Com. v. Vandivner, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES W. VANDIVNER,
Appellant. No. 295 WDA 2018
Appeal from the PCRA Order, January 17, 2014,
in the Court of Common Pleas of Fayette County,
Criminal Division at No(s): CP-26-CR-0001229-2004.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 31, 2018
James W. VanDivner appeals from the order denying his first petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-9546. This appeal comes to us after our Supreme Court’s remand. For
the reasons that follow, we affirm in part and vacate in part.
VanDivner was originally sentenced to death for killing his former
girlfriend, Michelle Cable (“the victim”). In his direct appeal, our Supreme
Court summarized the pertinent facts as follows:
Jessica Cable, [her brother, Billy,] and her mother [the
victim], lived at 100 East Second Street, Grindstone,
Fayette County. On July 5, 2004, Jessica was babysitting at
a neighbor’s home. Between 8:30 and 9:00 p.m., Jessica
saw [VanDivner] driving in the direction of her home and
immediately ran home. When she arrived, she saw
[VanDivner] get out of his vehicle and walk to the back
porch of her home. As Jessica followed, [VanDivner]
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entered the home through the back door, and, while walking
through the home, encountered a family friend, Larry
Newman, in the living room. [VanDivner] asked Larry
where [the victim] was, and Larry pointed to the front door.
[VanDivner] then opened the door and walked onto the sun
porch.
On the steps leading to the sun porch from the outside,
[VanDivner] met [the victim] and her son, Billy Cable. As
[VanDivner] walked onto the porch, Billy told him, “Dude,
get off of my property.” [VanDivner] then pointed a gun at
[the victim], at which point Billy pounced on [VanDivner] in
an attempt to wrestle the gun from his hand. [VanDivner]
managed to keep the gun and pointed it at Larry Newman’s
head. Larry’s relative, Kenneth Newman, then rushed
[VanDivner] and the gun fired. [VanDivner], who still had
the gun, walked quickly to [the victim] and told her he was
going to kill her. He grabbed her by the hair, shot her in
the head, and, as she fell to the ground, stated, “There, you
bitch, I said I was going to kill you.” [VanDivner] smiled
and walked away. A motorist who was passing by saw
[VanDivner] grab [the victim] by the hair and shoot her in
the head.
Meanwhile, after unsuccessfully attempting to take the
gun from [VanDivner], Billy had gone inside the home to
look for a weapon to protect his family. When he was unable
to find a weapon, he left the home. As he stepped off the
back porch, Billy saw [VanDivner] walking toward him with
a gun in his hand. [VanDivner] pointed the gun at Billy, who
turned to run away. [VanDivner] shot Billy in the neck and
then left the scene. Police subsequently apprehended
[VanDivner] in a field and recovered a Jennings J22
handgun. As [VanDivner] was being taken into an interview
room at the Pennsylvania State Police barracks, he blurted
out to Trooper James Monkelis, “This is a death penalty case
and I don’t want the needle, life for a life. Tell the DA I will
plead guilty to life. I would have killed myself if I knew [the
victim] was dead.”
On July 8, 2004, Dr. Cyril Wecht performed an autopsy
on [the victim] and determined that the manner of death
was homicide in that she “died as a result of anoxic and
cephalopathy, diminution of oxygen to the brain tissue with
degeneration, early necrosis, death of the brain tissue,
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produced as a result of the gunshot wound to the head.” Dr.
Wecht recovered the bullet from [the victim’s] brain and
provided it to the State Police for analysis. Corporal David
J. Burlingame, an expert in the field of firearm and toolmark
examination determined that the bullet recovered from [the
victim’s] brain was fired from the Jennings 22 handgun
found in [VanDivner’s] possession at the time of his
apprehension.
Commonwealth v. VanDivner, 962 A.2d 1170, 1173-74 (Pa 2009)
(“VanDivner I’).
Our Supreme Court further summarized the procedural history following
VanDivner’s arrest as follows:
Prior to trial, [VanDivner] filed a petition to bar the death
penalty, alleging that he is [intellectually disabled] and has
significant limitations in adaptive skills. He argued that,
pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002), the execution of [an
intellectually disabled] person constitutes cruel and unusual
punishment and requested a pretrial hearing to determine
whether the death penalty should be barred in this instance.
[The Honorable Gerald R. Solomon] held a four-day hearing
on [VanDivner’s] petition at which [VanDivner] presented
the testimony of two expert witnesses and several lay
witnesses, and the Commonwealth offered the testimony of
a psychiatrist and an official of the Department of
Transportation. Judge Solomon determined that
[VanDivner] failed to meet his burden of proving that his
limitations, if any, began before he was 18 years of age, as
required by the standards for determining [intellectual
disability] endorsed by this Court in Commonwealth v.
Miller, 585 Pa. 144, 888 A.2d 624 (2005). Thus, based
upon [VanDivner’s] failure to establish this element, the
court denied the petition.
