Com. v. Johnson, R.

J-A15029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
REBECCA L. JOHNSON
Appellant No. 1712 EDA 2020
Appeal from the PCRA Order Entered September 1, 2020
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0002774-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
REBECCA L. JOHNSON
Appellant No. 1713 EDA 2020
Appeal from the PCRA Order Entered September 1, 2020
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0002629-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
REBECCA L. JOHNSON
Appellant No. 1762 EDA 2020
Appeal from the PCRA Order Entered September 1, 2020
J-A15029-21
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0000559-2013
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 25, 2022
Appellant, Rebecca L. Johnson, appeals from the September 1, 2020
order dismissing her petitions pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541-46. We affirm.
An en banc panel of this Court recited the pertinent facts:
In January of 2012, [Appellant], Roger Suero, David
Bechtold, and Quadir Taylor, collaborated to rob [Appellant’s]
grandmother, Carrie Smith. Two of the conspirators broke into
Ms. Smith’s residence in the middle of the night, placed a pillow
over her face, stole about $35,000 from a safe, and fled. Ms.
Smith, who suffered from coronary artery disease, atrial
fibrillation, and interstitial lung disease, had a minor heart attack
during or shortly after the robbery. Approximately two months
later, she died.
Based upon the autopsy results, the Commonwealth claimed
Ms. Smith died from the robbery-induced heart attack. As such,
it charged [Appellant] and her co-conspirators with murder of the
second degree. A jury convicted [Appellant] and Suero of the
felony murder and related charges, and the trial court sentenced
[Appellant] to life in prison without parole.
Commonwealth v. Johnson, 236 A.3d 63, 66 (Pa. Super. 2020) (en banc).
At trial, the Commonwealth presented expert opinion testimony to
establish that the victim’s death resulted from the heart attack she suffered
shortly after the robbery and not from the underlying health conditions that
preceded the robbery. Appellant’s counsel did not counter the
Commonwealth’s evidence on the cause of the victim’s death. Instead,
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counsel sought to establish that Appellant was factually innocent of the
robbery.
This Court affirmed the judgment of sentence on March 9, 2015. Our
Supreme Court denied allowance of appeal on September 29, 2015. Appellant
filed this timely first PCRA petition on June 6, 2016. Appointed counsel filed
an amended petition on September 2, 2016, and the PCRA court conducted
several hearings. Appellant alleged counsel was ineffective for failing to
procure expert opinion testimony to challenge the Commonwealth’s causation
evidence. The PCRA court issued an opinion, dated September 13, 2017,
concluding that the issue was of arguable merit, and that counsel had no
reasonable strategic basis for failing to investigate a causation defense.1 The
PCRA court authorized funds for an expert witness.
At a May 11, 2018, hearing Appellant produced the testimony of Dr.
Wissam Abouzgheib. Dr. Abouzgheib testified that that the minor heart attack
the victim suffered shortly after the robbery did not contribute to her death.
Rather, the timing of the robbery and the victim’s death were coincidental.
____________________________________________
1 To succeed on a claim of ineffective assistance of counsel, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying issue is of arguable merit; (2) counsel had no reasonable strategic
basis for the disputed action or inaction; and (3) that but for counsel’s error
there is a reasonable probability that the outcome of the underlying
proceeding would have been different. Commonwealth v. Solano, 129 A.3d
1156, 1162 (Pa. 2015). This is commonly known as the Strickland/Pierce
test. Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).
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The PCRA court also took judicial notice of the transcripts of testimony of two
defense experts—Drs. Edward Viner and Arnold Meshkov—who testified in
other proceedings on behalf of Appellant’s accomplices. On June 8, 2018, the
PCRA court entered an order dismissing Appellant’s petition, finding that
Appellant failed to prove that the absence of a causation defense was
prejudicial. On July 23, 2020, the en banc panel of this Court reversed the
PCRA court’s order and remanded for reconsideration, concluding the PCRA
court misapplied the prejudice prong of Strickland/Pierce because, among
other things, it relied on the jury’s rejection of defense expert testimony in
the trial of accomplice Quadir Taylor. Johnson, 236 A.3d at 69-70.
On remand, the PCRA court once again concluded that Appellant failed
to establish prejudice and dismissed Appellant’s petition. This timely appeal
followed. Appellant argues that counsel’s deficiencies resulted in a
constructive denial of counsel. She also argues that the PCRA court made
erroneous findings of fact; erred in finding her experts not credible; and erred
in finding no reasonable probability that the outcome of her trial would have
been different but for her counsel’s ineffectiveness. Appellant’s Brief at 4-5.
On review, we must determine whether the record supports the PCRA
court’s findings of fact, and whether its legal conclusions are free of error.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). “We view the
findings of the PCRA court and the evidence of record in a light most favorable
to the prevailing party.” Id. We noted above the three elements a petitioner
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must plead and prove to prevail on a claim of ineffective assistance of counsel.
