In sum, because our review of the record supports the PCRA court’s

finding of trial counsel’s ineffectiveness, we affirm the court’s order granting

Landis a new trial.2

       Petition for remand denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2016
____________________________________________


2
  In light of our holding, we deny Landis’s petition to remand the case so
that the PCRA court can specifically state that it is vacating Landis’s
judgment of sentence. Such a result is implied by the PCRA court’s grant of
a new trial. Moreover, at a subsequent hearing on Landis’s motion for bail,
Landis’s counsel conceded that, as Appellant is still facing a first-degree
murder charge bail is prohibited by both statute and our state constitution.
See N.T. 2/23/16, at 3; 42 Pa.C.S.A. § 5701; and Article 1, Section 14 of
the Pennsylvania Constitution.




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