[J-56A and J-56B-2014] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, AND STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA, Appellant

v.

RAYMOND SOLANO, Appellee : : : : : : : : : : : No. 686 CAP Appeal from the Order entered on 9/13/2013 in the Court of Common Pleas, Criminal Division of Lehigh County at No. CP-39-CR-0001114-2002 SUBMITTED: May 29, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

RAYMOND SOLANO, Appellant : : : : : : : : : : : No. 687 CAP Appeal from the Order entered on 9/13/2013 in the Court of Common Pleas, Criminal Division of Lehigh County at No. CP-39-CR-0001114-2002 SUBMITTED: May 29, 2014

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MR. JUSTICE EAKIN DECIDED: December 21, 2015 The Commonwealth appeals from the order granting Ray mond Solano relief pursuant to the Post Conviction Relief Act (PCRA), 42 P a.C.S. §§ 9541-9546, in the form of a new penalty phase, based on trial counsel’s ineffec tiveness for failing to present[J-56A-2014 and J-56B-2014] - 2

sufficient mitigating evidence. Solano cross-appeals fro m the portion of the same order denying him guilt-phase relief. 1 We affirm. In 2003, a jury convicted Solano of first-degree murd er for the shooting death of victim, who was playing basketball in a crowded park. Af ter shooting victim repeatedly, Solano fled, but then turned around and shot toward the crowded park where victim lay; several casings were recovered from adjacent streets, and one bullet entered a nearby home. Based on this evidence, the jury found the gra ve-risk aggravating circumstance, 42 Pa.C.S. § 9711(d)(7) (in commission of offense, def endant knowingly created grave risk of death to another person in addition to victim), was established. The jury found the catch-all mitigating circumstance, id., § 9711(e)(8) (any other evidence of mitigation concerning defendant’s character, record, and circumstances of offense), was established, based on evidence of Solano’s childhood env ironment and lack of nurturing. The jury determined the aggravator outweighed the m itigator, and sentenced Solano to death. See id., § 9711(c)(1)(iv). This Court affirm ed on direct appeal, and the United States Supreme Court denied certiorari. Solano v. Pe nnsylvania, 127 S. Ct. 2247 (2007). Solano timely filed a pro se PCRA petition and recei ved appointed counsel, who filed an amended petition raising claims of ineffecti ve assistance of counsel, 2

1 The facts of the underlying crimes are detailed in ou r disposition of Solano’s direct appeal. See Commonwealth v. Solano, 906 A.2d 1180, 1184-86 (Pa. 2006).

2 Since Solano’s direct appeal and PCRA petition were filed after Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (overruling rul e in Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), that ineffectiveness claims had t o be raised at first opportunity where defendant has new counsel, and instead holding d efendant should wait to raise claims of trial counsel’s ineffectiveness on collateral revi ew), he was not required to “layer” his claims by alleging appellate counsel’s ineffe ctiveness. Although Solano layered his PCRA claims to include allegations of appell ate counsel’s ineffectiveness, the (continuedH)[J-56A-2014 and J-56B-2014] - 3

prosecutorial misconduct, and trial court error. Follow ing a hearing, the PCRA court denied Solano’s guilt-phase claims but awarded him a n ew penalty phase, holding trial counsel was ineffective for failing to investigate, dev elop, and present mitigating evidence of the cognitive and psychological impact of Solano’s tr aumatic and abusive childhood. See PCRA Court Opinion, 12/30/11, at 35-43. The Co mmonwealth appealed from the grant of a new penalty phase, and Solano cross-appealed from the denial of his guilt-phase claims. Our standard of review and the prerequisites for PCRA relief are well settled:

“In addressing the grant or denial of post-conviction re lief, an appellate court will consider whether the PCRA court’s conclusions ar e supported by record evidence and are free of legal error.” Common wealth v. Williams, 597 Pa. 109, 950 A.2d 294, 299 (Pa. 2008) (citations omitted). To be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, his conviction or sentence resulted from o ne or more of the errors found in 42 Pa.C.S. § 9543(a)(2), his claims hav e not been previously litigated or waived, id., § 9543(a)(3), and “the fa ilure to litigate the issue prior to or during trial, during unitary review or on dir ect appeal could not have been the result of any rational, strategic or tactical d ecision by counsel.” Id., § 9543(a)(4). An issue is previously litigated if “the highest appellate court in which the petitioner could have had review a s a matter of right has ruled on the merits of the issue ....” Id., § 9544(a) (2). An issue is waived “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior stat e postconviction proceeding.” Id., § 9544(b). Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 201 2). We will first address Solano’s issues, as most of them pertain to the guilt pha se; if relief is due on any guilt-phase claim, we would not reach the Commonwealth ’s penalty-phase claim.

(Hcontinued) PCRA court properly based its rulings on trial counsel’s p erformance, and our review focuses on the same.[J-56A-2014 and J-56B-2014] - 4 Solano’s Issues Solano raises 11 issues, none of which have been previo usly litigated or waived. Five of these claims focus on trial counsel’s alleged ine ffectiveness in conducting the guilt-phase investigation, 3 failing to impeach certain witnesses or object to preju dicial testimony, and failing to challenge last-minute presen tation of eyewitness testimony; another claim alleges trial counsel’s ineffectiveness in con nection with the application of the (d)(7) aggravator. Solano also claims trial counse l, who was from the public defender’s office, labored under a conflict of interest because the same office simultaneously represented two of the alternative mur der suspects on unrelated matters. In two issues, Solano alleges misconduct by the Commonwea lth, and in another, he argues the PCRA court erred in dismissing his claim of ne wly discovered evidence. Finally, Solano alleges the cumulative effect of the errors in his case entitle him to a new trial. See Solano’s Brief, at 1-2. Upon review of the record, we find support for the PCRA court’s conclusions, which are free of legal error.

I. Guilt-Phase Claims Most of Solano’s guilt-phase claims pertain to counsel’s alleged ineffectiveness.

To be entitled to relief on an ineffectiveness claim, [Solano] must prove the underlying claim is of arguable merit, counsel’s perform ance lacked a reasonable basis, and counsel’s ineffectiveness caused him p rejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 2 13 (Pa. 2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 97 3 (Pa. 1987). 4 Prejudice in the context of ineffective assistance of cou nsel means demonstrating there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been differe nt. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (Pa. 199 9). This standard is

3 Solano was represented by different counsel at the gu ilt and penalty phases.

4 See Strickland v. Washington, 466 U.S. 668, 687 (198 4) (enunciating “performance and prejudice” test by which to assess counsel’s stewardship).[J-56A-2014 and J-56B-2014] - 5

the same in the PCRA context as when ineffectiveness cla ims are raised on direct review. Id. Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 P a. 258, 744 A.2d 717, 738 n.23 (Pa. 2000) (citing Commonwealth v . Rollins, 558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999) (ordinarily, post- conviction claim of ineffective assistance of counsel may be denied by showin g petitioner’s evidence fails to meet any one of three prongs for clai m)). Keaton, at 1060-61 (footnote in original; renumbere d).

A. Counsel’s failure to investigate/present evidenc e supporting defense theory of case Solano claims guilt-phase counsel was ineffective for f ailing to conduct a thorough investigation of evidence supporting the defense’s theor y that the shooting was gang related, committed by one of victim’s rival-gang memb ers, Alexis Concepcion. Solano contends information contained in police reports and a n ewspaper article, of which counsel was aware, would have alerted counsel to the fact that the shooting was in retaliation for the robbery of Concepcion by victim’s g ang, and that Concepcion was charged in another shooting occurring two years earlier. Solano notes police recovered from victim’s car a blue hooded sweatshirt bearing victim ’s nickname and the acronym for a local gang. He argues this information should have b een used to impeach Detective Wayne Simock’s testimony that the shooting was not gang r elated. Solano further contends counsel should have impeached the detective with the affidavit of probable cause for Solano’s arrest, in which the detective stated t here was reason to believe victim was in a gang. Solano also notes the newspaper article contained information about two potential witnesses, George Williams and Patrick Price, w hose testimony would have linked Concepcion and one of his fellow gang members, C atalino Morales, to the murder; Solano argues this evidence would have cast further d oubt on the Commonwealth’s case, particularly on its contention the shooting was not gang related.[J-56A-2014 and J-56B-2014] - 6

Solano also claims counsel should have used the ballistics expert he retained to analyze whether the same person fired both guns used i n the shooting. 5 It was the Commonwealth’s position that the same shooter fired bot h weapons; however, an expert Solano presented at the PCRA hearing testified the g uns were not fired by the same person, given the witnesses’ accounts of where the shooter ran, where he was last seen firing shots, and where the different shell casings we re found. Solano argues such testimony would have diminished the credibility of the Commonwealth’s case. 6 While

5 Counsel retained a ballistics expert only to confirm th e two weapons police seized when they arrested Solano were the ones used in the murder.

