                                    [J-55-2019]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,                :   No. 769 CAP
                                             :
                      Appellee               :   Appeal from the Order entered on
                                             :   10/3/18 in the Court of Common Pleas,
                                             :   Lancaster County, Criminal Division at
                                             :   CP-36-CR-0002879-2010
                 v.                          :
                                             :
JAKEEM LYDELL TOWLES,                        :
                                             :
                      Appellant              :   SUBMITTED: March 26, 2019


                                       OPINION


CHIEF JUSTICE SAYLOR                                           DECIDED: MAY 31, 2019


       This is an appeal from an order denying relief on a capital post-conviction

petition.

                                    I. Background

       On May 7, 2010, Appellant shot and killed the victim, Cornell Anton Stewart, Jr.,

outside a former fire hall in Columbia, Pennsylvania, which had been converted into a

local “fun center.” The center was hosting rap music performances, including a set of

songs performed by the victim and another individual, John Wright.

       At a jury trial, Appellant was found guilty of first-degree murder, and the jurors

returned a death sentence at the conclusion of the penalty phase of the trial. The

judgment of sentence was sustained by this Court on direct appeal.                  See

Commonwealth v. Towles, 630 Pa. 183, 106 A.3d 591 (2014).
       Appellant filed the instant post-conviction petition averring, inter alia, that his trial

counsel was ineffective for rendering allegedly unreasonable advice encouraging

Appellant to refrain from testifying at the guilt phase of his trial, and for failing to call a

forensic psychologist, Gerald Cooke, PhD, as a defense witness at the guilt phase to

opine that Appellant’s intoxication and paranoid personality features played a

substantial part in his actions.1

       Circumstances from Appellant’s trial relevant to these claims are as follows.2

The Commonwealth presented evidence that, prior to their arrival at the center,

Appellant, his cousin, Tyrone Hunter, and a friend, Antwain Robinson, ingested

substantial quantities of alcohol and smoked marijuana. See, e.g., N.T., May 8, 2012,

at 265, 310-11; N.T., May 9, 2012, at 431.          The prosecution also established that

Appellant had surreptitiously removed a handgun from Hunter’s apartment and secreted

it in an alleyway situated behind the center. See N.T., May 8, 2012, at 288-289, 295.

       In his opening remarks, the prosecutor summarized the Commonwealth’s case

for first-degree murder as follows:

              The show was set to begin at 10[pm]. They -- John Wright
              went by the name of J Dub when he was performing and
              Anton Stewart went by the name of Young EZ.

                             *              *             *


1 The standards governing claims of deficient attorney stewardship in criminal cases are
set forth in myriad decisions. To succeed on an ineffectiveness claim, a petitioner must
establish that: the underlying legal claim has arguable merit; counsel had no
reasonable basis for her action or inaction; and the petitioner suffered prejudice as a
result. See Commonwealth v. Pierce, 515 Pa. 153, 158–60, 527 A.2d 973, 975–76
(1987).
2 For better clarity, the discrete background for the remaining claims that Appellant has
advanced in this appeal is developed in Part II of this opinion, contemporaneous with
the disposition of each of those matters.


                                       [J-55-2019] - 2
             . . . There were a couple of opening acts. And they went on
             to perform.

             However, they did not even get to complete their first song,
             because as you will hear, there was a man in the crowd that
             night, a man who was just looking for trouble.

             That man approached John Wright as he was performing.
             He grabbed the mic from John Wright. Subsequent to that,
             the man made a threating gesture to another performer.
             From that a scuffle ensued, right there during the
             performance.

             As a result of that scuffle, that man who was looking for
             trouble that night was escorted out the front door. John
             Wright was taken out to the back of the establishment.

             And, ladies and gentlemen, just minutes later, that man
             returned to the back of that establishment and opened fire.
N.T., May 7, 2012, at 23-24.        The Commonwealth then presented supportive

eyewitness testimony. See, e.g., N.T., May 8, 2012, at 103-141 (direct testimony of

Wright); id. at 206-255 (Hunter); id. at 278-307 (Robinson). Through various witnesses,

the Commonwealth also demonstrated that Appellant fled the scene and intended to

permanently leave the local area, made incriminating statements to various witnesses

and instructed others not to talk, and was untruthful with police when he ultimately

surrendered himself. See, e.g., N.T., May 8, 2012, at 300; N.T., May 9, 2012, at 356,

373-375.

      The Commonwealth pursued the first-degree murder conviction under the theory

that Appellant intended to kill Wright -- because Wright had assaulted him during the

altercation inside the center -- but had inadvertently shot the victim. See, e.g., N.T.,

May 10, 2012, at 548. See generally 18 Pa.C.S. §303(b)(1) (embodying the criminal-

law doctrine of transferred intent). The defense, for its part, conceded that Appellant

was the shooter but sought a lesser verdict of voluntary manslaughter on the theory that


                                    [J-55-2019] - 3
the Commonwealth could not establish the essential element of malice, since Appellant

purportedly acted in the heat of passion. See 18 Pa.C.S. §2503(a) (delineating the

elements of the crime of heat-of-passion voluntary manslaughter, including the killing of

an individual without lawful justification while “acting under a sudden and intense

passion resulting from serious provocation”).

       In an effort to advance the heat-of-passion voluntary manslaughter theory,

Appellant presented expert testimony from a medical toxicologist, Lawrence Guzzardi,

M.D., to demonstrate that Appellant was highly intoxicated and that his perceptions and

judgment were also affected by the assault he had sustained. See N.T., May 10, 2012,

at 464-482. Responding to an objection by the Commonwealth, however, the trial court

precluded the expert from rendering an opinion specific to the case.             The court

explained that, given that Appellant was exercising his right against self-incrimination

and refraining from testifying, he could not supply the predicate facts. See id. at 444-

445.   In response, the defense couched the toxicologist’s testimony in terms of a

hypothetical scenario intended to mirror Appellant’s circumstances as depicted in the

trial evidence. See id. at 464-482.

       In the post-conviction proceedings, the PCRA court conducted an evidentiary

hearing pertaining to select claims. Appellant offered testimony from both attorneys

who represented him at trial, initially in furtherance of the contention that they rendered

deficient stewardship in advising Appellant not to testify. Both lawyers attested that

their primary concern was to prevent the Commonwealth from confronting Appellant

with the fact that he had a prior conviction for robbery. See, e.g., N.T., Sept. 18, 2017,

at 49, 110. According to the lead attorney:

             [Appellant] has a robbery conviction as an adult and I
             thought it would be better . . . for the jury to [know only] that
             [he] would have just been somebody there who just

                                      [J-55-2019] - 4
              happened to be there [at the center] and did not have that
              type of conviction.

              I thought it would be much tougher to make an argument for
              voluntary manslaughter if they knew that he had a conviction
              for robbery.
Id. at 110.    Lead counsel also expressed a lesser reservation regarding whether

Appellant would present consistent, credible testimony. See id. at 132-134.

       In terms of the evidence of Appellant’s intoxication, the following interchange

occurred with lead counsel:

          Q. So am I correct that you knew when you advised [Appellant]
             not to testify that there would be no way for the jury to know
             from [Appellant’s] perspective how impaired he was from the
             drugs and the alcohol?

          A. Well, the impair [sic] for drugs and alcohol would have been
             an argument for diminished capacity, which would have
             been third degree [murder]. We were not arguing for third
             degree.

