                                    [J-47-2014]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT

    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :                No. 677 CAP
                              :
              Appellee        :                Appeal from the Order entered on
                              :                01/17/2013 in the Court of Common Pleas,
                              :                Criminal Division of Allegheny County at
         v.                   :                Nos. CP-02-CR-0011609-1997,
                              :                CP-02-CR-0012047-1997 and
                              :                CP-02-CR-0013318-1997
WAYNE CORDELL MITCHELL,       :
                              :                SUBMITTED: April 15, 2014
              Appellant       :


                                          OPINION


MR. JUSTICE STEVENS                                      DECIDED: December 16, 2014

          This is a capital appeal from the order of the Court of Common Pleas of Allegheny

County denying Appellant Wayne Cordell Mitchell’s first petition for relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.1 For the reasons that follow, we

affirm.

          The facts underlying Appellant’s conviction and sentence of death are discussed

more fully in this Court’s opinion resolving Appellant’s direct appeal.               See

Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430 (2006), cert. denied, 549 U.S. 1169,

127 S.Ct. 1126, 166 L.Ed.2d 897 (2007) (“Mitchell I”). In order to place Appellant’s

current collateral claims in context, some background is required.

1 This Court has exclusive jurisdiction of appeals from final orders denying
post-conviction relief in death penalty cases. See id. § 9546(d).
        The evidence adduced at trial indicated that Appellant and his estranged wife,

Robin Little, had a volatile relationship.     On September 1, 1997, Robin went to

Appellant’s place of employment to borrow his bus pass, and after she arrived, she told

Appellant she had engaged in sexual relations with another man. Appellant became

angry, dragged Robin into a supervisor’s office, and raped her. Robin reported the rape

to the police, and she underwent an examination at the Magee Women’s Hospital.

        While Robin was at the hospital, the police arrested Appellant, and after he waived

his Miranda rights,2 Appellant admitted in a taped statement that he had raped Robin.

Police Detective Doug Yuhouse noted that, during the taped statement, Appellant was

cooperative and did not appear to be under the influence of alcohol. The police charged

Appellant at CC No. 9712047 with rape, terroristic threats, unlawful restraint, and simple

assault for the September 1, 1997 attack on Robin. He was arraigned and remained in

jail pending a preliminary hearing, which was scheduled for September 9, 1997.

        On September 4, 1997, while Appellant was still in jail awaiting his preliminary

hearing, Robin filed for a Protection from Abuse (“PFA”) order.3 The court granted the

petition entering a ten-day temporary order, which directed Appellant to have no contact

with Robin pending a full hearing scheduled for September 10, 1997.

        At the September 9, 1997 preliminary hearing on the rape charge, Appellant

waived the charges to court in exchange for a nominal bond, with a condition that he seek

immediate in-patient treatment for alcohol abuse at St. Francis Hospital. However, for

reasons disputed at trial, Appellant was never admitted to the hospital for treatment on


2   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3   See 23 Pa.C.S. §§ 6101-18.



                                      [J-47-2014] - 2
September 9, 1997, as required by the agreement, and instead, he went home and began

calling Robin.

       During the afternoon of September 9, 1997, at approximately 4:15 p.m., Appellant

arrived at Robin’s home and the two argued. At 6:00 p.m., Appellant left, and at 1:00

a.m. on September 10, 1997, Appellant telephoned Sheila Britton, the former director of a

college-counseling program at the high school where Appellant and Robin attended.

Appellant told Ms. Britton he was going to Robin’s house to kill her because she had

“disrespected” him. Ms. Britton told Appellant to go to sleep. At trial, she testified that,

during their conversation, Appellant did not slur any of his words and spoke in coherent

sentences.

       Appellant later admitted to Detective Dennis Logan that, instead of going to bed,

he walked to Robin’s house, arriving at 1:30 a.m. Appellant argued with Robin, who was

sitting on the front porch, and punched her in the face and stomach, causing her to fall

against the door. When she tried to run, Appellant grabbed her and, when she resisted,

Appellant dragged her toward an empty lot near her home, continuing to punch her as she

tried to break free. At that point, Robin screamed for help, yelling, “He’s going to kill me.”

N.T. 10/5/99, trial, at 383. Appellant put a hand over Robin’s mouth and continued to

drag her.

       As they passed a house, Appellant saw a knife lying on the porch. Appellant

punched Robin several times, temporarily disabling her while he returned to the porch to

get the knife. When Robin attempted to pull herself up off the ground, Appellant pushed

her down and stabbed her in the stomach. He then removed her clothes, wrapped his

hands around her neck, and raped her, first vaginally and then anally. When Robin




                                       [J-47-2014] - 3
vomited blood, Appellant wiped her mouth with a rag and continued to rape her. When

he finished, he turned her over and stabbed her multiple times in the neck. Appellant

threw Robin’s clothes, the knife, and the bloody rag into a nearby sewer. Appellant later

told Detective Logan he left Robin’s body naked because “[i]f she wanted to f--k

everybody, now everybody could see her f--king body.” N.T. 10/5/99, trial, at 387.

       Appellant called Ms. Britton again at 4:00 a.m., and told her, “Robin Little is no

more.” Id. at 330. At 9:00 a.m., Appellant appeared in court for the PFA hearing;

however, when Robin failed to appear, the court dismissed the temporary PFA order.

When Appellant returned home, his mother informed him that Robin was found dead, and

upon his mother’s urging, Appellant decided to go to the emergency room of St. Francis

Hospital, where he reported sometime around noon on September 10, 1997.

       Meanwhile, at around 10:15 a.m., Robin’s naked body was discovered in a

backyard close to her home, and the police later discovered Robin’s clothes in the sewer.

Appellant’s clothing was recovered from a vacant house in a nearby neighborhood. As

soon as Robin’s body was discovered, homicide detectives began looking for Appellant

and learned he was being evaluated at the emergency room of St. Francis Hospital. As

Appellant was being released from the emergency room at approximately 1:54 p.m., the

police approached Appellant in the waiting room and asked him to accompany them to

their office. Appellant agreed to do so. During the short ride to the homicide office,

Appellant said he had nothing to do with Robin’s death, at which point Detective Logan

replied he did not want to talk about the case in the car.

       At the homicide office, Detective Logan told Appellant he wished to speak to him

about Robin’s murder, and Appellant was escorted to an interview room where, after




                                      [J-47-2014] - 4
waiving his Miranda rights, Appellant made a full statement to Detective Logan admitting

that he raped Robin on September 1, 1997, and that he raped her again and murdered

her on September 10, 1997. Detective Logan noted Appellant appeared in full control of

his faculties and provided a remarkably detailed account of his turbulent relationship with

Robin, as well as a full explanation of how and why he raped her twice and then murdered

her.

          In addition to the charges at CC No. 9712047, as set forth supra, the police

charged Appellant at CC No. 9713318 with rape, involuntary deviate sexual intercourse

(IDSI), and unlawful restraint for the September 10, 1997 attack of Robin. Moreover, at

CC No. 9711609, the police charged Appellant with one count of criminal homicide for the

September 10, 1997 strangulation and stabbing death of Robin. The Commonwealth

filed and served a timely notice of its intention to seek imposition of the death penalty.

          Appellant filed several pre-trial motions, which the trial court denied. On October

1, 1999, Appellant pleaded guilty to the charges arising from the September 10, 1997

sexual assault at CC No. 9713318. The court deferred imposition of sentence until after

trial on the remaining charges, which commenced before a jury on October 4, 1999. At

trial, the Commonwealth presented evidence from a number of witnesses, including

Robin’s mother, Robin’s sister-in-law, Ms. Britton, several police officers, the doctor who

examined Robin after the first rape, and the chief forensic pathologist from the coroner’s

office.




                                        [J-47-2014] - 5
       Although Appellant declined to testify, he presented testimony from several

witnesses, including his uncle, 4 Attorney Rosalyn Guy-McCorkle (Appellant’s former

defense attorney),    5   and Dr. Lawson Bernstein (a forensic neuropsychiatrist).        6


Appellant called these witnesses to support his diminished capacity defense that, due to

his psychological condition and long-term alcohol abuse, he was unable to form the

requisite specific intent to kill for a murder conviction.

       At the close of the trial, the jury rejected Appellant’s defense and found him guilty

of first-degree murder for the September 10, 1997 death of Robin at CC No. 9711609, as

well as the remaining charges of rape, unlawful restraint, and simple assault arising from

the September 1, 1997 incident at CC No. 9712047. Accordingly, as the Commonwealth

was seeking the death penalty, the jury remained empanelled for a separate

penalty-phase hearing. On October 13, 1999, after hearing additional testimony, the

same jury unanimously found two aggravating circumstances: Appellant committed the


4 Appellant’s uncle, Curtis Mitchell, claimed Appellant was at his house between 8:00 and
8:30 p.m. on September 9, 1997, and Appellant consumed alcohol while at the house.
5 Attorney Guy-McCorkle testified to meetings she had with Appellant on September 9,

1997, September 10, 1997, and September 11, 1997. She described Appellant as not
being coherent on September 9, 1997, tired on September 10, 1997, and confused on
September 11, 1997.
6 Dr. Bernstein opined Appellant suffered from a number of different psychiatric

conditions, including alcohol abuse and dependence, alcoholic hallucinosis, and
depression, which diminished Appellant’s capacity to premeditate, deliberate, and form
specific homicidal intent and be fully conscious of that intent. N.T. 10/5/99, trial, at
556-57. In forming his opinions, Dr. Bernstein explained he examined Appellant,
reviewed Appellant’s pediatric medical records, and reviewed Appellant’s records from
St. Francis Hospital, where Appellant had been twice admitted prior to the murder, once in
April of 1992 and again in May of 1992, when he was fourteen years old. Dr. Bernstein
also examined the St. Francis Hospital emergency room records from the day of the
murder, interviewed Appellant’s mother, and arranged for Appellant to undergo a brain
MRI and EEG test, the results of which for both turned out to be normal.



                                        [J-47-2014] - 6
killing while in the perpetration of a felony (rape) and Appellant was subject to a PFA order

restricting his contact with the victim when he killed her.7 The jury found no mitigating

circumstances. Consequently, the jury sentenced Appellant to death.

       On December 8, 1999, the trial court imposed a sentence of death for the

first-degree murder conviction and a consecutive aggregate of twelve years to

twenty-seven years in prison for the remaining charges at CC No. 9712047.              After

Appellant unsuccessfully sought to withdraw his guilty plea at CC No. 9713318, on

February 10, 2000, the trial court sentenced Appellant to eight years to twenty years in

prison for the September 10, 1997 rape to be served consecutively to both the death

sentence and the sentence imposed for the September 1, 1997 rape and related

offenses. The trial court imposed no further penalty for the remaining counts. On direct

appeal, this Court affirmed Appellant’s judgments of sentence. See Mitchell I, supra.

       On February 21, 2007, Appellant filed a timely pro se PCRA petition, 8 and

collateral review was assigned to the Honorable Randal B. Todd.            Members of the

Federal Community Defender Office for the Eastern District of Pennsylvania (“FCDO”)

subsequently entered an appearance on behalf of Appellant and filed a court-ordered

amended PCRA petition raising thirteen claims. The Commonwealth filed its answer,

and a five-day hearing was held in October of 2012, at which numerous witnesses

testified. The PCRA court ultimately denied relief. Still represented by the FCDO,

Appellant filed a counseled appeal and concise statement of errors complained of on

7 42 Pa.C.S. §§ 9711(d)(6) and (d)(18), respectively.
8 Appellant’s judgments of sentence became final on January 16, 2007, the date the
United States Supreme Court denied certiorari. Accordingly, Appellant’s pro se PCRA
petition, which was filed on February 21, 2007, was timely filed pursuant to 42 Pa.C.S. §
9545(b)(1).



                                      [J-47-2014] - 7
appeal, see Pa.R.A.P. 1925(b), and the PCRA court issued an opinion addressing each

of the alleged errors and concluding that it had properly denied relief.           See

Commonwealth v. Mitchell, CC Nos. 1997-11609, 12047, 13318, slip op. at 33 (C.P.

Allegheny, July 31, 2013) (“PCRA Court Opinion”).

      In reviewing the denial of PCRA relief, we examine whether “the PCRA court’s

determinations are supported by the record and are free of legal error.” Commonwealth

v. Robinson, ___ Pa. ___, ___, 82 A.3d 998, 1005 (2013) (quotation and quotation marks

omitted). See Commonwealth v. Strong, 563 Pa. 455, 461 n.3, 761 A.2d 1167, 1170 n.3

(2000) (“Since most PCRA appeals involveKissues raising mixed questions of fact and

law, our standard of review is whether the findings of the PCRA court are supported by

the record and free of legal error.”) (citations omitted). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court’s legal conclusions.”