6 When the initial briefs in this case were filed, Sol ano raised a related claim concerning the applicability of the grave-risk aggravating circumsta nce, claiming penalty-phase counsel was ineffective for failing to investigate and present evidence that a second shooter, not Solano, was responsible for the grave risk t o others. He also contended penalty-phase counsel was ineffective for failing to obj ect or request a limiting instruction when the prosecutor presented evidence beyond the lim ited scope of the aggravator. We remanded the case to the PCRA court to file a supp lemental opinion fully addressing certain issues not addressed in its initial opinion. On r emand, the PCRA court found counsel’s failure to introduce evidence regarding a seco nd shooter in the penalty phase prejudiced Solano and thus was an additional ground f or relief. PCRA Court Supplemental Opinion, 8/23/13, at 9-10. The partie s filed new appeals and supplemental briefs, in which the Commonwealth challeng ed the PCRA court’s finding that penalty-phase counsel was ineffective in connection w ith the grave-risk aggravator. Solano now contends, in light of the PCRA court’s findi ng that evidence regarding a second shooter may well have resulted in a different pe nalty-phase verdict, the potential impact of such evidence on the guilt phase must be re- examined; he contends the PCRA court’s finding he was not prejudiced in the guilt phas e was flawed because it “credited” the evidence regarding two shooters in its supplemental opinion. Solano’s Supplemental Brief, at 8. However, the PCRA court d id not make a credibility finding regarding such evidence; rather, it simply stated that h ad the jury considered testimony casting doubt on who put persons other than victim at gr ave risk of harm, the jury may not have found the aggravator to be established, which woul d have changed the sentence to life imprisonment. See PCRA Court Supplemental Opin ion, 8/23/13, at 9-10. This does not equate to a finding there were two shooters, nor does it affect the result at the guilt phase, because, as the PCRA court noted, “the presence of a second shooter firing shots toward the crowded park would not have exculpated [Sol ano] from his role in killing (continuedH)[J-56A-2014 and J-56B-2014] - 7

acknowledging the resources available to counsel were limi ted, Solano argues counsel did not fully utilize his investigator and primarily relied on the Commonwealth to provide

him with information about the case. The Commonwealth argues Solano’s assertions that counsel was lax in his preparation of this case are belied by the record; So lano’s case was counsel’s primary focus, and he met with his client weekly, used two investi gators, and interviewed witnesses. Despite counsel’s reminders of the importance of providing information to assist in trial preparation, Solano frequently failed to give counsel complete details, and the limited information he disclosed often proved unt rue. In light of the sketchy information Solano provided, the Commonwealth asserts counsel made a tactical decision to argue the shooting was gang related and Sol ano was not a gang member, was not present, and thus had no motive or opportunity to commit the crime. Regarding whether counsel should have presented evide nce linking Concepcion to the shooting, the Commonwealth notes that to the e xtent Solano claims counsel should have called the witnesses whose statements in the police r eports indicated Concepcion was angry with victim, these witnesses were not presente d at the PCRA hearing; thus, Solano cannot prove they were willing and available to testify at trial. The Commonwealth also points out counsel, after intervie wing Concepcion, made a reasonable, strategic decision not to call him to testify because he told counsel Solano was one of his best friends and had agreed to help him because Solano held a grudge against those who robbed Concepcion; according to Concep cion, these men had also

(Hcontinued) [victim] on the basketball court[.]” Id., at 10. As discussed infra, numerous eyewitnesses identified Solano as the person who shot vict im; therefore, any evidence of a second shooter subsequently firing into the crowd was irrelevant to Solano’s guilt for the murder. Accordingly, this claim lacks merit.[J-56A-2014 and J-56B-2014] - 8

assaulted Solano’s younger brother. The Commonwealth concludes counsel wisely decided not to try to link the murder to this potentia lly damaging witness. Regarding Williams and Price as potential witnesses, th e Commonwealth notes

counsel testified he determined Williams would not hav e been helpful after interviewing Concepcion, who told counsel and police that Solano adm itted to killing victim; 7 indeed, Williams testified at the PCRA hearing that he likely would not have spoken with counsel had he been contacted prior to trial. The Commonwea lth asserts the version of events Williams gave at the PCRA hearing did not exculpate S olano but merely established Morales, Concepcion’s fellow gang member, went out wit h two guns 15 minutes before shots were heard; Williams did not see who fired any o f the shots or, most significantly, who shot victim. The Commonwealth argues Price’s versio n of events conflicts with Williams’s and Morales’s, is incredible, and would not h ave changed the trial’s outcome.

The Commonwealth contends counsel’s failure to have t he ballistics expert analyze whether there were one or two shooters was not fatal to Solano’s case in light of the numerous witnesses who testified they saw Solano shoo t victim and retreat in the direction he came from, firing into the crowd. The Co mmonwealth further notes Solano’s expert at the PCRA hearing conceded there could have been one shooter using two guns; thus, the expert’s testimony would not have alter ed the verdict. The Commonwealth also points out the jury heard eyewitness testimony that more than one person was thought to have fired a gun; therefore, th e notion there may have been two shooters was before the jury. In light of the fact mul tiple witnesses identified Solano as the one who shot victim, however, the Commonwealth re asons that whether a second

7 When counsel disclosed he had interviewed Concepcion a nd determined he would not be helpful as a witness, Solano told him not to inter view Williams because he likewise would not be helpful. Thus, counsel did not intervie w Williams.[J-56A-2014 and J-56B-2014] - 9

person fled with Solano and fired the additional shot s was irrelevant to the issue of Solano’s guilt. The PCRA court aptly noted the question was not whet her counsel lacked adequate resources to investigate and prepare for tri al, but whether additional resources were required such that counsel should have requested t hem. PCRA Court Opinion, 12/30/11, at 30-31. The court acknowledged counsel hi red a ballistics expert and a psychologist; however, additional paths counsel could have pursued were foreclosed by Solano’s lack of cooperation and refusal to disclose the “w hole story” to counsel, particularly where he was at the time of the murder. 8 PCRA Court Opinion, 12/30/11, at 31. Thus, the court concluded “[Solano] c[ould ]not b enefit from his own obstinacy or misleading of his trial counsel.” Id. (citations omitted ). The court further found

counsel’s failure to interview Williams was at Solano’s b ehest, noting Williams testified at the PCRA hearing that he probably would not have spo ken to counsel or testified even if counsel had contacted him. Id., at 11-12. The court also reasoned Williams’s account of the shooting did not exculpate Solano, as it merel y indicated Morales left with two guns 15 minutes before the shots were heard; this did not p reclude the possibility Morales could have furnished the guns to Solano after leaving . Id., at 12. The court found Price’s testimony — that he was on the phone with Willia ms at the time of the shooting and was told Morales was shooting someone — conflicted w ith Williams’s account, which did not include being on the phone at all. Id., at 13. Additionally, Price’s claim that he accompanied Morales and Concepcion to Indiana after th e crime and Morales told him he

was the shooter conflicted with Morales’s assertion that on ly Concepcion accompanied him. Id. Finally, the court noted in addition to b eing incredible, Price’s version of events

8 Solano gave conflicting information about his whereab outs at the time of the shooting, telling counsel he was in New Jersey but constantly changin g the facts and details, and ultimately testified he was in Connecticut. See N.T. P CRA Hearing, 1/27/10, at 94-96.[J-56A-2014 and J-56B-2014] - 10

did not account for Solano’s whereabouts the day of the murder and thus could not exculpate him. Id. Accordingly, the PCRA court held S olano failed to show the outcome of his trial would have differed had the prof fered testimony been presented, especially in light of multiple eyewitness testimony ide ntifying Solano as the shooter. Id., at 14, 16. In ruling on Solano’s claim that counsel should have p ursued additional ballistics evidence in support of the “two shooter” theory, the PC RA court stated the presence of an additional shooter, if proven, would not have exoner ated Solano, as the eyewitness testimony established he shot victim. Id., at 19-20. A dditionally, the court noted the expert Solano retained for the PCRA hearing conceded one shooter could have possibly fired both weapons, although his analysis posited a sepa rate shooter had fired each gun involved in the incident. Id., at 20. Accordingly, the court held Solano was not prejudiced by counsel’s failure to further challenge the Commonwealth’s ballistics

evidence. Id.

Our review of the record confirms the PCRA court’s con clusions are supported by the record and free of legal error. To prevail on a claim that counsel was ineffective for failing to call witnesses, Solano must demonstrate: (1) t he witnesses existed; (2) the witnesses were available to testify; (3) counsel knew, or should have known, the witnesses existed; (4) the witnesses were willing to testi fy; and (5) the absence of the witnesses’ testimony was so prejudicial that it denied Sol ano a fair trial. See Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012 ). Solano fails to make this showing. Although guilt-phase counsel admitted the defense di d not “d[i]g up” any of its own witnesses, but instead used the Commonwealth’s witnesses to gain information, N.T. PCRA Hearing, 1/27/10, at 21-23, counsel stated Solan o kept changing his story every[J-56A-2014 and J-56B-2014] - 11

time they spoke and was “always holding back stuff,” id., at 118; see also id., at 95-96, 100-01. The only potential witness Solano told counsel about was a cousin’s girlfriend, who had already told police Solano was not out of stat e, as he claimed, at the time of the murder. Id., at 94-95, 102-03. When counsel learne d at the PCRA hearing of the substance of Williams’s purported testimony, he stated he would have loved to have presented it at trial, id., at 170; however, after co unsel talked to Concepcion and told Solano he would not be helpful, Solano told counsel n ot to “bother” with Williams, so counsel “backed off,” id., at 166-67, 172. Furthermo re, Williams’s PCRA hearing testimony was equivocal regarding whether he would hav e testified at trial, had counsel contacted him. See id., 1/29/10, at 159-61. Counsel did interview Morales and called him as a trial witness, but he asserted his Fifth Amend ment privilege. Counsel hired a ballistics expert and a psychologist as part of his pre-tri al investigation, and he called a police detective to testify regarding two witnesses’ accou nts that there were multiple shooters at the incident. Counsel also presented the te stimony of Solano, who claimed to be in Connecticut the day of the shooting and impli cated Morales as the culprit. Counsel’s defense theory was Solano had no motive to co mmit this gang-related shooting, and — with the limited information Solano g ave him — he did his best to cast doubt on the Commonwealth’s case through cross-examinatio n. See Commonwealth v. Fears, 836 A.2d 52, 72 (Pa. 2003) (reasonableness of co unsel’s stewardship depends, in critical part, upon information supplied by defendant) . Accordingly, we conclude guilt-phase counsel acted reasonably in both his pre-tr ial investigation and preparation, as well as at trial. “A petitioner is not entitled to relief because counsel’s trial strategy was unsuccessful; when the course chosen was reasonable, cou nsel cannot be faulted for failing to pursue a different path.” Commonwea lth v. Fisher, 813 A.2d 761, 767 (Pa. 2002) (citation omitted); see also Commonwealth v. Dun bar, 470 A.2d 74, 77 (Pa. 1983)[J-56A-2014 and J-56B-2014] - 12