              We were arguing heat of passion. Now, Guzzardi had an
              element for that in terms of the drugs and the alcohol being
              in -- almost like a multiplier effect in the way he felt. And
              that’s how we were able to introduce that evidence[.].
Id. at 111-112.3

       Appellant   also   presented    post-conviction   testimony   from     the   forensic

psychologist, Dr. Cooke. Prior to trial, the expert had been engaged by the defense to

conduct psychological and neuropsychological examinations upon Appellant in

preparation for the penalty phase of trial, albeit the defense had chosen to call the lead

3  Counsel is correct that Pennsylvania law sharply limits the use of evidence of
voluntary intoxication in criminal cases. See infra Part II(A)(2) (discussing 18 Pa.C.S.
§308). As explained below, however, his suggestion that such evidence may be
integrated into a defense effort to secure a lesser verdict of heat-of-passion voluntary
manslaughter is materially problematic. See id.


                                      [J-55-2019] - 5
mental-health expert, psychiatrist Jerome Gottlieb, M.D. -- and not Dr. Cooke -- at that

stage.    Dr. Cooke testified that he had diagnosed Appellant with chronic persistent

depression, drug dependency, alcohol abuse, and personality disorder with antisocial

and paranoid features. See N.T., Sept. 18, 2017, at 11. The forensic psychologist also

indicated that Appellant manifested substantial difficulties with perceptual reasoning and

processing speed, i.e. “how quickly a person can correctly view a situation,” which were

magnified by drug and alcohol use. See id. at 9-10; see also id. at 15-16 (reflecting Dr.

Cooke’s testimony that Appellant’s paranoia would have been exacerbated by his

intoxication, and his impulse control would have been diminished).         According to Dr.

Cooke, “a person like [Appellant] will perceive even common criticisms as an attack,

and feel like they have to respond to an attack.” Id. at 12; see also id. at 15 (reflecting

Dr. Cooke’s testimony that, if provoked, Appellant “will respond aggressively”).

         On cross-examination, Dr. Cooke acknowledged that he had determined that, at

the time of the murder, Appellant was capable of forming a specific intent to kill. See id.

at 22. Furthermore, lead trial counsel testified that the experts consulted by the defense

-- including Dr. Cooke -- indicated in pretrial discussions that, given the circumstances

of the killing as they understood them, they were unable to support the various theories

the defense was considering. See N.T., Sept. 18, 2017, at 101-107, 144-149.

         Specifically, trial counsel testified that Dr. Cooke “did not disagree” with Dr.

Gottlieb, in that he:

               wouldn’t support self-defense, because [Appellant] could
               have walked away.

               He wouldn’t support heat of passion because of the same
               reason.

               And he wouldn’t support third degree, diminished capacity,
               voluntary intoxication because he felt the level of details that

                                       [J-55-2019] - 6
              [Appellant] expressed to him was not consistent with
              someone that was under the influence of alcohol or drugs
              that are required for third degree.
Id. at 103-104; see also id. at 148-19.

       Finally, Appellant was offered as the final witness at the post-conviction hearing.

He stated that he had wished to testify at trial in his own defense, but that trial counsel

said that he did not need to do so, because Dr. Guzzardi would cover the same ground.

See id. at 184.    Appellant also related his version of the events surrounding the

homicide, encapsulated in the following narrative taken from his present brief:

              [Appellant] just wanted to leave the club to get away from
              those individuals who had just “jumped” him. He had
              absolutely no intention of returning to the Family Fun Center
              that night.

              Critically, [Appellant] could have also explained to the jury
              that he went to the alley [behind the center] and retrieved the
              gun with the intention of leaving and nothing else. . . .

              He was on his way out of the area when he heard someone
              yell “Yo.” He turned around and saw his cousin standing on
              4th Street. He and Hunter started to walk toward each other.
              [Appellant] had no intention of shooting anyone. . .. If
              believed, the jury could have found that [Appellant] only
              intended to go back to get Hunter and leave. If he had
              intended to go back and seek revenge he would have had
              the gun drawn. Instead, it is uncontested that the gun
              remained tucked in his waistband as he walked toward [his
              cousin].

              [Appellant] was a couple of feet away from [his cousin] when
              he heard “Yo, there he go right there.” [Appellant] didn’t see
              who was yelling. However, when he turned to his right he
              saw one of the people who had been inside the club earlier
              pointing at him and others still coming out the back door.

              [Appellant] had a history of getting “jumped” and as a result,
              was very fearful and paranoid of it happening again.
              Critically, only [Appellant] could have told the jury how he

                                      [J-55-2019] - 7
              was feeling and what he was thinking at that precise
              moment.

                            *             *              *

              Reacting out of fear, and believing that they were going to
              give chase if he just ran, [Appellant] pulled the gun from his
              waist and fired in their direction. He didn’t even raise the
              gun all the way up. He was not firing at anyone -- just in
              their general direction. He wanted them to “back off” so that
              he could get away.
Brief for Appellant at 14-16 (emphasis in original; citations omitted).

       The PCRA court issued an opinion and order denying relief. See Commonwealth

v. Towles, No. 2879-2010, slip op. (C.P. Lancaster Oct. 3, 2018). With respect to

Appellant’s claim of deficient stewardship in the advice for him to refrain from testifying,

the PCRA court reasoned that such testimony would have been “highly prejudicial” to

the defense’s assertion that the killing occurred in the heat-of-passion. Id. at 5. The

court explained:

              [Appellant] did not testify that he was acting under a sudden
              and intense passion resulting from serious provocation that
              rendered him incapable of reason. In fact, [he] testified that
              each action he took after being escorted out of the club was
              a choice resulting from reason. His testimony, if credible,
              reflects a clear recollection of the events of the evening in
              detail as well as a clear purpose for each action taken by
              [him].

              He testified that he walked, but didn’t run, away from the
              club with Mr. Robinson because he wanted to get away from
              the club, that he was able to recall that he had stashed the
              gun in the alleyway earlier in the evening and, despite being
              afraid and only wanting to get out of the area, stopped to
              retrieve the gun and put it in his waistband. [Appellant] also
              testified that his reason for stopping to retrieve the gun was
              because he felt protected having it “in case somebody came
              out again.”


                                      [J-55-2019] - 8
             [Appellant] testified that when he subsequently heard
             someone behind yell “yo,” that he did not pull the gun, but
             turned around and recognized his cousin coming up the alley
             towards him. Again, despite claiming to be in fear and only
             wanting to get away from the club, [Appellant] testified that
             he began walking back towards the club, but only for the
             purpose of meeting up with his cousin. [Appellant] testified
             that when he heard someone yell “there he go right there” he
             turned and saw people at the back of the club pointing at him
             and felt threatened.

             [Appellant] testified that he did not recognize anyone in the
             group behind the club, but because he felt threatened and
             like they were going to come after him, he pulled the gun
             from his waistband, pointed it toward the group and fired it
             multiple times in their direction. [Appellant] testified that he
             did not fire the gun toward the group because he wanted to
             kill anyone, but thought that firing the gun at them would
             scare the group and keep them from coming after him.

             [Appellant’s] testimony reveals that he was acting with clear
             purpose and reason when he fired multiple shots at the
             group of people behind the club. That testimony, even if
             believed, does not demonstrate a killing resulting from an
             objective serious provocation or a killing by a person
             incapable of reason with no time for cool reflection. It
             demonstrates murder with malice.
Id. at 5-6 (citations omitted; paragraphing added).