Counsel is presumed to be effective, and the petitioner bears the burden of
proving otherwise by a preponderance of the evidence. Commonwealth v.
Fulton, 830 A.2d 567, 572 (Pa. 2003). To establish that counsel was
ineffective for failing to call a witness, the petitioner must establish that (1)
the witness existed; (2) the witness was available to testify; (3) counsel knew
or should have known about the witness; (4) the witness was willing to testify;
and (5) the absence of the witness denied Appellant a fair trial. Solano, 129
A.3d at 1166. Of these elements, only the fifth is presently at issue.
First, we consider Appellant’s argument that counsel’s error resulted in
a constructive denial of her right to counsel. Appellant relies on Groseclose
v. Bell, 130 F.3d 1161 (6th Cr. 1997), cert. denied, 523 U.S. 1132 (1998),
a federal habeas corpus case. In that case, the defendant was accused of
hiring other men to rape and murder his wife. Counsel presented no
witnesses, cross-examined fewer than half of the prosecution’s 39 witnesses,
and never investigated the defendant’s claim that he had no knowledge of the
conspiracy to murder his wife, and that the others acted without his
knowledge. Id. at 1166. Counsel had no discernible theory of defense and
failed to seek severance of his trial from a codefendant who had confessed
and implicated him. Id. at 1169-70. The Sixth Circuit held that counsel was
constitutionally deficient, but ultimately did not decide whether it was a case
of presumed prejudice:
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The question then becomes whether it is necessary for
Groseclose to demonstrate prejudice, under Strickland's second
prong, or whether, as the district court believed, [counsel’s]
performance was so inept as to amount to a constructive denial of
counsel, relieving Groseclose of the need to show prejudice. This
is not a dispute we need decide, because the prejudice resulting
from [counsel’s] lawyering is so patent. We find it quite clear that
there were defense tactics available to a reasonably competent
attorney that create a reasonable probability that, in the absence
of [counsel’s] incompetence, the jury would have had a
reasonable doubt respecting Groseclose's guilt.
Id. at 1170 (emphasis added). Thus, Groseclose is factually inapposite, in
that defense counsel mounted no defense at all. Counsel also failed to seek
severance from the trial of a codefendant whose defense was adverse to his
client. Groseclose did not involve a causation issue that required expert
testimony. Instantly, counsel’s handling of Appellant’s causation defense is
the only issue before us. An opinion of the Sixth Circuit is not binding on this
Court and, given the distinctions between that case and the one before us, we
find it of little persuasive value. Appellant offers no other legal support for
her constructive denial of counsel argument.
Next, we consider Appellant’s challenges to the PCRA court’s findings of
fact and legal conclusions. Per the remand instructions of this Court’s en banc
panel, the PCRA court considered the Commonwealth’s experts who testified
at Appellant’s trial and the expert testimony that Appellant wishes to present
on retrial. The court made credibility findings regarding Appellant’s experts
and weighed the proposed new testimony against the testimony the
Commonwealth produced at the first trial.
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The first forensic pathologist to testify with respect to the
cause of Ms. Smith’s death was Dr. Edward Chmara, who was
board certified in anatomical, clinical, and forensic pathology and
had numerous years of experience in forensic pathology. In this
role, Dr. Chmara performed an autopsy of Ms. Smith and was
tasked with determining the cause and manner of her death. In
preparing to render his opinions, Dr. Chmara reviewed Ms. Smith’s
medical history, her recent hospital records, her lab studies and
discharge summaries, and information regarding both the January
15, 2012 robbery and her lifestyle prior to that event. He noted
that, prior to the robbery, Ms. Smith lived alone, was independent
in activities of daily living, and regularly cared for others in her
community doing tasks such as running errands. On the night of
the robbery, Ms. Smith was awoken just after midnight by robbers
who held a gun to her head and put a pillow over her head. Later
that night, Ms. Smith presented at Easton Hospital with severe
shortness of breath, lightheadedness, and chest pain. Doctors at
the hospital concluded after testing that Ms. Smith had had a heart
attack. These tests measured certain enzymes in the blood that
are released when heart cells die during a heart attack. Ms. Smith
was discharged from the hospital several days later, only to be
readmitted to the hospital on two later occasions for complaints
of worsening shortness of breath. Following the first of these later
two admissions, Ms. Smith was discharged on supplemental
oxygen, which she never required before.
Dr. Chmara related Ms. Smith’s medical history, which
included high blood pressure, coronary artery disease, atrial
fibrillation, interstitial lung disease – also known as pulmonary
fibrosis, hypothyroidism, anemia, diabetes, depression, and
anxiety. She had a pacemaker placed in August 2011. Dr.
