J-A19043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
              v.                           :
                                           :
DANIEL J. DOUGHERTY,                       :
                                           :
                    Appellant              :           No. 1648 EDA 2016

             Appeal from the Judgment of Sentence April 11, 2015
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0705371-1999

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 31, 2017

        Daniel J. Dougherty (“Dougherty”) appeals from the judgment of

sentence entered following his conviction of two counts of second-degree

murder and one count of arson.1         We reverse Dougherty’s judgment of

sentence and remand for a new trial.

        The trial court summarized the factual history underlying the instant

appeal as follows:

        [O]n August 24, 1985, [] Dougherty was supposed to return to
        his girlfriend’s home after attending an Alcoholics Anonymous
        meeting[,] and tend to his children, as well as the child of his
        live-in girlfriend, Kathleen McGovern [(“McGovern”)].          []
        Dougherty did not go home. At approximately 11:30 p.m.,
        [Dougherty] was in a bar when [] McGovern stormed in and
        angrily confronted him, telling Dougherty to get home with his
        kids because she was leaving him. McGovern returned to her
        Oxford Circle home, packed up some of her belongings and left
        with her child, leaving the two young Dougherty boys[2] asleep in


1   18 Pa.C.S.A. §§ 2502, 3301.

2   The boys were aged three and four years old, respectively.
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      their second-floor bedroom with a teenage babysitter. By 1:30
      a.m.[,] the babysitter could stay no longer and returned to her
      residence next door, leaving a note for [Dougherty] and
      explaining to him what had occurred.

              Leaving the bar, Dougherty did not go home, but to the
      home of his estranged wife, the mother of his two children,
      Kathleen Dippel [(“Dippel”)].     Dougherty pleaded with his
      estranged wife to come with him and take the children[,] as his
      girlfriend had kicked him out. Dougherty got mad at Dippel for
      not wanting to come with him and get the children in the middle
      of the night, and returned home. He did not stay, reappearing
      at the house of his wife. Dippel finally agreed and came with
      Dougherty to take custody of the two children. Once they got to
      McGovern’s house, [Dougherty] asked Dippel to spend the night.
      [] Dippel declined Dougherty’s advances and asked [Dougherty]
      to bring the children downstairs.          Dougherty refused,
      unceasingly demanding Dippel to go upstairs to retrieve the
      children. In fear of being sexually assaulted by [Dougherty],
      Dippel refused to go upstairs. Weary of [Dougherty’s] advances,
      Dippel left, barefoot and without the children.      Thereafter,
      Dougherty was the only adult in the house while the children
      slept upstairs.

            At approximately 3:57 a.m., police responded to reports of
      a fire at the residence. By the time the police responded, the
      house was in flames and [Dougherty was] outside of the house.
      When asked his name, Dougherty replied, “my name is mud and
      I should die for what I did.” The two boys were found dead in
      their upstairs bedroom. The medical examiner concluded that
      the children died from smoke inhalation and carbon dioxide
      poisoning[,] and may have been burned while still alive.

            [Dougherty] was subsequently questioned by the police.
      Dougherty told them that after Dippel left, he fell asleep on the
      sofa, to be awoken by the noise of the fire on the drapes
      adjacent to the front window.

Trial Court Opinion, 9/1/16, at 3-5 (citations omitted, footnote added).

      On July 21, 1999, more than 13 years after the fire, Dougherty was

arrested and charged with arson, murder and related offenses. In October



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2000, a jury found Dougherty guilty of two counts of first-degree murder3

and arson.     Dougherty was sentenced to death for his convictions of first-

degree murder, and a concurrent sentence of 10-20 years in prison for his

conviction of arson. The Pennsylvania Supreme Court affirmed Dougherty’s

judgment of sentence on direct appeal.         Commonwealth v. Dougherty,

860 A.2d 31 (Pa. 2004). On October 3, 2005, the United States Supreme

Court     denied   Dougherty’s    Petition   for   Certiorari.    Dougherty     v.

Pennsylvania, 546 U.S. 835 (2005).

        In 2005, Dougherty filed his first Petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”).4       The PCRA court dismissed Dougherty’s

Petition in April 2009.        On appeal, the Pennsylvania Supreme Court

remanded the matter for the appointment of a new PCRA judge and to

develop the record.       On February 7, 2012, upon the agreement of the

parties, Dougherty’s death sentences were vacated, and sentences of life in

prison were imposed for each of Dougherty’s murder convictions.

        On remand, the PCRA court conducted hearings on Dougherty’s claims

of ineffective assistance of trial counsel.          The PCRA court ultimately

dismissed Dougherty’s Petition on September 6, 2012. On appeal, this Court

vacated the Order of the PCRA court, and remanded for a new trial.




3   See 18 Pa.C.S.A. § 2502.

4   42 Pa.C.S.A. §§ 9541-9546.


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Commonwealth        v.   Dougherty,       93      A.3d   520    (Pa.   Super.    2013)

(unpublished memorandum).

      Following a jury trial, Dougherty was convicted of two counts of

second-degree murder and one count of arson.                   For his convictions of

second-degree    murder,    the   trial   court    sentenced     Dougherty      to   two

consecutive terms of life in prison. For his conviction of arson, the trial court

imposed a concurrent prison term of ten to twenty years.                  Thereafter,

Dougherty filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

      Dougherty presents the following claims for our review:

      1.    [The Pennsylvania Superior Court] found [Dougherty’s]
      original trial counsel constitutionally ineffective for failing to
      adequately cross-examine Assistant Fire Marshal John Quinn
      [(“Quinn”)] at Dougherty’s first trial in 2000.          Because
      Dougherty never had a full and fair opportunity to cross-examine
      Quinn, did the trial court violate the Confrontation Clause when
      it permitted Quinn’s prior recorded testimony, including the
      constitutionally ineffective cross-examination, from 16 years ago
      to be read to the jury over Dougherty’s objections?