(test is not whether other alternatives were more reaso nable, employing hindsight evaluation of record). Alternatively, we agree wit h the PCRA court that Solano cannot show he was prejudiced by counsel not conducting further investigation and calling

additional witnesses. Regarding Solano’s claim pertaining to ballistics evid ence, we note although counsel acknowledged at the PCRA hearing that he would have wanted to present independent expert testimony to cast doubt on the Comm onwealth’s “one shooter, two guns” theory, see N.T. PCRA Hearing, 1/27/10, at 93-9 4, he testified the findings of his ballistics expert corroborated those of the Commonwealth ’s expert and would actually have matched even more casings to the guns recovered, id. , at 152-53; thus, he did not call his expert to testify. See Commonwealth v. Wrigh t, 961 A.2d 119, 155 (Pa. 2008) (where witness’s testimony would have been cumulative an d not changed trial’s result, counsel not ineffective for failing to call her). We conclude this decision was reasonable and, in the alternative, agree with the PCRA court t hat the absence of defense expert ballistics testimony in support of the “second shooter” theory did not prejudice Solano, as he had already been identified as the primary shooter

. 9

B. Conflict of interest Solano asserts the public defender’s office, which represe nted him at trial and on direct appeal, labored under a conflict of interest be cause it simultaneously represented

9 Regarding Solano’s claim that counsel should have called several witnesses (i.e., Vanessa Martinez, Norman Cruz, and Ivette Gutierrez) whose statements in police reports indicated Concepcion was angry with victim and thus supported the theory the shooting was gang related, we note Solano did not pre sent these witnesses at the PCRA hearing; thus, he failed to prove they were willing and available to testify at trial. As for the blue hooded sweatshirt bearing gang insignia that Solano claims was found in victim’s car and Solano’s arrest affidavit that stated victim wa s a gang member, we conclude, as further discussed in Part I, Issue D., infra, Solano has n ot shown, but for counsel’s failure to impeach Detective Simock with this information, he w ould have been found not guilty.[J-56A-2014 and J-56B-2014] - 13

Morales and Concepcion — two alternative suspects in hi s case — without informing him. The public defender’s office began representing Solano in 2001, and he was tried and sentenced in May, 2003. The same office represented Mo rales (who had been its client since 1994) from January 29, 2003, through April 23, 2 003, one month before Solano’s trial. The office represented Concepcion on four cases from December 26, 2001, until two of the cases were discontinued March 19, 2003, 10 less than two months before Solano’s trial; representation on the remaining two cases continued until June 23, 2003, after the conclusion of Solano’s trial. Solano argues t he public defender’s office’s representation of these individuals prevented guilt-ph ase counsel from presenting evidence and arguing to the jury that these two were the actual perpetrators who had the motive and opportunity to commit the murder. Solano highlights counsel’s PCRA testimony that he suspected both men were involved in victim’s murder. See N.T. PCRA Hearing, 1/27/10, at 67. Solano contends this conflict of interest so adversely affected counsel’s performance that he was effectively denied coun sel and a fair trial. The Commonwealth asserts the mere fact the public defe nder’s office represented Morales and Concepcion in addition to Solano does not e stablish a conflict; Solano must

show an actual conflict existed. The Commonwealth furth er asserts Solano has not demonstrated any potential or actual prejudice result ing from the alleged conflict.

The PCRA court held Solano’s conflict of interest claim was abandoned because

he failed to raise it in his briefs filed after the PC RA hearing and thus did not indicate how the record supported his contention. PCRA Court Suppl emental Opinion, 8/23/13, at 2-3 n.1. Solano raised this claim in his PCRA petition, see Amended PCRA Petition, 1/23/09, at 61; Corrected Amended PCRA Petition, 2/3 /09, at 58-59, and avers he

10 Concepcion was cooperating with authorities in petition er’s case from September, 2001 until March, 2003.[J-56A-2014 and J-56B-2014] - 14

preserved it in his post-hearing brief. The brief on ly addressed claims that were the subject of the PCRA hearing, which did not include the conflict issue; however, Solano asserts he incorporated the issue by reference in a genera l statement: “‘Petitioner incorporates by reference all other pleadings, submissions, factual assertions, legal arguments and claims previously submitted to this [c]our t in support of post-conviction relief. Although such other claims H are not addressed i n this [b]rief, [p]etitioner reasserts each of them[.]’” Solano’s Supplemental Brief , at 21 (quoting Solano’s Corrected Post-Hearing Brief, 11/10/10, at 2). 11 This Court has disapproved of advocacy that incorporates arguments by reference. See Commonwealth v. Perez, 93 A.3d 829, 837 (Pa. 2014); Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011) (citations omitted) (rejecting appellant’s attempt to incorporate by reference brief authored by different counsel on post-sentence motion). Here, even if Solano had properly develop ed the issue in his post-PCRA-hearing brief, we conclude he has not establish ed a meritorious issue. To establish an actual conflict of interest hampered counsel, Solano must show counsel actively represented conflicting interests and the confl ict adversely affected counsel’s performance. See Commonwealth v. Padilla, 80 A.3d 1238, 1248 (Pa. 2013) (citations omitted). Beyond bald assertions that the public def ender’s office represented him, Morales, and Concepcion during overlapping time perio ds, 12 Solano offers nothing to show an actual conflict hindered trial counsel’s perfor mance. See Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012) (noting me re existence of overlap in representation did not prove counsel’s actions, although troubling, adversely affected his representation of defendant). Counsel interviewed b oth Morales and Concepcion,

11 Solano’s Corrected Post-Hearing Brief is not found in the record.

12 Obviously, the better course would have been to appoi nt other counsel.[J-56A-2014 and J-56B-2014] - 15

intending to call them as witnesses; however, Concepcion proved to be more potentially harmful than helpful and thus was not called, and Mor ales invoked his Fifth Amendment privilege. Counsel cannot be faulted because these men ultimately were not helpful to Solano’s case, and nothing in the record shows counsel’s pu rsuit of the theory that Solano lacked motive to commit the crime was hamstrung by his office’s representation of the others. Accordingly, this claim is meritless. C. Brady claim

Solano claims the Commonwealth failed to disclose favor able evidence that was material to his guilt or sentencing, in violation of B rady v. Maryland, 373 U.S. 83, 87 (1963) (prosecution’s suppression of evidence favorable to accused upon request violates due process where evidence is material to guilt or punishment, irrespective of good faith or bad faith of prosecution). Solano clai ms, with respect to eyewitness Carlos Carrasquillo, 13 the Commonwealth failed to disclose a plea agreement the witness entered into in exchange for his testimony. Carrasqu illo faced gun and drug charges in federal court, to which he pled guilty the day after he testified against Solano. In the sentencing memorandum and sentencing order for Carrasqu illo, both the prosecution and the federal district court referenced his cooperation in Solano’s case as the basis for imposing a lesser sentence. Solano claims guilt-phase coun sel could have used this information on cross-examination of Carrasquillo to und ermine his credibility. Regarding Concepcion, although guilt-phase counsel det ermined he would not be a good defense witness, the Commonwealth initially pla nned to use him to testify — according to his initial police statement — he hired Sola no and Morales to kill victim in retaliation for the robbery and beating victim’s gang inflicted on Concepcion; however,

13 Although Carrasquillo did not directly identify Sola no as the shooter, the description he gave corroborated other eyewitnesses’ identifications, ma tching Solano’s physical characteristics.[J-56A-2014 and J-56B-2014] - 16

Concepcion retracted this version of the crime in a subsequ ent police interview, instead placing the blame solely on Solano, who he claimed kill ed victim in retaliation for victim’s gang assaulting Solano’s brother. The prosecutor in Con cepcion’s federal case 14 testified at the PCRA hearing that the federal gover nment had agreed to seek a lesser sentence for him in exchange for his testimony against S olano. However, the prosecutor informed the federal court by letter that, because of Concepcion’s inconsistent versions of events, he was not a reliable, useful witness against Sol ano and thus no lesser sentence

would be recommended. Solano claims the Commonwealth should have disclosed Concepcion pled guilty in federal court four months befo re Solano’s trial. Solano further argues had guilt-phase counsel known about the plea agr eement and the letter, he could

have used this information to cast doubt on the Common wealth’s “single shooter” theory of the case, as well as impeach Detective Simock’s testimon y that the shooting was not gang related and suggest a perpetrator other than Sol ano. 15 Thus, Solano claims, even though Concepcion did not testify, counsel’s preparatio n for trial was adversely impacted by not having the information about his plea and pol ice statements. The Commonwealth asserts there was no evidence of any p lea agreement with Carrasquillo and the fact he received a lesser federal sentence does not automatically prove an agreement existed. The Commonwealth furthe r asserts, even if there was an agreement, Solano cannot establish he was prejudiced by its nondisclosure; Carrasquillo’s identification testimony was corroborated by numerous other eyewitnesses, and counsel impeached him for bias on cross-exa mination by referring to

14 A county assistant district attorney who was specially depu tized to prosecute county cases that went to federal court prosecuted Concepcion’s cas e.