Chmara testified that Ms. Smith’s lung disease, in which her lungs
became fibrotic, would have developed over a long period of time
and that people often live with such disease for years. He did note
that she had some shortness of breath prior to the robbery, but
that, prior to the robbery, this shortness of breath did not appear
without exertion. While Dr. Chmara noted that Ms. Smith died
with pulmonary fibrosis and a host of other conditions, he stated
that this did not mean that she died of those conditions. Rather,
she had been living with them for some time and then rapidly
deteriorated after the night of the robbery.
During the autopsy of Ms. Smith, Dr. Chmara weighed each
of her organs. He noted that her lungs were very firm, unlike
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healthy lungs that have a spongy texture. Her lungs were twice
as heavy as they should have been. Dr. Chmara testified that this
excess weight was likely due to a combination of pulmonary
fibrosis and congestive heart failure, the latter of which results in
fluid in the lungs. The presence of excess fluid in the lungs,
evidence of congestive heart failure, was observed during
autopsy. Dr. Chmara testified that congestive heart failure is the
result of decreased heart function, resulting in inefficient pumping
of blood by the heart and resultant collection of blood in the lungs.
This condition, he testified, can develop acutely after a heart
attack because heart cells die during the heart attack, causing the
heart to function less effectively. Ultimately, Dr. Chmara opined
to a reasonable degree of medical certainty that Ms. Smith died of
complications of her January 15, 2012 heart attack, which event
caused a chain reaction that exacerbated the conditions she had
already been living with for some time.
In addition to Dr. Chmara, the Commonwealth presented
the testimony of board-certified forensic pathologist Dr. Isidore
Mihalikis. As a forensic pathologist with decades of experience,
Dr. Mihalikis opines on the cause and manner of an individual’s
‘death. After reviewing the autopsy report authored by Dr.
Chmara and the medical records of Ms. Smith – including records
of her several preexisting conditions – as well accounts [sic] of
what took place on January 15, 2012, Dr. Mihalikis opined, to a
reasonable degree of medical certainty, that Ms. Smith’s death
was the result of congestive heart failure and worsening
pulmonary fibrosis, resulting in poor oxygen exchange. Critically,
Dr. Mihalikis concluded that Ms. Smith’s congestive heart failure
was itself the result of her heart attack at the time of the robbery.
He explained the mechanism of this by stating that muscle fibers
die in a heart attack, which causes the heart to be unable to expel
blood as efficiently as before, which results in the lungs filling with
blood, resulting in a decline of oxygen exchange between the
heart and lungs. This, in turn, causes oxygen levels to go down,
resulting in further heart damage, resulting in a circle of heart and
lung failure, and ultimately death. On top of these issues, Dr.
Mihalikis noted that Ms. Smith’s pulmonary fibrosis would have
caused her lungs themselves to be obstructed, thereby causing
her weakened heart to move blood to the lungs even less
efficiently.
Dr. Michael Nekoranik is a board-certified critical care
specialist in the field of pulmonary medicine. He attended to Ms.
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Smith in the hospital in February and March 2012, during her
second and third hospital admissions following the robbery. Dr.
Nekoranik began his testimony with a review of Ms. Smith’s
medical history. He noted that, prior to the robbery, Ms. Smith
had a preexisting diagnosis of pulmonary fibrosis. This diagnosis
had been made within the year prior to the robbery, following at
CAT [sic] scan in May 2011. Dr. Nekoranik testified that idiopathic
pulmonary fibrosis is a progressive disease of the lungs, with no
known cause, that results in scarring of the connective lung tissue.
There is no known treatment for this disease, which becomes
progressively worse as time passes. While Dr. Nekoranik was not
aware of the level of function of Ms. Smith’s lungs just prior to the
robbery, he notes that individuals with this diagnosis typically
have a 5-10 year life expectancy following their diagnosis. Dr.
Nekoranik described idiopathic pulmonary fibrosis as resulting in
poor function of the alveoli, which are air sacs in the lungs, leading
to shortness of breath and poor oxygenation of the blood. Dr.
Nekoranik also noted in his testimony that Ms. Smith had
preexisting atrial arrhythmia, high blood pressure, high
cholesterol, and coronary artery disease. While Dr. Nekoranik did
not treat Ms. Smith on the night she first presented at the hospital
immediately after the robbery, he did review her hospital records
from that date.
In his testimony, Dr. Nekoranik confirmed that on the night
of the robbery, Ms. Smith presented at the hospital with shortness
of breath and chest pain. Testing revealed elevated cardiac
enzymes, indicative of a heart attack, and she received medication
to address the heart attack. Ms. Smith was admitted on two other
occasions within a few weeks of one another following her first
admission, for shortness of breath. On each of these later
occasions, her shortness of breath was progressively worse.
During her hospital stays, Ms. Smith received chest x-rays, which
showed the effects of her idiopathic pulmonary fibrosis and also
showed that Ms. Smith had fluid in her lungs, which is indicative
of congestive heart failure. As did Dr. Mihalikis, Dr. Nekoranik
testified that this fluid in Ms. Smith’s lungs would have
exacerbated the effects of her idiopathic pulmonary fibrosis.