A jury found [VanDivner] guilty of the first-degree
murder of [the victim], criminal attempt to commit criminal
homicide [and aggravated assault] with respect to Billy and
the aggravated assault of Larry Newman. At the penalty
phase hearing, the Commonwealth presented evidence of
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two aggravating circumstances: (1) that, in the commission
of the offenses [VanDivner] knowingly created a grave risk
of death to another person in addition to the victim, 42
Pa.C.S. § 9711(d)(7); and (2) that [VanDivner] had a
significant history of felony convictions involving the use or
threat of violence, id. § 9711(d)(9). The jury found both
aggravating circumstances and one mitigating circumstance
related to [VanDivner’s] character and the circumstances of
his offense, id. § 9711(e)(8) (the “catchall” mitigator), and
determined that the two aggravating circumstances
outweighed the mitigating circumstance. Thus, the jury
returned a sentence of death. On February 12, 2007, the
trial court formally imposed the death sentence as well as a
consecutive sentence of 20 to 40 years for the attempted
homicide of Billy Cable, [a consecutive 10 to 20 years for
the aggravated assault of Billy Cable,] and a sentence of 10
to 20 years to run consecutively to [VanDivner’s] sentence
for first-degree murder and attempted murder, for the
aggravated assault of Larry Newman.
VanDivner, 962 A.2d at 1174-75.1
VanDivner filed a direct appeal to our Supreme Court in which he raised
eight issues, including a challenge to the sufficiency and weight of the
evidence supporting his convictions, and three instances of trial court error—
limiting the testimony of his psychological expert, Adam Sedlock; determining
that VanDivner was not intellectually disabled; and failing to appoint an expert
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1 In the subsequent decisions in this case, our Supreme Court explained its
use of the term “intellectually disabled” instead of “mentally retarded.” See
Commonwealth v. VanDivner, 130 A.3d 676, 679 n.1 (Pa. 2013)
(“VanDivner II”); Commonwealth v. VanDivner, 178 A.3d 108, 110 n.1
((Pa. 2018) (“VanDivner III”). We shall use the term “intellectually
disabled” throughout this memorandum.
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on intellectual disability who could have testified at the Atkins2 hearing.
Finding no merit to any of VanDivner’s claims, our Supreme Court affirmed
VanDivner’s death sentence.3
On July 20, 2010, VanDivner filed a pro se PCRA petition. The PCRA
court appointed counsel, who twice filed amended petitions raising numerous
issues, including claims of ineffective assistance of trial counsel and a claim
involving VanDivner’s mental capacity. Following four days of hearings, the
PCRA court denied post-conviction relief. VanDivner then filed a timely appeal
to our Supreme Court.4
The Court first addressed VanDivner’s ineffective assistance claim
involving his ineligibility for the death penalty pursuant to Atkins/Miller.
Following two remands so that the PCRA court could explain its reasoning vis-
à-vis the three prongs of the ineffective assistance of counsel test, our
Supreme Court ultimately concluded that
the PCRA court’s determination that [VanDivner] failed to
prove that he has significant adaptive limitations—which, in
combination with his limited intellectual functioning and
____________________________________________
2See Atkins v. Virginia, 536 U.S. 304 (2002); see also Commonwealth
v. Miller, 888 A.2d 624 (Pa. 2005) (establishing procedure for applying the
decision in Atkins in Pennsylvania).
3 Justice Baer, in a concurring and dissenting opinion joined by Justice
McCaffery, took issue with the Majority’s rejection of VanDivner’s claim that
he is ineligible for the death penalty because he is intellectually disabled.
4 The Pennsylvania Supreme Court has exclusive jurisdiction over appeals
from the grant or denial of post-conviction relief in death penalty cases. 42
Pa.C.S.A. § 9546(d).
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prior to age 18 onset, would render him ineligible for the
death penalty under [Atkins/Miller]—is unsupported in
both law and fact.
VanDivner, 178 A.3d 108, 122 (Pa. 2018). Our Supreme Court further
concluded that “trial counsel’s performance was the result of insufficient
investigation, and not any reasonable strategy” and that VanDivner
established the requisite prejudice. Id. at 130. Finding he met his burden on
his ineffectiveness claim, the Court therefore, reduced VanDivner’s judgment
of sentence from a death sentence to a life sentence and transferred
VanDivner’s remaining PCRA claims to this Court for disposition. Id.5
VanDivner raises the following issues:
I. Were trial counsel ineffective for failing to discover
and present the testimony of multiple eyewitnesses
who each supported a degree of guilt lesser than first-
degree [murder]?
II. Were trial counsel ineffective for failing to introduce
already-available evidence on diminished capacity?
III. Were trial counsel ineffective for failing to investigate
and develop the available evidence which supported a
voluntary manslaughter instruction that trial counsel
had requested?
IV. Did the PCRA court err by not permitting VanDivner to
amend his petition to include Brady violations first
revealed during the PCRA hearing? Did those Brady
violations deprive VanDivner of a fair trial?
____________________________________________
5 See Commonwealth v. Gibson, 925 A.2d 167, 171 (Pa. 2007)(explaining
that non-capital PCRA cases are within the jurisdiction of the Superior Court).
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V. Did the trial court violate double jeopardy in
sentencing VanDivner for both the attempted
homicide and aggravated assault of Billy Cable?
