J-S50036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES W. VANDIVNER, Appellant.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

____________________________________________

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

____________________________________________

2 See 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