                       [J-89A&B-2015][M.O. – Donohue, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                 :   No. 694 CAP
                                              :
                    Appellant                 :   Appeal from the Order entered on
                                              :   12/30/2013 in the Court of Common
                                              :   Pleas, Criminal Division of Philadelphia
             v.                               :   County at Nos. CP-51-CR-0417523-
                                              :   1992, CP-51-CR-0417792-1992 and
                                              :   CP-51-CR-0418063-1992
CHRISTOPHER WILLIAMS,                         :
                                              :   SUBMITTED: January 20, 2016
                    Appellee                  :

COMMONWEALTH OF PENNSYLVANIA,                 :   No. 695 CAP
                                              :
                    Appellee                  :   Appeal from the Order entered on
                                              :   12/30/2013 in the Court of Common
                                              :   Pleas, Criminal Division of Philadelphia
             v.                               :   County at Nos. CP-51-CR-0417523-
                                              :   1992, CP-51-CR-0417792-1992 and
                                              :   CP-51-CR-0418063-1992
CHRISTOPHER WILLIAMS,                         :
                                              :   SUBMITTED: January 20, 2016
                    Appellant                 :



                                CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                            DECIDED: July 19, 2016

      Although I concur in the result, I have difficulty with the notion that the failure of

Appellant’s trial counsel to adduce scientific blood-spatter or blood-flow evidence

relative to an impeachment concern meets the prejudice threshold. To the degree that

this evidence undercuts James White’s testimony that two of the victims were killed in

the back a van, and that the body of at least one was thrown or pushed from the

vehicle, it would seem to me that the impact could have been considerably countered by
the prosecution through the mere observation that the bodies apparently had been

exposed to the elements for a substantial period of time before they were discovered.

See, e.g., N.T., July 22, 1993, at 122-123 (reflecting the testimony of a detective that

Kevin Anderson’s body “had been obviously been [sic] there for quite some time,” “[h]is

clothes were soaked,” and “[t]here was not a great amount of blood around the head

area, which you would [n]ormally see from a head wound,” since “[i]t had like been

washed away during the night by the rain” (emphasis added)).

       I also find it problematic to charge criminal defense attorneys with pursuing this

type of scientific evidence relative to an impeachment concern, particularly where there

is another readily available trial strategy that would seem to carry as much or more

force. In this regard, three experienced trial attorneys relied upon cross-examination of

the Commonwealth’s experts, as well as arguments invoking the jurors’ common

experience, to highlight the incongruity arising from the fact that none of the victims’

bodies or clothes evidenced signs of injury or disturbance on account of having been,

as James White described it, thrown or pushed from a moving vehicle.1

1
  One difficulty facing the defendants in their efforts to counter the core elements of
White’s testimony was the unlikelihood that two brothers and their companion from New
York would have been randomly killed on the same night in an uncoordinated fashion by
different actors in different areas of Philadelphia.           Rather, the circumstances
surrounding the murders strongly suggested some sort of coordination in the killings
entailing one or more elements of transportation. In addition to supplying such an
explanation, White’s account was complemented by substantial corroboration in
material respects, including through the testimony of the sister of two of the victims
describing a recent meeting between Appellant and the three victims in New York. See
Majority Opinion, slip op. at 39 n.24 (discussing this and other corroborative details);
see also N.T., July 29, 1993, at 82 (reflecting the depiction, by Appellant’s trial counsel,
of the sister as “a crucial witness for” the prosecution, as “[s]he gives corroboration that
[Appellant] was involved in the shooting of those three men”). Although certainly
evidence tending to disprove discrete details of White’s account could have affected the
jurors’ assessment of its truthfulness, from my point of view, the corroboration of other
important details and the absence of any other plausible explanation for the three
(continuedJ)
                         [J-89A&B-2015][M.O. – Donohue, J.] - 2
      For these reasons, I am more concerned about the trial judge’s conduct in

essentially inserting himself into the case by thwarting relevant and legitimate cross-

examination concerning the condition of the bodies and clothes, and effectively directing

the jurors not to take such matters into account. For example, the following lines of

discourse occurred during the cross-examination of a medical examiner by a

codefendant’s counsel:

             Q. How about if the body is pushed from a moving van,
             would you expect to see some bruising or scrapes?

             [The Prosecutor]: Objection. We don’t know how fast the
             van was going or whether it was slowing to a halt.