      2. In 2015, shortly before Dougherty’s second trial, the
      Commonwealth’s expert at the first trial, [] Quinn, acknowledged
      through counsel that the field of fire science had advanced
      “incalculably” since his original testimony in October 2000. Did
      the trial court commit reversible error under Pennsylvania Rule
      of Evidence 702 when it (1) allowed Quinn’s 16-year-old
      recorded “expert” testimony to be read to the jury[;] and (2)
      instructed the jury at the 2016 trial that Quinn was testifying as
      an expert?

      3. Before his second trial, Dougherty proffered evidence that the
      Commonwealth’s expert at the first trial, [] Quinn, employed
      principles that were not generally accepted in the field of fire
      science either at the time he testified in 2000 or at the time the


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      Commonwealth sought to reintroduce that testimony in 2016.
      Did the trial court commit reversible error by admitting this
      testimony without holding a hearing to determine if Quinn’s
      methodology was “generally accepted in the relevant field[,]” as
      required under Frye v. United States[, 293 F. 1013 (D.C. Cir.
      1923),] and Pennsylvania Rule of Evidence 702(c)?

      4. Did the trial court commit reversible error when it admitted
      an inflammatory photograph of the burned bodies of Dougherty’s
      deceased children, even though the photograph lacked any
      probative value and other, less inflammatory, evidence was
      available?

      5. Did the trial court commit reversible error under [Pa.R.E.]
      404(b)(1) when it permitted the testimony of two women that
      Dougherty was physically abusive to them in the past,
      particularly where the Commonwealth told the jury in closing
      that this character evidence establishes “who this man is,” i.e.,
      the kind of person who “gets violent, especially against women
      when they don’t do what he wants them to do[,]” and Dougherty
      was not charged with any acts of violence towards women?

      6. Did the trial court commit reversible error by allowing the
      Commonwealth[,] during closing statements[,] to compare
      Dougherty’s expert witness to, among other things, a charlatan,
      a prostitute, and an adulterer, despite constitutional due process
      guarantees that prohibit prosecutors from engaging in unduly
      prejudicial or inflammatory rhetoric at trial?

Brief for Appellant at 2-4.

      In his first claim, Dougherty asserts that the trial court improperly

permitted the prior trial testimony of Quinn, a Philadelphia Assistant Fire

Marshal, to be read to the jury. Id. at 22. Dougherty points out that this

Court had “deemed his trial counsel ineffective for inexplicably opting to

‘wing it’ during cross-examination of the Commonwealth’s expert, [] Quinn.”

Id.   According to Dougherty, the trial court improperly permitted the

Commonwealth to present Quinn’s same testimony, including defense


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counsel’s ineffective cross-examination, to the jury. Id.; see also id. at 24

(wherein Dougherty points out that this Court deemed his prior trial counsel

ineffective for failing to consult with a fire expert in preparing to cross-

examine Quinn at the first trial).

      Regarding the admission of Quinn’s testimony, Dougherty argues that

the trial court violated the Confrontation Clause of the Sixth Amendment to

the United States Constitution, as he was deprived of a full and fair

opportunity to cross-examine Quinn. Id. at 23. In addition, the reading of

Quinn’s testimony deprived Dougherty of the opportunity to effectively

cross-examine Quinn, this time with the assistance of a fire expert. Id. at

24. According to Dougherty, “[t]he result was that trial counsel’s failure to

elicit expert fire testimony deprived [Dougherty] of the opportunity to

discredit entirely the testimony that was the sole basis for concluding that

the fire was arson.” Id. (internal quotation marks and citation omitted).

      The Commonwealth counters that at the retrial, in addition to Quinn’s

prior testimony, they presented the expert testimony of fire investigator

Thomas Schneiders (“Schneiders”), who testified that there was no

“flashover” in this fire.     Brief for the Commonwealth at 17.             The

Commonwealth acknowledges that Schneiders “based his independent

opinion on his examination of [] Quinn’s photographs, interviews and

report.”   Id.   The Commonwealth points out that Schneiders validated

Quinn’s methodology, and “independently concluded that the fire was set in



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three separate locations.”       Id. at 21.     The Commonwealth additionally

asserts    that   Schneiders    challenged   the   defense   expert’s   conclusions

regarding flashover. Id.

        Whether the admission of prior testimony violates a defendant’s rights

under the Confrontation Clause is a question of law, for which our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Yohel, 79 A.3d 520, 530 (Pa. 2013).

        “Where testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is the one the

Constitution      actually   prescribes:      confrontation.”5     Crawford      v.

Washington, 541 U.S. 36, 68-69 (2004). The Confrontation Clause of the

Sixth Amendment of the United States Constitution, made applicable to the

states via the Fourteenth Amendment,6 provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right … to be confronted with the

witnesses against him….”         U.S. CONST. amend XVII.7        Interpreting the

Confrontation Clause, the United States Supreme Court explained that


5 The Supreme Court defined “testimony” as “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.”
Crawford, 541 U.S. at 51.

6   See Pointer v. Texas, 380 U.S. 400, 403 (1965).

7 Although Dougherty has not premised his argument on Article I, Section 9
of the Pennsylvania Constitution, that section similarly provides that “[i]n all
criminal prosecutions the accused hath a right . . . to be confronted with the
witnesses against him. . . .” PA. CONST. art. I, § 9.



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“[t]estimonial statements of witnesses absent from trial have been admitted

only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Crawford, 541 U.S. at 59; see

also Bullcoming v. New Mexico, 564 U.S. 647, 664-68 (2011) (holding

that the Confrontation Clause was violated where the state introduced a

blood-alcohol analysis report through the surrogate testimony of a second

analyst, where that analyst had not certified the report or performed or

observed the testing); Melendez-Diaz v. Massachusetts, 557 U.S. 305,

311 (2009) (holding that the defendant was entitled to confront forensic

analysists who had prepared a report regarding the weight of cocaine seized,

absent a showing that the analysts were unavailable and that the defendant

had a prior opportunity to cross-examine them).