There was no indication in Ms. Smith’s medical records of
congestive heart failure prior to January 2012. Following her
second hospital stay, Ms. Smith was discharged on supplemental
oxygen. This was the first time she had required supplemental
oxygen. Dr. Nekoranik testified that Ms. Smith’s heart attack
could have affected her lungs insofar as a heart attack damages
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heart muscle, causing it to pump less effectively, which would in
turn cause fluid congestion, e.g., blood leaking back into the
lungs. While Dr. Nekoranik –a pulmonary critical care specialist –
did observe that Ms. Smith had idiopathic pulmonary fibrosis
contributing to her shortness of breath and lack of oxygenation,
he believed that her congestive heart failure also played a role in
her death. He further testified that this belief was supported by
the fact that, on autopsy, Ms. Smith’s lungs were noted to be quite
heavy and filled with fluid.
Dr. Nekoranik’s testimony with respect to Ms. Smith’s
diagnosis was supported by the testimony of Dr. Rajeev Rohatgi,
Ms. Smith’s treating cardiologist. Ms. Smith had been Dr.
Rohatgi’s patient since 2006, which he first encountered her for a
complaint of atrial fibrillation, which is an irregular heartbeat. Dr.
Rohatgi is a board-certified cardiologist practicing since 1982. Dr.
Rohatgi confirmed Dr. Nekoranik’s testimony that Ms. Smith had
preexisting coronary artery disease. He also noted that in 2011
she had a pacemaker placed in order to correct her atrial
fibrillation. With respect to the events on January 15, 2012, Dr.
Rohatgi confirmed that Ms. Smith presented at the hospital with
complaints of shortness of breath and chest pain, that she was
given an echocardiogram and an EKG, and that enzyme tests
revealed that she had had a heart attack. Concerning Ms. Smith’s
heart attack, Dr. Rohatgi testified that fear can cause a heart
attack, and that following a heart attack an individual can continue
to suffer ill effects, even after treatment. Notably, Ms. Smith was
readmitted to the hospital in February and March 2012 for
worsening shortness of breath. Dr. Rohatgi further testified,
similarly to Dr. Nekoranik, that when Ms. Smith had her January
2012 heart attack, she went into congestive heart failure, which
caused her lungs to fill with fluid. This congestive heart failure –
which Dr. Rohatgi, Ms. Smith’s longtime cardiologist, testified was
not a preexisting condition – caused her heart to not be able to
pump enough blood out of the heart, causing the blood to back up
in the lungs. Because of her preexisting idiopathic pulmonary
fibrosis, which had already damaged her lungs, the effects of
congestive heart failure – her lungs filling with fluid – were
augmented in Ms. Smith, and caused her difficulty in getting
enough oxygen. Dr. Rohatgi testified that pulmonary fibrosis
alone would not result in congestive heart failure.
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PCRA Court Opinion, 8/26/2020, at 3-9 (record citations omitted; italics in
original).
In summary, according to the Commonwealth’s evidence, the victim
suffered from a very complicated set of ailments that preexisted the robbery-
induced heart attack. Those conditions, however, did not portend her
imminent death. Rather, the preexisting conditions, exacerbated by the heart
attack and subsequent congestive heart failure, resulted in the victim’s death
weeks after the robbery.
Next, we quote at length from the PCRA court’s summary and analysis
of the expert testimony Appellant wishes to produce at a new trial:
In support of her petition for collateral relief, [Appellant] has
asked this court to consider the testimony of three other medical
experts – Dr. Arnold Meshkov, Dr. Edward Viner, and Dr. Wisam
Abouzgheib. Drs. Meshkov and Viner testified on behalf of
[Appellant’s] codefendants in two proceedings to which
[Appellant] was not a party. Those proceedings were the PCRA
hearing of Rogel Suero on May 9, 2017 and the trial of Quadir
Taylor on January 12, 2017. By agreement of [Appellant] on
October 20, 2017, this Court took judicial notice of the testimony
given by Drs. Meshkov and Viner in those other proceedings.
While that testimony was, as requested, considered by us in ruling
upon [Appellant’s] petition in June 2018, due to an oversight those
transcripts were not formally made a part of the record herein
until August 11, 2020. Dr. Abouzgheib testified on behalf of
[Appellant] alone, at a hearing on May 11, 2018.
In his testimony at Mr. Suero’s PCRA hearing, which
[Appellant] herein has asked us to consider, Dr. Arnold Meshkov
testified to his opinion regarding the cause of Ms. Smith’s death.
Dr. Meshkov is a board-certified cardiologist. He did not examine
Ms. Smith, but after review of her medical records and the reports
of the forensic pathologists, Dr. Meshkov opined that Ms. Smith’s
cause of death was clearly her progressive pulmonary fibrosis, and
that the heart attack she suffered in January 2012 was not a factor
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in her death at all. While Dr. Meshkov acknowledged that Ms.