      Along these lines, the PCRA court observed that Appellant’s testimony more

closely approximated a defense that he had unreasonably believed that he was justified

in using deadly force.       See 18 Pa.C.S. §2503(b) (setting forth the crime of

unreasonable-belief voluntary manslaughter or imperfect self-defense). The court also

noted, however, that this defense lacked merit, “because the circumstances, even as

[Appellant] believed them to exist, would not have legally justified the use of deadly

force.” Towles, No. 2879-2010, slip op. at 6 n.12 (noting that Appellant “admitted that

he was not initially attacked with any weapons, that he observed the group at the time of


                                     [J-55-2019] - 9
the killing not to have any weapons, that he was in an elevated position from the group

and that he could have retreated to a place of safety, if necessary or so desired”).4

       The PCRA court further explained that most of what was developed in

Appellant’s post-conviction testimony already was on the record from other sources:

              Mr. Hunter testified that [Appellant] and Mr. Robinson were
              walking away from the club and did not turn around until Mr.
              Hunter yelled to them. He also testified that he heard
              someone from the back of the club yell “there they go right
              there” and then saw [Appellant] raise the gun and fire three
              shots.

              Relevant to [Appellant’s] claim concerning the extent of the
              preceding assault by Mr. Wright, there was no evidence in
              the record that [Appellant] was the aggressor of physical
              violence and, in fact, several witnesses testified to the
              contrary and acknowledged that [Appellant] was walking
              away when Mr. Wright assaulted him. Additionally, several
              witnesses, including . . . Mr. Wright, noted that [Appellant]
              took multiple hard hits and that the hits were enough to
              knock him down at least partially to the floor. While
              [Appellant] currently claims that his testimony would have
              described a more severe attack by multiple unknown
              persons, his statements to police immediately following the
              incident, which were admitted at trial, corroborate the
              testimony of the witnesses at trial. This version of events
              was also corroborated by the fact that [Appellant’s] only
              visible injury following the assault was a scab on his lip that
              was there prior to the attack.
Id. at 6-7 (citations omitted).

       Regarding Appellant’s intoxication “to the extent that it was relevant,” the PCRA

court found that ample evidence had been adduced at trial that Appellant had “imbibed


4 This Court has also indicated that a defendant advancing a self-defense or an
imperfect self-defense claim must admit that he acted with the intent to use deadly force
upon another individual to protect himself. See Commonwealth v. Philistin, 617 Pa.
358, 378, 53 A.3d 1, 12 (2012).


                                     [J-55-2019] - 10
heavily in alcohol and marijuana throughout the evening and was visibly intoxicated.”

Id. at 8.   The court also opined that Appellant’s testimony concerning his own

intoxication would have added little to Dr. Guzzardi’s testimony. See id.

      Turning to the testimony of Appellant’s lead attorney at trial, the PCRA court

stressed that, although counsel ultimately advised Appellant not to testify, he had

informed Appellant of his right to do so, discussed potential downsides, and left the

decision up to Appellant. See id. at 9 (citing N.T., Sept. 18, 2017, at 77, 87, 109-111,

126-130). Additionally, the court reasoned:

             [Appellant] was advised not to testify because doing so
             would permit evidence of [his] prior robbery conviction and
             because [Appellant’s] lack of credibility would have hurt his
             defense. [Appellant’s] counsel for the penalty phase of trial .
             . . testified that she discussed the possibility of [Appellant]
             testifying with her co-counsel, but thought it would be
             strategically unwise for him to do so because his robbery
             conviction, which is considered a crime of violence, would
             have hurt him in the penalty phase of trial. [Penalty counsel]
             explained that having the jury know about [Appellant’s] prior
             robbery conviction would have made it harder to convince
             the jury that [Appellant] had value and did not deserve the
             death penalty.

             [Lead counsel] explained that he had a strategic basis for
             advising [Appellant] not to testify, in that he wanted the jury
             to see [Appellant] as someone without a history of crime and
             violent encounters, especially given the evidence that
             [Appellant] had previously asked for the gun. Having
             [Appellant] testify to or opening the door to testimony
             concerning a history of altercations, paired with the
             testimony that [Appellant] had made prior requests for the
             gun, could have implied [Appellant] was seeking trouble, it
             would have shown that [Appellant] had prior experience with
             violent encounters and it would have made it harder for a
             jury to believe [Appellant] was merely acting in the sudden
             heat of the moment.



                                    [J-55-2019] - 11
              Despite their preference and advice that [Appellant] not
              testify, both counsel testified that it was [Appellant’s]
              decision and that they would have accepted any decision by
              [Appellant] to testify and would have proceeded accordingly.


Id. at 9-10 (citations omitted; paragraphing added). The court also concluded that any

possible benefit from Appellant’s testimony would have been outweighed by

impeachment via his robbery conviction and prior inconsistent statements reflecting his

untruthfulness with police and defense experts. See id. at 10-11.

       Ultimately, the court indicated:

              This Court, having witnessed [Appellant] testify, certainly
              deemed him to be not credible and finds it highly unlikely
              [Appellant] would have presented as a credible witness at
              trial. . . . The record is clear in this matter that trial counsel
              was not ineffective since he apprised [Appellant] of his right
              to testify, explained the pitfalls associated with exercising
              that right, had a strategic basis for his advice to not testify
              and ultimately left the decision up to [Appellant].
Id. at 11.

       Regarding trial counsel’s failure to call Dr. Cooke as a witness, the PCRA court

observed that, although the forensic psychiatrist’s testimony might have been

admissible, for many of the reasons discussed above, it “would not have been beneficial

to the defense and, in many respects, may have been harmful given [Appellant’s]

strategy at trial.” Id. at 12. The court elaborated as follows:

              [Lead counsel] stated that he considered using both Dr.
              Gottlieb and Dr. Cooke during the [guilt] phase of trial, but
              changed his mind after speaking with the experts. [Lead
              counsel] testified credibly that when he asked both doctors if
              they would be willing to support certain defenses, including
              “heat of passion,” they both expressed an inability.

              While Dr. Cooke noted that [Appellant] suffers from certain
              personality disorders, it is well-settled that the presence of

                                      [J-55-2019] - 12
                such disorders does not automatically make such evidence
                relevant or admissible and certainly does not itself render a
                killing manslaughter. See Com. v. Sheppard, 648 A.2d 563,
                568-69 (Pa. 1994) (stating that mere diagnosis of paranoid
                personality disorder does not permit reduction of offense
                from murder to voluntary manslaughter). Dr. Cooke’s report
                and testimony were insufficient to support a claim of
                voluntary manslaughter in that he never stated [Appellant’s]
                disorder(s) so [a]ffected [his] mind that it created a bona fide
                belief he was in danger and spoke more to [his] lack of ability
                to control his behavior and his tendency to respond to even
                minor provocation with physical aggression. Dr. Cooke
                opined that [Appellant] was capable of forming specific intent
                to kill at the time of the shooting and that [he] expressed he
                actually had a reason for pulling the trigger and that the
                reason was to scare people.

                It could also be argued that [Appellant’s] insistence, to both
                counsel and Dr. Cooke, that he was acting in self-defense,
                would have precluded the possibility of a “heat of passion”
                finding. See, [e.g.,] Com v. Sheppard, 648 A.2d at 566
                (finding psychiatric/psychological testimony was not relevant
                or admissible to support a claim of “heat of passion” where
                [Appellant] testified that he acted in self-defense).
                Regardless, neither the opinion of Dr. Gottlieb nor the
                opinion of Dr. Cooke support a claim that [Appellant] was
                acting under sudden passion that rendered him incapable of
                reason.
Id. at 12-13.

       The PCRA court also determined that Dr. Cooke’s opinion would have “opened

the door” to other prejudicial information, including Appellant’s aggressiveness, id. at 13

(observing that Dr. Cooke found “that [Appellant] would be likely to react to perceived

threats, including to his mere sense of masculinity, with aggression rather than just

running away”), and lack of candor with his own experts, see id. at 13-14.