      Similarly, our Supreme Court has long recognized that prior testimony

is admissible against the defendant only if the defendant had a “full and fair”

opportunity to examine the witness.     Commonwealth v. Bazemore, 614

A.2d 684 (Pa. Super. 1992). In Commonwealth v. Mangini, 425 A.2d 734

(Pa. 1981), our Supreme Court addressed whether testimony of a currently

unavailable witness, given at the defendant’s first trial, could be introduced

at the defendant’s second trial. Id. at 737. In that case, the second trial

was made necessary by prior counsel’s ineffectiveness for failing to either

request a competency hearing for a witness, or to object to that witness’s

competency on the record. Id. Our Supreme Court held that the witness’s



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prior testimony could not be used, where “the use in the present trial of the

very testimony which has been indelibly stamped with prior counsel’s

ineffectiveness is offensive to our sense of justice and the notion of fair

play.”     Id. at 738.   The Supreme Court cautioned, however, that “our

holding today is not a per se rule requiring exclusion of any testimony from

a prior trial wherein trial counsel had been ineffective.” Id. at 739. To the

contrary, the resolution of a similar claim in a different case would require

an examination of “all of the factual variables … to determine if the

ineffectiveness so tainted the testimony sought to be introduced as to affect

its reliability or to otherwise render its subsequent use unfair.” Id. at 738

(footnote omitted).

         Subsequently, in Bazemore, our Supreme Court concluded that the

defendant was denied a full and fair opportunity to cross examine a witness,

whose prior testimony was offered at trial, where the defendant was denied

access to vital impeachment evidence at or before the time of the prior

proceeding.    Bazemore, 614 A.2d at 688.         In Bazemore, witness Melvin

Hauser (“Hauser”), had testified at the defendant’s preliminary hearing. Id.

at 685.      Defense counsel cross-examined Hauser at that hearing.            Id.

However, defense counsel was unaware, or had not been informed, of

evidence that could impeach Hauser, i.e., that Hauser had made a prior

inconsistent statement to police; that Hauser had a criminal record; and that

the   Commonwealth,      at   the   time   of   the   preliminary   hearing,   was



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contemplating filing criminal charges against Hauser for homicide and

criminal conspiracy, involving the same incident. Id. Prior to trial, Hauser

invoked his Fifth Amendment right against self-incrimination, thereby

rendering him unavailable as a witness.      Id.   In response, the defendant

filed a motion in limine seeking to preclude the Commonwealth from using

Hauser’s preliminary hearing testimony at trial. Id. The trial court granted

the motion, after which the Commonwealth filed an appeal. Id. On appeal,

this Court vacated the order of the trial court. Id.

      On allowance of appeal, our Supreme Court explained that “the

opportunity to cross-examine must be fair[,] given the circumstances of the

particular matter[,] in order for such cross-examination to be deemed

adequate[.]” Id. at 686 (emphasis in original).

      The real basis for the admission of testimony given by a witness
      at a former trial is to prevent the miscarriage of justice where
      the circumstances of the case have made it unreasonable and
      unfair to exclude the testimony.         It naturally follows that
      testimony from the former trial should not be admitted if to do
      so would result in a miscarriage of justice.

Id. (quotation marks and citation omitted).        This exception, though, “is

predicated on the indicia of reliability normally afforded by adequate cross-

examination. … [W]here … that indicia of reliability is lacking, the exception

is no longer applicable.” Id. at 687 (internal quotation marks and citation

omitted).   The Bazemore Court emphasized that where the admission of

prior testimony is being sought as substantive evidence against the accused,

“the standard to be applied is that of full and fair opportunity to cross-


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examine.”     Id. (emphasis in original); accord Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 542-43 (Pa. Super. 1995) (recognizing that where

the defense, at the time of the prior testimony, “was denied access to vital

impeachment evidence … a full and fair opportunity to cross examine the

unavailable witness may be deemed to have been lacking” during the prior

testimony).

      Here, on prior appeal, this Court reviewed Quinn’s testimony in the

context of Dougherty’s claim of ineffective assistance of trial counsel.     In

that appeal, Dougherty argued that “trial counsel’s failure to retain either a

consulting or testifying expert in fire science left counsel unprepared against

Quinn’s testimony, which comprised the most compelling evidence of

[Dougherty’s] guilt.” Dougherty, 93 A.3d 520 (unpublished memorandum

at 9). This Court agreed, observing, inter alia, that

      [g]iven that fourteen years had passed, counsel should have
      determined whether the science which formed the basis of
      Quinn’s opinions in 1985 was subject to new theories which had
      been developed in the forensic fire community. Regardless[,]
      the lack of investigation into the science precluded trial counsel
      from ever understanding whether the science was accurate, the
      main claim asserted by [Dougherty]. Because fourteen years
      had passed, the reliability of the evidence itself[,] or the science
      underlying it[,] should have been important in addressing the
      arson charge.

                                *        *    *

      [I]f counsel had retained either a consulting or testifying fire
      expert, he could have mounted a convincing challenge to the
      substance of the charges arrayed against his client. As the
      PCRA court noted, the scientific evidence proffered by
      Quinn was “the fulcrum of the whole case” against


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      [Dougherty], and Quinn’s conclusions “were the lynchpin”
      to the charges against [Dougherty]. Trial Court Opinion,
      9/11/12, at 27. In a capital case[,] such as the present matter
      at the time of trial, mounting a meaningful challenge to the
      scientific component of the Commonwealth’s case should have
      been the top priority of any competent defense lawyer.
      Through informed cross-examination or, alternatively,
      presentation of a fire expert, counsel could have
      demonstrated to the jury that Quinn overlooked the
      effects of flashover and full-room involvement in a
      compartment fire. Such testimony would tend to show
      that Quinn incorrectly identified multiple points of origin
      for the fire, that his conclusions lacked scientific
      underpinning, and that his opinions conflicted with
      principles of forensic fire investigation that were widely
      accepted at the time of trial. This, in turn, would have
      provided counsel with an evidentiary foundation from which to
      assert that the fire had a single point of origin and that the cause
      of the fire was accidental or, at best, undeterminable….