15 Solano argues had counsel known Concepcion was not going to testify, counsel would have used Concepcion’s initial police statement to sugge st he, not Solano, was the shooter.[J-56A-2014 and J-56B-2014] - 17

his federal charges. Regarding Concepcion, the Commonwe alth asserts there was no evidence of any plea agreement, and even had there b een one, Solano cannot demonstrate it was material evidence because Concepcion d id not testify. The Commonwealth again emphasizes the numerous identificati on witnesses who testified, pointing out any assertion that Concepcion was the perpe trator would have been flatly contradicted by these witnesses, who either directly iden tified Solano or gave a description of the shooter that matched Solano’s characte ristics. The PCRA court held the evidence showed nothing more than federal prosecutors apparently told Carrasquillo his cooperation would be made known to the federal sentencing judge; there was nothing to prove any quid pro quo agreement between Carrasquillo and the Commonwealth that he would recei ve leniency in his federal sentence if he testified. PCRA Court Opinion, 12/30/1 1, at 22-24. The PCRA court noted there was no credible evidence establishing Car rasquillo had a plea agreement; to the contrary, the prosecutor credibly testified no agr eement ever existed. Id., at 24. Finally, the PCRA court reasoned even if there had be en an agreement, its nondisclosure was harmless error, as guilt-phase counsel cross-examined C arrasquillo regarding his pending federal charges, and his testimony was corrobora tive of other eyewitnesses who positively identified Solano. Id., at 24-25. Regarding Concepcion, the PCRA court, referencing the prosecutor’s letter to the federal court, held the Commonwealth had a duty to d isclose the arrangement with Concepcion as long as he was going to testify at trial; h owever, once he was no longer going to testify, there was no Brady violation. Id., at 28. The court further held Concepcion’s conflicting statements to police concerning the identity of the shooter and the alleged motive would not have aided Solano’s case ; rather, because such statements[J-56A-2014 and J-56B-2014] - 18

would have inculpated Solano and explained his motive for the shooting, they were not exculpatory. Id.

Under Brady, “a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature.” Commonwealth v. Spotz, 18 A.3d 244, 275-76 (Pa. 2011) (citation omitted). To establ ish a Brady violation, appellant must demonstrate: the evidence at issue was fa vorable to him, because it was either exculpatory or could have been us ed for impeachment; the prosecution either willfully or inadv ertently suppressed the evidence; and prejudice ensued. Id., at 276 (citat ion omitted). “The evidence at issue must have been ‘material evidence tha t deprived the defendant of a fair trial.’ ... ‘Favorable evidence is material ... if there is a reasonable probability that, had the evidence been discl osed to the defense, the result of the proceeding would have been different.’” Id. (citations omitted). Commonwealth v. Walker, 36 A.3d 1, 9 (Pa. 2011) (omi ssions in original). We find the PCRA court’s conclusions to be supported by the record. Solano did not present Carrasquillo as a witness at the PCRA hearin g. At trial, Carrasquillo denied on cross-examination having been promised “a better de al” if he cooperated with Solano’s prosecution. N.T. Trial, 5/21/03, at 127. The prosecutor testified at the PCRA hearing that Carrasquillo was not offered any kind of benefit for his testimony, see N.T. PCRA Hearing, 2/4/10, at 68, 145-53, and the PCRA co urt found this credible, see Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (PCRA court’s credibility findings are to be accorded great deference, and where record su pports such determinations, they are binding on reviewing court (citations omitte d)). As the PCRA court noted, the fact Carrasquillo received favorable treatment in his federal sentencing after testifying against Solano does not establish there was an agreement ; all Solano has demonstrated was that Carrasquillo’s cooperation was taken into conside ration by the sentencing court — something any testifying witness with pending charges h opes will happen. See Commonwealth v. Chmiel, 30 A.3d 1111, 1131 (Pa. 201 1) (holding mere conjecture as to[J-56A-2014 and J-56B-2014] - 19

understanding between prosecution and witness is insufficie nt to establish Brady violation); Commonwealth v. Williams, 863 A.2d 505, 515-16 (Pa. 2004) (no relief due on uncorroborated claim that witness agreed to testify in e xchange for Commonwealth’s nolle prossing charges against him; other than own asserti on, appellant provided no support for allegation). Furthermore, in light of the other identification witnesses who offered testimony nearly identical to Carrasquillo’s, S olano fails to prove the result at trial would have differed had counsel been able to impeach Carrasquillo with evidence of a deal. See Spotz, at 276 (favorable evidence is mater ial if there is reasonable probability that, had it been disclosed, result of trial would hav e differed). Thus, Solano’s claim regarding Carrasquillo also fails. Regarding Solano’s claim that the Commonwealth’s fail ure to disclose Concepcion’s plea agreement hampered counsel’s trial prep aration, we agree with the PCRA court that little would have been gained — much less the result at trial having differed — had counsel known of the plea agreement a nd had access to Concepcion’s police statements. Since Concepcion did not testify, the re was no need to present the plea agreement as impeachment evidence. Additionally, any suggestion that Conception was the shooter would have been contradicte d by the trial testimony of numerous eyewitnesses who identified Solano or gave descr iptions matching Solano’s physical characteristics. Finally, as we observed in Comm onwealth v. Williams, 105 A.3d 1234 (Pa. 2014), “The United States Supreme Co urt has never held Brady materiality is measured in terms of ‘effects on the defe nse strategy.’” Id., at 1244 (citing Commonwealth v. Weiss, 81 A.3d 767, 810-11 (Pa. 2013) (Castille, C.J., concurring, joined by Eakin, J.)). Accordingly, Solano’s claim regar ding Concepcion fails.[J-56A-2014 and J-56B-2014] - 20

D. Counsel’s failure to impeach allegedly perjured testimony by detective Solano claims Commonwealth witness Detective Simock comm itted perjury at trial by testifying victim was not a gang member and had no criminal history, see N.T. Trial, 5/27/03, at 135, when Detective Simock had previously offered a sworn affidavit of probable cause in support of Solano’s arrest stating vict im belonged to a gang and had a juvenile record. He argues the prosecutor’s failure to correct this perjured testimony, as well as the emphasis on it in closing argument, constitute d misconduct that violated his due process rights and denied him a fair trial. He fur ther contends guilt-phase counsel was ineffective for failing to object to or impeach thi s testimony, which undermined the defense’s theory the shooting was gang related. Specifi cally, Solano points to the affidavit of probable cause for his arrest, completed by Detective Simock the day after the murder, which stated he had received information that victim belonged to a gang; he also referenced the sweatshirt bearing gang insignia and vi ctim’s name, recovered from victim’s car, and mentioned victim’s juvenile record. So lano claims counsel had access to all of this evidence and should have used it to imp each the detective. The Commonwealth asserts Detective Simock’s and the prose cutor’s PCRA testimony provided a reasonable explanation for the d etective’s trial testimony and the prosecutor’s closing argument — i.e., although victim was su spected of being in a gang, there was no actual evidence of such, and the detective ’s comment regarding victim’s

lack of criminal record was in reference to him as an adul t. Additionally, the prosecutor testified at the PCRA hearing that he had no reason t o believe the detective’s trial testimony was inaccurate; in fact, at least four other wi tnesses also testified victim was not a gang member. Thus, there was no perjured testim ony and no prosecutorial misconduct. Alternatively, the Commonwealth asserts even if counsel had impeached the detective with the affidavit and other evidence, multiple other witnesses, including[J-56A-2014 and J-56B-2014] - 21

victim’s friends, testified he was not in a gang; thus, t he result at trial would not have

differed.

The PCRA court credited Detective Simock’s PCRA testimon y that he meant to state in the affidavit that victim associated with gang members but was not one himself,

and what he meant at trial was that victim had no adu lt criminal record. Additionally, the court noted although earlier records indicated the pros ecution had information suggesting victim was in a gang, as the investigation progressed, th e prosecution’s theory and understanding of events changed; therefore, the differ ence in the Commonwealth’s theory of the case at trial from what its original th eory had been “cannot be reasonably

understood to rise to the level of misconduct so as to de prive [Solano] of a fair trial.” PCRA Court Opinion, 12/30/11, at 29. The court note d any discrepancy in an officer’s trial testimony from earlier sworn statements was a top ic for cross-examination, but that here, where the issue lacked materiality, counsel’s failu re to cross-examine did not prejudice Solano’s trial. Id., at 30. Our review of the record supports the PCRA court’s find ings. Detective Simock provided credible explanations for his statement in t he affidavit and his trial testimony; additionally, he stated there was no proof the sweatshi rt or the car in which it was found belonged to victim. See N.T. PCRA Hearing, 2/2/10, 69-72, 121-24, 163-66, 211. The prosecutor also credibly testified his office’s investigati on of the case did not reveal independent evidence that victim was a gang member; th us, this was not a theory the prosecution pursued. See id., 2/4/10, at 95-100. We will not disturb the PCRA court’s credibility findings. See Dennis, at 305. Based upon the foregoing testimony, it is apparent Detective Simock’s testimony was not perjured a nd there was no prosecutorial misconduct. Furthermore, impeaching Detective Simock with the evidence Solano mentions would not have changed the outcome of the t rial, in light of the trial testimony[J-56A-2014 and J-56B-2014] - 22

from other witnesses that victim was not in a gang, see N .T. Trial, 5/21/03, at 125, 216; id., 5/22/03, at 24, and the detective’s credible PCR A hearing testimony that, had he been confronted with the affidavit, he would have offered a reasonable explanation for the inconsistency between it and his trial testimony. Thus, c ounsel was not ineffective for failing to impeach the detective in the manner Sola no suggests.

E. Counsel’s failure to challenge Commonwealth’s an ticipated last-minute presentation of eyewitnesses Solano claims guilt-phase counsel was ineffective for fai ling to prevent Israel Aquino’s and Francisco Rosario’s identification testimony from being admitted at trial; he further claims counsel was ineffective for failing to ob ject and request a cautionary instruction regarding the identifications. When the pr osecutor met with counsel before trial, he told counsel although only Jose Aquino, Israe l’s brother, had positively identified Solano at that time, he would not be surprised if ot her witnesses, who were presently afraid to implicate Solano, identified him at trial. This is what happened when Israel Aquino and Rosario took the stand. Solano contends, bas ed upon this exchange with the prosecutor prior to trial, counsel should have req uested a line-up, moved to preclude such identification testimony, and requested a jury instr uction pursuant to Commonwealth v. Sexton, 400 A.2d 1289, 1292-93 (Pa. 1979) (holdi ng where defendant’s request for pre-trial identification is denied, remedy is jury inst ruction that defendant’s opportunity for more objective identification was denied, and subsequen t in-court identification could be viewed with caution). Solano argues Israel Aquino’s a nd Rosario’s unreliable testimony 16 bolstered Jose Aquino’s questionable eyewitness testimon y, 17 in a case

16 Solano points to Israel Aquino’s failure to select an individual from a previous photo array; Aquino selected two photos, but would not tell the detective who the individuals were. Solano further notes Rosario indicated in a po lice report that he was unable to identify the shooter because he did not see the shooter ’s face; Rosario was never presented with a photo array or line-up.[J-56A-2014 and J-56B-2014] - 23

where eyewitness testimony was critical because no physical e vidence linked Solano to the shooting. Thus, he claims counsel’s failure to chal lenge these witnesses’ in-trial identification of him, nearly two years after the shoo ting, prejudiced his case. The Commonwealth counters that, prior to trial, the prosecutor’s opining to counsel that he would not be surprised if additional witnesses i dentified Solano at trial did not merit a motion in limine; such motion would have been base less and frivolous, as counsel could not presciently determine which testimony should be precl uded.