Commonwealth v. Roney, ___ Pa. ___, ___, 79 A.3d 595, 603 (2013) (citation omitted).

      To be entitled to PCRA relief, Appellant must establish, 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), and that the allegation of error has not been

previously litigated or waived. See Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096

(2012).   For present purposes, the circumstances that would warrant relief are a

constitutional violation, or ineffective assistance of counsel, which so undermined the

reliability of the truth determining process that no reliable adjudication of guilt or

innocence could have taken place. See id.; 42 Pa.C.S. § 9543(a)(2).




                                    [J-47-2014] - 8
      With regard to ineffective assistance of counsel claims, the test we utilize in

Pennsylvania is substantively the same as the performance-and-prejudice standard set

forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

although this Court has divided the performance component into sub-parts dealing with

arguable merit and reasonable strategy.       Appellant must, therefore, show that: the

underlying legal claim has arguable merit; counsel had no reasonable basis for his act or

omission; and Appellant suffered prejudice as a result. See Commonwealth v. Pierce,

515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987). Because all three prongs must be

demonstrated, the ineffectiveness claim fails if any one of them is not proved. See

Commonwealth v. Busanet, 618 Pa. 1, ___, 54 A.3d 35, 45 (2012), cert. denied, ___ U.S.

___, 134 S.Ct. 178, 187 L.Ed.2d 122 (2013).

      Moreover, we note that Appellant’s direct appeal was pending at the time we

decided Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which held that

claims of ineffective assistance of counsel should be deferred until collateral review.

Appellant raised several claims of ineffective assistance of counsel on direct appeal and,

applying Grant retroactively, we declined to address the claims with no prejudice to

Appellant’s right to raise them on collateral review. See Mitchell I, supra. Since Grant is

applicable to this case, Appellant need not present his ineffectiveness claims as “layered”

claims. See Roney, supra. With this framework in mind, we now address Appellant’s

claims.

                                         Claim I

      In his first claim, Appellant challenges trial counsel’s stewardship as it relates to

the admission of his inculpatory statements, which he made to police on September 10,




                                     [J-47-2014] - 9
1997. As indicated supra, following the discovery of Robin’s body, the police learned

Appellant was at the St. Francis Hospital emergency room, and after Appellant was

discharged, detectives approached Appellant in the waiting room at approximately 1:54

p.m. When asked to accompany them to their office, Appellant agreed, and after arriving

at the homicide office, Appellant waived his Miranda rights and made several inculpatory

statements.

       Trial counsel filed a pre-trial motion to suppress Appellant’s confession.

Detective Logan later testified that, during the interrogation, Appellant did not appear to

be under the influence of alcohol, and Appellant specifically denied being under any such

influence. Further, Detective Logan indicated Appellant appeared to be in full control of

his faculties and spoke plainly. He clarified that, when the police went to find Appellant,

they discovered him in the hospital’s general emergency room where he had been seen

by a doctor and released. Detective Logan questioned Appellant about wanting to be

admitted for treatment in the psychiatric ward, and Appellant explained he went to the

hospital only at his mother’s insistence. Relying upon Detective Logan’s testimony, the

trial court denied Appellant’s pre-trial suppression motion.

       On direct appeal, appellate counsel argued the trial court abused its discretion in

denying the defense motion to suppress Appellant’s confession.          Mitchell I, supra.

Specifically, although appellate counsel conceded Appellant received his Miranda

warnings and signed a waiver form prior to confessing, appellate counsel claimed that

Appellant did not knowingly and intelligently waive his Miranda rights due to his

diminished capacity. Mitchell I, supra. In support of this contention, appellate counsel




                                     [J-47-2014] - 10
posited that Detective Logan approached Appellant immediately after psychiatric

treatment, as he was leaving the St. Francis Hospital emergency room.

       The Commonwealth, on the other hand, argued on direct appeal that the evidence

presented at the suppression hearing did not substantiate Appellant’s claim, and instead,

supported the trial court’s conclusion that Appellant’s statement was the product of a

rational and free waiver of his Miranda rights. Mitchell I, supra.

       In concluding Appellant had not demonstrated an abuse of discretion by the trial

court in denying the suppression motion, this Court held, in relevant part, the following:

       Notwithstanding Dr. Bernstein’s trial testimony that Appellant suffered from
       a number of different psychiatric conditions including alcoholic hallucinosis,
       Appellant did not present any evidence at the suppression hearing
       regarding his actual treatment or diagnosis at the emergency room, or any
       testimony regarding his mental health or alleged diminished capacity
       generally. Moreover, upon careful consideration of all the facts herein, we
       are satisfied that Appellant has not demonstrated an abuse of discretion by
       the trial court in denying his suppression motion. Detective Logan testified
       that when Appellant confessed he was in full control of his faculties,
       articulate, and coherent. This testimony was clearly relied upon by the trial
       court and was undisputed at the suppression hearing.

Mitchell I, 588 Pa. at 55, 902 A.2d at 452.

       Additionally, we noted that “there is no per se rule that a defendant’s waiver of his

constitutional rights is defective merely because his mental illness distorts [the]

defendant’s perceptions of reality.”      Id. at 56 n.14, 902 A.2d at 452 n.14 (citing

Commonwealth v. Logan, 519 Pa. 607, 549 A.2d 531, 537 (1988) (holding that a person

with a mental illness, including a history of hallucinations and delusions, may be capable

of waiving his constitutional rights, unless the confession flows from an internal

compulsion to confess that is rooted in a mental disease)). Accordingly, we concluded

Appellant’s argument of trial court error failed.




                                      [J-47-2014] - 11
       In seeking collateral relief, Appellant seizes upon the portions of our direct appeal

analysis, which indicated he failed to present evidence regarding his mental health or

alleged diminished capacity generally in support of his suppression motion.             Thus,

although Appellant acknowledges trial counsel moved to suppress his inculpatory

statements, and appellate counsel raised the denial of the suppression motion on direct

appeal, he now claims that trial counsel was ineffective in the manner in which he litigated

the suppression issue.9 Specifically, he posits that trial counsel was ineffective in failing

to present evidence at the suppression hearing establishing that Appellant: suffers from

brain damage and cognitive impairment; is alcohol dependent; was drinking excessively

on the day of the murder; appeared “out of it” and had bloodshot eyes at the time of his

statement; was incoherent at times later on the day of the murder and on the day after the

murder; and was likely suffering from alcohol withdrawal on the day of the murder.

Appellant appears to assert that introduction of this evidence would have led the trial

court to conclude his waiver was not knowing and intelligent because his mental status or

diminished capacity interfered with his ability to have a full understanding of the nature of

the right being abandoned and the consequence of the choice.

       As this Court noted in Appellant’s direct appeal, there is no per se rule that there

can be no voluntary waiver when a person is mentally ill. See Mitchell I, supra. See

also Sepulveda; supra; Logan, supra (holding defendants with proven psychological

defects are capable of waiving their constitutional rights and give voluntary confessions).


9   Although Appellant litigated on direct appeal the issue of whether the trial court erred in
denying his motion to suppress, we note that claims of ineffectiveness present a distinct
ground for relief such that Appellant’s ineffectiveness claim has not been previously
litigated. See Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108 (2012).



                                      [J-47-2014] - 12
      The voluntariness standard of Miranda requires that the prosecution prove
      by a preponderance of the evidence that the waiver is knowing and
      intelligent. This requires a two-step analysis. First, the waiver must have
      been voluntary in the sense that it was an intentional choice made without
      any undue governmental pressure; and, second, that the waiver must have
      been made with a full comprehension of both the nature of the right being
      abandoned and the consequences of that choice.

Logan, 519 Pa. at 619, 549 A.2d at 537 (citation omitted).

             Thus, in the suppression realm, the focus is upon police conduct and
      whether a knowing, intelligent and voluntary waiver was effected based on
      a totality of the circumstances, which may include consideration of a
      defendant’s mentalKcondition[.] Commonwealth v. Cox, 546 Pa. 515,
      686 A.2d 1279, 1287 (1996). When a defendant alleges that his waiver or
      confession was involuntary, the question is not whether the defendant
      would have confessed without interrogation, but whether the interrogation
      was so manipulative or coercive that it deprived the defendant of his ability
      to make a free and unconstrained decision to confess.

Sepulveda, 618 Pa. at ___, 55 A.3d at 1136-37 (quotation marks and quotations omitted).

      In developing his collateral claim, Appellant presents a laundry list of evidence,

supported with citations to the PCRA hearing transcript, which he claims was available to

trial counsel for use at the suppression hearing. For example, citing to four pages of

PCRA hearing testimony from Dr. Barry M. Crown, a neuropsychologist, see N.T.

10/15/12, PCRA hearing, at 290, 293, 296, 319, Appellant asserts trial counsel should

have presented testimony at the suppression hearing that Appellant suffers from brain

damage and cognitive impairment.       At the PCRA hearing, Dr. Crown testified he

conducted neuropsychological testing on Appellant on September 15, 2011, and he

opined Appellant has organic brain damage, resulting in functional impairments in

memory, reasoning, and control. Id. at 291-96, 319.

      Citing to two pages of PCRA hearing testimony, see id. at 227 and 390, Appellant

contends trial counsel should have presented testimony indicating that he is alcohol




                                    [J-47-2014] - 13
dependent. At the PCRA hearing, Dr. Richard Dudley, a psychiatrist who examined

Appellant for the appellate process, diagnosed Appellant as suffering from alcoholism in

remission due to his incarceration. Id. at 227. Moreover, at the PCRA hearing, Dr.

Duncan Clark, a psychologist who did not examine Appellant but reviewed various

records for PCRA purposes, opined Appellant suffered from alcoholism from

approximately the age of fourteen. Id. at 390.

      Citing to pages from the PCRA hearing testimony of Louis Harrell, who was a drug

and alcohol counselor at St. Francis Hospital, and Wayne Mitchell, Sr., who is Appellant’s

father, Appellant contends trial counsel should have presented testimony indicating

Appellant was drinking excessively during the day and night of September 9, 1997, as

well as the early morning hours of September 10, 1997.           Mr. Harrell testified he

counseled Appellant, who indicated he drank several times a week. Id. at 477-80.

Appellant’s father testified he saw Appellant at approximately 2:30 p.m. on September 9,

1997, and Appellant was drunk. Id. at 523.

      Citing to three pages from the PCRA hearing testimony of Brian Dallas, who was

Appellant’s friend, Appellant posits trial counsel should have presented evidence that

Appellant had bloodshot eyes and appeared “out of it” at about the time of his

interrogation by police. See id. at 543-45. Mr. Dallas testified that, after he learned of

Appellant’s arrest by watching the 5:00 p.m. news on September 10, 1997, Mr. Dallas

immediately went to the police station.      Id. at 542.   He saw Appellant, who had

bloodshot eyes, was crying, and looked “pretty much out of it.” Id. at 544.

      Citing to three pages from the PCRA hearing testimony of Rosalyn Guy-McCorkle,

Esquire, who represented Appellant initially in connection with his arrest for the




                                    [J-47-2014] - 14
September 1, 1997 rape of Robin, Appellant avers trial counsel should have presented

evidence he was incoherent on the day of September 10 and the next day.10 See id. at

98-99, 102. Attorney Guy-McCorkle testified she met with Appellant on September 11,

1997, in order to inform him that she would not be representing him in connection with the

murder case. Id. at 102. In the end, because she was uncomfortable with Appellant,

she decided to sever all ties with him. Id. at 97. Specifically, she testified that, on

September 11, 1997, Appellant seemed “delusional” in that he was “fixated” on Attorney

Guy-McCorkle, and he responded to her as if they were friends. Id. at 98, 102.

      Finally, citing to three pages from the PCRA hearing testimony of Dr. Clark,

Appellant asserts trial counsel should have presented evidence that he was likely

suffering from alcohol withdrawal on September 10, 1997. See id. at 399-401. Dr.

Clark testified that, according to Appellant’s records, he had episodes of binge drinking

and withdrawal.    Id. at 399.   He noted that the September 10, 1997 records from

Appellant’s St. Francis Hospital emergency room visit revealed Appellant had a heart rate

of 104, which is an indicator of alcohol withdrawal. Id. at 399-400. As a result thereof,

Dr. Clark opined Appellant would have been more moody and more susceptible to

persuasion on the afternoon of September 10, 1997. Id. at 400-401.

      In rejecting Appellant’s ineffectiveness claim, the PCRA court, noting it considered

Appellant’s proffered evidence on his waiver issue as set forth supra, concluded there

was no arguable merit to the underlying claim. For instance, the PCRA court specifically


10 Appellant also cited to two pages from the PCRA hearing testimony of his brother,
DeVaughn Mitchell, to support this assertion. See id. at 456, 459. We have reviewed
the cited pages and, while there is reference to Appellant’s father being passed out on the
couch, there is no reference to Appellant being incoherent.