Smith suffered a heart attack in January 2012, he categorized it
as very mild. He noted her history of heart problems including
atrial fibrillation, coronary artery disease, as well as some
enlargement of the heart dating from 2006. Dr. Meshkov also
noted Ms. Smith’s idiopathic pulmonary fibrosis diagnosis in 2011,
less than one year before the robbery, though he stated that she
likely had the condition as early as 2010. He then testified that,
on autopsy, the lungs of a person who has died of pulmonary
fibrosis will be stiff and hard, with extensive scar tissue formation
throughout. With respect to Ms. Smith’s heart health, Dr.
Meshkov notes no significant change in the pumping function of
heart or in her coronary artery disease after her heart attack.
With respect to Ms. Smith’s lung health, Dr. Meshkov noted that
her lung function had decreased from 2010 to 2011, that her chest
x-ray in late January 2012 showed a progression of pulmonary
fibrosis, and that this disease has an unpredictable rate of
progression. Dr. Meshkov also testified that pulmonary fibrosis
and congestive heart failure are often confused when interpreting
x-ray images because they have similar appearance on the x-ray
images. Interestingly, he also testified that her chest x-ray in
March 2012 showed that her pulmonary fibrosis on that occasion
was about the same as it had been in late January 2012. On
cross-examination, Dr. Meshkov conceded that it was not
unreasonable for Dr. Chmara to conclude that the weight of Ms.
Smith’s lungs on autopsy was indicative of congestive heart
failure. Nevertheless, Dr. Meshkov was firm in his conclusion that
Ms. Smith’s death was entirely the result of her pulmonary
fibrosis, unrelated in any way to her heart attack. In reaching this
conclusion, Dr. Meshkov appears to ignore the presence of fluid in
Ms. Smith’s lungs on autopsy, the lack of change in her chest x-
rays from January to March, 2012, and the rapid deterioration of
her health condition after the robbery, and discounts the
statement of her treating pulmonologist, Dr. Nekoranik, who
testified that he would not expect to see such a rapid decline in a
patient with only pulmonary fibrosis. Dr. Meshkov, for his part,
testified that he had seen patients with pulmonary fibrosis
deteriorate rapidly. Finally, Dr. Meshkov testified that he would
have been available to testify to these opinions at Mr. Suero’s trial
in 2013 if called to do so. Since Mr. Suero and [Appellant] were
tried together in October 2013, we can impute his availability to
testify in [Appellant’s] case. Dr. Meshkov gave testimony at Mr.
Taylor’s trial that was consistent with that given by him at Mr.
Suero’s hearing.
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In addition to the testimony of Dr. Meshkov, […] [Appellant]
herein has asked us to consider [] the testimony of Dr. Edward
Viner, who is an internist, hematologist, and oncologist. Dr.
Viner’s work as an internist includes conditions of the heart and
lungs, and he is experienced in consulting on challenging
diagnoses. As did Dr. Meshkov, Dr. Viner reviewed Ms. Smith’s
medical records in preparation for his testimony, and noted that
she had a variety of preexisting conditions prior to January of
2012, including coronary artery disease, hypertension, high
cholesterol, atrial fibrillation, aortic aneurism, and pulmonary
fibrosis. While he acknowledged that Ms. Smith suffered a heart
attack in January 2012, he categorized it as a low-level heart
attack, and said that it was in no way correlated with her death.
Dr. Viner disagreed with the idea that small heart attacks can
weaken an already weak heart. Dr. Viner testified that when Ms.
Smith was admitted to the hospital in March 2012, she was on a
high level of supplemental oxygen, that her fibrosis was
worsening, and that her pulmonary function was quite low.
Furthermore, he testified that Ms. Smith was not in obvious heart
failure at that time, and that there was no evidence of decreased
heart function after January 15, 2012. While Dr. Viner stated that
shortness of breath could come from either a pulmonary or cardiac
condition, he felt that it was very clear that Ms. Smith’s shortness
of breath was the result of her pulmonary condition, which he
contended deteriorated quickly, and that the opacities observed
on her chest x-rays were fibrotic scarring, and not fluid. As to the
fluid found in Ms. Smith’s lungs on autopsy, Dr. Viner contended
that her lungs likely flooded in the moments just prior to death.
While criticizing the forensic pathologist’s opinions insofar as he
contended that a clinician would know a patient’s cause of death
best, he could not reconcile the fact that Ms. Smith’s treating
cardiologist, Dr. Rohatgi, did not share his opinion on Ms. Smith’s
cause of death. Finally, Dr. Viner also testified that he would have
been available to testify to these opinions at Mr. Suero’s trial in
2013 if called to do so, which we again impute to [Appellant’s]
case because they were tried together on that occasion. Dr. Viner
gave testimony at the trial of Mr. Taylor that was consistent with
that given by him at Mr. Suero’s hearing.