VI. Is VanDivner entitled to relief because of the
cumulative prejudicial effect of all of errors?
VanDivner’s Brief at 3.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
VanDivner’s first three issues allege the ineffective assistance of trial
counsel. To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish, by a preponderance of the
evidence, that counsel's ineffectiveness so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
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reasonable strategic basis for his or her action or inaction; and (3) counsel’s
act or omission prejudiced the petitioner. Id. at 533.
As to the first prong, “[a] claim has arguable merit where the factual
averments, if accurate, could establish cause for relief.” Commonwealth v.
Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts
rise to the level of arguable merit is a legal determination.’” Id. (citing
Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).
As to the second prong of this test, trial counsel's strategic decisions
cannot be the subject of a finding of ineffectiveness if the decision to follow a
particular course of action was reasonably based and was not the result of
sloth or ignorance of available alternatives. Commonwealth v. Collins, 545
A.2d 882, 886 (Pa. 1988). Counsel's approach must be "so unreasonable
that no competent lawyer would have chosen it." Commonwealth v. Ervin,
766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted). A petitioner
asserting ineffectiveness based upon trial strategy must demonstrate that the
“alternatives not chosen offered a potential for success substantially greater
than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.
1993). “We do not employ a hindsight analysis in comparing trial counsel’s
actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at
707. A PCRA petitioner is not entitled to post-conviction relief simply because
a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d
576, 582 (Pa. Super. 1995).
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As to the third prong of the test for ineffectiveness, “[p]rejudice is
established if there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different." Stewart, 84 A.3d at
707. “A reasonable probability ‘is a probability sufficient to undermine
confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899
A.2d 365, 370 (Pa. Super. 2006).
Finally, when considering an ineffective assistance of counsel claim, the
PCRA court “is not required to analyze these [prongs] in any particular order
of priority; instead if a claim fails under any necessary [prong] of the
ineffectiveness test, the court may proceed to that [prong] first.”
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).
In particular, when it is clear that the petitioner has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
At trial, VanDivner was represented by one attorney at the guilt phase,
and a different attorney for the death penalty phase. At the PCRA evidentiary
hearings, both counsel testified that, although they generally cooperated in
discussing and investigating various aspects of VanDivner’s case, each
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attorney performed separate duties at trial.6 VanDivner did not testify at any
of the evidentiary hearings.
I. Failure to Investigate and Present Testimony of Multiple
Eyewitnesses
In his first issue, VanDivner claims that “[t]rial counsel were ineffective
for failing to investigate and present evidence regarding the circumstances of
the crime that indicated [he] was not guilty of first-degree murder.”
VanDivner’s Brief at 18. Specifically, VanDivner cites Jessica Cable’s trial
testimony that Jessica saw him grab her mother’s hair while he shot her at
point-blank range and then afterwards said, “There you, bitch, I said I was
going to kill you.” Id. According to VanDivner, “[a]t the PCRA hearing
multiple eyewitnesses testified this was not an execution-style shooting, and
furthermore, Jessica was not present when her mother was shot.” Id.In arguing that the trial court’s pre-trial investigation was inadequate,
VanDivner essentially argues that trial counsel was ineffective for failing to
investigate, interview, and call or subpoena for trial, five neighbor-
eyewitnesses who saw the “actual version” of the incident—sisters Cheree and
Jessica Parrill, their mother Kim Ropejko, as well as Chrissy Newman—who all
lived across the street, and Victor Chamberlain, who lived next door to the
____________________________________________
6 VanDivner refers to both counsel in his ineffectiveness claims and the PCRA
court refers to both counsel’s PCRA hearing testimony when addressing some
of VanDivner’s issues.
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victim’s home. This Court has noted that such a claim actually raises two
distinct issues:
Neglecting to call a witness differs from failing to
investigate [and/or interview] a witness in a subtle but
important way. The failure to investigate presents an issue
of arguable merit where the record demonstrates that
counsel did not perform an investigation. It can be
unreasonable per se to conduct no investigation into known
witnesses. Importantly, a petitioner still must demonstrate
prejudice. Id. To demonstrate prejudice where the
allegation is the failure to interview a witness, the petitioner
must show that there is a reasonable probability that the
testimony the witness would have provided would have led
to a different outcome at trial.
In this respect, a failure to investigate and interview a
witness claim overlaps with declining to call a witness since
the petitioner must prove: (i) the witnesses existed; (ii) the
witness was available to testify; (iii) counsel knew of, or
should have known of, the existence of the witness; (iv) the
witness was willing to testify; and (v) the absence of the
testimony was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en
banc) (citations omitted).
As to the first part of VanDivner’s initial ineffectiveness claim, the
adequacy of pre-trial investigation and trial preparation, our Supreme Court
has explained that the reasonableness of the investigation depends upon the
information supplied to counsel, and that a hindsight analysis is inappropriate:
Counsel has a duty to undertake reasonable investigations
or to make reasonable decisions that render particular
investigations unnecessary. See Strickland v.
Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80
L.Ed.2d 674 (1984). Where counsel has made a strategic
decision after a thorough investigation of law and facts, it is
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virtually unchallengeable; strategic choices are made
following a less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgment supports the limitation of investigation. See id.
at 690, 691, 104 S.Ct. at 2066. As noted, an evaluation of
counsel’s performance is highly deferential, and the
reasonableness of counsel’s decisions cannot be based upon
the distorting effects of hindsight. Id. at 689, 104 S.Ct. at
2065. Furthermore, reasonableness in this context
depends, in critical part, upon the information
supplied by the defendant. See Commonwealth v.
Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986),
cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010(1987). Thus, assuming a reasonable investigation,
where there is no notice to counsel of particular
mitigating evidence, he cannot be held ineffective for
failing to pursue it. See Commonwealth v. Howard,
553 Pa. 266, 276, 719 A.2d 233, 238 (1998).
Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000) (emphasis
added).
As to the adequacy of trial counsel’s pre-trial investigation, the PCRA
court, after hearing testimony from both counsel at the evidentiary hearing,
concluded that the pre-trial preparation and strategy in VanDivner’s case was
reasonable. It explained counsel’s efforts in detail:
Attorney Susan Ritz Harper was appointed as counsel for
[VanDivner] for proceedings post-arrest through his state
court appeals, and Attorney Dianne Zerega was appointed
to represent [VanDivner] during the penalty phase. At the
hearing on [VanDivner’s PCRA petition], Attorney Zerega
testified credibly that Attorney Harper and the investigator
through the public defender’s [office] “went to the location
and interviewed people in the community” and that
[Attorney Zerega] “focused more on getting evaluators,
talking to the family, trying to find records, that would help.”
Attorney Harper testified convincingly that: At the time
our investigator in the Public Defender’s Office was Mr. Judy,
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and Mr. Judy and I went down into Grindstone, and knocked
on all the doors of all the houses around [. . .] where the
incident happened. We spoke to the people. If we didn’t, if
there [was] no one home, no one who answered, we left
Public Defender cards in the door with the telephone number
to please contact us. I believe Mr. Judy also did
investigation with phone records. If someone contacted us,
we would follow up on that.
When questioned as to who Attorney Harper spoke to in
the community, she responded from her notes, and named
multiple people [whom] she and the investigator, Mr. Judy,
interviewed. Attorney Harper stated that Jessica Parrill was
contacted and that “she had nothing to say and wouldn’t
speak to us.” Further, they attempted to contact Cheree
Parrill, but “the numbers [they] were given—she didn’t live
there” and Jessica Parrill would not provide any contact
information for Cheree Parrill. Still further, Attorney Harper
testified credibly that, “[f]rom all the cards I left on people’s
doors, no one was calling back.”
Other neighbors claimed to have memory loss or that
they “knew [VanDivner] and “would not help us in any way,
and hoped he never got out of jail.” Attorney Harper
identified a community member, Ms. Mitchell, who
witnessed [VanDivner] in a fight with William Cable,
shooting him, chasing him, and then firing more shots.
Based on that statement, Attorney Harper made a trial
strategy decision to not call Ms. Mitchell as a witness since
such testimony would admit [VanDivner] was shooting a
gun and pursuing the minor victim. Attorney Harper was
unable to find any eyewitnesses to refute the
Commonwealth’s evidence that [VanDivner] shot the victim
[. . .] at a close range, or any witness who told her that
Jessica Cable was not present during the homicide of her
mother.
***
Further, the reasonableness of counsel’s investigative
decisions depends critically on the information supplied by
the defendant. We also find no evidence that [VanDivner]
provided any name of witnesses to assist in his defense.
***
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From the testimony, we conclude that Attorney Harper’s
investigation was reasonable, including her utilization of an
investigator, her visiting the crime scene to attempt to
locate eyewitnesses to provide testimony to assist in her
defense of [VanDivner], and her leaving business cards to
contacted if any member of the community wanted to testify
in aid of the defense of [VanDivner].
PCRA Court Opinion, 1/17/14, at 7-10 (citations omitted).
Our review of the record supports the PCRA court’s conclusion that the
extent of trial counsel’s investigation was reasonable, given that the people
interviewed were either unwilling to testify or their proposed testimony would
have been detrimental to VanDivner’s defense. While in hindsight, PCRA
counsel posits other measures trial counsel could have taken to locate the
eyewitnesses at issue, this hindsight analysis cannot form the basis of an
ineffectiveness claim. Basemore, supra.
As to the second part of VanDivner’s initial claim of ineffectiveness, the
failure to call these eyewitnesses at trial, the PCRA court concluded that
VanDivner did not meet his burden of establishing all of the factors identified
above in Pander, supra:
Based on the testimony of Attorney Harper, which we found
to be credible, we cannot find that Jessica Parrill, Cheree
Parrill, Kimberly Ropejko, Chrissy Newman, and Victor
Chamberlain, were available or were willing to testify for the
defendant at the time of trial.
***
[VanDivner] has failed to show how the absence of the
proposed testimony by these witnesses was so prejudicial
to him to have denied him a fair trial. Specifically, there is
no evidence to dispute that [VanDivner] intentionally shot
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the victim at close range, whatever the actual distance may
have been.