Id. (unpublished memorandum at 14, 15-16) (emphasis added).                  Thus,

Dougherty, through counsel’s ineffectiveness, was not afforded a full and fair

opportunity to cross-examine Quinn.

      Contrary to the Commonwealth’s assertions, the taint of counsel’s

ineffectiveness was not alleviated through the additional testimony of its

expert, Schneiders.    At the re-trial, in addition to the prior testimony of

Quinn, the Commonwealth presented the testimony of Schneiders, a fire

investigator.   A substantial portion of Schneiders’s testimony focused on

Quinn’s investigation, or, rather, what Quinn’s investigation would have

entailed. For example, the prosecutor asked Schneiders to testify regarding




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the actions undertaken by Quinn to investigate the fire.      N.T. (Morning),

3/28/16, at 32.8 Schneiders, however, responded as follows:

     [Schneiders]: [] Quinn—when we process the scene now that
     the fire is out and it’s clear of smoke and steam and, you know,
     usually some—you never really clear it initially. You start your
     search of the house.

     …

     And with that—all the firefighting operations is [sic] halted.
     Everybody don’t touch [sic] nothing.

           So they would fog it out. And fogging it out, basically, you
     put a water stream in a window, bring it in the house, and put
     on a big fog pattern that acts as an exhaust to get smoke out.
     Then you look for hotspots. Sometimes you have to turn things
     over that are on fire still, and things have collapsed through the
     course of the fire where the material degrades, and also you
     have the steam and the smoke. So you are running around
     trying to put out the little—we call them “hotspots” after the fire.

          So everybody calms down. You take a real hard look at
     everything, and [] Quinn would do that and did.

            In fact, this house, he searched the areas of the house,
     and now we are looking for patterns. And one of the things that
     fire investigators do, you look for—you count from areas—let’s
     say least burned to the heaviest burned. What we mean is when
     you search through the house, what you are going to look for is,
     well, what was on fire and what was not on fire. That’s what we
     call the least to the heaviest amount of damage.

             So, Quinn would go in the basement. They would go in the
     first floor, then the third. So you are doing this assessment and
     looking around the house. So you do all three, sometimes in
     different orders. The order doesn’t matter.




8Both volumes of the Notes of Testimony of March 28, 2016, are designated
as “Volume 1.”     Consequently, we will designate the first volume as
“Morning,” and the second volume as “Afternoon.”


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            So then you look at this house, and you look at a house …
     it’s a little house. So this house doesn’t have any windows on
     the side of the house. It only has windows front and back. … So
     you are taking that all into consideration.

           But to get back to where I was a second ago, the first
     thing you do is, you look at—and you get your line and see what
     was on fire, [and] what wasn’t on fire. So when we work from
     what we call the least amount of damage to the heaviest amount
     of damage.

Id. at 32-34.   Schneiders’s testimony continued in the same manner. For

example, Schneiders testified that

     [w]hen we say the least amount of damage, you—[] Quinn
     based—looked at the heater, the electric fuse panel. He looked
     at the other items in the basement, and you could effectively see
     that there was—really the fire didn’t start there because of
     that’s, guaranteed, the least amount of damage in the
     basement/garage.

                               *     *      *

     Q. [The Commonwealth]: [] Schneiders, in terms of walking
     through the living room and dining room, which had the most
     damage of the two?

     A. [Schneiders]: Without a doubt, the living room, and the
     dining room second to that.

     Q. What did [] Quinn do and see? And walk us through that.

     A. Well, again, we are looking at burn patterns, fire patterns,
     but we use “burn” and “fire” interchangeably.

           You are looking at—like I said earlier, as a firefighter, you
     learn the typical way that a fire—and you draw in experience.
     You have to. And you see what a fire would look like if it started
     in a couch or what it would look like in a loveseat, and it’s
     basically furniture that everyone has in their house.

         And then, like, this was—the dining room table was
     somewhat unique. It was a very sturdy, heavy, wooded—almost


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        like a bench, like a picnic-bench-type thing. It wasn’t a picnic
        bench[,] but resembled that, heavy pieces of wood. And, you
        know, wood is obviously combustible.

             And then there was other furniture in the living room.
        There was a cocktail table, [and] TV.

              The dining room, there was bureau and china cabinet. The
        dining room was paneled, the wood paneling on top of the
        plaster, so you would look at that.

               And then you are really looking for something we call a V-
        Pattern. It’s like the letter V. The fire resembles that. That’s
        like the fingerprinting that we are looking for. We are looking for
        this fire pattern and the burn. Again, it will burn things in its
        path.     That’s what we are talking about, the amount of
        consumption as opposed to lack of consumption next to it.

             Like sometimes—and, here, you could see the fire patterns
        were on the wall, and you could see some areas, definite lines of
        demarcation.

Id. at 35, 41-43.

        In his testimony, Schneiders did confirm that Quinn documented the

location of various items following the fire, and interviewed witnesses. Id.

at 57-58. Schneiders further testified that Quinn took samples of the floor

and carpeting, and sent those to the laboratory for analysis.          Id. at 60.

Schneiders stated for the jury Quinn’s opinion regarding the origin of the

fire.   Id. at 61-62.    Finally, when asked whether he agreed with Quinn’s

“sentiments as to where and how the fire was caused[,]” Schneiders

confirmed that he did, explaining that

        I did a tremendous amount of research, looking at the pictures,
        thinking about myself, if I was in this house first as a firefighter
        …. Then I would think to myself first, as an investigator, what I
        would do, and what I did see and see if he—all the steps would


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     be taken, and they were, to see if the methodology was
     reasonable, and it was.

Id. at 63. Immediately thereafter, Schneiders stated his opinion that there

was no “flashover” on the second floor of the building. Id. at 69.