                                     [J-47-2014] - 15
dismissed Dr. Clark’s opinions as “speculative,” not credible, legally insufficient, and

“clearly not rendered to a reasonable degree of medical certainty.” PCRA Court Opinion,

slip op. at 20-22.    Likewise, the PCRA court dismissed Attorney Guy-McCorkle’s

testimony regarding Appellant’s mental state as “vague,” based on limited contact with

Appellant, “dubious,” and not supportive of Appellant’s waiver contention. Id. at 23-24.

Similarly, the PCRA court rejected Mr. Dallas’ testimony as it related to Appellant’s waiver

argument as “neither credible nor persuasive,” and based on a short, eight minute

encounter, which under the circumstances, “sheds little light on [Appellant’s] mental

capacity to appreciate his rights.”11 Id. at 24-25.

       The PCRA court further concluded the evidence and testimony offered by

Appellant in support of his position (that his mental condition or diminished capacity

impaired his ability to knowingly, voluntarily, and intelligently waive his Miranda rights)

was contrary to the medical records submitted by Appellant at the PCRA hearing. Id. at

21. Specifically, the PCRA court found credible the records from Appellant’s September

10, 1997 St. Francis Hospital emergency room visit, which commenced at approximately

noon. The PCRA court noted that the hospital records revealed Appellant was being

11 We note the cited portions of Dr. Crown’s, Dr. Dudley’s, Mr. Harrell’s, and Appellant’s
father’s testimony does not support Appellant’s claim that he had a diminished capacity at
the time he waived his Miranda rights. For instance, Dr. Crown testified as to Appellant’s
brain damage and cognitive impairment, from which testing revealed Appellant was
suffering on September 15, 2011. Dr. Dudley and Mr. Harrell offered testimony as to
Appellant being an alcoholic, but they did not offer testimony that Appellant was
intoxicated or impaired when he waived his Miranda rights. Also, while Appellant’s father
testified he saw Appellant drunk, his reported observation was from approximately 24
hours prior to Appellant waiving his Miranda rights. Simply put, Appellant did not prove
that testimony from these witnesses would have assisted him in establishing that he did
not make his waiver with a full comprehension of both the nature of the right being
abandoned and the consequences of that choice. Logan, supra.



                                     [J-47-2014] - 16
evaluated for alcohol abuse, but his Breathalyzer reading was .000%. Id. at 21. The

hospital records noted no medical problems, Appellant’s physical status was “stable,” his

level of consciousness was noted as “alert,” his impulse control was noted as “good,” his

behavior was noted as “cooperative,” and he was noted to be neither suicidal nor

homicidal.   Id. at 21.   The hospital records further indicated Appellant denied any

current withdrawal, his appearance was noted as “appropriate,” his speech was noted as

“normal in tone, rate, and volume,” his “content of speech and thought” was noted as

“normal thought process,” and his perception was noted as “no distortion.” Id. at 21-22.

The report further established Appellant’s neurologic examination indicated his “cranial

nerves were ‘intact’ and deep tendon reflexes were ‘2+’ and his ‘coordination’ was

‘normal.’ He was found to be ‘physically stable.’” Id. at 22.

      The PCRA court concluded the hospital records confirmed the credible PCRA

hearing testimony of Detective Logan that, when he picked up Appellant at the hospital on

September 10, 1997, at 1:54 p.m., and read him the Miranda rights at 2:03 p.m., Appellant

was capable of understanding and waiving his rights, showed no signs of slurred speech,

had no red eyes, had a correct manner of walking, and gave an overall impression of

sound mind and body. Id. at 22 (quoting N.T. 10/15/12, PCRA hearing, at 344-45).

Thus, in consideration of all of the evidence and testimony presented, the PCRA court

concluded there was no basis to find trial counsel ineffective in failing to present at the

suppression hearing the list of evidence set forth by Appellant.

      We are bound by the PCRA court’s credibility determinations, which are supported

by the record, and we conclude its analysis is free of legal error. See Robinson, supra.

We discern no error in the PCRA court’s finding that, based on the credible evidence and




                                     [J-47-2014] - 17
testimony presented at the PCRA hearing, there was no obvious objective indication that

Appellant suffered from any mental illness or diminished capacity at the time he waived

his Miranda rights, such that the police conduct can be viewed as unconstitutional

manipulation warranting suppression.       Moreover, the totality of the circumstances

surrounding Appellant’s waiver of his Miranda rights and confession do not suggest that

Appellant’s alleged mental status interfered with the important, but simple (all he needs to

say is “no”) choice of whether to waive his constitutional rights. See Sepulveda, supra.

Thus, since the evidence Appellant posits trial counsel should have presented at the

suppression hearing would not have established that Appellant’s alleged mental health

issues interfered with his waiver, we conclude trial counsel was not ineffective in this

regard.

       Moreover, intertwined with his first claim, Appellant asserts trial counsel was

ineffective in failing to present at the suppression hearing the testimony of a forensic

pathologist to establish Appellant’s confession was inconsistent with the physical

evidence, thus leading to the legal conclusion the confession was coerced by police. In

developing this argument, Appellant admits his confession reveals that, on the night of

the murder, he raped Robin vaginally and anally, and he ejaculated in her rectum.

However, at the PCRA hearing, Dr. Charles Wetli, a forensic pathologist, testified that the

report from Robin’s rectal swab was negative for seminal fluid in the anal or rectal areas,

and although there was sperm inside of her vagina, there was insufficient evidence to

determine whether the ejaculate was “fresh.” N.T. 10/15/12, PCRA hearing, at 493-94.

Additionally, Appellant admits that his confession reveals he stabbed Robin, but Dr.

Wetli’s PCRA hearing testimony established that, since there was blood found on a wall




                                     [J-47-2014] - 18
just ten feet from Robin’s body, “most likely” there would have also been blood on the

perpetrator’s clothing, which was absent from Appellant’s clothes. Id. at 496.

       In rejecting Appellant’s contention, the PCRA court concluded, to the extent

Appellant’s confession was inconsistent with the evidence, the alleged inconsistencies

did not provide a basis to conclude Appellant’s confession was coerced, particularly in

light of the otherwise detailed nature of Appellant’s confession, which Appellant did not

dispute. Moreover, there was no evidence the interrogation was so manipulative or

coercive that it deprived Appellant of his ability to make a free and unconstrained decision

to confess. See Commonwealth v. Philistin, 617 Pa. 358, 383, 53 A.3d 1, 15 (2012).

Thus, the PCRA court found no arguable merit to Appellant’s underlying claim, and

therefore, Appellant was not entitled to relief on his ineffectiveness claim. The PCRA

court’s factual findings are supported by the record and we discern no legal error in this

regard. See Roney, supra.

                                         Claim II

       Appellant next maintains trial counsel was ineffective in advising him to plead

guilty to the rape, IDSI, and unlawful restraint charges underlying the September 10, 1997

murder of Robin at CC No. 9713318. Specifically, Appellant contends he pled guilty

based solely on trial counsel’s unreasonable advice that, by so doing, evidence of the

sexual offenses would be barred at trial and would not be considered as an aggravating

factor for purposes of imposing the death penalty. See Brief for Appellant at 20.

       We have held:

              Allegations of ineffectiveness in connection with the entry of a
              guilty plea will serve as a basis for relief only if the
              ineffectiveness caused [A]ppellant to enter an involuntary or
              unknowing plea. In determining whether a guilty plea was



                                     [J-47-2014] - 19
               entered knowingly and intelligently, a reviewing court must
               review all of the circumstances surrounding the entry of that
               plea.
       Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999) (internal
       citations omitted).

Commonwealth v. Fears, ___ Pa. ___, at ___, 86 A.3d 795, 806-07 (2014).

       In forwarding his PCRA claim, Appellant pointed to testimony he gave during the

January 7, 2000 hearing on his motion to withdraw his guilty plea. Specifically, at the

plea withdrawal hearing, Appellant testified trial counsel told him that none of the

evidence of the sexual offenses would be introduced at trial or considered by the jury as

an aggravating factor at the penalty-phase. N.T. 1/7/00, plea withdrawal hearing, at 3-5.

He additionally testified he had no other reason to plead guilty to the sexual offenses.12

N.T. 1/7/00, plea withdrawal hearing, at 3-5.

       While the PCRA court acknowledged Appellant gave this testimony during the

guilty plea withdrawal hearing, the PCRA court discounted Appellant’s reliance on his

self-serving testimony.13 The PCRA court discounted Appellant’s guilty plea withdrawal

hearing testimony, in part, because the record established Appellant was aware that his

guilty plea would not bar the jury from considering evidence of the September 10, 1997

sexual offenses. See PCRA Court Opinion, slip op. at 34-35. In this regard, the PCRA



12  Trial counsel did not testify at the plea withdrawal hearing.
13  The plea withdrawal hearing judge, who denied Appellant’s motion to withdraw his
guilty plea, indicated he denied Appellant’s motion to withdraw since the plea was entered
“largely for strategic purposes.” N.T. 2/10/00, sentencing hearing, at 3. See Mitchell I,
588 Pa. at 40 n.11, 902 A.2d at 443 n.11. That is, the judge found “[trial] counsel tried to
benefit from the severance in [Appellant’s] plea by arguing to the jury that there was some
remorse on his part because he had taken full responsibility for the rape and tried to use
that to show why would one plead guilty and accept responsibility for a crime and then
deny another one.” N.T. 2/10/00, sentencing hearing, at 3-4.



                                     [J-47-2014] - 20
court noted the following exchange, which occurred during Appellant’s guilty plea

hearing:

        [ADA]: So we’re clear--I’m sure [trial counsel] would not try to do this. We
        understand, of course, although we’re seeking a verdict of first-degree
        murder, that the jury will probably also be instructed in terms of
        second-degree murder, felony murder, a murder committed during the
        course of a rape, that no jeopardy attaches to the homicide of second
        degree by virtue of his plea; and you accept that notion; is that correct?
        [TRIAL COUNSEL]: I accept the notion.
        THE COURT: Right. Furthermore, that the jury will not only hear the
        evidence pertaining to the underlying felonies but will receive an instruction
        from the Court as to what those crimes are, just as if they were being
        instructed to determine guilt or innocence on those charges because
        they’re going to have to know what they are in order to determine whether
        the underlying felony existed. It’s an element of second degree.

N.T. 10/1/99, guilty plea hearing, at 21. See PCRA Court Opinion, slip op. at 34-35.

        Moreover, the PCRA court specifically found Appellant presented no testimony or

evidence at the PCRA hearing indicating trial counsel advised Appellant that, if he pled

guilty, absolutely no evidence of the sexual offenses would be presented to the jury

during the guilt or penalty phases.14 See PCRA Court Opinion, slip op. at 33. Rather,

the PCRA court found the only testimony presented during the PCRA hearing as to the

reasons counsel advised Appellant to plead guilty was trial counsel’s testimony indicating

he advised Appellant to plead guilty to “minimize the amount of evidence and data coming

out about [the sexual offenses] so that the jury would not be overwhelmed by those facts.”

See PCRA Court Opinion, slip op. at 31 (quoting N.T. 1/15/12, PCRA hearing, at 30).

        The PCRA court deemed trial counsel’s PCRA hearing testimony to be credible,

thus concluding trial counsel advised Appellant to plead guilty in order to minimize the

jury’s exposure to the evidence of the sexual offenses, and not, as alleged by Appellant,

14   Appellant did not testify at the PCRA hearing.



                                      [J-47-2014] - 21
advised him that such a plea would absolutely bar the jury from hearing any evidence of

the sexual offenses during the guilt and penalty phases. See PCRA Court Opinion, slip

op. at 35. Thus, finding no arguable merit to the underlying claim, the PCRA court found

counsel was not ineffective. Upon review, we conclude the PCRA court’s credibility

determinations and findings as to this issue are supported by the record, see Roney,

supra, and its legal conclusions are free of error. See Busanet, supra. Thus, the PCRA

court properly denied Appellant collateral relief on this ineffective assistance of trial

counsel claim.15

                                         Claim III

       Appellant’s next claim is trial counsel was ineffective in failing to investigate,

develop, and present evidence during the guilt-phase to undermine the credibility of a key

Commonwealth witness, Shelia Britton. Specifically, Appellant contends that, had trial

counsel interviewed Ms. Britton prior to trial, he would have discovered that Ms. Britton

briefly spoke to police officers during the morning when Robin’s body was discovered, but

she did not inform the police at that time about any telephone conversations she had with

Appellant. Additionally, Appellant asserts trial counsel would have discovered that Ms.