PCRA Court Opinion, 1/17/14, at 9-10. We agree. Because VanDivner did not
testify at any of the PCRA hearings, as correctly noted by the PCRA court,
there is no evidence of record that he provided trial counsel with the names
of any potential witnesses.
VanDivner further claims that these witnesses gave “compelling,
synchronized evidence” which would have led to a conviction of only third-
degree murder. VanDivner’s Reply Brief at 10. This claim is belied by not
only our review of the record, but also by our Supreme Court’s rejection of
VanDivner’s challenge to his first-degree murder conviction in his direct
appeal. The Court summarized:
The trial evidence overwhelmingly established that
[VanDivner] killed [the victim] and it was amply sufficient
to prove that he acted with a specific intent to kill. Four
separate eyewitnesses to the murder testified that
[VanDivner] shot [the victim] in the head with a handgun.
Upon apprehension, [VanDivner] freely admitted to police
that he had killed [the victim]. Dr. [Cyril] Wecht testified
that [the victim’s] manner of death was homicide, caused
by the gunshot wound to her head. Specific intent [was]
also supported by the very fact that [VanDivner] went
to [the victim’s] home with a loaded handgun, his
contemporaneous statement that he told [the victim] that
he would kill her, and the fact that he promptly followed
through on this threat. Finally, the jury could infer
specific intent from [VanDivner’s] use of a handgun
upon [the victim’s] head.
VanDivner I, 962 A.2d at 1176 (emphasis added).
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VanDivner’s claims to the contrary are without merit. Initially, we note
that VanDivner’s challenge to Jessica’s trial testimony ignores the testimony
of Patrick Rimel, who consistent with Jessica, testified that as he drove by he
saw VanDivner with a handgun, saw VanDivner grab the victim’s hair, and
shoot her in the head. See N.T., 2/7/07, at 114-19. Even if VanDivner shot
the victim in the head from a distance of ten to twelve feet, rather than, as
consistent with the expert medical testimony, in close contact to her, this in
no way vitiates the inference of a specific intent to kill. As noted by the PCRA
court, regardless of the distance from which VanDivner fired at the victim, the
inference of specific intent remains because VanDivner shot her in a vital part
of her body. PCRA Court Opinion, 1/17/14, at 10. Indeed, our Supreme Court
found the fact that VanDivner brought a loaded gun to the house established
his intent to kill. VanDivner I, supra. Thus, VanDivner cannot establish
prejudice from trial counsel’s failure to call these witnesses and his first
ineffectiveness claim fails.
II. Failure to Introduce Already-Available Evidence of
Diminished Capacity
In VanDivner III, our Supreme Court found that testimony VanDivner
presented to establish his intellectual disability, both at the pre-trial Atkins
hearing and during the PCRA evidentiary hearings, rendered him ineligible for
the death penalty. Id. 178 A.3d at 122. In his second issue, VanDivner claims
that trial counsel were ineffective for failing to use the same evidence
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presented at the pre-trial Atkins hearing to establish a diminished capacity
defense to first-degree murder. See Commonwealth v. Taylor, 876 A.2d
916, 926 (Pa. 2005) (explaining that a successful diminished capacity defense
can reduce a murder conviction from first to third degree). In short,
VanDivner claims that these same experts should have be used in order to
establish his inability to form the specific intent to kill.
At his Atkins hearing, VanDivner presented the testimony of two
experts, Adam Sedlock, and Lawson Bernstein, M.D., to support his claim that
he was intellectually disabled. At his subsequent murder trial, VanDivner’s
trial counsel called only Sedlock, a local psychologist, who testified regarding
tests he performed on VanDivner, that indicated a low IQ of 66 and other
mental limitations. According to Sedlock, these tests showed that VanDivner
“has impairment, that there are organic traits, that he has problems with
impulsivity and that his cognitive problems he is experiencing indicate a poor
prognosis.” N.T., 2/8/07, at 291.
VanDivner argues that trial counsel erred in failing to call Dr. Bernstein
and in failing to further question Sedlock about his ability to form the specific
intent to kill. He claims that since both Sedlock and Dr. Bernstein previously
testified that he was intellectually disabled, their testimony would show he
lacked the ability to form the specific intent to kill. VanDivner’s Brief at 36-
37. Using testimony from Kristine M. Jaquin, Ph.D., given at a PCRA hearing,
VanDivner claims that “both Bernstein and Sedlock’s opinions could have
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[easily] been developed to support the diminished capacity defense[.]”
VanDivner’s Brief at 38.
After our careful review of the record, we find no merit to VanDivner’s
claim because he inappropriately applies a hindsight analysis to support his
claim of trial counsel’s ineffectiveness. See Commonwealth v. Fisher, 813
A.2d 761, 767 (Pa. 2002) (explaining “[s]peculation by hindsight that a
different strategy might possibly have been successful is not the test which
establishes ineffectiveness of counsel”). The fact that VanDivner now believes
that he should have relied on different portions of the experts’ previous
testimony does not establish that trial counsel’s performance was ineffective.