     Schneiders then reviewed photographs of the scene taken after the

“mop up operation.”       Id. at 72.      From these photographs, Schneiders

testified about Quinn’s documentation of the crime scene, the purpose for

Quinn’s   actions   in   investigating    and   documenting    the   scene,   and

Schneiders’s own description of what the photographs revealed. See id. at

75-126. Describing the photograph of the bodies of the victims, Schneiders

opined that, from the lack of burning to the bodies, there was no flashover

on the second floor.     Id. at 126.     Finally, Schneiders testified that based

upon his examination of all the facts, he classified the fire as “incendiary,”

with three points of origin. N.T. (Afternoon), 3/28/16, at 11-12.

     At the new trial, Dougherty, with the assistance of experts, cross-

examined Schneiders about the basis for his opinion.                 Schneiders’s

testimony provided no opportunity to challenge Quinn’s investigation, as

Schneiders testified as to what he thought Quinn “would have” done during

the investigation. Dougherty could not effectively cross-examine Schneiders

regarding the scientific basis for Quinn’s opinions. As this Court recognized,

in addressing Dougherty’s PCRA appeal,

     the issue of whether the August 24, 1985 fire was caused by
     arson was the bedrock inquiry at [Dougherty’s] trial[,] and
     Quinn’s testimony supplied the scientific support for the


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         Commonwealth’s contention that the fire was intentionally
         started and that [Dougherty] was the individual who ignited it.
         In failing to acquaint himself with the relevant forensic principles
         or, alternatively, to present an expert in fire science,
         [Dougherty’s] counsel essentially allowed the Commonwealth to
         prove the most critical elements of its case without meaningful
         challenge by the defense.         Moreover, if trial counsel had
         undertaken an informed cross-examination of Quinn, and/or
         presented testimony from an expert in fire science, there is a
         reasonable possibility that such efforts would have had the
         spillover effect of causing the jury to view testimony regarding
         [Dougherty’s] admissions through a more skeptical lens or, at
         least, view such testimony as expressions of [Dougherty’s] moral
         regret or remorse, and not inculpatory declarations of his legal
         guilt….

Dougherty, 93 A.3d 520 (unpublished memorandum at 20-21) (emphasis

in original).

         Viewed in this light, the record does not support the conclusion that

Dougherty had a “full and fair” opportunity to cross-examine Quinn during

the first trial.    Dougherty was deprived of this opportunity through the

violation of his Sixth Amendment right to effective counsel.          In addition,

Schneiders’s testimony did not remove the taint caused by counsel’s

ineffectiveness. Applying Bazemore and its progeny, we conclude that the

trial court erred in admitting the prior testimony of Quinn at Dougherty’s re-

trial.

         Our analysis, however, does not conclude at this point. We next look

to determine whether the error in admitting Quinn’s prior testimony was

harmless.

         If an appellate court concludes beyond a reasonable doubt that
         the error could not have contributed to the verdict, the error is


                                    - 17 -
J-A19043-17


     harmless. However, if there is a reasonable possibility that the
     error may have contributed to the verdict, it is not harmless.
     The Commonwealth bears the burden of establishing
     harmlessness beyond a reasonable doubt. Specifically, we will
     find harmless error where:

         (1) the error did not prejudice the defendant or the
         prejudice was de minimis;

         (2) the erroneously admitted evidence was merely
         cumulative of other untainted evidence which was
         substantially similar to the erroneously admitted
         evidence; or

         (3) the properly admitted and uncontradicted evidence of
         guilt was so overwhelming and the prejudicial effect of
         the error was so insignificant by comparison that the
         error could not have contributed to the verdict.

Commonwealth v. Hicks, 156 A.2d 1114, 1156 (Pa. 2017) (internal

quotation marks and citations omitted).

     As set forth above, during much of his testimony, Schneiders testified

as to what Quinn would have done during his investigation, and validated

Quinn’s conclusions.     The error in admitting Quinn’s testimony was

prejudicial to Dougherty, and the prejudice was not de minimis.      Quinn’s

testimony was not merely cumulative at the second trial, as much of

Schneiders’s testimony focused on Quinn’s methods and investigation.

Finally, we cannot conclude that the properly admitted evidence of guilt was

so overwhelming, and the prejudicial effect was so insignificant, that the

error could not have contributed to the verdict. See id. For this reason, we

are constrained to conclude that the trial court erred in admitting the prior

testimony of Quinn at Dougherty’s re-trial, and the error was not harmless.


                                - 18 -
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Accordingly, we reverse Dougherty’s judgment of sentence and remand for a

new trial.

      In his second and third claims of error, Dougherty challenges the

admission of Quinn’s prior testimony. As we have concluded that the trial

court erred in admitting Quinn’s prior testimony, we need not address

Dougherty’s second and third claims.

      In his fourth claim of error, Dougherty argues that the trial court erred

in permitting the Commonwealth to publish an inflammatory photograph of

the burned bodies of Dougherty’s children.         Brief for Appellant at 42.

Dougherty argues that the photograph was inflammatory and had no

evidentiary value.     Id. at 44.      Dougherty argues that the photograph

depicted “the charred bodies of young children in their undergarments in the

bed where they died.” Id. Dougherty points out that, in closing arguments,

the prosecutor acknowledged that the photograph was “just too horrific—I

showed you one time, I will not again.” Id. (citation omitted).

      Regarding the evidentiary value of the photograph, Dougherty states

that the Commonwealth offered the photograph as evidence that (1) if

flashover had occurred …, it would have occurred upstairs as well as

downstairs; (2) no flashover occurred upstairs; and therefore (3) no

flashover occurred.”   Id. at 45.     Dougherty argues that this evidence was

irrelevant because his expert acknowledged that no flashover occurred on

the second floor. Id. Thus, the photograph offered no essential evidence.



                                    - 19 -
J-A19043-17


Id.   Dougherty further argues that the error in admitting the photograph

was not harmless, because even the Commonwealth conceded that

displaying the photograph on a large screen carried the risk of “creating a

scene in the courtroom[;]” and the photograph was not cumulative, as no

other photograph of the burned victims was offered at trial. Id. at 48.