Britton remembered the telephone conversations only after she heard Appellant’s voice in

her sleep when she went to bed that night after Robin’s body was found, prompting her to


15 Appellant argues that, to the extent there was any waiver of his ineffective assistance
of trial counsel claim, post-trial and appellate counsel were ineffective in failing to raise
the ineffective assistance of trial counsel. See Brief for Appellant at 27. As indicated
supra, under the dictates of Grant, Appellant’s ineffective assistance of trial counsel claim
need not be “layered” and has not been waived. In any event, we note that it is
well-settled that, since Appellant did not prove his underlying claim of trial counsel’s
ineffectiveness, his derivative claims of post-trial and appellate counsel ineffectiveness
also fail. Commonwealth v. Elliott, ___ Pa. ___, 80 A.3d 415 (2013).



                                      [J-47-2014] - 22
go to a behavioral clinic the next morning.        N.T. 10/15/12, PCRA hearing, at 80.

According to Appellant, he was prejudiced by trial counsel’s failure to interview Ms. Britton

to discover the aforementioned information, which trial counsel could have then used to

impeach Ms. Britton’s trial testimony concerning the two telephone conversations she

had with Appellant on the night of the murder.

       As explained supra, Ms. Britton, a former director of a college-counseling program

at the high school where both Appellant and Robin attended, testified at Appellant’s jury

trial concerning telephone conversations she had with Appellant at 1:00 a.m. and 4:00

a.m. on the morning of Robin’s murder. In her trial testimony, Ms. Britton related, inter

alia, that, at 1:00 a.m., Appellant told her he was going to go to Robin’s house to kill her

because she had “disrespected him,” and at 4:00 a.m., he called her to report that “Robin

Little is no more.” N.T. 10/5/99, trial, at 330. Ms. Britton’s trial testimony was consistent

with a pre-trial statement, which she had given to police on July 23, 1998, approximately

ten months after the murder.16

       At the PCRA hearing, Ms. Britton testified that, after she gave the July 23, 1998

statement to police, she reviewed it in the office of then Assistant District Attorney (and

now Judge) Edward Borkowski.17 N.T. 10/15/12, PCRA hearing, at 77-78. She met

with then ADA Borkowski two or three times, making corrections to her statement. Id. at

78-79. Ms. Britton did not disclose in either her July 23, 1998 police statement or at

Appellant’s trial that she had briefly spoken to police on the morning Robin’s body was

16 Ms. Britton testified at the PCRA hearing that she could not remember whether she or
the police initiated contact on July 23, 1998. N.T. 10/15/12, PCRA hearing, at 76.
17 Edward Borkowski was a Court of Common Pleas judge as of the time of Appellant’s

PCRA hearing; however, for the sake of consistency, we shall continue to refer to him as
“then ADA Borkowski.”



                                      [J-47-2014] - 23
discovered, that she did not report the telephone calls at that time, or the manner in which

she subsequently remembered her telephone conversations with Appellant. However,

Ms. Britton testified at the PCRA hearing she told then ADA Borkowski prior to trial that

she had talked to two police officers the morning Robin’s body was discovered and she

told then ADA Borkowski the manner in which she later remembered the telephone

conversations, including the fact she went to therapy the next morning. Id. at 79-82.

Ms. Britton additionally testified that, if someone from Appellant’s defense team had

interviewed her prior to Appellant’s trial, she would have told them the manner in which

she remembered the telephone conversations. Id. at 82.

       Ms. Britton confirmed that, several years after Appellant was convicted and

sentenced, she met with then assistant federal defender Carol Wright, who assisted in

preparing Appellant’s federal habeas corpus petition. Appellant presented at the PCRA

hearing an affidavit from Attorney Wright, indicating that on August 1, 2007, she met with

Ms. Britton, who told her about the telephone calls. There is no indication in Attorney

Wright’s affidavit that, on August 1, 2007, Ms. Britton mentioned anything about briefly

talking to the police on the morning Robin’s body was discovered or the manner in which

she remembered the telephone conversations with Appellant. However, in the affidavit,

Attorney Wright recounted a subsequent telephone conversation she had with Ms. Britton

on March 20, 2008, wherein Ms. Britton told her the following:

              [T]he morning Robin died, Robin’s mother called and [Ms. Britton]
       went over to her house. The police were there and they questioned her,
       but she went totally blank and could not remember anything about her
       conversations with [Appellant] the previous night. She did not tell the
       police officers anything about her conversations at that time. That evening
       when she went to bed all she started to remember [was] her interactions
       with [Appellant] the previous night. She told me the following morning she
       called a mental health facility and made an appointment with a psychiatric



                                     [J-47-2014] - 24
       social worker. She discussed what she remembered with the social
       worker.
              [Ms. Britton] told me that a different set of police officers questioned
       her at a later time and she told them all that she remembered about the
       phone calls with [Appellant].
              Ms. Britton told us that she would have talked with [trial counsel]
       before trial and was surprised that they did not contact her.

Appellant’s PCRA Evidentiary Hearing Exhibit 16.

       Additionally, at the PCRA hearing, Ms. Britton confirmed that, on October 3, 2012,

two police officers came to speak to her, and she told them the manner in which she

remembered the telephone calls with Appellant. N.T. 10/15/12, PCRA hearing, at 83.

Ms. Britton admitted that, when Appellant’s PCRA counsel made an appointment to meet

with her, she choose not to attend the appointment and told him she would testify at the

PCRA hearing only if she were subpoenaed. Id. at 75. Ms. Britton indicated that, when

she first spoke to the police on the morning when Robin’s body was discovered, she did

not tell the police about Appellant’s early morning telephone calls because she was

extremely upset and shocked by the murder. Id. at 84-85. Ms. Britton confirmed that

her trial testimony concerning the telephone calls was accurate and, at the time of trial,

she recalled the telephone calls “vividly.” Id. at 86.

       To rebut portions of Ms. Britton’s PCRA testimony, the Commonwealth called then

ADA Borkowski to testify at the PCRA hearing. Then ADA Borkowski confirmed he was

the trial prosecutor for Appellant, and prior to Appellant’s trial, he had no awareness that

Ms. Britton had briefly spoken to police officers on the morning Robin’s body was

discovered. Id. at 166. He confirmed there was no police report generated from any

discussion the police had with Ms. Britton at that time, primarily because, to his




                                      [J-47-2014] - 25
knowledge, she was not a known witness on the morning Robin’s body was found. Id. at

166.

       Then ADA Borkowski confirmed the police first learned of the telephone

conversations Ms. Britton had with Appellant when they interviewed her on July 23, 1998,

and he subsequently met with Ms. Britton prior to Appellant’s trial to review the July 23,

1998 police report, which detailed her statement. Id. at 167-68. At this time, Ms. Britton

made handwritten corrections to the report. Id. at 168. Then ADA Borkowski testified

that, during his pre-trial interviews with Ms. Britton, she never told him the manner in

which she had remembered the telephone conversations, and more specifically, she

never told him she had remembered the telephone calls during a dream sequence or

otherwise after going to sleep. Id. at 168-69, 171.       He further had no information

revealing Ms. Britton was in therapy. Id. at 174-75. He indicated that, had Ms. Britton

provided him with information related to the manner in which she remembered the

telephone calls prior to trial, he would have disclosed the information to the defense. Id.

at 169, 172-73.    Then ADA Borkowski confirmed he first learned of Ms. Britton’s

allegation as to how she remembered the telephone calls when he was informed his

testimony might be required at Appellant’s PCRA hearing. Id. at 169.

       Trial counsel testified at the PCRA hearing that he was not made aware Ms. Britton

remembered her telephone calls with Appellant while she was sleeping or that she had

briefly spoken to police officers on the morning Robin’s body was discovered. Id. at 17,

19. Had he known this information, he would have used it to discredit Ms. Britton’s

testimony, which trial counsel described as “devastating evidence” against Appellant.

Id. at 19-20. Trial counsel admitted he did not interview Ms. Britton prior to Appellant’s




                                     [J-47-2014] - 26
trial, and he concluded such was “error on [his] part.” N.T. 10/15/12, PCRA hearing, at

20.

      In rejecting Appellant’s claim of ineffectiveness, the PCRA court noted “the claim

that counsel was ineffective presumes that [Ms.] Britton would have advised trial counsel

of th[e] information during [a] pre-trial interview.” See PCRA Court Opinion, slip op. at

51. However, the PCRA court found there was no credible evidence establishing that,

had trial counsel interviewed Ms. Britton pre-trial, she would have disclosed such

information to him. Id.

      In this regard, the PCRA court found the first time Ms. Britton revealed her contact

with police on the morning of the murder and the manner in which she recalled the

telephone calls was on March 20, 2008, when Ms. Britton spoke to Attorney Wright for the

second time, more than eight years after Appellant’s jury trial. Id. at 50. The PCRA

court found that, despite being given the chance to do so, Ms. Britton did not provide such

information when she made her statement to the police on July 23, 1998, when she later

made handwritten corrections to the July 23, 1998 police report, when she testified at

Appellant’s trial, or even when she initially spoke to Attorney Wright on August 1, 2007.

Id. at 51, 54. The PCRA court concluded that, based on then ADA Borkowski’s credible

PCRA testimony, despite being given a chance to do so, Ms. Britton did not provide the

Commonwealth with such information prior to Appellant’s trial. Id. at 54. In light of the

many “missed opportunities” for Ms. Britton to reveal the information now at issue, the

PCRA court did not deem credible Ms. Britton’s PCRA hearing testimony that, had trial

counsel interviewed her prior to Appellant’s trial, she would have disclosed either her

initial contact with police on the morning Robin’s body was discovered or the manner in




                                     [J-47-2014] - 27
which she alleged to have remembered the telephone conversations with Appellant.18

Id. at 54. Thus, concluding Appellant failed to prove a pre-trial interview of Ms. Britton by

trial counsel would have yielded the information at issue, the PCRA court concluded

Appellant failed to prove he was prejudiced by trial counsel’s failure to interview Ms.

Britton prior to trial. Id.

       This Court has recognized that trial counsel has a general duty to undertake

reasonable investigations or make reasonable decisions which render particular

investigations unnecessary. Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717

(2000). “The duty to investigate, of course, may include a duty to interview certain

potential witnesses; and a prejudicial failure to fulfill this duty, unless pursuant to a

reasonable strategic decision, may lead to a finding of ineffective assistance.”

Commonwealth v. Johnson, 600 Pa. 329, 351, 966 A.2d 523, 535-36 (2009).

Nevertheless, “we have never held that trial counsel is obligated to interview every

Commonwealth witness prior to trial.” Commonwealth v. Washington, 592 Pa. 698, 719,

927 A.2d 586, 598 (2007). The failure of trial counsel to interview a particular witness

prior to trial does not constitute ineffective assistance of counsel unless there is some

showing that such an interview would have been beneficial to the defense under the facts

and circumstances of the case. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293

(1999), cert. denied, 528 U.S. 975, 120 S.Ct. 422, 145 L.Ed.2d 330 (1999).

       Here, the PCRA court, observing the demeanor of the witnesses, concluded there

was no credible evidence establishing that any interview of Ms. Britton by trial counsel

18 Contrary to Appellant’s assertion on appeal, the PCRA court did not make a specific
determination affirmatively finding that Ms. Britton’s PCRA testimony of how she alleged
to have remembered the telephone conversations was credible.



                                      [J-47-2014] - 28
prior to trial would have revealed the information at issue. We agree with the PCRA

court that this inference is a reasonable one deriving from the evidence presented at the

PCRA hearing.

      Contrary to Appellant, we conclude the PCRA court’s credibility determinations are

supported by the record, and are thus binding on this Court. Commonwealth v. Williams,

619 Pa. 219, 61 A.3d 979, 992 (2013). To the extent Appellant asserts it was inherently

contradictory for the PCRA court to believe some portions of Ms. Britton’s PCRA hearing

testimony, but to disbelieve other portions, such as her testimony that, if interviewed by

trial counsel prior to trial, she would have revealed the subject information, we note the

PCRA court judge may believe all, some, or none of a particular witness’s testimony.

See Commonwealth v. Keaton, ___ Pa. ___, 82 A.3d 419 (2013); Mitchell I, 588 Pa. at 51,

902 A.2d at 449 (indicating finder of fact may believe all, part, or none of a witness’s

testimony). The fact the PCRA court disbelieved the portions of Ms. Britton’s testimony

upon which Appellant’s ineffectiveness claim was premised provides no grounds for

disturbing the decision below.    See Keaton, supra (recognizing this Court does not

disturb findings of the PCRA court that are supported by the record even where the record

could also support a contrary holding). Thus, we agree with the PCRA court that trial

counsel was not ineffective on this basis.