       After the PCRA court issued its opinion, Appellant lodged the present appeal. In

the broadest frame, we review the findings of the post-conviction court to ensure that



                                       [J-55-2019] - 13
they are supported by the record and free from legal error. See, e.g., Commonwealth v.

Ligons, 601 Pa. 103, 123, 971 A.2d 1125, 1136–37 (2009).

                                  II. Claims on Appeal


A. Counsel’s Advice for Appellant to Refrain from Testifying at Trial

       Appellant first maintains that his trial counsel was ineffective for advising him not

to testify at the guilt phase of his trial.   According to Appellant, his own testimony

regarding the degree of his intoxication, the violent circumstances of the assault upon

him, and his own self-asserted lack of aggressiveness would have provided essential

support for the defense theory that a verdict of voluntary manslaughter was appropriate

under a heat-of-passion theory. See Brief for Appellant at 9 (“[T]he evidentiary record

was woefully inadequate to permit a jury to find that a reasonable man who was

confronted with these provoking events would become impassioned and incapable of

cool reflection.”); id. at 20 (“The defense had not given the jury any evidence to support

their finding any lesser degree of homicide, specifically ‘heat of passion.’” (emphasis in

original)). Contrary to the determination of the PCRA court that his testimony would

have been harmful, Appellant asserts that the probative value greatly exceeded any

potential prejudice.

       In this regard, Appellant rejects the PCRA court’s conclusion that his testimony,

even if believed, would not demonstrate a killing resulting from an objective serious

provocation or a killing by a person incapable of reason.         By way of explanation,

Appellant first highlights his post-conviction testimony demonstrating that he was “highly

intoxicated at the time of the shooting.” Id. at 10. Appellant posits that the importance

of such evidence was paramount, since, in his view, juries often disregard or discount

opinions based on hypothetical scenarios such as those rendered by Dr. Guzzardi.

Additionally, Appellant stresses that his post-conviction testimony depicts the assault

                                     [J-55-2019] - 14
upon him after he disrupted the rap performance as involving greater “viciousness” than

was related at trial. Brief for Appellant at 43. Again, he believes that it was essential for

the jury to appreciate the full forcefulness of the assault.

         Appellant also claims that it would have been important for him to explain to the

jurors that he had never intended to take the pistol from Hunter’s apartment, but rather,

he had forgotten that he had put it in his back pocket after he had removed it from the

place of its concealment in Hunter’s apartment. See id. at 11 (citing N.T., Sept. 18,

2017, at 196). Additionally, Appellant asserts that he could have provided the jurors a

tenable reason why he put the gun in the alley and left it there.            See id.    at 11

(summarizing Appellant’s testimony that “[h]e didn’t want Hunter to know he took the

gun in the first place and he didn’t want to risk taking the gun into [a] store in case the

police ‘rolled up’” (quoting N.T., Sept. 18, 2017, at 158)). The argument segues into

Appellant’s recitation of his asserted perspective from the time he was removed from

the center through the time of the shooting, as quoted previously from his brief. See

supra.

         In Appellant’s view, lead trial counsel’s sole concern in advising him not to testify

was with the disclosure of Appellant’s prior robbery conviction.            In this respect,

Appellant criticizes the PCRA court for relying upon a series of other reasons. See Brief

for Appellant at 19 (“The PCRA Court is bound by what counsel said was his reason

and not by what the Court believes could be additional reasons.”).            Appellant also

complains that he did not have “complete disclosure” and the “full advice and counsel”

of his attorney regarding the options, including potential advantages, disadvantages and




                                       [J-55-2019] - 15
consequences of his refraining from testifying.     Id. at 19-20 (referencing, inter alia,

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).5

       Finally, relying upon Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super.

2015), Appellant posits that the appropriate standard for determining prejudice relative

to a claim of deficient advice concerning whether a defendant should testify is not the

traditional one. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 158–60, 527 A.2d

973, 975–76 (1987) (explaining that prejudice is generally established by a

demonstration, by a preponderance of the evidence, of a reasonable probability that,

but for the deficient stewardship, the outcome of trial would have been different).

Rather, Appellant argues that the appropriate threshold for prejudice is assessed

according to whether the result of a petitioner’s decision to waive the right to testify

would have been different absent counsel’s ineffectiveness. Accord Walker, 110 A.3d

at 1005. Appellant concludes that prejudice is established here, since he presented his

post-conviction testimony that, but for counsel’s advice, he would have taken the

witness stand at his trial.

       1) Heat-of-Passion Voluntary Manslaughter, Generally
       At the outset, we agree with the PCRA court’s discernment of conceptual

problems with Appellant’s arguments, tracing to the defense theory at trial.

       Per the Crimes Code, heat-of-passion voluntary manslaughter is delineated as

follows:
              A person who kills an individual without lawful justification
              commits voluntary manslaughter if at the time of the killing



5 Although Appellant cites directly to Strickland, the “complete disclosure” and “full
advice and counsel” language appears to be taken from a discussion of a lawyer’s
obligations regarding plea bargains and potential sentencing exposure contained in
Boyd v. Waymart, 579 F.3d 330, 353 (3d Cir. 2009).


                                    [J-55-2019] - 16
              he is acting under a sudden and intense passion resulting
              from serious provocation by:

              (1) the individual killed; or

              (2) another whom the actor endeavors to kill, but he
                  negligently or accidentally causes the death of the
                  individual killed.
18 Pa.C.S. 2503(a). Under the case law, the killing must be accomplished with specific

intent to bring about the victim’s death. See, e.g., Commonwealth v. Mason, 474 Pa.

308, 311, 378 A.2d 807, 808 (1977) (“[A] necessary element of both murder in the first

degree and voluntary manslaughter is the specific intent to kill.”).6

       As noted, however, Appellant testified at the post-conviction hearing that,

regardless of the assault upon him, he never intended to shoot or kill the victim or

anyone else. See N.T., Sept. 18, 2017, at 179. But the jury at Appellant’s trial was

instructed, consistent with the decisional law, that in order to secure a verdict of heat-of-

passion voluntary manslaughter, the defendant must have intended the killing. See,

e.g., N.T., May 10, 2012, at 552 (reflecting the trial court’s instruction defining voluntary

manslaughter as requiring “the intent to kill” and explaining that “[v]oluntary

manslaughter is basically an intentional killing for which malice is not proven because of

passion or provocation” (emphasis added)). Accordingly, a material facet of Appellant’s

post-conviction testimony is irreconcilably inconsistent with the position the defense

asserted at trial and which is advanced in his present brief, i.e., that Appellant was not

guilty of first-degree murder but had instead committed voluntary manslaughter. See,

e.g., Mason, 474 Pa. at 311, 378 A.2d at 808.

6 When the defendant “endeavors to kill” a person other than the victim, but negligently
or accidentally causes the victim’s death, the specific intent element is made explicit in
the statute.    18 Pa.C.S. §2503(a).        Again, in the present case, it was the
Commonwealth’s theory that Appellant intended to kill Wright but accidentally shot the
victim.


                                       [J-55-2019] - 17
       Significantly, Appellant also does not now contend that trial counsel disregarded

any contemporaneous assertion, by him, that he did not intend the killing. Nor does he

posit that counsel should have pursued a verdict other than voluntary manslaughter,

including an acquittal, or that counsel should have requested a different jury charge at

his trial. Thus, it appears that Appellant is implicitly suggesting that the jury could have

accepted the Commonwealth’s contention that he acted with a specific intent to kill and

rejected his own testimony that he lacked such intent, but the jury still could have pieced

together a voluntary manslaughter verdict by otherwise crediting his testimony that he

acted from intense fear and lacked malice. In other words, the jury could have believed

him in part.