      We review a challenge to the trial court’s admission of photographs

under an abuse of discretion standard.    See Commonwealth v. Solano,

906 A.2d 1180, 1191 (Pa. 2006).      When considering the admissibility of

photographs of a homicide victim, which by their very nature can be

unpleasant, disturbing, and even brutal, the trial court must engage in a

two-step analysis:

      First a [trial] court must determine whether the photograph is
      inflammatory. If not, it may be admitted if it has relevance and
      can assist the jury’s understanding of the facts.          If the
      photograph is inflammatory, the trial court must decide whether
      or not the photographs are of such essential evidentiary value
      that their need clearly outweighs the likelihood of inflaming the
      minds and passions of the jurors.

Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation

omitted). “Although the possibility of inflaming the passions of the jury is

not to be lightly dismissed, a trial judge can minimize this danger with an

appropriate instruction, warning the jury members not to be swayed

emotionally by the disturbing images, but to view them only for their

evidentiary value.”   Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa.

2008).



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       Our review of the record discloses that at trial, the Commonwealth

offered two reasons for admission of the photograph of the victims’ bodies:

(1) to demonstrate the thoroughness of Quinn’s investigation; and (2) to

show that no extreme heat or smoke reached the second floor of the

structure, thereby negating the defense’s assertion that a flashover had

occurred.    See N.T. (Morning), 3/24/16, at 6 (wherein the prosecutor

argued that the photographs “are relevant to show the condition of the

bodies as they were found. It’s important for the issue in terms of how the

fire started, the damage to the house, and, you know, the resulting damage,

not only to the house, but also to the victims themselves.”), 7 (wherein the

prosecutor argued that the photographs “go to exactly what [Quinn] did that

day.    He took multiple pictures of the bodies exactly where they were

positioned when he went there[.]”).       In opposing the admission of the

photographs, however, defense counsel agreed as to the condition of the

second floor, and argued that another, less inflammatory photograph was

available to the Commonwealth:

       [Defense counsel]: … I don’t think there’s a dispute that the
       starting point is, are the photos inflammatory? And I don’t think
       there’s any dispute that they are inflammatory.        They are
       horrible to look at.

            So then the question is, are they of such essential,
       probative value? And I submit to you that they are not.

              First and foremost, … the Commonwealth, at the first
       trial[,] conceded that there was no evidentiary value. They did
       not go at all to the cause of this fire, how this fire started. …
       [N]one of the experts talk about looking at the bodies having


                                 - 21 -
J-A19043-17


      any evidentiary value with respect to how this fire started.
      That’s number one.

             Number two, [the Commonwealth] asserts that’s somehow
      probative with respect to the completeness or the thoroughness
      of [] Quinn’s investigation. All of the testimony that [] Lentini
      will have is with respect to documenting those things that go to
      how this fire started, the burn patterns, those things that are
      asserted.

            Again, the condition of the bodies is not asserted by any
      expert of having probative value or any relevance with respect to
      that, so whether they were documented or not does not go to
      that at all.

            Finally, there’s the issue of flashover[,] and the suggestion
      that … the photograph is probative of that issue. Again, [the
      prosecutor] conceded that our expert never contended that there
      was flashover on the second floor, so whether the boys photos
      show [that] there isn’t doesn’t provide any evidentiary value[,]
      because we are not suggesting that there was flashover up
      there. And even if this [c]ourt is inclined to suggest that there
      was some that the [c]ourt or the jury needs to see if there was
      flashover, notwithstanding that[,] we concede that there was
      not, there is a photo in evidence that is not nearly as
      inflammatory. That’s C-9G, which shows white areas of the
      mattress.

            So, for all these reasons, Judge, we think [] the Court
      should not admit the photograph.

Id. at 11-13.

      Our   own   review   of   the   record   discloses   that   at   trial,   the

Commonwealth introduced the photographs during the testimony of the

Chief Medical Examiner, Samuel Gulino, M.D. (“Dr. Gulino”).            Dr. Gulino

described, in detail, the condition of the victims’ bodies following the fire.

See id. at 103-05, 115-16. After describing the results of autopsies of the

victims, Dr. Gulino opined that each victim died of smoke inhalation.           See


                                 - 22 -
J-A19043-17


id. at 113, 118. Immediately thereafter, the trial court issued the following

cautionary instruction:

      Ladies and Gentlemen of the jury, photos are about to be put in
      evidence for the purpose of showing the conditions of the scene
      as well as to help you understand the testimony of the witnesses
      who refer to it.

            I will warn you, they are not pleasant to look at; however,
      you should not let it stir up emotions to the prejudice of
      [Dougherty]. Your verdict must be based on a rational and fair
      consideration of all the evidence and not on passion or prejudice
      against [Dougherty], the Commonwealth, or anyone else
      connected with this case.

Id. at 119-20. The Commonwealth then asked Dr. Gulino to describe the

condition of the victims, as shown in the photograph. Id. at 121-22. Dr.

Gulino then opined that neither child was exposed to direct flame, but,

rather, to smoke and intense heat. Id. at 122.

      Subsequently, the Commonwealth’s fire expert, Schneiders, referred to

the photograph during his testimony.           When asked what could be

understood from the photograph of the victims, Schnieders stated that

      the lack of burning to the bodies; the fact that you could still see
      their underwear, the plastic diaper. You could still see the
      bedding. The bedding would have ignited. You could still see
      the other material right below the mattress. You could still see
      the pillows. I cannot—I can identify the pillow the boy’s head
      was on.

N.T. (Morning), 3/28/16, at 126. Schneiders testified that the photograph

“clearly documents, without a doubt, that there was not flashover up on the

second floor in this compartment—the whole house is a compartment.” Id.