                                        Claim IV

      Appellant next alleges the Commonwealth failed to disclose evidence favorable to

him in violation of his constitutional right to due process as recognized in Brady v.




                                     [J-47-2014] - 29
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).19 Under Brady and the

decisional law it has spawned, a prosecutor has an obligation to disclose all exculpatory

information material to the guilt or punishment of an accused, including evidence of an

impeachment nature. Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 370 (2011).

Appellant contends the prosecutor here withheld the police department’s “3-0” form20 or

“some record” of Ms. Britton’s initial contact with police on the morning Robin’s body was

discovered. See Brief for Appellant at 37, 40.

      We dispose of this claim by noting the PCRA court found the credible evidence

failed to establish the responding officers in this case completed a “3-0” form or other

record indicating Ms. Britton had contact with the police on the morning Robin’s body was

discovered. See PCRA Court Opinion, slip op. at 54-55. Thus, since Appellant failed to

prove the evidence at issue ever existed, the PCRA court concluded Appellant failed to

establish a Brady violation. See Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666

(1999), cert. denied, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42 (2000) (finding Brady

claim failed where the appellant failed to show the alleged evidence ever existed).

      Upon review, we find the PCRA court’s factual findings are supported by the

record, and its conclusions of law are free from legal error.21 See N.T. 10/15/12, PCRA


19 Appellant does not allege in his brief that the Commonwealth violated Pa.R.Crim.P.
305 (pre-trial discovery and inspection), which was renumbered Pa.R.Crim.P. 573,
effective April 1, 2001. Rather, he argues the Commonwealth violated his general
Constitutional rights to discovery.
20 At the PCRA hearing, then ADA Borkowski explained the first uniformed officers at a
crime scene would generally complete a standard form, referred to as a “3-0” or initial
report, registering any persons who were present at the scene who may have relevant
information. N.T. 10/15/12, PCRA hearing, at 174.
21 Appellant additionally asserts that, to the extent the substantive Brady claim was

waived under 42 Pa.C.S. § 9544(b), prior counsel was ineffective. Because the
(continuedK)

                                    [J-47-2014] - 30
hearing, at 166-67 (then ADA Borkowski testified there was no report generated from Ms.

Britton’s alleged initial contact with police on the morning Robin’s body was discovered);

Id. at 170 (then ADA Borkowski testified, to his knowledge, police first interviewed Ms.

Britton on July 23, 1998, and she made no mention of alleged initial contact with police);

Id. at 173-74 (then ADA Borkowski testified there was no paperwork or forms generated

by police indicating Ms. Britton talked to police on the day Robin’s body was discovered);

Id. at 165 (then ADA Borkowski testified he had “an open file,” a practice in which he

turned over to the defense every document of which he was aware, including police

reports and notes); Id. at 50 (trial counsel confirmed that, if then ADA Borkowski had a

report related to Ms. Britton, he would have disclosed it to him).

                                            Claim V

       Appellant next asserts trial counsel was ineffective in failing to provide, prior to trial,

critical evidence to the court-appointed defense psychiatric expert, Dr. Lawson Bernstein,

a forensic neuropsychiatrist. Appellant lists such critical evidence, which we shall refer

to collectively as “the Britton and Little documents,” as including: (1) the July 23, 1998,

police report of Ms. Britton’s account of Appellant’s telephone conversations with her

before and after the murder of Robin; (2) letters Appellant sent to Ms. Britton after the

killing indicating Robin deserved to die; and (3) entries from Robin’s journal in which she

indicated Appellant had threatened to kill her. 22 Appellant reasons that, due to the




(Kcontinued)
underlying contention lacks merit, derivative claims of ineffectiveness necessarily fail.
See Roney, supra.
22 At trial, Robin’s mother testified about the couple’s relationship and read excerpts from

Robin’s journal.



                                       [J-47-2014] - 31
ineffectiveness of counsel in failing to provide “the Britton and Little documents” to Dr.

Bernstein, he was prejudiced during the guilt and penalty phases.

         To understand this claim, some additional background is required. The record

reveals Dr. Bernstein spent approximately one hour examining Appellant, and he

reviewed Appellant’s pediatric and St. Francis Hospital records, which included records

from two hospital admissions when Appellant was fourteen years old and the emergency

room records from the day of the murder. Dr. Bernstein also interviewed Appellant’s

mother to gather additional medical history, and he arranged to have Appellant undergo a

brain MRI and an EEG test, the results of which for both turned out to be normal.

         Based on his examinations and review, Dr. Bernstein prepared a preliminary

report, in which he set forth his medical opinion that Appellant was incapable of forming

the specific intent to kill at the time of the murder. At the end of his report, Dr. Bernstein

included a paragraph requesting trial counsel to forward to his attention “all of the records

that pertain to [Appellant’s] arrest, any written or signed statements, and any police

reports or other records in possession of the district attorney that are available

forKreview[.]” Appellant’s PCRA Hearing Exhibit 4 at 4. Dr. Bernstein indicated it was

essential that he review these documents prior to trial, and he would then amend or

expand upon his report after reviewing the documents. Id. Despite Dr. Bernstein’s

request, trial counsel failed to provide the “the Britton and Little documents” to him prior to

trial.

         At Appellant’s trial, on direct-examination, Dr. Bernstein testified, to a reasonable

degree of medical certainty, as follows:

               I believe that at the time of the homicide [Appellant] was suffering
         from a number of different psychiatric conditions including alcohol abuse



                                       [J-47-2014] - 32
      and dependence, a condition called alcoholic hallucinosis wherein chronic
      use of alcohol induces auditory hallucinations or you hear voices.
              I also believe he was suffering from a depression of moderate to
      severe severity, clinical depression, primarily due to chronic alcohol use.
              I think those factors coupled with the other factors that we discussed,
      primarily the in utero or exposure to alcohol during the gestation when his
      mom was pregnant with him coalesced to the point where his cognitive
      capacity to premeditate and deliberate and form specific homicidal intent
      and be fully conscious of that intent was diminished, which is a forensic
      conclusion as opposed to a clinical conclusion.
              Put a different way, I believe that he was mentally ill at the time of the
      event and that this mental illness diminished his capacity to premeditate,
      deliberate and form specific homicidal intent and be fully conscious of that
      intent.

N.T. 10/5/99, trial, at 556-57. He further testified Appellant may have suffered from an

alcohol-induced blackout at the time of the murder. Id. at 557-58.

      On cross-examination at trial, Dr. Bernstein admitted Appellant “most definitely

does not have fetal alcohol syndrome,” and as to Appellant’s exposure to alcohol in utero,

Dr. Bernstein admitted he was relying on Appellant’s mother’s representations made to

him in 1999. Id. at 561-63. Also, Dr. Bernstein admitted records from St. Francis

Hospital did not support the claim that Appellant’s mother consumed alcohol while she

was pregnant with Appellant.      “Consequently, the Commonwealth cast considerable

doubt on Dr. Bernstein’s conclusion that Appellant was born with a predisposition to

neurological and psychiatric abnormalities due to his mother’s drinking.” Mitchell I, 588

Pa. at 47, 902 A.2d at 447.

      Moreover, Dr. Bernstein confirmed Appellant was of average or above average IQ,

and he did well academically. The prosecutor cross-examined Dr. Bernstein extensively

regarding inconsistencies in his expert opinion and Appellant’s records from his stays at

St. Francis Hospital, upon which Dr. Bernstein relied, in order to cast doubt on Dr.

Bernstein’s expert opinion that Appellant was a long-term alcohol abuser suffering from



                                      [J-47-2014] - 33
alcoholic hallucinosis and/or alcoholic blackouts. N.T. 10/5/99, trial, at 569-76, 580-90.

During this cross-examination, Dr. Bernstein acknowledged notes from St. Francis

Hospital included observations that Appellant was “very manipulative,“ “conscious about

his manipulative and antisocial traits,” and that he mumbled his words when angry. Id. at

581.

       Additionally, the following exchange occurred on cross-examination regarding

Robin’s journal:

               Q: Doctor, were you given the journal entries of the victim in this
       case, Robin Little?
               A: No.
               Q: In fact, do you think it would have been beneficial in the
       interviewing process if you would have discussed with [Appellant] the
       representation that in September of 1996 the victim said that [Appellant]
       told her “He also told me if I leave him, he’ll kill me”?
               Do you think that would have been beneficial to talk to him about?
               A: It doesn’t surprise me that he made statements like that. I
       mean, this is a gentleman who has made homicidal statements a number of
       different times.
               Would it have been beneficial? Do I think it would have produced
       new information that would have changed my opinion? No, I don’t.
               I’m not surprised that he would say something like that. In fact, he
       has made homicidal threats to others in the past.
               Q: Well, this was a specific homicidal threat toward the person who
       ended up dead a year later. Were you aware of any of the animosity and
       hostility that he expressed regarding the victim’s dating or seeing other
       men?
               A: I was aware of that primarily from reading the police reports, yes.

Id. at 564-65.

       Dr. Bernstein indicated he did not have the opportunity to review either the July 23,

1998 police report concerning Ms. Britton’s statement or the letters, which Appellant sent

to Ms. Britton after the murder. Id. at 567-68, 577. Regarding the letters, the prosecutor

informed the jury that the letters from Appellant to Ms. Britton “came into the

Commonwealth’s possession a week and a half ago. I supplied them to [trial counsel].



                                     [J-47-2014] - 34
Dr. Bernstein has not had an opportunity to go through those letters.” Id. at 595. Dr.

Bernstein then testified that, in light of the fact the letters were written by Appellant after

the murder, the letters did not change his opinion or testimony. Id. at 596-97.

       As this Court acknowledged in reviewing Appellant’s direct appeal, Dr. Bernstein

conceded at trial that he did not take “the Britton and Little documents” into account in

rendering his opinions. See Mitchell I, 599 Pa. at 50, 902 A.2d at 449. However, Dr.

Bernstein indicated that such information did not change his opinion. Mitchell I, supra;

N.T. 10/5/99, trial, at 602.

       At the PCRA hearing, Dr. Bernstein confirmed he was not provided with “the

Britton and Little documents” prior to testifying at Appellant’s trial, and he suggested that,

as a result, his credibility was undermined during cross-examination. N.T. 10/15/12,

PCRA hearing, at 187.            Dr. Bernstein testified the ADA confronting him on

cross-examination with the information pertaining to Appellant calling Ms. Britton prior to

the murder, as well as the post-murder letters, made him look like he did not know what

he was talking about.      Id.   However, Dr. Bernstein reiterated that, even if he had

reviewed “the Britton and Little documents” prior to trial, his opinion concerning

Appellant’s diminished capacity would not have changed. Id. at 212.

       At the PCRA hearing, trial counsel confirmed he did not provide the July 23, 1998,

police report of Ms. Britton’s account of Appellant’s telephone conversations to Dr.

Bernstein prior to Appellant’s trial. N.T. 10/15/12, PCRA hearing, at 23. He testified he

had no strategic reason for failing to do so. Id. Additionally, trial counsel confirmed that

he did not provide to Dr. Bernstein the letters, which Appellant sent to Ms. Britton. Id. at

62.




                                      [J-47-2014] - 35
       Further, at the PCRA hearing, Kathleen Cribbins, Esquire, who represented

Appellant during the penalty-phase, testified she sat in the courtroom for Appellant’s

guilt-phase trial and was aware that Dr. Bernstein had been cross-examined regarding

documents, with which he had not been provided prior to trial. N.T. 10/15/12, PCRA

hearing, at 117. Attorney Cribbins acknowledged Dr. Bernstein was provided with these

documents prior to testifying at the penalty-phase. Id. at 121. As to the affect Dr.

Bernstein testifying during the guilt-phase had on Attorney Cribbins’ strategy for the

penalty-phase, a relevant exchange occurred during the PCRA hearing as follows:

                 [PCRA Counsel]: Did it obviously hurt your strategy in the guilt
       phase because Dr. Bernstein was your only expert?
                 [Attorney Cribbins]: [Dr. Bernstein] ended up looking like somebody
       who didn’t have a clue what he was talking about, because on
       cross-examination the DA just kept pulling up page after page of reports
       where things kind of contradicted what Dr. Bernstein had previously
       testified to, or called into question in some way what he had testified to, and
       he’s the only thing to hang on to for the alleged diminished capacity
       defense.
                 Once he’s made to look like a fool, then from my cases I have one
       person to present to the jury that actually [Appellant] is not in his right head,
       that all the other things building up to it, you know, drinking as a 12-year-old,
       and constant drinking all through these years and everything else, all of that
       ultimately is dependent upon what Dr. Bernstein has to say about it and how
       it fits in. So if Dr. Bernstein is someone the jury is not going to accept as a
       dependable witness, then my penalty phase defense has a huge hole in it.
                 [PCRA Counsel]: Do you feel that that’s what happened?
                 [Attorney Cribbins]: Yes.