       Trial counsel’s tactic was to leave the specific intent element essentially

uncontested by the defense, which is a strategy also attended by some risk. Of course,

the present case was always fraught with risk in all events, since the Commonwealth

possessed compelling evidence that Appellant shot at an unarmed man while not under

any immediate threat of any harm and with an avenue for retreat. In any event, it is

plain that Appellant’s testimony would have exacerbated the many difficulties involved in

singularly advancing a heat-of-passion defense in the circumstances presented in this

case by explicitly placing the specific intent element into controversy. And although this

may not be entirely disabling for Appellant, since the jury would have been free to

accept part but not all of his testimony, we are quite circumspect about the argument

that a defense attorney might render deficient stewardship by failing to encourage the

advancement of testimony that is materially inconsistent with the defense’s sole theory

of the case.7

7 Parenthetically, trial counsel testified that Appellant had wished to pursue a claim of
self-defense, that counsel deemed this “a bridge too far,” and that the defense had
ultimately settled on the heat-of-passion theory. See N.T., Sept. 18, 2017, at 112, 136.
(continued…)
                                     [J-55-2019] - 18
        In terms of the objective/subjective aspects of the heat-of-passion inquiry,

Appellant does recognize in the abstract that there is an objective component. See,

e.g., McCusker, 448 Pa. at 398-90, 292 A.2d at 290 (“The ultimate test for adequate

provocation remains whether a reasonable man, confronted with this series of events,

[would become] impassioned to the extent that his mind was ‘incapable of cool

reflection.’”).   His arguments nonetheless ultimately devolve into a treatment of his

unique, personal mental state, and it is mostly from this subjective frame of reference

that Appellant attempts to demonstrate that a reasonable person confronted with the

circumstances surrounding the victim’s death would have been susceptible to acting as

he did.8 The absence of any reasonably developed argument, relative to adequate

provocation, that does not intermix subjective factors into the objective inquiry further

militates against Appellant’s claim.

        2) Voluntary Intoxication

        We proceed to consider Appellant’s present emphasis on his drug and alcohol

consumption, which is problematic not only because it ties into Appellant’s subjective

state of mind, but also on account of legal constraints upon the use of evidence of

voluntary intoxication as a defense to criminal liability.

(…continued)
Counsel’s assessment relative to self-defense was plainly an apt one, see supra note 4
and accompanying text, and Appellant does not challenge it here.

8 See, e.g., Brief for Appellant at 9-10 (framing the second element of heat-of-passion
voluntary manslaughter as requiring that “a reasonable man who was confronted with
these provoking events would become impassioned,” and contending that Appellant’s
drug and alcohol consumption would have “been important evidence” in support of that
element (emphasis added)); see also id. at 23 (“Expert psychological testimony was
necessary to help the jury understand [Appellant’s] subjective state of mind.” (emphasis
added)); accord Brief for Appellee at 22 (“[Appellant’s] argument appears to be
premised on the notion that the adequacy of the provocation should be assessed using
a subjective standard.”).


                                       [J-55-2019] - 19
       In this regard, the trial court instructed the jury that voluntary intoxication and/or a

“drugged condition” are relevant only as to whether a defendant is capable of forming

specific intent to commit first-degree murder. N.T., May 10, 2012, at 547; cf. 18 Pa.C.S.

§308. See generally Commonwealth v. Breakiron, 524 Pa. 282, 295-96, 571 A.2d 1035,

1041 (1990) (quoting Commonwealth v. England, 474 Pa. 1, 19-20, 375 A.2d 1292,

1301 (1977)).9 Furthermore, the court charged the jurors that:

              The general rules apply to lesser crimes. They prevent a
              defendant from using his or her own voluntary intoxication or
              drugged condition in any way to defend him or herself
              against an accused -- an accusation of third-degree murder
              or voluntary manslaughter.
N.T., May 10, 2012, at 547 (emphasis added); accord Breakiron, 524 Pa. at 295-96, 571

A.2d at 1041; cf. United States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997)

(“[E]xpert testimony on intoxication would be irrelevant, if not entirely improper, in

relation to general intent crimes such as . . . voluntary manslaughter where intoxication

is no defense.”).10

9 Section 308 of the Crimes Code restricts the admissibility of evidence of voluntary
intoxication relative to proof of intent, see 18 Pa.C.S. §308, but, at least by its terms, it
does not affect admissibility concerning other issues, for example, identity. The trial
court’s treatment, however, deriving from the decisional law, expressed the prohibition
in broader terms. We are not called upon in this case to address this inconsistency,
particularly since the issue before the trial court, and now in the post-conviction
proceedings, pertains to an intent element -- specifically malice -- in any event. See
Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981) (“Malice is one
of the essential elements of third degree murder, and it is the distinguishing factor
between murder and manslaughter.” (citation omitted)); Commonwealth v. Weinstein,
499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982) (“Malice aforethought is the general
intent prerequisite to a finding of murder.” (emphasis added)).

10As previously noted, in Pennsylvania, per this Court’s decisional law, heat-of-passion
voluntary manslaughter is, in the first instance, a specific intent crime. See, e.g.,
Mason, 474 Pa. at 311, 378 A.2d at 808. This facially distinguishes cases, such as
Hatatley, from jurisdictions in which manslaughter is treated as a general intent crime.
(continued…)
                                      [J-55-2019] - 20
       Accordingly, both at trial and in our present review, Appellant’s own testimony

about his voluntary intoxication could not and cannot be relied upon as support for the

defense theory of the case, namely that Appellant acted under the influence of intense

passion rather than with malice. Therefore, counsel will not be deemed ineffective for

failing to present additional evidence of this kind.11




(…continued)
Nevertheless, the element in question -- as concerns the effort to secure a reduction
from murder to manslaughter -- is the general intent element of malice. See supra note
9 (citing Young 494 Pa. at 227, 431 A.2d at 232, and Weinstein, 499 Pa. at 115, 451
A.2d at 1348).

11 We emphasize that Appellant does not presently criticize his trial counsel’s attempt to
rely on evidence of voluntary intoxication in support of a voluntary-manslaughter verdict.
Rather, he seeks to bolster the case that was presented at trial via the assertion that his
own testimony would have provided further support. See, e.g., Brief for Appellant at 10
(“Had [Appellant] testified, he would have told the jury about his drug and alcohol
consumption that day and that he was highly intoxicated at the time of the shooting.
This would have been important evidence in support of . . . the ‘heat of passion’ test.”).

Furthermore, Appellant does not contend that counsel was ineffective in failing to
present more evidence of intoxication in an effort to reduce the verdict from first- to
third-degree murder, perhaps at least partially in light of the elevated threshold for such
arguments. See, e.g., Breakiron, 524 Pa. at 296, 571 A.2d at 1041 (explaining that a
defendant must demonstrate that he was “overwhelmed to the point of losing his
faculties and sensibilities” to establish a voluntary intoxication defense to first-degree
murder).

As a final observation, we appreciate that this Court has never squarely reconciled the
Breakiron line of cases, to the degree these cases foreclose the use of voluntary
intoxication in any way to negate malice, with the decision in McCusker, which permits
evidence of defendant’s subjective state of mind relative to malice.           But cf.
Commonwealth v. Bridge, 495 Pa. 568, 578-79, 435 A.2d 151, 156-57 (1981) (citing
McCusker during the course of a treatment of voluntary intoxication in the voluntary-
manslaughter context). To the extent there is tension, we leave the reconciliation for
another day, given that the matter is nuanced and beyond the scope of the present
briefing.