Moreover, in VanDivner I, the Court outlined the parameters of the
diminished capacity defense:
Diminished capacity, however, is an extremely limited
defense. Psychiatric testimony that addresses mental
disorders affecting the cognitive functions of deliberation
and premeditation necessary to formulate a specific intent
is admissible. However, psychiatric evidence that a
defendant lacked the ability to control his actions or that he
acted impulsively is irrelevant and inadmissible on the issue
of the defendant’s specific intent to kill.
VanDivner I, 962 A.2d at 1183 (emphasis added; citations omitted).
Although VanDivner focuses on certain expert testimony from the pre-trial
Atkins hearing that tended to show he was intellectually disabled, he cites no
authority that a finding of an intellectual disability equates, in all instances, to
a “mental disorder” that would prevent him from forming the specific intent
to kill. See VanDivner’s Brief at 33-41.
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Finally, VanDivner cannot establish prejudice. Although VanDivner
argues Sedlock was never asked directly if VanDivner’s mental limitations
would have prevented him from forming the specific intent to kill, Sedlock did
testify as to VanDivner’s low IQ, the fact that he exhibited damages to that
part of his brain which controls thinking before acting, as well as a history of
VanDivner’s head trauma. See N.T., 2/8/07, 283-291. In her closing, trial
counsel cited this testimony to argue that VanDivner could not develop a
specific intent to kill. Although our Supreme Court found that Sedlock’s
testimony was in fact inadmissible, VanDivner I, 962 A.2d at 1183, the
Commonwealth did not object on this basis, and the trial court instructed the
jury regarding the diminished capacity defense.
As previously noted by our Supreme Court, VanDivner’s “jury was not
obligated to believe his claim . . . of diminished capacity, and apparently it did
not do so.” VanDivner I, 962 A.2d at 1177. This is understandable,
especially because VanDivner’s “own statement to police shortly after the
murder that he killed [the victim] and recognized that this case was a death
penalty case corroborates his full awareness of what he had done.” Id.
VanDivner does not consider the effect of his own statement on his prejudice
analysis. Because counsel had a reasonable basis for her trial strategy and
VanDivner cannot establish prejudice, VanDivner has failed to meet his burden
of proving his second claim of ineffectiveness.
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III. Failure to develop evidence to support a voluntary
manslaughter instruction
In his third issue, VanDivner acknowledges that trial counsel requested
a jury instruction on the crime of voluntary manslaughter (heat of passion)
and that the trial court refused. VanDivner argues that trial counsel “were
ineffective for failing to uncover and present additional, readily-available
evidence to support the voluntary manslaughter instruction they had
requested.” VanDivner’s Brief at 42-43. This claim centers around evidence
that, on the morning of the killing, the victim and Larry Newman made ten to
fifteen harassing phone calls to VanDivner.
Our Supreme Court has recently discussed the elements of this type of
voluntary manslaughter as follows:
In order to successfully argue heat of passion, a
defendant must prove (1) provocation on the part of the
victim, (2) that a reasonable man who was confronted with
the provoking events would become “impassioned to the
extent that his mind was incapable of cool reflection,” and
(3) that the defendant did not have sufficient cooling off
time between the provocation and the killing. See
Commonwealth v. Busanet, 618 Pa. 1, 34-35, 54 A.3d
35, 55 (2012) (holding no evidence of provocation where
the victim’s threats against [Busanet] were made weeks
prior to the shooting, thereby affording [him] sufficient time
to engage in cool reflection) . . . Further, “[i]f any element
is missing, the provocation defense fails.”
[Commonwealth v. Martin, 607 Pa. 165 5 A.3d 177(2010)].
Commonwealth v. Mason, 130 A.3d 601, 628 (Pa. 2015).
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Here, the PCRA Court first discussed the evidence proffered by
VanDivner that would support a voluntary manslaughter instruction:
“Serious provocation” means conduct sufficient to excite an
intense passion in a reasonable person. 18 Pa.C.S. § 2301.
To support this contention, [VanDivner] presented the
testimony of the victim’s neighbor, Kimberley Ropejko, who
testified . . . that around 7:30 or 8:00 on the morning of the
shooting, Larry Newman made ten to fifteen phone calls to
[VanDivner] discussing [Newman’s] relationship with the
victim[.] [Id. at 161]. Ropejko could hear the telephone
calls, and stated that Larry Newman did not threaten
[VanDivner]. Id. [VanDivner] also presented the testimony
of Cheree Parrill, the daughter of [Ropejko], and also a
neighbor of the victim. Cheree Parrill testified regarding the
relationship of the victim and [VanDivner] stating that,
“They always partied. They argued. He drove up and down
the road a lot.” N.T., 1/30/2013 at 7.
PCRA Court Opinion, 1/17/14, at 11-12.