Id. at 119-20.

       In examining Appellant’s ineffectiveness claim, the PCRA court initially concluded

“[t]here is no dispute that counsel did not provide Dr. Bernstein with the materials at issue

or that counsel had a reasonable strategy in failing to do so.” See PCRA Court Opinion,

slip op. at 62. However, the PCRA court ultimately rejected Appellant’s ineffectiveness

claim on the basis Appellant failed to demonstrate he was prejudiced by trial counsel’s



                                      [J-47-2014] - 36
failure to provide Dr. Bernstein with “the Britton and Little documents.” In this regard, the

PCRA court noted that, during trial and at the PCRA hearing, Dr. Bernstein confirmed the

information with which he was not provided did not alter his opinions. Moreover, the

PCRA court concluded that, while it was clear Dr. Bernstein was subjected to extensive

cross-examination at trial, which may have adversely affected his credibility, the

prosecutor’s primary focus in the cross-examination was to discredit Dr. Bernstein’s

opinions based on the documents, which he had reviewed and relied on in forming his

opinions. The PCRA court specifically held:

       [Appellant’s] claim is that trial counsel was ineffective in failing to provide
       [“the Britton and Little documents”] to Dr. Bernstein and it was this failure
       that critically compromised Dr. Bernstein’s credibility in both the guilt and
       penalty phases of the case. However, the conclusion that Dr. Bernstein’s
       testimony was undermined solely, or even primarily, by the failure to provide
       the records at issue is not supported by the record.

See id. (emphasis in original).

       Thus, the PCRA court held Appellant failed to demonstrate that, absent the

prosecutor’s cross-examination of Dr. Bernstein concerning “the Britton and Little

documents,” the outcome of Appellant’s guilt or penalty phases would have been

different.

       We conclude the PCRA court’s factual findings are supported by the record and its

prejudice analysis is free of legal error.23 See Robinson, supra.     As this Court noted in

reviewing Appellant’s direct appeal, “[a]t trial, the Commonwealth attacked Dr.

23  Having concluded the PCRA court properly determined Appellant failed to
demonstrate he suffered prejudice as a result of trial counsel’s failure to provide Dr.
Bernstein with “the Britton and Little documents,” Appellant’s ineffectiveness claim fails
on this basis alone. See Busanet, supra. Thus, we find it unnecessary to review the
PCRA court’s conclusion that the underlying claim has arguable merit and counsel lacked
a reasonable basis.



                                      [J-47-2014] - 37
Bernstein’s expert opinion by pointing out inaccuracies in many of the facts that formed

the basis of his opinion.” Mitchell I, 588 Pa. at 47, 902 A.2d at 447. For instance, a

detailed review of Dr. Bernstein’s trial testimony indicates his credibility was called into

question primarily based on discrepancies between his opinion and the medical forms he

reviewed from St. Francis Hospital. Moreover, the record reveals the prosecutor limited

his cross-examination of Dr. Bernstein concerning “the Britton and Little documents,” and

his questions did not yield a change in Dr. Bernstein’s expert opinion. Furthermore,

regarding the content of the victim’s journal entries, wherein the victim described the

couple’s tumultuous relationship, Dr. Bernstein testified at trial that, despite the fact he

was not provided with the victim’s journal entries prior to trial, he was aware of the

couple’s relationship “from reading the police reports[.]”       N.T. 10/5/99, trial, at 565.

Moreover, the prosecutor specifically made the jury aware that Dr. Bernstein did not have

an opportunity to review Appellant’s letters, which he sent to Ms. Britton, because the

Commonwealth had just received the letters a week and a half prior to trial.

       Simply   put,   Appellant   failed   to   prove   that,   absent   the   prosecutor’s

cross-examination of Dr. Bernstein concerning “the Britton and Little documents,” the jury

would not have rejected Dr. Bernstein’s expert opinion that Appellant killed Robin under a

state of diminished capacity and without the specific intent to kill. Thus, we agree with

the PCRA court that Appellant did not meet his burden of proving prejudice as to the

guilt-phase, i.e., that there is a reasonable probability that, but for counsel's failure to

provide Dr. Bernstein with “the Britton and Little documents,” the outcome of his trial

would have been different. See Commonwealth v. Baumhammers, ___ Pa. ___, ___, 92

A.3d 708, 725 (2014). (“To show prejudice, the [appellant] must demonstrate that there is




                                     [J-47-2014] - 38
a reasonable probability that, but for counsel's allegedly unprofessional conduct, the

result of the proceedings would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”) (citation omitted).

        Further, we find no error in the PCRA court’s conclusion that Appellant failed to

demonstrate prejudice in the penalty-phase.         Appellant suggests that, because trial

counsel failed to provide Dr. Bernstein with “the Britton and Little documents” prior to trial,

resulting in the prosecutor discrediting Dr. Bernstein’s expert opinion at trial on

cross-examination, the jury24 likewise did not believe Dr. Bernstein’s expert opinion at the

penalty-phase as it related to Appellant establishing mitigating circumstances under 42

Pa.C.S. § 9711(e).

        To support his claim, Appellant points to Attorney Cribbins’ PCRA hearing

testimony, wherein Attorney Cribbins testified she believed Dr. Bernstein’s credibility was

compromised on cross-examination during the guilt-phase, which carried over to the

penalty-phase, “because on cross-examination the DA just kept pulling up page after

page of reports where things kind of contradicted what Dr. Bernstein had previously

testified to, or called into question in some way what he had testified to, and he’s the only

thing to hang on to for the alleged diminished capacity defense.” N.T. 10/15/12, PCRA

hearing, at 120.

        While   we    acknowledge     guilt-phase    ineffectiveness    may,    under    some

circumstances, result in sentencing-phase prejudice, we find Appellant did not

demonstrate such prejudice in this case. See Baumhammers, supra. As indicated

supra, a detailed review of Dr. Bernstein’s trial testimony indicates his credibility was

24   The same jury sat for the guilt-phase and penalty-phase.



                                      [J-47-2014] - 39
called into question on cross-examination primarily based on discrepancies between his

opinion and the medical forms he reviewed from St. Francis Hospital. Attorney Cribbins’

assessment as to the manner in which the prosecutor discredited Dr. Bernstein’s expert

opinions is consistent with our detailed review. Thus, Appellant failed to prove that, but

for trial counsel’s failure to provide Dr. Bernstein with “the Britton and Little documents,”

“[t]here is a reasonable probability thatK[appellant] would have been able to prove at

least one mitigating circumstance by a preponderance of the evidence and that at least

one jury member would have concluded that the mitigating circumstance(s) outweighed

the aggravating circumstance(s).” Philistin, 617 Pa. at 404, 53 A.3d at 28 (quotations

omitted).

                                            Claim VI

       Appellant next contends trial counsel was ineffective in failing to present evidence,

which irrefutably established that Appellant had struggled with severe alcoholism since

childhood, and to use the evidence to rehabilitate Dr. Bernstein following the prosecutor’s

cross-examination of him at the guilt-phase. In this regard, Appellant suggests records

from St. Francis Hospital, which trial counsel had in his possession prior to trial, revealed

that Appellant became alcohol dependent at fourteen years of age. However, Appellant

asserts that, due to trial counsel’s failure to consult with Dr. Bernstein prior to trial, as well

as counsel’s failure to otherwise prepare to present this compelling evidence, the jury was

not made aware of Appellant’s alcohol dependence commencing at age fourteen.

Additionally, Appellant contends trial counsel was ineffective in failing to use adequately

the hospital records to rehabilitate Dr. Bernstein following cross-examination at the

guilt-phase by showing that the records confirmed the early onset of Appellant’s alcohol




                                        [J-47-2014] - 40
dependence. Appellant suggests trial counsel’s ineffectiveness, which led to the jury not

being aware of Appellant’s alcoholism as a juvenile, prejudiced him at the guilt and

penalty phases.

      In rejecting Appellant’s claim, the PCRA court concluded Appellant failed to prove

he was prejudiced by trial counsel’s failure to consult with Dr. Bernstein, prepare, or use

the St. Francis Hospital records adequately to rehabilitate Dr. Bernstein. In this regard,

the PCRA court concluded there was extensive testimony and evidence presented to the

jury throughout the guilt and penalty phases, which established Appellant’s juvenile

history of alcohol abuse and dependence. Thus, the PCRA court concluded additional

evidence would have been merely cumulative, and therefore, Appellant failed to

demonstrate he was prejudiced. See Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244

(2011) (examining prejudice required for ineffectiveness in the guilt and penalty phases).

Applying our standard of review, we find no error. See Robinson, supra.

      For instance, at the guilt-phase, during direct-examination, trial counsel asked Dr.

Bernstein whether he examined Appellant’s medical records extending to his youth, and

Dr. Bernstein replied affirmatively. N.T. 10/5/99, trial, at 538. Trial counsel asked Dr.

Bernstein whether he reviewed Appellant’s pediatric records, and when the trial court

asked Dr. Bernstein for clarification as to what age was included in the pediatric records,

Dr. Bernstein described such records as including Appellant’s postnatal medical records

extending into pre-adolescence, at which point Appellant’s care began to center more at

the level of psychiatric hospitals. Id. at 541. Dr. Bernstein testified that, based on the

reports he reviewed, he discovered that Appellant “started drinkingKat a fairly young

age[.]” Id. at 542. Dr. Bernstein further testified Appellant self-reported that he began




                                     [J-47-2014] - 41
drinking alcohol at eleven years of age.         Id.   Trial counsel specifically asked Dr.

Bernstein whether he reviewed Appellant’s St. Francis Hospital records, which involved

two hospital stays when Appellant was fourteen years old, and Dr. Bernstein answered

affirmatively. Id. at 543. Dr. Bernstein testified the reason Appellant was admitted for

his first stay at St. Francis Hospital was because “his drinking was pretty out of

control[,]K[and] he was having homicidal thoughts.”           Id.   Trial counsel asked Dr.

Bernstein why Appellant was admitted for a second stay at age fourteen, and Dr.

Bernstein indicated two reasons. Id. at 544. One reason was “the drinking and the

problems related to the drinking[,]” and the other reason was his aggressive acting out.

Id.

      Moreover, the following exchange occurred between trial counsel and Dr.

Bernstein on direct-examination at the guilt-phase as to the St. Francis Hospital records

from Appellant’s stay when he was fourteen years old:

              Q: In terms of St. Francis doing a psychological history and
      assessment of [Appellant], it states, “He’s here due to his use of alcohol,
      and his mother feels he’s an alcoholic. He is described as being a binge
      drinker, etcetera.” Is that significant?
              A: Well, sure. I mean, for two reasons. No. 1 is it speaks to the
      fact that this is more than a trivial alcohol problem. This is a kid that at a
      very young age had a severe problem with alcohol.
              No. 2 is that significant use of alcohol, as I alluded to earlier, predicts
      the future in terms of propensity or the likelihood of developing significant
      psychiatric disease.
              When you use alcohol on a regular basis, you do two things. No. 1
      is you start killing off brain cells in significant numbers in a way that can
      affect behavior in a negative way, make you more likely to be violent and
      impulsive. The other thing you do is you deplete the brain of certain
      chemicals which modulate normal mood. It’s sort of the gas that drives the
      system.
              As you continue to drink at this level, two things will happen. You
      will have a greater and greater risk for participating in unplanned aggressive
      acts, being wild; and you will have a greater and greater risk of depleting
      these brain chemicals to such a point that you’ll become clinically



                                      [J-47-2014] - 42
       depressed and in some instances psychotic. That is, you may hear voices,
       see things other people don’t see, hallucinate.
              So this level of severe alcoholism in a kid of this age is a bad
       prognostic indicator for the future.
              Q: It also indicates [Appellant] is a 14-year-old black male of
       medium height, etcetera, etcetera. He reports having at least one
       blackout. He verbalizes being aggressive and having a short temper, and
       he admits that his usage often precipitates his overt conduct disorder.
              Can the use of alcohol lead to blackouts?
              A: Well, yes.

Id. at 547-49.

       Furthermore, referring to the St. Francis Hospital records, trial counsel asked Dr.

Bernstein whether Appellant admitting to homicidal ideations at the age of fourteen would

be “in line with someone who has problems [Appellant] had in terms of his use of

alcohol[.]” Id. at 550. Dr. Bernstein explained that such alcohol use actually changes

the way the brain works so that the risk of violence is increased. Id. at 551. Dr.