                                      [J-55-2019] - 21
3) The PCRA Court’s Disposition

      Finally, we agree with much of the remaining reasoning and the core conclusion

of the PCRA court’s opinion. According to his credited post-conviction testimony, lead

trial counsel met with Appellant often. See N.T., Sept. 18, 2017, at 77. Appellant was

non-cooperative in many respects, including his insistence, for five months into the

representation, that Hunter, and not he, perpetrated the killing. See id. at 130. When

the discussions progressed to the point that Appellant finally accepted what the

evidence convincingly demonstrated -- namely, that he was the shooter -- Appellant

took the position that he acted in self-defense in shooting at an unarmed man from an

elevated position with an open avenue of retreat. See id. at 112.12

      Appellant makes some fair points in that counsel either did not remember

discussing with him, or may not have exhaustively discussed, all potential advantages

and drawbacks associated with presenting Appellant’s testimony at trial. Additionally,

the PCRA court did, to some extent, attribute reasons to trial counsel to which they did

not testify. But, in the end, in the landscape with which we have been presented -- in

which heat-of-passion voluntary manslaughter is the only option on account of the post-

conviction advocacy for that theory only -- the case on post-conviction is so weak that

we find the claim to be lacking in arguable merit. See supra note 1.13 In this regard, we

12 The references to an “elevated position” stem from the fact that Appellant shot from
the alleyway down into a sunken patio behind the center. See, e.g., N.T., Sept. 18,
2017, at 194. Appellant conceded on post-conviction that he could have retreated,
albeit that he added that Wright and others “could have took chase.” Id. at 195.

13 It would seem that the option to pursue a verdict of third-degree murder might have
been preferable, but of course counsel in these scenarios are confronted with many
difficulties in discussing the limited range of reasonable options with clients in homicide
cases in which identity simply is not an issue and a justification defense is implausible.
And certainly clients often will have a different perspective concerning the options, in
hindsight, after a guilty verdict has been rendered.


                                     [J-55-2019] - 22
rely both on the conceptual difficulties with Appellant’s position and the PCRA court’s

factual assessment of the post-conviction evidence, as discussed above.              Most

specifically, we are in full accord with the court’s judgment that the prospect of harm

from Appellant testifying was substantial.14

       Consistent with the PCRA court’s disposition, we also find that Appellant fails to

demonstrate a reasonable probability of a different outcome of his trial that would

undermine confidence in the guilt-phase verdict. See Pierce, 515 Pa. at 157, 527 A.2d

at 974 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). We recognize, as

Appellant highlights, that the Superior Court’s Walker decision applies a different

prejudice standard derived from prior decisions of this Court. See Walker, 110 A.3d at

1005 (holding that prejudice, relative to a claim of deficient stewardship in advising a

defendant not to testify at trial, is assessed according only to whether or not the

defendant would have testified had fuller advice been rendered). We decline, however,

to consider here whether that standard is the correct one to apply generally to claims of

deficient stewardship associated with legal advice discouraging a defendant from

testifying at trial. We do so, in part, because the Commonwealth has not presented any

advocacy for or against the particularized Walker standard.

       Instead, we simply conclude that the Walker standard cannot apply in this

particular case, given the pervasive weaknesses in Appellant’s argument throughout. It

would simply be unreasonable to afford Appellant a new trial to present a heat-of-


14That said, again, we appreciate that the trial court’s instructions negated a main thrust
of the defense (i.e., reliance on Appellant’s voluntary intoxication). Accordingly,
consistent with the tenor of the PCRA court’s decision, our reasoning here is that cross-
examination of Appellant, inter alia, about his prior robbery conviction and prior
inconsistent statement would likely have further reduced whatever chance the defense
might have had to secure a heat-of-passion voluntary manslaughter verdict in the first
instance.


                                     [J-55-2019] - 23
passion theory to a jury which is inherently weakened by his own testimony that he

never intended to shoot anyone; that is stripped of a main element of Appellant’s

present argumentation concerning his voluntary intoxication; and which encompasses

an objective criterion that Appellant wishes to address through a discussion of

subjective factors. Application of the Walker standard here would also preclude us from

giving any effect to the substantial evidence of Appellant’s consciousness of guilt

(including fleeing the scene and being untruthful with police), and the PCRA court’s

abundantly reasonable conclusion that jurors would have been (and would be) skeptical

of Appellant’s self-serving testimony. He simply faces too many hurdles otherwise to

relieve him of the obligation to establish that, but for the asserted lack of completeness

in his counsel’s advice, there is a reasonable probability the outcome of the proceedings

would have been different.

       We realize that the above and some other apparent misunderstandings reflected

in Appellant’s brief, as discussed below, are problematic. The present forum, however,

is not available to consider the appropriateness of redress relative to the stewardship of

post-conviction counsel. See Commonwealth v. Pitts, 603 Pa. 1, 9 n.4, 981 A.2d 875,

880 n.4 (2009).


B. Trial Counsel’s Failure to Call Dr. Cooke as a Guilt-Phase Witness

       Appellant next faults his trial attorney for failing to call Dr. Cooke as an expert

witness to testify to Appellant’s mental state, including his intoxication and personal

susceptibility to passion.   See, e.g., Brief for Appellant at 27 (“Dr. Cooke could have

testified that [Appellant’s] consumption of drugs and alcohol prior to the crime not only

gave [Appellant] poor control of his impulses and decreased processing of things

around him, it also exacerbated his paranoid perceptions.”). Even putting aside the

conceptual difficulties discussed in Part II(A) above, however, the PCRA court credited

                                     [J-55-2019] - 24
trial counsel’s post-conviction testimony that the defense expert witnesses -- including

Dr. Cooke -- indicated in pre-trial discussions that they could not support the claim that

Appellant acted in the heat of passion. See Towles, No. 2879-2010, slip op. at 12

(citing N.T., Sept. 18, 2017, at 101-107, 144-149). In this respect and more broadly, the

court also reasonably observed that Dr. Cooke’s testimony would likely have harmed

the defense case. See id. at 13-14.

       Moreover, we reiterate that, although under McCusker a defendant is permitted

to present psychiatric evidence of his personal state of mind to establish that he acted in

the heat of passion, objective provocation remains a required threshold.               See

McCusker, 448 Pa. at 389-95, 292 A.2d at 290-93. Appellant’s own pervasive focus on

his subjective mental state exposes the great difficulty in conceptualizing the

circumstances surrounding the killing of the victim as fear-based provocation adequate,

from a standpoint of objective reasonableness, to result in the shooting of an unarmed

man from an elevated position, despite an open avenue for retreat.


C. Counsel’s Failure to Lodge a Particular Objection to the Striking of Two Jurors

       Appellant contends that his trial counsel rendered deficient stewardship by failing

to object to the Commonwealth’s exercise of peremptory strikes for Jurors 25 and 31 on

the basis of alleged gender discrimination.       Appellant highlights that, in his direct

appeal, this Court found the identical claim to have been waived. See Towles, 630 Pa.

at 201, 106 A.3d at 601.

       A material difficulty with Appellant’s argument is that, despite the determination of

waiver, this Court nevertheless engaged in a merits resolution of the underlying claim of

gender discrimination. See id. at 201-02, 106 A.3d at 601-02 (crediting the trial court’s

determination that “even if appellant’s gender-based claims were preserved, the

Commonwealth gave sufficient race-neutral and gender-neutral reasons for its

                                      [J-55-2019] - 25
peremptory challenges and demonstrated no purposeful discrimination”). See generally

Commonwealth v. Markman, 591 Pa. 249, 282, 916 A.2d 586, 606 (2007) (quoting

Commonwealth v. Swing, 409 Pa. 241, 245, 186 A.2d 24, 26 (1962), for the proposition

that “[w]here a decision rests on two or more grounds equally valid, none may be

relegated to the inferior status of obiter dictum”)). Accordingly, the underlying claim is

previously litigated and not a proper subject for post-conviction relief. See 42 Pa.C.S.