Finally, we turn to the testimony of Dr. Wissam Abouzgheib,
which [Appellant] herself offered at her PCRA hearing on May 11,
2018. Dr. Abouzgheib is a pulmonary critical care specialist at
Cooper University Hospital, and a colleague of Dr. Viner. As did
each of the clinicians who testified previously, Dr. Abouzgheib
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testified that Ms. Smith was diagnosed with idiopathic pulmonary
fibrosis in May 2011. He testified that this condition causes the
alveoli framework of the lungs to become thickened, occupying
what should be the air space in healthy lungs, thereby preventing
the lungs from properly oxygenating the blood stream. He noted
that the median survival rate for patients with this condition is
three to five years from the time of diagnosis.
Dr. Abouzgheib testified that, at the time of Ms. Smith’s
pulmonary fibrosis diagnosis, her leg function was at 62 percent
and her heart function was normal. He characterized her heart
attack in January 2012 as minor, but agreed that tests measuring
a substance known as BNP performed at that time indicated some
level of congestive heart failure, which he believed began
following the robbery. Incongruously, he testified that a BNP test
performed in March 2012 ruled out congestive heart failure. He
noted that Ms. Smith’s lung function decreased in the time
between January and March 2012. While acknowledging that Ms.
Smith’s quality of life decreased significantly following the robbery
and her heart attack, Dr. Abouzgheib opined that Ms. Smith’s
cause of death was acute exacerbation of her pulmonary fibrosis,
which he said could not have been occasioned by her heart attack.
He accounted for the weight of her lungs on autopsy as being
caused by thickening and scarring caused by pulmonary fibrosis.
As did Drs. Meshkov and Viner, Dr. Abouzgheib testified that
pulmonary fibrosis can be misleading on x-ray and appear to be
fluid in the lungs. Finally, we note that Dr. Abouzgheib testified
that he would have been available and agreeable to testify in 2013
at [Appellant’s] trial if he had been called to do so.
PCRA Court Opinion, 8/26/2020, at 9-14 (record citations omitted).
As noted above, the en banc panel of this Court instructed the trial court
to assess the credibility of Appellant’s proposed experts without relying upon
the Taylor jury’s apparent rejection of the testimony of Drs. Meshkov and
Viner as a basis for finding no prejudice here. The en banc panel wrote:
Critically, the Strickland Court explained how courts are to
assess the prejudicial impact of prior counsel’s unreasonable acts
or omissions. First, the reviewing court must shift its scope of
review to the perspective of the decision maker from the original
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prosecution. It must then look for prejudice in light of the law
that controlled the prior proceeding. In Strickland, the High
Court stated how reviewing courts and litigants should frame the
prejudice issue as, “When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent
the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at 695[.]
Next, the reviewing court “must consider the totality of the
evidence before the judge or jury” of the original proceeding, id.
at 695, […] and ask what effect, if any, defense counsel’s errors
had upon the evidence that the prior judge or jury reviewed.
Some errors may have had no impact whatsoever on certain facts.
Others “will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary picture,
and some will have had an isolated, trivial effect.” Id. at 695–
96[.]
The strength of the prosecution’s case from the original
proceeding is a vital part of the reviewing court’s inquiry. A
“verdict or conclusion only weakly supported by the record is more
likely to have been affected by [defense counsel’s] errors than one
with overwhelming record support.” Id. at 696[.] Moreover, “the
ultimate focus of inquiry must be on the fundamental fairness of
the proceeding whose result is being challenged.” Id. “[T]he court
should be concerned with whether ... the result of the particular
proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.” Id.Here, however, the PCRA court did not make the correct
factual findings regarding the relation between the expert
testimony on causation that Johnson presented at the PCRA
proceeding and her original prosecution. In assessing prejudice,
the PCRA court “reviewed the record of the trial in this case, as
well as the expert testimony offered by the defense in Quadir
Taylor’s trial, the cross-examination of witnesses by Taylor’s
counsel, and finally the testimony offered by Dr. Abouzgheib ....”
PCRA Court Opinion, 6/8/18, at 5. It then held that, because
Taylor's jury rejected expert testimony that Ms. Smith died of
lung disease (as opposed to the robbery-induced heart attack),
there was a reasonable probability that the proposed testimony of
the three experts would not have changed the outcome of
[Appellant’s] trial. This was analytical error under
Strickland/Pierce. Whatever Taylor’s jury may have thought of
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Dr. Abouzgheib's testimony is irrelevant to how [Appellant’s] jury
might have viewed it along with the testimony of Drs. Meshkov
and Viner, relative to the prosecutorial evidence presented in
[Appellant’s] case.
The PCRA court should have made its own credibility
determinations on Dr. Abouzgheib’s testimony and the testimony
of the other two physicians who, but for the failure of [Appellant’s]
trial counsel to call them, would have testified before [Appellant’s]
jury. Then, the court should have found what facts, if any, it
believed from Drs. Meshkov, Viner, and Abouzgheib’s testimony.