The PCRA court held:

In the absence of any failure to disclose information un der the applicable rules of procedure, let alone active concealment, by th e Commonwealth, there is no basis to overturn the jury’s verdict simply because witnesses such as Israel Aquino and Francisco Rosario, who had other relevant testimony to offer, but prior thereto had not made a ny positive identification, broadened their testimony to implicat e [Solano] once placed on the stand. PCRA Court Supplemental Opinion, 8/23/13, at 7. Th us, the court concluded counsel could not be ineffective for failing to raise a meritl ess claim. We agree with the PCRA court’s conclusion, which we fin d supported by the record. Prior to knowing which, if any, witnesses would identify Solano at trial, counsel’s attempt to preclude the introduction of such testimony o r request a line-up would have been pointless. See Commonwealth v. Washington, 927 A .2d 586, 603 (Pa. 2007) (citations omitted) (stating counsel will not be deemed ineffective for failing to raise meritless claim). Although the PCRA court did not addr ess Solano’s claim concerning counsel’s failure to object or request a cautionary instr uction once Israel Aquino and Rosario made in-court identifications, we note Solano simply asserts his case was

(Hcontinued) 17 Solano argues Jose Aquino had only limited circumstances w ithin which to view the perpetrator. He does not develop this argument in con nection with this issue.[J-56A-2014 and J-56B-2014] - 24

prejudiced because identification testimony was crucial to the Commonwealth’s case, which is not enough to satisfy the third prong of Pier ce, i.e., there is a reasonable probability that, but for counsel’s omission, the result at trial would have differed. See Kimball, at 332. Even without these eyewitnesses’ iden tification, other evidence pointed to Solano as the shooter. Jose Aquino unequivocally id entified Solano both before and at trial, and several other witnesses, including Carrasqu illo, gave consistent descriptions of the shooter and what he wore, which matched Solan o’s characteristics. These witnesses testified the same person who shot victim also fir ed the shots into the crowd, thus supporting the Commonwealth’s theory of the case. Contrary to Solano’s contention that no physical evidence linked him to the cr ime, the ballistics evidence supported the conclusion that a single shooter fired both weapons used, and the casings

and bullets recovered from the crime scene were fired f rom the same weapons police seized when they arrested Solano and Morales in Connect icut two weeks after the shooting. Thus, we agree counsel had a reasonable basi s for not taking preemptive measures to preclude these two witnesses’ identification t estimony, and Solano was not prejudiced by counsel’s failure to object or request a cau tionary instruction when they

testified.

F. Counsel’s failure to impeach Commonwealth witnes ses with prior crimen falsi convictions and potential bias or motive, and failu re to request appropriate jury instructions Solano claims guilt-phase counsel should have impeached Commonwealth witnesses Carrasquillo and Julio Santiago with their pri or crimen falsi convictions. He further claims counsel should have impeached Rosario and Santiago with their potential bias or motive to curry favor with the government due to their being on probation. Solano asserts counsel should have also impeached Rosario with a pr ior inconsistent[J-56A-2014 and J-56B-2014] - 25

statement. 18 Finally, Solano contends although Jose Aquino’s prior crimen falsi conviction for receiving stolen property was raised on di rect examination by the prosecutor, guilt-phase counsel was ineffective for failin g to request an appropriate jury instruction regarding this witness’s testimony. Solano ar gues counsel’s inactions prejudiced his case because impeachment of crucial identif ication witnesses was central

to the defense. The Commonwealth contends that because the jury was i nformed of Carrasquillo’s prisoner status and Jose Aquino’s prior crimen falsi convicti on, and Rosario testified he pled guilty to charges involving illegal possession of a gun, any further impeachment of

these witnesses would have been cumulative. The Common wealth also points out counsel vigorously cross-examined all witnesses, attempting to impeach them through various means; as their testimony was corroborated and t he evidence of Solano’s guilt was overwhelming, counsel cannot be deemed ineffective for failing to take the measures Solano suggests. The PCRA court concluded “the omitted line of inquir y would [not] have provided more than merely a general assault upon the veracity o f a witness by showing prior criminal behavior[,]” as opposed to “evidence directly r elevant to the witneess’s [sic] motivation to offer false testimony on the particular fact at issue during trial.” PCRA Court Opinion, 12/30/11, at 17. Accordingly, the cou rt held, as “there was nothing about the background of the Commonwealth’s witnesses that H woul d have directly refuted the

18 At trial, Rosario testified he chased after the shoot er with his gun, but never fired because the gun malfunctioned; however, in his police sta tement, Rosario denied having a gun at the crime scene. Additionally, the Commonwe alth’s ballistics expert found Rosario’s gun was operable. Solano argues counsel should have introduced this ballistics evidence to rebut Rosario’s testimony that the gun malfunctioned. Counsel attempted to impeach Rosario with his prior inconsistent statement on re-cross-examination, but the trial court precluded such q uestioning as being beyond the scope of redirect examination.[J-56A-2014 and J-56B-2014] - 26

Commonwealth’s theory of the case or significantly underm ined the truthfulness of the version of the facts in the case at hand[,]” id., at 19, the requisite degree of prejudice was not present so as to warrant a new trial. Regarding counsel’s failure to request a jury instruction on Jose Aquino’s crimen falsi conviction, the PCRA court held counsel’s thorough cross-examination of this witness, coupled with the other overwhelming evidence of Solano’s guilt, rendered any error by cou nsel in failing to request an instruction harmless. PCRA Court Supplemental Opinion, 8/23/13, at 3. It is well settled “that a witness may be cross-examined as to any matter tending to

show the interest or bias of that witness.” Commonwealt h v. Nolen, 634 A.2d 192, 195 (Pa. 1993). “[E]vidence of prior convictions can be int roduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction H is within ten years of the trial date.” Commonwealth v. Randall, 528 A.2d 1326, 132 9 (Pa. 1987). We note, to the extent the PCRA court suggested the underlying facts of a crimen falsi conviction offered for impeachment purposes must contradict the witness’s ver sion of the facts or the Commonwealth’s theory of the case, the Rules of Eviden ce do not contain such requirement. See Pa.R.E. 609(a) (for impeachment of any witness’s credibility, conviction must be admitted if it involved dishonesty or false statement). However, we agree with the PCRA court that Solano is not entitled to relief on this claim. As the Commonwealth notes, counsel attempted to impeach these witnesses by other means on cross-examination, 19 and the Commonwealth had already brought to the ju ry’s attention

19 See, e.g., N.T. Trial, 5/21/03, at 123-24, 125-27, 130 (questioning Carrasquillo regarding inconsistencies between version of events in hi s police statement and his trial testimony, mentioning witness’s pending gun and drug cha rges, and pointing out witness previously told police he did not see shooter’s face); id., at 52-53, 55-60, 62-63, 67-69 (questioning Jose Aquino regarding conditions under which he saw Solano for first time and at time of shooting, and concerning his identifica tion of Solano from photo array); id., (continuedH)[J-56A-2014 and J-56B-2014] - 27

the fact that Carrasquillo was incarcerated and had gun and drug charges pending in federal court, see N.T. Trial, 5/21/03, at 122, Jose A quino had an open charge of receiving stolen property at the time of the shooting, to which he pled guilty and served a sentence, see id., 5/22/03, at 48-49, and Rosario ple d guilty and served a sentence for illegally possessing a gun at the time of the shooting, id., at 182-83. Although Santiago’s prior crimen falsi conviction and probation status were not made known to the jury, we cannot say the absence of this information denied Solan o a fair trial, as Santiago was merely one of several identification witnesses; thus, S olano’s guilt did not depend solely on this testimony. In light of the overall testimony of these witnesses, counsel did not act unreasonably by not impeaching them with crimen falsi co nvictions or introducing ballistics evidence to rebut Rosario’s testimony. We furt her agree with the PCRA court that counsel’s foregoing a jury instruction on Jose Aqui no’s crimen falsi conviction was not prejudicial to Solano’s case, in light of the other evidence of Solano’s guilt and counsel’s competent cross-examination of this witness.