§9543(a)(3) (reflecting the requirement that a PCRA petitioner must demonstrate “[t]hat

the allegation of error has not been previously litigated or waived”).


D. Video Evidence

       Appellant’s next claim is that his trial counsel were ineffective for various failures

relating to video recordings.

       By way of background, as part of the Commonwealth’s case in chief, the

prosecutor presented a video disc containing recordings of some of the events inside

the center, including a segment showing Appellant interrupting the rap performance by

Wright and the victim. This was introduced through the testimony of Jerry Puryear, one

of two persons from whom the Commonwealth had secured the footage. See N.T., May

8, 2012, at 168-181. The other individual was Robert Sanders, who had not been called

as a trial witness.

       In the post-conviction proceedings, Appellant lodged a prehearing discovery

request seeking an examination, by an expert, of the video footage to determine

whether it had been tampered with.15 The PCRA court denied the request.




15Appellant’s motion appears to be missing from the original record, but the
Commonwealth’s response is included.


                                     [J-55-2019] - 26
       At the post-conviction hearing, Appellant attempted to call Puryear as a witness,

but Puryear’s counsel indicated that he would invoke his right against self-incrimination.

See N.T., Sept. 18, 2017, at 121. Sanders testified, however, and he related that he

had filmed some of the events that occurred prior to the killing.           Additionally, he

explained that, although he did not recall stopping the filming at any point, he did not

remember if his camera was still active when the physical altercation occurred inside

the center. See id. at 27. Sanders also indicated that he had dropped his camera after

the shooting and lost it, and that it was returned to him a few days later. See id. at 28-

29.

       Notably, both of Appellant’s trial attorneys did express a belief that portions of the

video filmed by Sanders may have been missing. See id. at 50, 88. Nevertheless, lead

counsel thought it would be counterproductive to call Sanders as a witness at trial, since

he had presented an unfavorable eyewitness perspective on the shooting to police.

See id. at 90, 101.

       Presently, Appellant suggests that portions of the videos critical to the defense

had been deleted.      Specifically, he asserts that the missing footage would have

demonstrated his own lack of aggression and that he “had been ‘rushed’ and set upon

by a group of people who joined in, hitting and kicking him while he was being held in a

choke hold by Wright.” Brief for Appellant at 36; see also id. at 43 (“Had the jury seen

for themselves the viciousness of the assault on [Appellant] inside the Center [the

jurors] would have likely found that [Appellant] had adequate provocation to establish

his heat of passion defense.”).      Appellant relies on trial counsel’s post-conviction

testimony that it “would have been really, really important” for the jurors to have seen

the altercation inside the center for themselves.          N.T., Sept. 18, 2017, at 79.




                                     [J-55-2019] - 27
Accordingly, he faults counsel for having failed to obtain an expert to examine the

original footage to determine whether the missing portions could be recovered.

      Appellant appreciates that it is his burden to establish prejudice and that without

any evidence that there was missing footage that could actually be restored, he cannot

do so. In this regard, however, Appellant criticizes the PCRA court for denying his

discovery request. He explains, as follows:

             The PCRA court held that the instant claim was entirely
             speculative. That is because the PCRA Court denied
             [Appellant’s] pre-PCRA hearing discovery request to permit
             him to have the original footage examined by an expert, thus
             limiting present counsel’s ability to do more than speculate
             as to what would be on that footage. The PCRA Court
             cannot deny [Appellant] the ability to present more definitive
             evidence and at the same time find the claim is too
             speculative.       [Appellant]     avers   that  exceptional
             circumstances existed which would have permitted this post-
             conviction discovery.
Brief for Appellant at 35. Appellant also asserts that, if the jurors had known that the

recordings were incomplete and had been altered, they could have accorded the

footage lesser weight in their guilt-phase determination. See id. at 43.

      Discovery in a first counseled post-conviction petition in a death penalty case is

permitted only “after a showing of good cause.” Pa.R.Crim.P. 902(E)(2). A petitioner

must make “more than just a generic demand for potentially exculpatory evidence that

might be discovered if the petitioner is permitted to review requested materials.”

Commonwealth v. Chambers, 570 Pa. 3, 32, 807 A.2d 872, 889 (2002). On appellate

review, a petitioner challenging a PCRA court’s discovery ruling must establish that the

court abused its discretion, and a deferential review standard pertains.      See, e.g.,

Commonwealth v. Baumhammers, 599 Pa. 1, 45, 960 A.2d 59, 86 (2008) (explaining

that “[d]iscretion is abused when the course pursued represents not merely an error of


                                     [J-55-2019] - 28
judgment, but where the judgment is manifestly unreasonable or where the law is not

applied or where the record shows that the action is a result of partiality, prejudice, bias

or ill will” (quoting Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753

(2000))).

         Here, reasonable minds might differ as to whether Appellant should have been

permitted to examine the video evidence, particularly as his trial counsel had

contemporaneous concerns that there may have been some alteration. Nevertheless,

applying the deferential standard of review, we find no abuse of discretion.

         Initially, the trial evidence establishing that Appellant was hit “very hard” in the

head several times by Wright is at least roughly consistent with the statement Appellant

himself gave to police. N.T., May 8, 2012, at 155; see also N.T., May 9, 2012, at 374

(reflecting Appellant’s statement to police that “[a] big fight broke out and someone

swung on me. I went down and covered up. Somebody grabbed the guy that swung on

me.”).

         To the degree that Appellant’s post-conviction version of the events would be

believed, i.e., that he was attacked by a substantial crowd that surrounded him, even by

his own testimony the scene was chaotic and the event somewhat fleeting. See N.T.,

Sept. 18, 2017, at 171-172. In the circumstances, the likelihood that a camera operator

would have captured Appellant’s image amidst a surrounding crowd would seem to be

questionable. Moreover, as the prosecutor emphasized in his closing remarks, there

was no evidence that Appellant bore any injuries as a consequence of the assault upon

him. See, e.g., N.T., May 10, 2012, at 520-521. And ultimately, through Wright and

otherwise, trial counsel did ably develop that Appellant had been subjected to a violent

assault. In all events, the defense still would have been confronted with the force of the

Commonwealth’s argument:


                                       [J-55-2019] - 29
              [W]e actually had a little debate here, well, it’s two or three
              punches. Say it’s a hundred punches. . . . [Y]ou get the
              point.

              That is not reasonable provocation. That is not provocation
              that a reasonable individual would say, you know, now I’m
              going to kill this person. Those are fights that happen in
              school yards.
Id. at 513-14 (reflecting closing remarks of the prosecutor at trial).

       As the PCRA court’s discretionary discovery ruling will not be overturned,

Appellant cannot establish prejudice in the form of allegedly missing evidence.


E. Trial Counsel’s Cross-examination of Robinson

       Appellant proceeds to criticize his lead trial counsel’s cross-examination of

Commonwealth witness Antwain Robinson. In the portions of Robinson’s testimony

material to this claim, Robinson testified that, prior to the pair’s arrival at Hunter’s

apartment, Appellant had stated that he wanted to take Hunter’s gun. See id. at 282-83.

Robinson also indicated that he left the center after Appellant was escorted from the

hall. See Id. at 294-95. Robinson further related that, upon returning to Appellant’s

place of residence subsequent to the killing, Appellant asked his mother for money so

that he could leave town. See id. at 304-305. The Commonwealth and the defense

stipulated that Robinson had not “told [police] everything” in a statement that he gave

before trial. See N.T., May 9, 2012, at 403.