Next, the PCRA court needed to reweigh the Commonwealth’s
evidence of guilt from [Appellant’s] trial (not Taylor’s) in light of
the erroneously omitted, expert testimony on Ms. Smith’s cause
of death and decide what impact, if any, the absence of the three
doctors’ testimony had upon the evidentiary picture the
Commonwealth developed in [Appellant’s] trial.
In derogation of Strickland/Pierce, the PCRA court
compared Dr. Abouzgheib’s testimony with the testimony of the
defense experts who testified at Taylor’s trial. And then, as
[Appellant] observes […], the PCRA court took judicial notice of
the verdict from Taylor’s case, a verdict that is legally irrelevant
here. The court therefore did not decide whether the evidence of
causation that the Commonwealth presented at [Appellant’s] trial
was relatively weak in comparison to the testimony of the three
physicians [Appellant’s] counsel should have called. Instead, the
PCRA court performed a cumulative-evidence inquiry, similar to
Pennsylvania Rule of Evidence 304 [sic],[2] and found “[w]hile
some additional details regarding the process by which physicians
diagnose pulmonary fibrosis was offered by Dr. Abouzgheib at
[Appellant’s] post-conviction hearing, the core of his testimony
regarding the cause of [Ms.] Smith’s death echoed that offered by
Drs. Arnold Meshkov and Edward Viner during the Taylor trial.”
PCRA Court Opinion, 6/8/18, at 6 (citations omitted).
This inquiry was beside the point, because no jury heard
Drs. Meshkov, Viner, and Abouzgheib testify against the
Commonwealth’s experts from [Appellant’s] trial. Thus, even if
Dr. Abouzgheib’s testimony was repetitive of the other two
physicians, this does not prove that the verdict in [Appellant’s]
____________________________________________
2 Rule 403 of the Pennsylvania Rules of Evidence governs the exclusion of
relevant but cumulative evidence.
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trial would have probably remained guilty. It only proves that the
verdict in Taylor’s trial would have probably remained guilty.
Hence, the PCRA court’s factual findings that it made during its
prejudicial-impact review miss the mark. The PCRA court
therefore made factual findings that were irrelevant to this case.
We must remand for the PCRA court to evaluate the factual record
under the correct framework of Strickland, so that it may apply
prejudicial-impact test in the first instance.
The Supreme Court of the United States recently explained
appellate review of the Strickland prejudice prong in Andrus v.
Texas, ––– U.S. ––––, 140 S.Ct. 1875, 207 L.Ed.2d 335 (2020),
in relation to the role of the fact-finding court. In assessing
whether a petitioner for post-conviction relief has proven a
reasonable probability of prejudice – i.e., that “the jury [at the
petitioner’s trial] would have made a different judgment ... the
reviewing court must consider the totality of the available
[exculpating] evidence – both available at [the petitioner’s] trial,
and the evidence adduced in the habeas proceeding – and reweigh
it against the evidence” of guilt. Id., ––– U.S. at ––––, 140 S.Ct.
at 1886 (some punctuation omitted).
Johnson, 236 A.3d at 69–70 (emphasis in original).
In accord with the remand instructions, the PCRA court made a series
of credibility findings. The court found that the Commonwealth’s experts gave
a credible account of the circumstances of the victim’s demise. While the
victim suffered from several serious ailments of the heart and lungs, none of
those conditions accounted for the congestive heart failure that began after
the robbery attack. The heart attack and the subsequent congestive heart
failure, according to the Commonwealth’s experts, accounted for the
hastening of the victim’s decline and her death shortly after the robbery. The
heart attack and congestive heart failure also accounted for the autopsy
findings, including the weight of the victim’s lungs and the fluid in her lungs.
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The PCRA court concluded that the testimony of the Commonwealth’s experts,
considered together, provided a credible explanation for the victim’s demise
that took account of all the available evidence. PCRA Court Opinion,
8/26/2020, at 14-16. The PCRA court also noted that the victim’s adult
granddaughter testified to a sudden change in the victim’s behavior after the
robbery. She was noticeably weaker and less active, and she suffered
consistently from shortness of breath. The shortness of breath was not
apparent prior to the robbery. Id. at 16.
The PCRA court criticized all three of Appellant’s proposed experts for
simply dismissing the idea that the victim’s heart attack played any role in
hastening her demise. Id. at 17-18. The PCRA court criticized Dr. Viner for
dismissing the idea that a mild heart attack could have damaged the victim’s
already weak heart, noting that other evidence of record establishes that “[a]
heart attack, by definition, results in the death of cells in the heart.” Id. at
17. Dr. Abouzgheib, for his part, dismissed the significance of the victim’s
heart attack even though he acknowledged that she developed congestive
heart failure afterward. Id. Similarly, regarding Dr. Meshkov, who explained
during his testimony that “correlation does not equal causation,” the PCRA
court noted his disregard of the forensic pathologist’s findings as to the cause
of the victim’s death—particularly the fluid in her lungs as an indicator of
congestive heart failure. Id. at 17-18.