G. Trial court’s refusal to permit impeachment of C ommonwealth witness Jose Aquino with his probation status and counsel’s fail ure to object and litigate claim Solano claims the trial court erred in precluding guil t-phase counsel from impeaching Jose Aquino regarding his potential bias or m otive to testify favorably for the Commonwealth because he was on probation, which he had technically violated. When counsel indicated he intended to question this witness regarding whether he was testifying in hopes he would not be held in violatio n, the prosecutor objected, and the trial court precluded this line of questioning. Solano arg ues the prosecutor compounded this error by eliciting testimony from Jose Aquino that he had finished serving his sentence,

(Hcontinued) at 200-04 (questioning Rosario regarding why he lied to police about not seeing shooter at time of crime but subsequently identified Solano in court).[J-56A-2014 and J-56B-2014] - 28

suggesting he was not on probation. Solano contends th at not being able to impeach Aquino in this manner violated his right to confrontat ion, and counsel was ineffective for failing to object to the trial court’s ruling. He fur ther argues counsel should have attacked the veracity of Aquino’s identification with the fact t hat Aquino had charges pending when he identified Solano from the photo array, was servin g a sentence for these charges when he identified Solano in a line-up and at the prelim inary hearing, and was hoping to curry favorable treatment if he cooperated with law enforce ment. The Commonwealth notes Jose Aquino was already imp eached with his prior crimen falsi conviction and his testimony was cumulative of the o ther identification witnesses’ testimony, so Solano suffered no prejudice from not be ing able to impeach Aquino with his probation status. The PCRA court held any error resulting from inadequ ate impeachment of Jose Aquino was harmless, as his identification testimony was corroborated by other witnesses, counsel effectively cross-examined him regarding his credibility, and the jury was apprised of his criminal record. See PCRA Court Sup plemental Opinion, 8/23/13, at

2-3. We find support in the record for the PCRA court’s con clusions. Counsel used Jose Aquino’s crimen falsi conviction to impeach him; there fore, further impeachment regarding bias was unnecessary. See Commonwealth v. Sm all, 980 A.2d 549, 565-66 (Pa. 2009) (holding, where counsel already impeached witness regarding motive and bias, failure to introduce witness’s crimen falsi convictio n was not prejudicial); Commonwealth v. Dennis, 715 A.2d 404, 408-09 (Pa. 19 98) (holding counsel not ineffective for failing to impeach witness in one part icular way, where counsel impeached witness in other ways). Although Jose Aquino was the o nly witness to identify Solano prior to trial, eyewitnesses Israel Aquino and Rosario i dentified Solano at trial, other[J-56A-2014 and J-56B-2014] - 29

witnesses gave descriptions of the shooter’s characteristics th at were consistent with Solano’s appearance, and there was other overwhelming evidence of guilt, such as the ballistics evidence mentioned supra, linking Solano to th e crime. See Commonwealth v. Cox, 728 A.2d 923, 933 (Pa. 1999) (holding, where e vidence was overwhelming, defendant not prejudiced by counsel’s failure to impeach witnesses regarding bias stemming from open charges, probation, or parole). T hus, Solano fails to demonstrate the outcome of the guilt phase would have differed bu t for counsel’s inability to use Jose Aquino’s probation status to impeach him; no prejudice h as been shown.

H. Counsel’s failure to properly object to the admi ssion of prior bad act testimony When Solano was arrested in Connecticut for victim’s mu rder, he had an open bench warrant for failing to appear in court for un related drug and gun charges in Pennsylvania. At trial, Solano’s uncle, Victor Alvara do, testified for the Commonwealth that Solano told him he fled to Connecticut because “[h e] had to do two years incarcerated [sic] for a case he had. And he didn’t want to do the two years.” N.T. Trial, 5/22/03, at 147-48. Guilt-phase counsel filed a pre -trial motion to preclude evidence of Solano’s prior charges; 20 however, at trial, counsel’s objection was based on hea rsay grounds, which the trial court overruled, and counsel declined the court’s offer to instruct the jury regarding hearsay. Solano claims counsel shou ld have objected to Alvarado’s testimony on the basis it referred to irrelevant, inadm issible prior bad acts, and that counsel should have requested a cautionary instruction li miting the use of this evidence. He argues this testimony was prejudicial because it in formed the jury he was a fugitive on

20 At the hearing on counsel’s motion in limine, the pr osecutor informed the court he did not intend to elicit testimony regarding Solano’s out standing bench warrant, see N.T. Pre-Trial, 5/12/03, at 14; counsel indicated this addre ssed his concerns. Despite this agreement, the prosecutor’s direct examination of Alva rado elicited a response referencing the prior charges.[J-56A-2014 and J-56B-2014] - 30

additional criminal charges, leaving the jury to specul ate as to the nature of the charges, and the jury was not told it could only consider the ev idence for the limited purpose of explaining his reason for being in Connecticut, not fo r his criminal propensity. The Commonwealth argues Alvarado’s testimony regardi ng why Solano was in Connecticut was admissible because it explained Solano’s arrest in proximity to the murder weapon and demonstrated his consciousness of guil t by fleeing out of state; thus, it was part of the natural development of the case’s hi story. The Commonwealth further

notes the reference to the unidentified crimes was brief and, in light of the other overwhelming evidence against Solano (including eyewit ness identification), the reference did not prejudice Solano’s case. The PCRA court held the facts surrounding Solano’s ap prehension in Connecticut were admissible as res gestae because they were part of t he events constituting the complete story of the crime; as Solano’s alibi was that he was in Connecticut visiting his aunt at the time of the shooting, the court reasoned “[w]hy [Solano] was in Connecticut and what he was doing there was H highly probative on the issue of the veracity of [Solano’s] version of events.” PCRA Court Supplementa l Opinion, 8/23/13, at 5. Thus, the court found Solano’s claim lacked arguable merit. I t further concluded counsel had a reasonable basis “for making a decision not to highlight this evidence, and thereby ‘ring the bell twice,’ through a cautionary instruction[.]” Id. The PCRA court also addressed Solano’s claim that the jury was improperly apprised po lice had a “mugshot” of Solano before his arrest, 21 which signaled he had a prior criminal record; the cou rt held the

21 Although Solano raised this claim in his PCRA petition , he did not argue it in his initial brief to this Court, only including it in his supplemen tal brief after the PCRA court addressed it in its supplemental opinion. Having rev iewed the trial court’s curative instruction, see N.T. Trial, 5/27/03, at 91-92, we ag ree no prejudice could have resulted from the “mugshot” reference.[J-56A-2014 and J-56B-2014] - 31

appropriate instruction the trial court gave the jury cured any resulting prejudice. PCRA Court Supplemental Opinion, 8/23/13, at 5-6. The Rules of Evidence provide: (b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or ot her act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with th e character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparati on, plan, knowledge, identity, absence of mistake, or lack of accident. In a cri minal case this evidence is admissible only if the probative value of t he evidence outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(1)-(2). See generally Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (evidence of other crimes, while generally not a dmissible solely to show criminal propensity, may be admissible in special circumstances where relevant for some other legitimate purpose; one special circumstance is “res gestae ” exception, where such evidence became part of history of case and formed part of natural development of facts). Where evidence of a defendant’s prior bad acts is admi tted, the defendant is entitled to a jury instruction that the evidence is admissible only for a limited purpose. Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 20 02). While we do not condone the prosecutor’s foray into this topic of questioning after assuring guilt-phase counsel he would not bring up Sol ano’s outstanding charges at the time of arrest, we agree with the PCRA court that such evidence was relevant and admissible. Solano claimed the purpose of his trip to C onnecticut was a family visit, using it as an alibi; evidence that he fled there to a void prosecution on other charges called into question the veracity of his version of the shooting and surrounding events, including his alibi. Additionally, although Solano w as entitled to a jury instruction,[J-56A-2014 and J-56B-2014] - 32

counsel’s foregoing one cannot be deemed unreasonable, as the reference was fleeting and counsel could have wished to downplay it instead of bringing it to the jury’s attention. See id., at 561-62 (where evidence of defendant’s pri or bad acts is fleeting or vague reference, counsel might reasonably decline to object o r to request limiting instruction to avoid drawing jury’s attention to reference). Accordin gly, Solano is not entitled to relief

on this claim. II. PCRA-Stage Claim

PCRA court’s dismissal of Solano’s claim for relief based on newly discovered evidence Solano contends the PCRA court should have credited Mo rales’s PCRA hearing testimony that he and Concepcion committed the shooting , not Solano. Morales testified Concepcion wanted revenge against victim’s gang, which ha d robbed Concepcion. Morales claimed he and Concepcion planned the shooting together that morning; he was staying with Williams and went out to confirm the othe r gang, including victim, was at the park. According to Morales, he relayed this information to Concepcion, who came and picked him up; Morales took two guns with him. Morales st ated they first went to Concepcion’s mother’s house, where he gave Concepcion a g un. They donned bulletproof vests and hoodies, and Concepcion put on a windbreaker over his hoodie. They went to the park, and Morales fired his weapon in to the crowd after Concepcion shot victim on the basketball court; he and Concepcion then fl ed to Indiana. Morales claimed he later went to Connecticut to give Solano the guns i n an attempt to clear himself and Concepcion because he knew Solano was a suspect in the shoot ing. See N.T. PCRA Hearing, 2/8/10, at 10-32. Solano asserts this testimony meets the test for newly discovered evidence, and the PCRA court should have found it credible in ligh t of its consistency with other evidence, i.e., evidence the killing was gang related, evidence of Concepcion’s motive,[J-56A-2014 and J-56B-2014] - 33

witnesses who placed Morales and Concepcion in Indiana sho rtly after the shooting, Morales’s possession of both guns used in the shooting when he was arrested in Connecticut, and newspaper articles confirming Morales’s t estimony that he and Concepcion previously fired numerous rounds of bullets i nto buildings in victim’s gang’s neighborhood. The Commonwealth asserts Morales’s testimony was unrelia ble and did not satisfy the test for newly discovered evidence. The Comm onwealth argues although Morales’s testimony cannot be viewed as a recantation bec ause he did not testify at trial, it should be viewed with the same skepticism because it con tradicts his prior statements to police. The Commonwealth points out Morales, alrea dy serving what was essentially a life sentence, had nothing to lose by subsequently i nculpating himself. The PCRA court found “Morales utterly lacked credibili ty as a witness and, therefore, his testimony can be accorded no weight.” P CRA Court Opinion, 12/30/11, at 8. The court noted Morales was serving a 37-year senten ce in Connecticut for attempted murder arising from his shooting at the poli ce while trying to escape with Solano, after which he would return to Pennsylvania to serve a 40- to 80-year sentence for shooting a deputy sheriff and holding hostages. Id . The court emphasized Morales’s testimony was inconsistent with his prior police st atements, in which he denied going to Indiana and claimed he went to Connecticut to help Solano, not frame him for the shooting; although Morales claimed he “grew a conscience l ately” in an effort to have a better relationship with his daughter, N.T. PCRA Hear ing, 2/8/10, at 9-10, the PCRA court found he “offered no convincing explanation for his ne wfound love of truth[,]” PCRA Court Opinion, 12/30/11, at 9. The court further noted Mo rales said Concepcion wore a windbreaker over his hoodie when he shot victim, but n umerous eyewitnesses testified the shooter wore a hoodie, not a windbreaker, and n one of them placed Morales at the[J-56A-2014 and J-56B-2014] - 34

crime scene. Id., at 8. Based on the foregoing, as wel l as Morales’s demeanor on the stand, the PCRA court concluded:

[Morales] admits to being a man of deceit at the time of the crimes at issue here and any sense of honor and righteousness on his part evidently inspired no need for candor at the time of [Solano’s] trial. In view of his history, pattern of dishonesty, and demeanor on the s tand, his jailhouse conversion is wholly unpersuasive and his credibility re mains more than suspect. Accordingly, his testimony is discounted and, as such , provides [Solano] no basis for relief. Id., at 9. Thus, the PCRA court rejected Solano’s newl y discovered evidence claim. The PCRA provides relief for a petitioner who demon strates his conviction or sentence resulted from “[t]he unavailability at the ti me of trial of exculpatory evidence that has subsequently become available and would have change d the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). A petitioner seeking relief on this basis must establish the evidence: (1) was discovered after trial and could not have been obtained at or prior to trial through reasonable di ligence; (2) is not cumulative; (3) is not being used solely to impeach credibility; and (4) woul d likely compel a different verdict. Washington, at 595-96. As this test is conjunctive, fa ilure to establish one prong obviates the need to analyze the remaining ones. See Commonwealth v. Pagan, 950 A.2d 270, 292-93 (Pa. 2008). Keeping in mind the deference owed the PCRA court’s credibility determinations, see Dennis, at 305, we find support in the record for the PCRA court’s conclusion that Morales’s testimony would not have altered the outcome of Solano’s trial. Although Morales did not testify at trial, and thus his PCRA te stimony cannot be considered a true recantation, his testimony “contradicts his pre-trial sta tement to police and is a confession to the crime for which [Solano] was convicted and senten ced.” Washington, at 597. Therefore, we view it with the same “jaundiced eye” b ecause such “evidence of this nature ‘is notoriously unreliable, particularly where the witness claims to have committed[J-56A-2014 and J-56B-2014] - 35

perjury[.]’” Id. (quoting Commonwealth v. D’Amato, 856 A.2d 806, 825 (Pa. 2004)); see id. (holding although witness’s confession was not technica lly recantation, as he did not testify at defendant’s trial, it would be analyzed as recantation because it contradicted prior statement to police and was confession to crime of which defendant was convicted). In light of the other evidence presented at trial tha t contradicted Morales’s version of events surrounding the shooting, the circumstances under wh ich Morales suddenly decided to come forward with this new version, and the PCRA court’s assessment of his demeanor on the stand, we agree that his testimony wou ld not have likely compelled a different verdict. Accordingly, analysis of the remain ing prongs of the newly discovered evidence test is unnecessary, see Pagan, at 292-93, and S olano is not entitled to relief on

this claim.

III. Cumulation Claim Solano contends he is entitled to a new guilt phase be cause the cumulative effect

of the errors in his case undermines confidence in the v erdict. 22 Although the general rule is that “no number of failed claims may collectivel y warrant relief i[f] they fail to do so individually[,]” Commonwealth v. Rainey, 928 A.2d 2 15, 245 (Pa. 2007), where “multiple instances of deficient performance are found, the assessme nt of prejudice properly may be premised upon cumulation,” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citation omitted). We cited lack of prejudice as a basis for denying relief on Solano’s claims of guilt-phase counsel’s alleged ineffectiveness for: failin g to impeach Detective Simock with certain evidence, failing to object to or request a cautionary instruction regarding

22 Solano also contends that because the PCRA court subsequ ently credited the evidence regarding two shooters, the cumulative effect of counsel’s alleged errors during the guilt phase should be re-examined. As discussed in n .6, supra, the PCRA court did not credit this evidence, and we need not address this ar gument further.[J-56A-2014 and J-56B-2014] - 36

Israel Aquino’s and Francisco Rosario’s identification test imony, failing to request an instruction regarding Jose Aquino’s crimen falsi conviction , failing to impeach Santiago with his prior crimen falsi convictions and probation stat us, and failing to object to the trial court’s ruling precluding impeachment of Jose Aquino wit h his probation status. 23 We do not find, even when these instances are viewed cumulativ ely, that the outcome of the guilt phase would have been different had counsel impeached these witnesses or sought additional instructions regarding their testimony. Alt hough credibility was a significant factor in this case, there was also ballistics evidence and testimony from other witnesses linking Solano to the crime, and counsel’s performance c annot be said to have undermined the outcome of the guilt phase such that a new trial is warranted. Regarding penalty-phase counsel’s performance in connection with th e grave-risk aggravator, we

need not consider the cumulative effect of the errors from separate phases of the trial, see Sepulveda, at 1151, and thus we do not include this cla im in our cumulation analysis. We conclude the record supports the PCRA court’s denial of guilt-phase relief.

Commonwealth’s Issues A. Penalty-phase counsel’s performance in connectio n with 42 Pa.C.S. § 9711(d)(7)’s grave-risk aggravating circumstance As noted in n.6, supra, on remand for the preparatio n of its supplemental opinion, the PCRA court concluded, based on penalty-phase counsel’ s PCRA testimony, counsel

could not have had a reasonable basis for the manner in which she approached the issue of the (d)(7) aggravator and her failure to adequat ely challenge the testimony in support of this aggravator was not harmless error. PCRA Court Supplemental Opinion, 8/23/13, at 9-10. Accordingly, the court held Solano was entit led to a new penalty phase on this

23 Lack of prejudice was an alternative holding in our re jecting Solano’s claim that guilt-phase counsel inadequately investigated and pre sented evidence supporting the defense theory of the case.[J-56A-2014 and J-56B-2014] - 37

basis, as well as on the basis of counsel’s ineffectiveness in connection with the presentation of mitigating evidence. Id. In light o f our conclusion, infra, that the award of a new penalty phase was proper on the basis of pena lty-phase counsel’s ineffectiveness for failing to present sufficient mitiga ting evidence, we need not address

this claim. B. Penalty-phase counsel’s failure to investigate a nd present life-history mitigating evidence

The Commonwealth claims the PCRA court erred in awar ding a new penalty phase based on penalty-phase counsel’s failure to investi gate and present mitigating evidence regarding Solano’s traumatic, abusive childhood and its neuropsychological impact on him. Counsel called four penalty-phase witnesses to testify regarding Solano’s childhood. Jorge Negron, the Children and Youth Serv ices (CYS) caseworker assigned to Solano’s family, testified Solano and his two bro thers were placed in foster care when Solano was nine years old, and they remained there un til he was 12; they were then reunited with their mother. N.T. Penalty Phase, 5/3 0/03, at 11. Negron recalled Solano as being cooperative, a “clown,” doing well in school, a nd behaving appropriately with other children. Id., at 10-11. He admitted Solano had some of the usual behavioral issues that foster children have, but that overall, he w as with a good family and accepted discipline from his foster parents without any problem. Id., at 8-9, 11. Negron explained Solano’s mother was in a drug and alcohol in-patient f acility during that time, and Solano and his brothers behaved normally during their supervi sed visits with her. Id., at 12-14. Negron stated Solano’s mother successfully completed the requirements for her sons to be returned to her, and he did not recall any proble ms during their transition to living with her again. Id., at 15-17.[J-56A-2014 and J-56B-2014] - 38

Carmen Urdaz, Solano’s foster mother, testified Solan o lived with her for four years and was the last of his siblings to leave her care. Id., at 25. Urdaz stated the boys were placed in her care because of their mother’s neglect and drug use. Id., at 31. She referred to Solano as her “baby,” who was always kiddin g around — a playful, happy child who enjoyed playing jokes on her. Id., at 28-29. Sh e recalled Solano never spoke about his mother or family, but got along well with her husband and other children. Id., at 30. Urdaz said Solano was “not H the brightest” in schoo l, but was average and had no unusual behavioral problems there, other than occasiona lly picking fights. Id., at 31, 41. She remembered him participating in karate and wrestli ng, as well as playing outside a lot. Id. She characterized him as “the most calm, q uiet one[,]” who would smile and laugh nervously if he was disciplined. Id., at 32. Ur daz admitted she and Solano did not keep in touch after he left her care, and although it had been seven or eight years since she had seen him, she still loved him. Id., at 24, 26- 27, 42. According to Urdaz, all of her problems were with Solano’s older brother, who sh e eventually had removed from her home. Id., at 39-40, 44. Jose Urdaz, Solano’s foster father, testified Solano w as “a nice kid” with whom he got along “pretty good[,]” and who had no particular behavioral problems. Id., at 47. Urdaz said he took Solano to wrestling matches and other sports events, they had a good bond, and he loved Solano. Id., at 48. He recalled Solano got along well with their other children and had no problems in school. Id. He said he had not seen Solano for at least ten years, as they had not kept in touch when Solano left his care. Id., at 46. Solano’s mother, Yvette Solano, testified Solano, th e middle of her three sons, was her “baby,” and his two brothers were in prison. I d., at 51. She had never married Solano’s father, and Solano’s relationship with his fat her ended as a teenager because his father was never around. Id., at 53. She stated she began using drugs at age 13,[J-56A-2014 and J-56B-2014] - 39

began using heroin at 15, and had Solano at 18. Id. , at 54. She admitted her heroin addiction kept her from being a good mother, and she moved her family around a lot and