       Appellant explains that Robinson gave three statements to police on three

different days, and there were multiple discrepancies between them. Appellant faults

his trial counsel for failing to confront Robinson with those discrepancies.

       First, Appellant observes that it was not until his third statement to police that

Robinson had related that, on the way to Hunter’s apartment, Appellant had said that he




                                      [J-55-2019] - 30
wanted to take Hunter’s gun.       According to Appellant, this admission prejudicially

implied premeditation on his part. See Brief for Appellant at 44.

         Next, Appellant depicts an evolution in Robinson’s statements concerning how

Appellant came to be in possession of Hunter’s gun. He highlights that it was not until

the third statement that Robinson said that he had observed Appellant taking the pistol

from a hiding place in Hunter’s apartment. Appellant reasons that counsel could have

therefore suggested to the jury that Robinson’s memory was faulty, that he was

untruthful, or that he was “provided the additional information and/or had seen other

evidence.” Id. at 45. Along these lines, Appellant explains that a similar transformation

took place with respect to Robinson’s statements and ultimate testimony concerning

Appellant’s concealment of the pistol in the alleyway.            According to Appellant,

Robinson’s testimony “very prejudicially placed the gun in [Appellant’s] possession.” Id.

at 46.

         Appellant also delineates discrepancies, among Robinson’s statements,

concerning whether Robinson or Appellant left the center first.            He argues that

Robinson’s trial testimony that he came out after appellant prejudicially implied that

Appellant may have been lying in wait for the victim. See id. at 47.16

         Additionally, Appellant complains that his trial attorney failed to elicit from

Robinson a statement that he gave to police indicting that Appellant had said to his

mother: “Someone tried to fight me at the party, I had to do what I had to do.” Id. at 47

(citation omitted). From Appellant’s perspective, such testimony would have aided in

establishing and corroborating Appellant’s state of mind at the time of the killing.



16 Since neither the Commonwealth nor Appellant have ever contended that Appellant
intended to do harm to the victim, Appellant’s reference in this passage is more aptly
understood to refer to Wright.


                                     [J-55-2019] - 31
       Finally, Appellant disapproves of his trial attorney’s stipulation that Robinson

“hadn’t told [police] everything in the first statement.”    N.T., May 9, 2012, at 403.

According to Appellant, this stipulation “effectively made [Robinson’s] third statement

appear to be an admission/conceded truth.”         Brief for Appellant at 48.   Ultimately,

Appellant posits that counsel’s actions and inactions served to bolster the weight and

credibility of Robinson’s prejudicial testimony.

       In addressing these contentions, the PCRA court first noted that Robinson’s

statement concerning Appellant’s prior interest in the gun did not imply premeditation,

“[e]specially considering that [Appellant] did not shoot or attempt to shoot anyone with

[whom] he had any prior connection or relationship.” Towles, No. 2879-2010, slip op. at

17-18. The court further explained that attempting to impeach numerous portions of

Robinson’s testimony would have been unproductive, since there was ample

corroboration throughout the evidentiary record, and potentially counterproductive, since

Robinson was privy to more prejudicial information than was presented to the jurors.

See id. at 18-19 (explaining, as an example, that “Mr. Robinson had previously told law

enforcement that [Appellant] told his mother that he had, in fact, shot someone and that

he saw a body drop”);17 accord N.T., Sept. 18, 2017, at 100 (reflecting trial counsel’s

testimony that the Commonwealth had performed “a very cursory examination of Mr.

Robinson” and did not delve into “a lot of incriminating things”). Additionally, the court

explained that counsel had adduced Robinson’s concession that his memory was

adversely affected by a previous head injury; that he had himself consumed substantial

quantities of alcohol and drugs that evening; and that he had a prior crimen falsi




17This information squarely conflicts with Appellant’s post-conviction explanation that he
only learned the next day that a bullet had hit anyone. See N.T., Sept. 18, 2017, at 181.


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conviction. See id. at 19-20. With regard to the stipulation, the PCRA court found that it

was supportive of the defense challenge to Robinson’s credibility. See id. at 18.

       Upon our review of the record, we find the PCRA court’s rationale to be

supported by the record and free from legal error. In this regard, we agree with the

determination that Appellant has failed to demonstrate that the judgments made by

counsel fell outside the “wide range of reasonable professional assistance.”            See

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.


F. Constitutionality of the Death Penalty in View of Appellant’s Age

       Appellant next maintains that a sentence of death cannot be constitutionally

imposed on a person who was twenty years old at the time he committed the capital

crime. In this regard, Appellant cites Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct.

1183, 1198 (2005) (holding that the Eighth Amendment prohibits application of the

death penalty to offenders who were younger than eighteen years of age at the time of

the offense), and Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455, 2460 (2012)

(same, for life imprisonment without the possibility of parole).

       Appellant recognizes that the Supreme Court of the United States determined

that “[t]he age of 18 is the point where society draws the line for many purposes

between childhood and adulthood” and is “the age at which the line for death eligibility

should rest.” Roper, 543 U.S. at 574, 125 S. Ct. at 1198. He premises his argument,

however, upon a state intermediate appellate court decision applying the proportionate

penalties clause of the Illinois Constitution. See People v. House, 72 N.E.3d 357 (Ill.

App. 2015).

       As the Commonwealth explains, however, the Illinois Supreme Court directed the

Illinois Appellate Court, First District, to vacate its decision in House and to consider the



                                      [J-55-2019] - 33
effect of People v. Harris, 120 N.E.3d 900 (Ill. 2018). See People v. House, 111 N.E.3d

940 (Ill. 2018) (per curiam). In Harris, the Illinois Supreme Court stated:

                [W]e note that claims for extending Miller to offenders 18
                years of age or older have been repeatedly rejected. We
                agree with those decisions and our appellate court that, for
                sentencing purposes, the age of 18 marks the present line
                between juveniles and adults.
Harris, 120 N.E.3d at 914 (citations omitted).

       Appellant also does not disclose that the intermediate appellate court’s decision

in House was an as-applied ruling premised, in substantial part, upon the appellant’s

conviction for murder on an accountability theory premised upon his status as only a

lookout, during a shooting, who never handled a gun. See House, 72 N.E.3d at 389.

This is obviously a material distinguishing factor, relative to Appellant, who himself shot

an unarmed man. Appellant further fails to discuss any provision of the Pennsylvania

Constitution.

       As explained by the PCRA court, the post-conviction arena does not generally

offer a forum to innovate new principles of constitutional law. See, e.g., Commonwealth

v. Robinson, 623 Pa. 345, 384-85, 82 A.3d 998, 1021-22 (2013). In terms of federal

constitutional doctrine, we apply the ruling of the Supreme Court of the United States

setting the age of death eligibility at 18. As to the Pennsylvania Constitution, we find

Appellant’s claim to be too poorly developed for further consideration here.


G. Cumulative Impact

       Finally, Appellant argues that his constitutional rights to due process of law and a

fair trial have been violated by the cumulative impact of the above claims.           See

Commonwealth v. Johnson, 600 Pa. 329, 344-45, 966 A.2d 523, 532 (2009) (explaining

that cumulative prejudice from multiple instances of deficient performance may properly


                                      [J-55-2019] - 34
be assessed in the aggregate when the individual claims have failed due to lack of

prejudice). Regarding the claims that we have discussed in terms of the prejudice

component of the ineffectiveness inquiry, however, we conclude that prejudice has not

been demonstrated, either on an individual basis or in the aggregate.



      For the above reasons, the order of the post-conviction court is affirmed.



      Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.




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