The PCRA court then discussed the testimony from both VanDivner’s
trial counsel with regard to the information they received regarding these
calls. After discussing relevant case law, the PCRA court then explained why
VanDivner’s ineffective assistance claim lacked merit:
Here, [VanDivner] fails to show a correlation between
Larry Newman . . . calling [VanDivner] numerous times on
the morning of the shooting and how those actions could
incite “serious provocation” in [VanDivner] such that it led
to him shooting the victim some twelve hours later. Most
importantly, the provocation, if any, came from Larry
Newman. There is no evidence that the victim provoked
[VanDivner]. Further, the most recent evidence of alleged
provocation occurred twelve hours before the shooting, a
time of sufficient “cooling” period for a reasonable person to
regain his capacity to reflect. Finding that sufficient
evidence of provocation did not exist, and that [VanDivner]
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had sufficient time to “cool off” if he had felt provoked, we
cannot find trial counsel ineffective for failing to uncover and
develop this evidence. We also note that [trial counsel] was
aware of this evidence and, by reason of trial strategy and
tactics, a determination was made to not attempt to
introduce such evidence.
PCRA Court Opinion, 1/17/14, at 14. Our review of the record, along with the
case law cited above, supports the PCRA court’s conclusions.
VanDivner’s claims to the contrary are unavailing. He first asserts that
there was evidence of additional phone calls to which the PCRA court did not
refer, including one made by the victim in which she told VanDivner that
another male was going to perform anal sex on him. VanDivner’s Brief at 50.
As acknowledged by VanDivner, however, Attorney Zerega knew about the
content of this call, but still maintained that the call was not helpful to
VanDivner’s defense. See N.T. 1/30/13, at 110-11.
VanDivner further alleges that trial counsel’s investigation of this
evidence fell below the reasonableness standard. We disagree. See Mason,
130 A.3d 601, 630 (rejecting as meritless Mason’s claim regarding a heat of
passion defense based upon the “stormy relationship” he had with the victim;
even considering the other evidence proffered by Mason but not used at trial,
“it was not unreasonable for counsel to forgo attempting to persuade the jury
that [Mason] acted in the heat of passion”). In short, VanDivner did not
demonstrate that the “alternatives not chosen offered a potential for success
substantially greater than the tactics utilized.” Commonwealth v. Clark,
supra.
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Finally, again, VanDivner cannot establish prejudice in this claim.
According to VanDivner, “[h]ad the jury been presented with the taunting and
teasing both Larry Newman and [the victim] inflicted on [him] the jury would
have determined that [he] was guilty of voluntary manslaughter.”
VanDivner’s Brief at 48. VanDivner further argues that a voluntary
manslaughter verdict would have resulted since trial counsel presented
“expert testimony regarding [his] inability to control his impulses.” Id.
In support of his argument, VanDivner claims that the PCRA court
overlooked the fact that voluntary manslaughter is often found in cases
involving failed romantic relationships and triangles. Here, VanDivner claims
that the PCRA court “ignored the sequence of events which culminated in the
homicide,” and those cases “where the romantic relationship deteriorated over
a period of time while the antagonism escalated.” VanDivner’s Brief at 50.
We disagree. The evidence proffered by witnesses at the PCRA
evidentiary hearings revealed little information regarding the history of the
romantic relationship between VanDivner and the victim. Moreover, had such
a relationship been established, the fact remains that a twelve-hour period
elapsed between the alleged phone calls and the victim’s murder. See
Mason, 130 A.3d at 629 (explaining that, “the passage of time between
provocation and the ‘passion’ must be viewed as a cooling period, and killings
will not be deemed to have occurred under the heat of passion where there
was sufficient time for cooling between whatever provocation might have
existed and the actual killings”).
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VanDivner has failed to demonstrate that trial counsel was ineffective
for failing to produce at trial additional evidence to support a voluntary
manslaughter (heat of passion) jury instruction. Thus, VanDivner’s third claim
of ineffectiveness fails.
IV. Amendment of PCRA; Brady violations
In his fourth issue, VanDivner argues that the PCRA court erred by not
permitting him to amend his pleadings to include additional alleged Brady7
violations that were only discovered when Trooper Monkelis’ testified during
one of the PCRA evidentiary hearings.
Regarding alleged Brady violations, our Supreme Court has
summarized:
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.
The duty to disclose may encompass impeachment evidence
as well as directly exculpatory evidence, and the
prosecution’s duty under Brady extends to exculpatory
evidence in the files of police agencies of the same
government prosecuting the case. Evidence is material if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the trial would have
been different. However, the mere possibility that an item
of undisclosed information might have helped the defense,
or might have affected the outcome of the trial does not
establish materiality in the constitutional sense.
Commonwealth v. Smith, 985 A.2d 886, 900 (Pa. 2009) (citations omitted).
____________________________________________
7 Brady v. Maryland, 373 U.S. 83 (1963).
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In order to establish violations of Brady, VanDivner argues:
The Commonwealth admittedly did not turn over a
witness statement [(Randy Lee Price)] that would have
impeached Larry Newman’s testimony to show [Newman]
was drunk and combative on the night of the homicide.
During the PCRA hearing, the lead investigator revealed
additional evidence to support Larry Newman’s impaired
state. [Trooper Monkelis] testified that Larry was “highly,
highly, highly intoxicated” to the point where he could not
be interviewed about the night’s events. The trooper also
revealed that the state police had interviewed neighbor-
eyewitnesses but did not memorialize those interviews in
reports or disclose that evidence to the defense. The PCRA
court erred by not permitting VanDivner to amend his
pleadings to incorporate this new evidence. These Brady
violations prejudiced VanDivner’s trial.