                                 - 23 -
J-A19043-17


      In its Opinion, the trial court stated the following rationale for

admitting one photograph of the victims:

            The defense strategy in the present case was to attack the
      Commonwealth’s expert’s determination that there were three
      points of origin of the fire and that to propose that because of
      the phenomena of flashover and full room involvement, it was
      impossible to determine the cause of the fire.                 The
      Commonwealth’s experts explained that the staircase, which was
      part of the room set ablaze, would have acted like a chimney,
      and with the severe heat rising in the room, the amount of heat
      and smoke going up the staircase would have been considerable.
      The photograph of the two children on the bed depicts one of the
      children wearing pullups[,] which were still white and the other
      child wearing a diaper with the plastic still intact, negating the
      defense expert’s hypothesis. If the extreme heat required by
      the defense was present, it would be expected that the plastic
      diaper would have melted and the white pullup would have been
      grey at best. Clearly[,] the photograph was a necessary element
      for the Commonwealth to debunk the defense expert’s
      explanation.    Thus, the probative value of the evidence is
      unequivocal.

Trial Court Opinion, 9/1/16, at 15.

      Upon review, we conclude that the trial court improperly admitted the

photograph at trial. Contrary to the trial court’s reasoning, defense counsel

conceded that no flashover had occurred on the second floor of the

structure.    Further, there was another, less inflammatory photograph

available to show the lack of flashover to the mattress under the bodies.

The photograph was of no additional evidentiary value to the jury, in light of

the testimony of Dr. Gulino and Schneiders as to the condition of the bodies.

Under these circumstances, the inflammatory nature of the photograph

outweighed its evidentiary value.



                                 - 24 -
J-A19043-17


      Finally, we conclude that the trial court’s cautionary instruction did not

alleviate its inflammatory nature.    As the prosecutor acknowledged in his

closing argument, the photo was “just too horrific –I showed you one time,

I will not again ….”   N.T. (Morning), 3/31/16, at 62.     For this reason, we

conclude that the trial court abused its discretion in admitting the

photograph of the victims at trial.   We therefore reverse the judgment of

sentence on this basis as well, and remand for a new trial.

      In his fifth claim of error, Dougherty challenges the admission of the

testimony of his ex-girlfriend, McGovern, and his ex-wife, Dippel, “regarding

alleged incidents of past physical abuse by Dougherty, particularly in

instances where they had confronted him about his alcohol consumption.”

Brief for Appellant at 50. First, Dougherty challenges McGovern’s testimony

regarding his demeanor, when he drank, as “nasty” and “belligerent,” and

her statement that he sometimes became physical when drinking. Id. at 51.

Regarding Dippel’s testimony, Dougherty challenges her description of his

temperament, while drinking, as “horrible,” and her assertion that when

drinking, he would punch her and become violent. Id. Dougherty argues

that the only purpose of this testimony was to show that he was the kind of

person who would kill his children.    Id.   Dougherty additionally points out

that the prosecutor used this evidence in his closing argument. Id. at 51-

52.




                                 - 25 -
J-A19043-17


      Dougherty asserts that the evidence was not admissible under Pa.R.E.

404(b).   Brief for Appellant at 52.     Dougherty disputes the trial court’s

justification for admitting this evidence, i.e., that Dougherty’s “pattern of

alcohol[-]induced violence toward women who had challenged his drinking

was clearly admissible to show motive, revenge, intent and malice.” Id. at

52 (citation omitted). Dougherty counters that

      the Commonwealth did not invoke those reasons, and instead
      advocated exclusively for the impermissible inference that (1)
      when women confronted Dougherty about his drinking, he often
      responded with violence; so (2) it is more likely that when
      McGovern and Dippel confronted Dougherty about his drinking
      on August 24, 1985, he responded by starting the fire.

Id.   Dougherty argues that the testimony was offered to “prove the

character of a person in order to show action in conformity therewith, the

specific inference prohibited by Rule 404(b).”        Id. at 52-53 (internal

quotation marks omitted).

      First, we observe that Dougherty failed to object to the testimony of

Dippel on this basis, or the prosecutor’s use of McGovern’s testimony in his

closing argument. Accordingly, those specific arguments are waived. See

Pa.R.E. 302(a) (stating that an issue cannot be raised for the first time on

appeal); see also Commonwealth v. Baumhammers, 960 A.2d 59, 84

(Pa. 2008) (stating that “the absence of a specific[,] contemporaneous

objection renders [an] appellant’s claim waived.”) (citation omitted)).   We

therefore will address Dougherty’s preserved claim.




                                - 26 -
J-A19043-17


            “Evidence is admissible if it is relevant — that is, if it tends
     to establish a material fact, makes a fact at issue more or less
     probable, or supports a reasonable inference supporting a
     material fact — and its probative value outweighs the likelihood
     of unfair prejudice.” Commonwealth v. Boczkowski, 577 Pa.
     421, 846 A.2d 75, 88 (Pa. 2004) (citations omitted).
     Admissibility of evidence is within the sound discretion of the
     trial court and we will not disturb an evidentiary ruling absent an
     abuse of that discretion. Commonwealth v. Arrington, 624
     Pa. 506, 86 A.3d 831, 842 (Pa. 2014), citing Commonwealth
     v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (Pa. 2010)….

Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017).

     Pennsylvania Rule of Evidence 404(b)(1) provides that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.” Pa.R.E. 404(b)(1).

     [E]vidence of prior bad acts, while generally not admissible to
     prove bad character or criminal propensity, is admissible when
     proffered for some other relevant purpose so long as the
     probative value outweighs the prejudicial effect.” Boczkowski,
     846 A.2d at 88. See also Arrington, 86 A.3d at 842, citing
     Pa.R.E. 404(b)(1); Commonwealth v. Morris, 493 Pa. 164,
     425 A.2d 715, 720 (Pa. 1981) (law does not allow use of
     evidence which tends solely to prove accused has “criminal
     disposition”). Such evidence may be admitted to show motive,
     identity, lack of accident or common plan or scheme.
     Arrington, 86 A.3d at 842, citing Pa.R.E.              404(b)(2);
     Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 337 (Pa.
     2011) (Rule 404(b)(2) permits other acts evidence to prove
     motive, lack of accident, common plan or scheme and identity).
     In order for other crimes evidence to be admissible, its probative
     value must outweigh its potential for unfair prejudice against the
     defendant, Pa.R.E. 404 (b)(2), and a comparison of the crimes
     proffered must show a logical connection between them and the
     crime currently charged. Arrington, 86 A.3d at 842.