Bernstein indicated that the conclusions reached by St. Francis Hospital from Appellant’s

early hospitalizations reveal that Appellant has a tendency for aggressive violent behavior

with a reasonably high potential for continuing acting-out behavior, and that his continuing

alcohol use led Appellant to have worse episodes of unplanned aggressive acting out, as

revealed by the records from Appellant’s second hospital stay.         Id. at 551-52.   Dr.

Bernstein opined alcohol was “at the center” of Appellant’s stays at St. Francis Hospital

when he was fourteen years old. Id. at 552. He further opined “[t]he focus or the center

of the problem was the alcohol use. Then the other problems arose as the direct result of

that.” Id. Dr. Bernstein indicated that Appellant, at the age of fourteen, had a “treatable”

substance abuse problem; however, without a proper family component, the odds of

treating the problem were lessened. Id. at 554.




                                     [J-47-2014] - 43
       In establishing the lack of a proper family component, as well as further explaining

Appellant’s use of alcohol, trial counsel presented at the guilt-phase the testimony of

Appellant’s mother, who testified she and Appellant’s father were alcoholics during

Appellant’s youth. Id. at 484-85. She confirmed Appellant was hospitalized for his

chemical dependence at age fourteen, and he was drunk while at school. Id. at 486-88.

She testified she actually discovered Appellant had a problem with alcohol beginning

when he was twelve or thirteen years old.        Id. at 489.   She described Appellant’s

continued use of alcohol throughout his teen years. Id. at 489-95.

       Moreover, during the penalty-phase, Dr. Bernstein testified his review of the case

revealed Appellant had been chronically abusing alcohol since the age of eleven and his

parents both abused alcohol.       N.T. 10/13/1999, sentencing hearing, at 807.         Dr.

Bernstein testified Appellant was admitted to St. Francis Hospital at age fourteen due to

his alcoholism; however, he did not receive the intensive psychotherapy or

antidepressant drugs, which Dr. Bernstein would have recommended. Id. at 815-16.

       Additionally, during the penalty-phase, Appellant’s mother testified about her and

Appellant’s father’s use of alcohol during Appellant’s childhood, as well as about

Appellant’s excessive use of alcohol while he was in middle school. Id. at 826-27,

833-34. Also, Louis Harrell, a drug and alcohol therapist at St. Francis Hospital, testified

he mentored Appellant and attempted to help him deal with alcohol issues. Id. at 864.

       Based on the aforementioned, we find no error of law in the PCRA court’s

conclusion that, during the guilt and penalty phases, the jury was presented with ample

evidence of Appellant’s alcoholism since the age of fourteen, and thus, Appellant has not

demonstrated the necessary prejudice in connection with his ineffectiveness claim. See




                                     [J-47-2014] - 44
Robinson, supra. Appellant is under the mistaken notion that if only the jury had been

presented with more details of his alcoholism, it would have accepted his diminished

capacity defense and/or would not have returned a sentence of death. See Spotz,

supra; Commonwealth v. Miller, 605 Pa. 1, 49, 987 A.2d 638, 667 (2009) (“This Court has

consistently held that trial counsel cannot be deemed ineffective for failing to present

mitigating evidence that merely would have been cumulative of evidence that was

presented during a penalty hearing.”) (citations omitted).

                                        Claim VII

       Appellant next argues penalty-phase counsel was ineffective in failing to prepare,

investigate, and present certain mitigating evidence.        More specifically, Appellant

contends penalty-phase counsel ineffectively failed to (1) conduct neuropsychological

testing to determine whether Appellant suffered from organic brain damage; (2) secure

additional mitigation experts to testify concerning Appellant’s early alcohol dependence,

organic brain damage, and other mental health impairments; and (3) call additional family

members and friends to testify regarding Appellant’s traumatic childhood.25 Appellant

avers that, if the details of his youth, troubled past, alcohol dependence, brain damage,

and other mental health impairments had been addressed more extensively and

presented in more detail, it would likely have swayed the jury toward mitigation.

              The inquiry of whether [penalty-phase] counsel failed to investigate
       and present mitigating evidence turns upon various factors, including the
       reasonableness of counsel’s investigation, the mitigation evidence that was
       actually presented, and the mitigation evidence that could have been

25  Appellant further contends penalty-phase counsel was ineffective in failing to provide
the July 23, 1998 police report containing Ms. Britton’s statement, as well as the letters
Appellant sent to Ms. Britton, to Dr. Bernstein prior to trial. For the reasons discussed
under Claim V, supra, Appellant is not entitled to relief.



                                     [J-47-2014] - 45
       presented. However, ‘[n]one of these factor, by itself, is dispositive of the
       question presented, because even if the investigation conducted by
       counsel was unreasonable, such fact alone will not result in relief if the
       [petitioner] cannot demonstrate that he was prejudiced by counsel’s
       conduct.

Commonwealth v. Simpson, 620 Pa. 60, ___, 66 A.3d 253, 277 (2013) (citation and

quotation omitted).

       To establish prejudice, a petitioner must prove:

       [T]here is a reasonable probability that, absent counsel’s failure to present
       the mitigation evidence he currently proffers, [Appellant] would have been
       able to prove at least one mitigating circumstance by a preponderance of
       the evidence and that at least one jury member would have concluded that
       the    mitigating    circumstance(s)      outweighed     the     aggravating
       circumstance(s).

Philistin, 617 Pa. at 404, 53 A.3d at 28 (quotations omitted).

       Initially, we address Appellant’s contention that penalty-phase counsel was

ineffective in failing to submit Appellant for neuropsychological testing in order to

determine whether he suffered from organic brain damage. Appellant contends that,

since Dr. Bernstein posited in his pre-trial report that Appellant “likely” suffers from

organic brain damage, penalty-phase counsel should have ordered neuropsychological

testing to confirm this fact. Furthermore, to support his argument, Appellant points to Dr.

Bernstein’s PCRA hearing testimony that, if he would have been asked to focus primarily

upon the penalty-phase, he would have recommended neuropsychological testing prior

to sentencing. N.T. 10/15/12, PCRA hearing, at 202.

       At the PCRA hearing, Appellant presented evidence that neuropsychological

testing conducted on September 15, 2011 revealed he suffered from organic brain

damage, primarily affecting the functioning of his fronto-temporal area. Id. at 291, 293

(Dr. Crown testified he conducted neuropsychological testing on Appellant on September



                                     [J-47-2014] - 46
15, 2011, and he opined Appellant has organic brain damage); Id. at 602 (Psychiatrist

Bruce Wright acknowledged Dr. Crown found in 2011 that Appellant suffers from

fronto-temporal impairment). However, as the Commonwealth notes, Appellant failed to

prove at the PCRA hearing that he suffered from organic brain damage at the time of the

murder, and more specifically, he failed to offer evidence at the PCRA hearing

establishing that neuropsychological testing conducted in 1997 would have revealed

Appellant suffered, at that time, organic brain damage as found by Dr. Crown in 2011.

       For instance, while Dr. Crown indicated he reviewed various records and did not

discover a cause for the organic brain damage from the time of Appellant’s arrest in 1997

to the evaluation in 2011, he admitted that, as of the time of the murder, due primarily to

Appellant’s age, the front part of Appellant’s brain was not fully developed. Id. at 303-06,

314-15. Moreover, Dr. Wright testified that organic brain damage happens over time and

develops over decades from previous concussions. Id. at 602. Dr. Wright opined that,

with regard to organic brain damage, just because it is present today does not mean it

was present in the past. Id. at 603.     Finally, Dr. Wright referred to testing performed in

1997, close to the time of the murder, which failed to reveal that Appellant suffered any

cognitive impairment, which would result from organic brain damage. Id.

       Further, as found by the PCRA court, Dr. Bernstein opined at length during the

penalty-phase as to Appellant’s “physical damage to the brain,” which he suggested

resulted from Appellant’s ingestion of alcohol and traumatic injury to the fronto-temporal

region of the brain in the form of a concussion. N.T. 10/13/99, sentencing hearing, at

800-04.   Therefore, while penalty-phase counsel did not order neuropsychological

testing, and Dr. Bernstein did not offer testimony about such testing, Dr. Bernstein’s




                                       [J-47-2014] - 47
opinion testimony, taken as a whole, presented the defense’s mitigation position that

Appellant suffered brain injury, which impaired his cognitive abilities. Thus, Appellant is

not entitled to relief on this claim. See Philistin, supra.

       Regarding Appellant’s claims that penalty-phase counsel was ineffective in failing

to secure additional mitigation experts to testify concerning Appellant’s early alcohol

dependence, organic brain damage, and other mental health impairments, as well as

failing to call additional family members and friends to testify regarding Appellant’s

traumatic childhood, the PCRA court rejected these claims on the basis the additional

testimony would have been merely cumulative of mitigation evidence offered by Appellant

during the penalty-phase. Our review of the record confirms that penalty-phase counsel

presented extensive evidence of Appellant’s early alcohol dependence, organic brain

damage, other mental health impairments, 26 and traumatic childhood.              Therefore,

additional testimony from mitigation experts, family members, and friends as to these

factors would have been merely cumulative. Baumhammers, supra; Miller, 605 Pa. at

49, 987 A.2d at 667 (“This Court has consistently held that trial counsel cannot be



26 An exception to our conclusion is that penalty-phase counsel did not specifically
present evidence of Appellant’s alleged borderline personality disorder, which Dr.
Richard Dudley diagnosed Appellant as suffering from in his March 12, 2009 report. N.T.
10/15/12, PCRA hearing, at 227, 237, 240-41, 250-51. However, at the PCRA hearing,
Dr. Dudley admitted that the personality is not “fixed” until a person is entering their adult
years, and reports issued following the evaluation of Appellant close in time to the murder
did not diagnose a borderline personality disorder. Id. at 241, 277-78. Thus, similar to
his neuropsychological testing issue, Appellant has failed to demonstrate he suffered
from a borderline personality disorder at the time of the murder such that penalty-phase
counsel was deficient in investigating the matter further. See Spotz, supra (discussing
penalty-phase counsel’s duty includes investigating only reasonably available mitigating
evidence and does not include investigating every conceivable line of mitigating evidence
no matter how unlikely it is to assist the defendant in sentencing).



                                      [J-47-2014] - 48
deemed ineffective for failing to present mitigating evidence that merely would have been

cumulative of evidence that was presented during a penalty hearing.”) (citations omitted).

                                         Claim VIII

       Appellant next claims the trial court erred in ruling that three mental health experts,

who are employed by the Allegheny County Court’s Behavior Clinic,27 could not testify

and their expert reports could not be reviewed or relied upon by Dr. Bernstein. This

substantive claim of trial court error is waived since guilt-phase counsel did not object,

and in fact, acceded to the trial court’s rulings. N.T. 10/5/99, trial, at 302 (trial counsel

withdrew request to call Dr. Moran, one of the mental health experts, to testify on behalf of

the defense); Id. at 311 (trial counsel objected to the trial judge’s offer to “bend [his]

principles and allow [the parties] to use” the Behavior Clinic experts’ reports, and

specifically indicated he did not want the reports to be used). Moreover, penalty-phase

counsel acceded to the preclusion of the mental health experts’ reports and did not object

to the preclusion of the mental health experts’ testimony. Id. at 299-300 (penalty-phase

counsel indicating, “[a]s long as the Commonwealth isn’t going to cross-examine Dr.

Bernstein on any opinion rendered in these reports[,]” she agreed the Behavior Clinic

experts’ reports could not be used); Id. at 525 (prior to Dr. Bernstein’s trial testimony,

penalty-phase counsel asked the trial court to remind the prosecutor not to inquire into the

Behavior Clinic experts’ reports upon cross-examination). Penalty-phase counsel did


27 The Behavior Clinic performs psychological and psychiatric work for the trial court
relative to competency and sentencing. In this case, Sabato Stile, M.D., evaluated
Appellant following his arrest in connection with the September 1, 1997 rape; Christine
Martone, M.D., evaluated Appellant one day after the murder; and Michael Moran, Ph.D.,
evaluated Appellant a few weeks after the murder. Each expert then provided a report to
the trial court as it related to Appellant’s competency.



                                      [J-47-2014] - 49
not alter her position on the issue, request the trial court to reconsider the issue, or

otherwise seek to use the experts’ reports or testimony for purposes of the penalty-phase.

Furthermore, counsel did not present this issue on direct appeal. Therefore, Appellant’s

claim of trial court error is waived. See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during unitary review,

[or] on appeal[.]”).