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In summary, the PCRA court found all three of Appellant’s experts
lacking in credibility because their dismissal of the heart attack as the
beginning of the victim’s sudden and speedy decline did not adequately
account for all the available evidence. In weighing the evidence, in accord
with the applicable law and the remand instructions from our en banc panel,
the PCRA court concluded that the Commonwealth’s witnesses provided a
thorough and accurate assessment of the victim’s demise that accounted for
all the available evidence. The Court concluded Appellant failed to establish a
reasonable probability that, but for counsel’s failure to procure defense
experts, the outcome of her trial would have been different.
Appellant claims the testimony of her experts thoroughly accounts for
all the medical evidence and provides a valid basis for concluding that the
heart attack was unrelated to the victim’s decline and demise. Instead,
Appellant claims the victim died from acute exacerbation of idiopathic
pulmonary fibrosis (“AE-IPF”). Appellant’s Brief at 34-41. In supporting her
argument, Appellant relies on Dr. Abouzgheib’s testimony that the victim’s
congestive heart failure resolved before death. Appellant’s Brief at 40-41.
Appellant appears to dispute whether fluid was present in the victim’s lungs
at her death. Appellant’s Brief at 35 n.23 (noting testimony that chest x-rays
depicting scar tissue on lungs can be mistaken for fluid in the lungs, leading
to an incorrect diagnosis of congestive heart failure). We note that Dr.
Chmara’s account of the fluid in the victim’s lungs was based on his autopsy,
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not on an x-ray. Contrary to Appellant’s assertions throughout her brief, we
find record support for the trial court’s findings.
Appellant also argues that the PCRA court erred by not considering the
cumulative effect of counsel’s errors. This argument misses the mark.
Regardless of how many errors Appellant believes her trial counsel made, they
all lead to the sole question before us, which is whether the absence of defense
causation expert witnesses was prejudicial to her defense.
In our view, the facts of record—including the fluid in the victim’s lungs
found during the autopsy as indicative of congestive heart failure and the
victim’s long-time cardiologist’s testimony that she began to suffer from
congestive heart failure after the robbery-induced heart attack—support the
trial court’s credibility findings and its weighing of the evidence. Further, we
note that the expert evidence was not the only evidence of the victim’s sudden
change in condition after the robbery. The victim’s adult granddaughter
described the victim’s struggle with shortness of breath and a decline in her
day-to-day activities, both of which began suddenly after the robbery. This
bolstered Dr. Chmara’s testimony about the decline in the victim’s quality of
life immediately following the robbery. We are cognizant that Dr. Viner
attributed the shortness of breath to one of the victim’s pulmonary ailments,
but as the PCRA court noted, Dr. Viner did not account for the fact that the
onset of the victim’s persistent shortness of breath coincided with the heart
attack.
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Further, we observe that the evidence does not support a conclusion
that the victim’s pulmonary fibrosis would have been fatal in early 2012. The
victim was diagnosed in 2011. Dr. Meshkov testified that she may have
developed it in 2010. One expert testified that the life expectancy from
diagnosis was three to five years, and another from five to ten years. Even if
we assume she developed the disease in 2010, the expert testimony does not
support a conclusion that the condition would have become fatal in early 2012.
Finally, we must consider the alleged prejudice in light of all the evidence
against Appellant. See Commonwealth v. Treiber, 121 A.3d 435, 453 (Pa.
2015) (concluding that defense counsel’s failure to challenge DNA evidence
was not prejudicial given the overwhelming circumstantial evidence of the
defendant’s guilt). We recognize that the cause of the victim’s death, and
therefore the sole basis for the murder charge and conviction, was entirely
dependent upon expert testimony. Treiber is distinct from the instant matter
in this respect. Even so, we note the following facts established at trial. First,
Appellant and several accomplices attacked and robbed a sickly, elderly victim
by putting a pillow over her face and a gun to her head. Second, the robbery
induced a heart attack in the victim. Finally, the heart attack coincided exactly
with a precipitous decline in the victim’s health that quickly culminated in her
death. We believe it is fair to say, under these circumstances, that the defense
would have been fighting a steep uphill battle to persuade a jury that the
robbery-induced heart attack followed by the victim’s quick decline and death
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was mere coincidence. While we agree with the PCRA court that counsel had
no valid basis for failing to investigate and challenge the Commonwealth’s
causation evidence, we cannot conclude that there was a reasonable
probability of a different outcome had counsel done so.
Based on all the foregoing, we conclude the record supports the PCRA
court’s findings of fact, and we discern no error in its legal conclusions. We
therefore affirm the order on appeal.
Order affirmed.
This decision was reached prior to the retirement of Judge Musmanno.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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