Hicks, 156 A.3d at 1125.




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     Here, the trial court rejected Dougherty’s challenge to the prior bad-

acts evidence, reasoning that “[Dougherty’s] pattern of alcohol[-]induced

violence toward[s] women who had challenged his drinking was clearly

admissible to show motive, revenge, intent and malice.” Trial Court Opinion,

9/1/16, at 22. When used as evidence of motive, our Supreme Court has

explained that,

     [t]o be admissible under this exception, there must be a specific
     “logical connection” between the other act and the crime at issue
     which establishes that “the crime currently being considered
     grew out of or was in any way caused by the prior set of facts
     and circumstances.” Commonwealth v. Martin, 479 Pa. 63,
     68-69, 387 A.2d 835, 838 (1978) (quoting Commonwealth v.
     Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971)). In
     Martin, for example, thirteen days prior to his murder, the
     victim had struck the appellant with a chair when the appellant
     was attempting to rob others. Our Supreme Court determined
     that this incident constituted a possible motive for the
     subsequent murder, as “the killing grew out of or was in some
     way caused by the prior incident.” Id. at 69, 387 A.2d at 838.

Commonwealth v. Ross, 57 A.3d 85, 100 (Pa. 2012). The Supreme Court

cautioned, however, that

     [t]he mere identification of similarities between the prior bad
     acts and the crime at issue, … does not establish motive.
     Instead, as indicated above, there must be a firm basis for
     concluding that the crime currently on trial “grew out of or was
     in any way caused by the prior set of facts and circumstances.”

Id. at 101 (quoting Commonwealth v. Martin, 387 A.2d 835, 838 (Pa.

1978)).

     At trial, the Commonwealth presented the following testimony from

McGovern, Dougherty’s former girlfriend, McGovern:



                                - 28 -
J-A19043-17


     Q.    [The Commonwealth]: When [Dougherty] drank, how did
     he get? Tell us about his temperament?

          [Defense counsel]: Objection

     Q.    Ma’am, tell the ladies and gentlemen of the jury when he
     drink, his temperament.

     A.   [McGovern]: He would get nasty.

     Q.   How would you describe “nasty” ma’am?

     A.   Belligerent, mean. I don’t know.

     Q.   Would he get physical?

          [Defense counsel]: Objection.

          THE COURT: Overruled.

     …

     Q.    … [Y]ou described his temperament when he was drinking,
     but let me ask you this: What was his temperament when you
     confronted him about the drinking when he was drinking?

     A.   I guess he didn’t like it.

     Q.  Well, ma’am, we weren’t there. You have to tell us, Ms.
     McGovern.

           Just listen to my question. You have to tell the ladies and
     gentlemen of the jury, when he was drinking and you,
     [McGovern], confronted him, what was his response?

     A.   I–

     Q.   How did he respond?

     A.   He would get mad.

     Q.   How did he act? What was—how did he act?

     A.   Mad.


                                 - 29 -
J-A19043-17



      Q.    Okay. Describe “mad.”

            Would he get physical when you confronted him about his
      drinking?

      A.    Sometimes.

N.T., 3/23/16, at 11-13.   Over Dougherty’s objection, the Commonwealth

further confronted McGovern with her statement to police that Dougherty

would hit her when she confronted him about its drinking. Id. at 89-90. In

addition,   the   Commonwealth    confronted    McGovern     about   her   prior

testimony, wherein she stated that Dougherty became “nastier” when

drinking. Id. at 94-95.

      The above testimony does not establish that the alleged arson “grew

out of or was in any way caused by the prior set of facts and circumstances”

as to McGovern.     See Ross, supra.      There is no support for a conclusion

that Dougherty’s prior actions against McGovern evidenced his intent or

malice as to the charge of arson.     There is no evidence that Dougherty

previously placed his children in harm’s way when intoxicated, or that his

violence, when drinking, extended to his children. Rather, the evidence was

offered to show that because Dougherty became violent towards McGovern,

who had confronted him about drinking, he was more likely to act in

conformity therewith and set a fire and kill his children.    Such use is not

permitted under Rule 404(b).     See Pa.R.E. 404(b).    Accordingly, the trial




                                 - 30 -
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court abused its discretion in admitting the prior bad acts testimony of

McGovern.

         Where, as here, the cause of the fire was contested, we cannot deem

this error harmless.        We therefore reverse Dougherty’s judgment of

sentence on this basis as well, and remand for a new trial.

         Finally, Dougherty claims that “[p]rosecutorial misconduct infected the

trial and denied Dougherty a fair trial and due process of law.”       Brief for

Appellant at 56. Dougherty claims that during closing arguments, the trial

court improperly allowed the prosecutor to give personal and inappropriate

opinions as to the credibility of Dougherty’s witnesses.        Id. at 57.   In

particular, Dougherty claims that the prosecutor compared his fire expert to

a charlatan, a prostitute, a three-card monte dealer, and an adulterer. Id.

at 58.

         In its Opinion, the trial court addressed this claim and concluded that

it lacks merit. See Trial Court Opinion, 9/1/16, at 23-28. We agree with the

reasoning of the trial court, as set forth in its Opinion, and affirm on this

basis as to Dougherty’s sixth claim. See id.

         For the foregoing reasons, we are constrained to reverse Dougherty’s

judgment of sentence and remand for a new trial.

         Judgment of sentence reversed.        Case remanded for a new trial.

Superior Court jurisdiction is relinquished.




                                   - 31 -
J-A19043-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/31/2017




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