       However, this does not end our inquiry as Appellant additionally couched his claim

in terms of guilt and penalty phase counsel ineffectiveness.               Appellant contends

guilt-phase counsel was ineffective in withdrawing his request to call a Behavior Clinic

expert as a witness and objecting to the trial court’s offer to permit the parties to utilize the

Behavior Clinic experts’ reports.        Also, he contends penalty-phase counsel was

ineffective in failing to seek to utilize the experts’ testimony or reports for mitigation

purposes during the penalty-phase.

       In rejecting Appellant’s ineffectiveness claims, the PCRA court concluded guilt and

penalty phase counsel made reasonable, strategic decisions that they would rather have

the Behavior Clinic experts and reports, including Dr. Moran, excluded than be faced with

the prospect of the Commonwealth presenting the opinions of Drs. Martone and Stile

during the guilt or penalty phases. See PCRA Court Opinion, slip op. at 92. The PCRA

court held that, while in retrospect, counsel now feels that it may have been a better

strategy to use the reports and testimony, such does not require the conclusion counsel

was ineffective in adopting the strategy used at the time of trial and sentencing.             Id.

We find ample factual support in the record for the PCRA court’s determination and no

error in its legal conclusion. See Robinson, supra.




                                        [J-47-2014] - 50
       For instance, the record reveals that, during the guilt-phase, counsel noted he

intended to call Behavior Clinic expert, Dr. Moran, as a witness and/or utilize his expert

report since his opinions were favorable to the defense; however, guilt-phase counsel

immediately withdrew his request when he discovered the prosecutor had subpoenaed

Dr. Martone with the intent of calling her as a rebuttal witness. N.T. 10/5/99, trial, at

300-06. Undeterred by guilt-phase counsel’s withdrawal of his request, the prosecutor

continued to argue that he should be permitted to present the testimony of Dr. Martone or,

in the alternative, use Drs. Martone’s and Stile’s reports in cross-examining Dr. Bernstein.

Id. at 303-04. Specifically, the prosecutor argued that, since Drs. Martone’s and Stile’s

characterizations of Appellant’s mental state were favorable to the prosecution, and much

different than Dr. Bernstein’s characterizations, it was unfair to the Commonwealth to limit

the use of the Behavior Clinic experts’ reports. Id. at 304.     At this point, both guilt and

penalty phase counsel sought assurances that the trial court would not permit the

prosecutor to cross-examine Dr. Bernstein with the Behavior Clinic experts’ reports,

ultimately concluding with guilt-phase counsel specifically objecting to the trial court’s

offer that the parties could utilize the experts’ reports. Id. at 311.

       The record reveals that, upon balance, guilt and penalty phase counsel concluded

that any benefit to the defense in utilizing Dr. Moran’s testimony or report would be

outweighed by the harm resulting from the Commonwealth utilizing Drs. Martone’s and

Stile’s testimony or reports. Inasmuch as Drs. Martone’s and Stile’s reports contained

potentially damning information for the defense,28 such a course of conduct constitutes a


28 For instance, Dr. Stile interviewed Appellant on September 3, 1997, and he reported
Appellant “is in no acute physical or emotional distress. He denies voices, visions,
(continuedK)

                                      [J-47-2014] - 51
reasonable basis. Commonwealth v. Spotz, ___ Pa. ___, 84 A.3d 294, 311 (2014)

(“Generally, counsel’s assistance is deemed constitutionally effective if he chose a

particular course of conduct that had some reasonable basis designed to effectuate his

client’s interests.”) (citation omitted).

       Further, as the PCRA court noted, the fact counsel suggested during the PCRA

hearing that, in hindsight, the defense should have used the Behavior Clinic experts’

reports or testimony during the guilt and the penalty phases does not negate the

conclusion that counsel had a reasonable basis for the strategy employed.        N.T.

10/15/12, PCRA hearing, at 128-29; Commonwealth v. Sneed, 616 Pa. at 20, 45 A.3d at

1108 (“A claim of ineffectiveness generally cannot succeed through comparing, in

hindsight, the trial strategy employed with alternatives not pursued.”) (quotation and

quotation marks omitted); Commonwealth v. Washington, 592 Pa. at 712, 927 A.2d at

594 (“In determining whether counsel’s action was reasonable, we do not question

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




(Kcontinued)
suicidal or homicidal urges. He indicates adequate sleep, appetite and mood.”
Petitioner’s PCRA Evidentiary Hearing Exhibit 8. Moreover, Dr. Stile’s impression was
that Appellant is nonpsychotic, understands the charges against him, and should be
judged according to the evidence.
        Dr. Martone interviewed Appellant the day after the murder, on September 11,
1997, and she reported Appellant “was oriented in all three spheres. His memory was
intact. His thoughts were logical and coherent and free of loosened associations.
There was no evidence of delusions or hallucinations. His affect was dysphoric and
tearful. He denies homicidal ideation.” Petitioner’s PCRA Evidentiary Hearing Exhibit
9. Dr. Martone’s recommendation was that Appellant understood the charges against
him, was able to cooperate with his defense, and should be judged according to the
evidence.



                                        [J-47-2014] - 52
pursued; rather, we must examine whether counsel’s decisions had any reasonable

basis.”) (citations omitted). Thus, Appellant is not entitled to relief on this claim.

                                          Claim IX

       Appellant’s next claim is penalty-phase counsel was ineffective in failing to argue

the Commonwealth could not introduce evidence of the IDSI and two rape convictions

that Appellant committed against Robin in order to rebut his mitigating evidence of no

significant history of prior convictions, and counsel was ineffective in failing to request the

trial court to so instruct the jury. To understand these ineffectiveness claims, some

additional background is required.

       On direct appeal, appellate counsel argued that, at the penalty hearing, the

prosecutor stipulated to the Section 9711(e)(1) mitigator, 42 Pa.C.S. § 9711(e)(1), that

Appellant had no significant history of prior criminal convictions, and thus, the trial court

committed reversible error by permitting the Commonwealth to present evidence to refute

this stipulation. In response, the Commonwealth argued it stipulated only that Appellant

did not have a significant prior criminal history, but it did not stipulate that Appellant’s

instant convictions for IDSI and rape against Robin could not be used to rebut the

mitigating circumstances that Appellant up until his conviction had no prior significant

criminal history.

       After reviewing the record to determine the exact terms of the parties’ stipulation,

this Court held there was no stipulation to any mitigating factor, and the Commonwealth

stipulated only that Appellant had no prior significant criminal history before the present

convictions. See Mitchell I, supra. Consequently, we concluded that, by entering into

the stipulation, the defense was relieved of the burden of calling witnesses to prove that




                                      [J-47-2014] - 53
Appellant had no criminal history prior to the current conviction; however, once

penalty-phase counsel argued that fact as a mitigating circumstance, under the

stipulation, as well as Commonwealth v. Wharton, 542 Pa. 83, 665 A.2d 458 (1995), cert.

denied, 517 U.S. 1247, 116 S.Ct. 2504, 135 L.Ed.2d 195 (1996), the Commonwealth was

free to rebut it with evidence of Appellant’s contemporaneous convictions for IDSI and

rape. See Mitchell I, supra.

       We specifically noted that neither penalty-phase counsel nor appellate counsel

definitively challenged the propriety of the use of Appellant’s contemporaneous criminal

convictions as appropriate rebuttal to his assertion in mitigation that he had no significant

criminal history. Mitchell I, 588 Pa. at 72 n.20, 902 A.2d at 462 n.20. Rather, we found

that Appellant’s counsels’ assertions before the trial court and on direct appeal focused

upon Appellant’s claim that the Commonwealth stipulated to a mitigator and then

attempted to circumvent such stipulation by introducing the current convictions as

rebuttal. Id.

       In seeking collateral relief, Appellant now contends penalty-phase counsel was

ineffective in failing to object on the alternative basis, i.e., that, in any case, Appellant’s

contemporaneous convictions could not be considered as prior criminal convictions under

Section 9711(e)(1) and the Commonwealth could not use such convictions to rebut the

Section 9711(e)(1) mitigator. Additionally, Appellant contends penalty-phase counsel

was ineffective in failing to request a jury instruction in accordance with these principles.

       The PCRA court rejected Appellant’s ineffective assistance of counsel claims on

the basis the underlying issues lacked arguable merit.             Inasmuch as controlling

precedent at the time of Appellant’s proceedings in 1999, as well as today, provides that,




                                      [J-47-2014] - 54
when a capital defendant is convicted of offenses in conjunction with first degree murder,

the Commonwealth may use those convictions to rebut the Section 9711(e)(1) mitigating

circumstance, we find no error of law in the PCRA court’s conclusion.29 See Wharton,

supra (holding that, to rebut a defendant’s assertion of the Section 9711(e)(1) mitigator,

the Commonwealth is permitted to present all of the defendant’s prior convictions,

including those which were contemporaneous with the defendant’s first degree murder

conviction).   See also Commonwealth v. Weiss, ___ Pa. ___, 81 A.3d 767 (2013)

(holding counsel is not ineffective in failing to request a jury instruction for which there is

no legal basis); Philistin, supra (holding that, if counsel presents evidence of a

defendant’s lack of criminal record, the Commonwealth is permitted to argue in rebuttal

that the defendant had just been convicted of other offenses).

                                           Claim X

       Appellant next argues the trial court erred in charging the jury during the

penalty-phase as to the nature of the aggravating and mitigating circumstances. He

suggests the instruction given by the court diverted the jury’s attention to the

circumstances of the offense, thereby improperly minimizing the importance of

Appellant’s character and background. Specifically, Appellant challenges the following

sentence of the trial court’s jury instruction generally explaining the concept of

aggravating and mitigating circumstances:

       [A]ggravating circumstances are things about the killing and the killer which
       make a first-degree murder case more terrible and deserving of the death

29Appellant additionally presents a derivative claim of ineffective assistance of appellate
counsel; however, since the underlying contentions lack arguable merit, Appellant’s
derivative claim of appellate counsel’s ineffectiveness necessarily fails. See Roney,
supra.



                                      [J-47-2014] - 55
       penalty, while mitigating circumstances are those things which make the
       case less terrible and less deserving of death.

N.T. 10/13/1999, sentencing hearing, at 767-68.

       Appellant admits penalty-phase counsel did not object to this portion of the trial

court’s charge and counsel did not raise the issue on direct appeal. See Appellant’s

Brief at 84-85. Accordingly, the substantive issue of trial court error has been waived.

42 Pa.C.S. § 9544(b).

       Recognizing the likelihood we would find the claim of trial court error to be waived,

Appellant additionally argues penalty-phase counsel was ineffective in failing to object to

this portion of the trial court’s instruction. The challenged instruction was, at the time of

Appellant’s trial and sentencing in 1999, part of a Pennsylvania suggested standard

criminal jury instruction. See Commonwealth v. Spotz, 610 Pa. 17, 82-3, 18 A.3d 244,

282-83 (2011). Though the instruction was modified subsequent to Appellant’s trial and

sentencing, resulting in the trial court’s version of the jury instruction being removed

therefrom, this Court has repeatedly upheld the instruction as constitutionally adequate,

even after it was excised from the suggested standard instructions. See Simpson, supra

(rejecting the appellant’s assertion the instruction improperly minimized the appellant’s

character and background); Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244 (2011)

(concluding the instruction’s focus on “terribleness” did not produce an arbitrary and

capricious sentence based upon passion and prejudice); Washington, supra (rejecting

the appellant’s assertion the instruction improperly restricted the weight afforded

mitigating factors that did not affect the “terribleness” of the offense). Based on this

Court’s ample precedent, Appellant’s underlying claim lacks arguable merit, and

therefore, his derivative claim of ineffectiveness fail.



                                       [J-47-2014] - 56
                                           Claim XI

       Finally, Appellant indicates he is entitled to relief from his conviction and sentence

based on the cumulative prejudicial effect of the errors he identifies above. In response,

the Commonwealth argues that no amount of failed claims may collectively attain merit.

       “This Court has held that no number of failed ineffectiveness claims may

collectively warrant relief if they fail to do so individually.” Elliott, ___ Pa. at ___, 80 A.3d

at 450 (citation omitted). “However, we have clarified that this principle applies to claims

that fail because of lack of merit or arguable merit. When the failure of individual claims

is grounded in lack of prejudice, then the cumulative prejudice from those individual

claims may properly be assessed.” Spotz, __ Pa. at __, 84 A.3d at 321 n.22 (citations

omitted).

       We have examined Appellant’s claims, which we rejected solely because of his

failure to prove prejudice. We are satisfied that the ineffectiveness claims at issue are so

disparate that there is no cumulative prejudice warranting relief.

       The order of the PCRA court is affirmed.


       Mr. Chief Justice Castille, Messrs. Justice Saylor, Eakin and Baer and Madame

       Justice Todd join the opinion.

       Mr. Justice Saylor files a concurring opinion.




                                        [J-47-2014] - 57