VanDivner’s Brief at 18-19.
The PCRA court determined that, even if a Brady violation occurred
regarding the one undisclosed statement, trial counsel credibly testified at the
PCRA hearing that this information would not have changed their strategy,
and they would not have used the undisclosed statement:
[Attorney Harper] was provided the witness statement of
Randy Lee Price at the hearing on the instant PCRA Petition.
After reviewing the statement, Attorney Harper testified
that she would not have used Mr. Price as a witness at trial,
or his statement during trial, nor would the statement have
caused her to change her trial strategy. Under cross-
examination, questioning as to whether the statement of
Randy Lee Price could have corroborated the fact that Larry
Newman was drinking, Attorney Harper agreed that it could
have established that Larry Newman was drinking.
Nonetheless, Attorney Harper testified, credibly, that she
still would not have used the statement “[b]ecause if [she]
brought Randy Price to testify, then [she] would assume he
would be opened for [cross-examination on] his whole
statement and [she] did not want the rest of that statement
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to come in. Attorney Harper explained her decision,
“strategically I would not bring in someone to show that
they are going to say someone is drinking if the rest of it is
going to be, he is saying [VanDivner] called, threatened to
kill them all. No I wouldn’t strategically bring it in for that
limited purpose. I don’t believe [the statement] would be
limited.”
Attorney Zerega, who served as counsel for the penalty
phase, was also provided the witness statement of Randy
Lee Price at the hearing on the PCRA Petition. Having read
the statement, Attorney Zerega testified that the statement
of Randy Lee Price would not have changed her strategy or
the testimony.
PCRA Court Opinion, 1/17/14, at 18-20 (citations omitted).
Based upon the credible testimony of Attorneys Harper and Zerega that
the statement of Randy Lee Price would not have changed their trial strategy,
and that the statement would not have been used at either the trial or penalty
phase, the PCRA court concluded that VanDivner was not prejudiced by the
Commonwealth’s failure to provide Randy Lee Price’s statement. Id. at 20.
Our review of the record supports the PCRA court’s conclusions.
VanDivner claims the PCRA court erred by not allowing him to amend his
petition to add the Brady claims. VanDivner also complains that the PCRA
court did not rule on his written request to amend. However, VanDivner was
not prejudiced by the PCRA court’s inaction because the request would have
been denied. As noted above, the PCRA court specifically credited the
testimony from trial counsel. As the record supports the PCRA court’s
credibility determination, the determinations are binding on this Court.
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
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The PCRA court did not address VanDivner’s additional alleged Brady
claims regarding Trooper Monkelis’ testimony about Newman’s condition on
the night of the murder and the state police interviews other neighbor-
witnesses. Nevertheless, as these interviews were not memorialized, we find
no Brady violation.
For the above reasons, VanDivner’s fourth claim fails. The PCRA court
did not err in refusing to allow VanDivner to amend his PCRA petition to add
Brady claims, and any Brady violation did not deprive VanDivner of a fair
trial.
V. Illegality of Sentence
The Commonwealth concedes VanDivner’s fifth issue, and acknowledges
that VanDivner’s illegal sentence claim is meritorious. The trial court
sentenced VanDivner to 20 to 40 years of imprisonment for that attempted
homicide of Billy Cable and an additional 10 to 20 years of imprisonment for
the aggravated assault of Billy Cable. This was error; VanDivner’s convictions
for aggravated assault and attempted murder regarding Billy Cable should
have merged for sentencing purposes. See generally, Commonwealth v.
Anderson, 650 A.2d 20 (Pa. 1994). Thus, we vacate the consecutive term
of 10 to 20 years of incarceration imposed for VanDivner’s aggravated assault
conviction of Billy Cable. The 20-40-year sentence for attempted murder
remains. As this does not upset the trial court’s sentencing scheme, there is
no need for a remand. See Commonwealth v. Melvin, 103 A.3d 1, 56 Pa.
Super. 2014) (explaining Superior Court “has the authority to correct an illegal
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sentence directly rather than to remand the case for re-sentencing as long as
we do not disrupt the trial court’s sentencing scheme in doing so”).
VI. Cumulative Prejudice
In his sixth and final issue, VanDivner asserts that he is entitled to post-
conviction relief due to “the cumulative prejudicial effect” of the errors he
raises in this appeal. It is now well-settled that where “multiple instances of
deficient [trial counsel] performance are found, the assessment of prejudice
properly may be premised upon cumulation.” Mason, 130 A.3d at 674
(citation omitted). Except for VanDivner’s sentencing claim, we have
determined that all of his other claims do not merit relief. Thus, VanDivner’s
final issue fails.
In sum, all of VanDivner’s claims on appeal, except for his fifth issue
regarding his sentence, are meritless. We therefore affirm those portions of
the PCRA court’s order denying him post-conviction relief. However, we
vacate his 10 to 20-year sentence for the aggravated assault of Billy Cable.
Order affirmed in part and judgment of sentence vacated in part.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2018
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