             The Court: I will sustain the objection.

             [Counsel for Codefendant Bennett]:             This   is   the
             Commonwealth’s case we’re talking about.

             The Court: I will sustain the objection.

             [Counsel for Codefendant Bennett]: This is evidence
             presented by the Commonwealth.

             [The Prosecutor]: We are talking about questions posed to
             Mr. White, with dramatic flare being injected by [defense
             counsel].



(Jcontinued)
apparently related killings diminishes the likelihood that such impact would have been
dispositive.

In this regard, it is worth noting that the jury acquitted Appellant’s codefendant Rick
Bennett -- who White depicted as having been involved in the planning and execution of
the robberies and homicides in issue -- of most of the criminal charges lodged against
him. Thus, it can be inferred that the jurors, in fact, doubted or disbelieved some very
material details of White’s account while nevertheless returning verdicts of guilt with
respect to Appellant.


                         [J-89A&B-2015][M.O. – Donohue, J.] - 3
The Court: I will sustain the objection. There are too many
variables. This witness cannot answer that.

Q. You just indicated the surface makes a difference, is that
correct?

A. Yes.

Q. As you talk about –

The Court: Hold it. I will sustain an objection.

Look, if someone is thrown from a moving van and lands on
a pile of soft rags, that would have no effect.

[Counsel for Codefendant Bennett]: That’s not the evidence.

[Counsel for codefendant Wilson]: It’s not the evidence in
this case. The evidence in this case is they were thrown out
onto the street.

[Counsel for Appellant]: That was testified to by the witness.

[Counsel for Codefendant Wilson]: From a moving van.

The Court: This doctor cannot answer a question based on
his examination as to exactly what happened to the body
after the shooting.

[Counsel for Codefendant Wilson]: Judge, we are allowed,
Your Honor, to ask a witness –

The Court: You are allowed to ask the witness what I allow
you to ask.

[Counsel for Codefendant Wilson]: That’s patently obvious,
Your Honor.

The Court: I will sustain the objection.




          [J-89A&B-2015][M.O. – Donohue, J.] - 4
N.T., July 28, 1993, at 162-164 (emphasis added); see also id. at 165 (reflecting the

Court’s comments “[t]here are too many variables here,” and “[t]his doctor cannot

possibly tell you how the body fell without some external markings on the body”).

       Furthermore, the court admonished:

              I will ask the jury to disregard that rather silly remark of
              [counsel for codefendant Wilson].

              This court has the duty of allowing all proper questions and
              not allowing a lot of nonsensical questions.
Id. at 168 (emphasis added).      The trial court thus not only precluded relevant and

legitimate cross-examination, it discounted and denigrated the defense position as to

the matter and, again, essentially instructed the jury to disregard a material avenue of

impeachment relative to the Commonwealth’s central witness.

       Particularly given that the inappropriateness of the trial court’s conduct is patently

obvious from the record, was highlighted through serial mistrial motions, see, e.g., id. at

171, and was actually one of the issues raised in the post-sentence motions, see

Majority Opinion, slip op. at 44 n.28, I agree with the PCRA court that the stewardship of

Appellant’s counsel on direct appeal in failing to advance a claim was deficient. See

Commonwealth v. Williams, CP-51-CR-0417523-1992, et al., slip op. at 49 (C.P. Phila.

Dec. 30, 2013) (“[T]here can have been no reason to consciously refrain from raising

the trial court’s clear abuse of discretion in its improper and grossly unbalanced limiting

of cross-examination of the medical experts before the Supreme Court.”). In terms of

prejudice, the majority ably develops the many other problems with the testimony by the

corrupt and polluted source who served as the Commonwealth’s central witness against

Appellant. See Majority Opinion, slip op. at 39-40. The trial court’s inappropriate and

substantial downplaying of a material impeachment concern in relation to such



                         [J-89A&B-2015][M.O. – Donohue, J.] - 5
testimony seems to me to be an error of an essentially structural magnitude, impairing

the integrity of the verdict.


       Justice Dougherty joins this concurring opinion.




                          [J-89A&B-2015][M.O. – Donohue, J.] - 6