often left her sons in others’ care while she searched fo r drugs. Id., at 55, 58. Eventually, she committed robbery for drugs and went to prison; this was when Solano and his brothers went to foster care for four years. Id ., at 56, 59. When she finished serving her sentence and completed rehabilitation, Sol ano and his brothers were returned to her, and she said Solano began getting in trouble at school for clowning around in class. Id., at 61. She recalled Solano was a funny, chubby child who clowned around a lot, sometimes to the point where it “work[ed ] on [her] nerves,” but other than that, she had no problems with him; he got along wel l with his brothers. Id., at 55, 62. She said Solano dropped out of school in 11 th grade and told her she would not be seeing him anymore, as he was ready to be on his own; he left her home and moved to a home around the corner from her, but they maintained the ir relationship. Id., at 63-64. Finally, she recounted Solano had worked two different jobs, but was fired from at least one of them, and she admitted on cross-examination that Solano had been adjudicated delinquent for offenses such as stealing a wig from a d epartment store mannequin, carrying a firearm without a license, and several instan ces of aggravated assault. Id., at 64, 66, 71-74. Based on the above testimony, penalty-phase counsel ar gued for the jury to find the age-of-defendant and catch-all mitigators, 42 Pa.C .S. § 9711(e)(4), (8). The jury found the catch-all mitigator was established, but deter mined the grave-risk aggravator outweighed it. At the PCRA hearing, Solano presented additional mi tigating evidence, which he claims would have persuaded the jury to give more weig ht to the catch-all mitigator, resulting in a life sentence instead of the death senten ce it imposed. He presented[J-56A-2014 and J-56B-2014] - 40

testimony from penalty-phase counsel, two mental heal th experts, four family members, three teachers, a mitigation specialist, and a CYS casew orker. 24 Penalty-phase counsel testified that at the time she r epresented Solano, she had no prior experience with homicide cases and no training in handling a penalty phase, having only graduated from law school two years earlier . N.T. PCRA Hearing, 1/27/10, at 194-95; id., 1/28/10, at 79. Counsel said she spo ke with a more experienced criminal defense attorney for a couple of hours and consulted man uals containing checklists of things defense counsel needed to do in preparation f or the penalty phase. Id., 1/28/10, at 80-83. Although the public defender’s office where she was employed had two investigators, they only worked on cases at the request of an attorney; counsel did not utilize them in her case, instead doing the mitigatio n investigation herself. Id., 1/27/10, at 196-98. Counsel met with lead counsel, who was handli ng the guilt phase, “very little,” and they communicated about their respective tasks “[o]nl y in passing.” Id., at 199. Counsel stated, “[T]here was no one overseeing me at al l. No one had any idea what I was doing.” Id., 1/28/10, at 121. Counsel’s strategy was to try to humanize Solano befor e the jury by conveying his horrible upbringing through his mother’s and caseworker’ s testimony, and showing he was likeable through his foster parents’ testimony. Id., at 92, 110-12. Counsel stated she met with Solano about five times prior to trial. Id., 1/27/10, at 201. She characterized him as being “very closed and very guarde d” with her, id., at 205, and she had difficulty obtaining detailed responses from him, id., 1/28/10, at 45; however, she did nothing to foster a rapport with him in an effort to enable him to be more open with her, id., 1/27/10, at 205-06. Instead, she decided to go “aroun d him,” obtaining his social and

24 The only witness the Commonwealth presented at the PC RA hearing was the prosecutor, whose testimony was not relevant to the issue of penalty-phase counsel’s performance.[J-56A-2014 and J-56B-2014] - 41

family history from other sources. Id., at 204, 206. Counsel mailed Solano a questionnaire, but failed to follow up when he respon ded with sparse, one- or two-word answers. Id., at 203-04; id., 1/28/10, at 87-88, 126 -27. Despite being aware of his parents’ drug use when he was a child and having the na mes and locations of his extended family, id., at 125-26, 127-28, counsel only contacted Solano’s mother and brother; 25 she dismissed his father as a potential witness because of his criminal record and estrangement from the family, not realizing he co uld serve as a resource for locating other family members who might be helpful, id., 1/27 /10, at 202-03, 206-08; id., 1/28/10, at 105-06, 129-31. Counsel admitted she would have wanted the information Solano’s uncle could have provided about Solano’s father’s drug dealing and the impact it had on his family, and said she had no tactical reason for fai ling to obtain the father’s records. Id., 1/27/10, at 209-11; id., 1/28/10, at 131-33. Likewise, counsel admitted she had no strategic basis for not obtaining Solano’s mother’s record s or interviewing her relatives; counsel explained she told Solano’s mother about the n eed for credible penalty-phase witnesses and then waited for her to “bring whoever she thought might be appropriate[.]” Id., 1/27/10, at 212, 215-16. Counsel stated she wou ld have wanted to present the details of the mother’s troubled childhood and drug use , as recounted by her relatives and criminal records. Id., at 213-15. Counsel admitted she did not meet with caseworker

25 Counsel interviewed Solano’s brother, who was incarcera ted, by video conference; she stated he was “extremely guarded, and really didn’ t have very much to say at all to me. H He just kind of gave me one[-]word answers.” Id ., at 118-19. Based on this brief contact, counsel decided Solano’s brother would no t be credible and dismissed him as a potential witness. Id., at 130. Counsel admitted she was scared and reluctant to talk to Solano’s mother about the effect her prostituti on and drug use had on Solano as a child; according to counsel, “she was very delicate, and vul nerable at any kind of insinuation that she was to blame for the predicament t hat [Solano] was in. H I didn’t know how to have that conversation with her. I was afr aid I would lose her entirely.” Id., at 135-36. Thus, counsel side-stepped discussing anything that was in the CYS records with the mother. Id., at 135.[J-56A-2014 and J-56B-2014] - 42

Negron before he testified; she spoke with him on the telephone a few times, but never

went over the information in the CYS records with him . Id., 1/28/10, at 50-52. Counsel testified she obtained Solano’s probation reco rds, a pre-sentence investigation report from a prior criminal matter, an d his CYS records, but she did not discuss the specific information in them with Solano or h is mother; she did not want Solano’s mother to feel she was being accused of something . Id., at 43-46. Although counsel had Solano’s school records, she did not recall his many absences and did not discuss these records with him, deeming them irrelevant. Id., at 47-48, 108-09. Counsel explained she did not introduce the CYS records into evidence, so the jury never heard specific details of Solano’s mother’s drug use and n eglect of her children; these were facts counsel would have wanted the jury to know. Id., at 48-50. Counsel admitted she had no tactical reason for not introducing this evidence, id., at 53-54; she explained she “was stumbling over how to get evidence t hat I had, into evidence[,]” id., at 54, and she had very little experience in having evid ence admitted at trial, id., at 57-58, 112-14. Thus, because she did not know how to introduce records, she tried to have witnesses testify regarding their personal knowledge of the information the records contained. Id., at 115-16.

Counsel stated she decided not to call Dr. Dattilio as a witness because she felt his anti-social personality diagnosis would cast Solano in a b ad light before the jury, id., at 63-64, 95-99; 26 however, she admitted she made this decision “with real ly not much

26 Counsel explained Dr. Dattilio’s report contained the following description of Solano: Mr. Solano presented himself as a slightly arrogant in dividual who was completely concerned with his own misfortune. He demonst rated no remorse for the victim, and claims he simply didn’t kno w him. In fact, he views himself as the victim, and presented himself in a v ery narcissistic, externalized, manner. H He tends to be a very shallo w individual who is almost hollow at times with respect to emotion. (continuedH)[J-56A-2014 and J-56B-2014] - 43

consultation with anyone else,” id., at 64, and withou t discussing the diagnosis with Dr. Dattilio, id., at 64-66. Counsel stated she had no t actical reason for doing so, id., at 66, and she presently recognized she should have had this e xpert testify at the penalty phase, id., at 69-71. In counsel’s words, “My lack of ex perience of how to get evidence into evidence, including all of this mitigation, [was] part of the problem. I didn’t really understand that I could probably bring a lot of that out; elicit it through Dr. Dattilio.” Id., at 70. Counsel summarized that she “was trying [her] be st with a lot of limitations on [her]. Id., at 122. Christina Solano, a cousin who lives in Connecticut, test ified Solano was visiting his family there and lived in her home shortly befor e he was arrested for the homicide; Christina was 12 years old at the time. Id., at 8-12, 14. She related she had grown close to Solano during the few weeks he spent with her f amily, and he helped her with homework, serving as a mentor and father figure. Id., at 31-32. Dr. David Schretlen, a neuropsychologist who examined Solano for the PCRA proceedings, testified Solano performed in the averag e range on intelligence tests and demonstrated average mastery of basic academic skills, id., at 191; however, he performed below average in the area of non-verbal p rocessing, leading the expert to conclude Solano had a fairly mild, circumscribed cogniti ve disorder, which had been present for a long time — possibly since birth, id., at 1 92-94. Dr. Schretlen explained why his diagnosis differed from Dr. Dattilio’s prior con clusion that Solano had no signs of neurological impairment; the intelligence test Dr. Dat tilio administered was not as complete or formal, and Solano had a cast on his domin ant hand, so he used his other

(Hcontinued) Id., at 96-98. Counsel felt this description would go against her strategy of humanizing Solano. Id., at 99.[J-56A-2014 and J-56B-2014] - 44

hand to complete the drawing ability test, which Dr. Dattilio interpreted with much latitude. Id., at 196-97. Dr. Schretlen testified Solano gave him extensive inf ormation about his background; Solano “grew up in an extremely dysfunction al family, and under circumstances that were really quite chaotic, and character ized by deprivation, and neglect, and mistreatment.” Id., at 200. Solano tol d Dr. Schretlen about his mother’s tragic childhood, which prevented her from being able to parent him. Id., at 201. Dr. Schretlen related Solano’s mother was born to alcoholic, immigrant parents, who lived in extreme poverty. The father sexually and physically abused his daughters, and the mother died when Solano’s mother was nine years old, c ausing her to be sent to an orphanage. When she was 12, she went to live with her older sister, whose boyfriend molested her, and she witnessed a young man being fatal ly shot in close proximity to her during a police raid. She went back to the orphanage, met Solano’s father, started abusing alcohol and drugs (which escalated to heroin addi ction), and became pregnant at age 15. Id., at 202-04, 206-07. Dr. Schretlen exp lained this history was significant because it provided an understanding of Solano’s world view, which was shaped by the circumstances and family dynamics into which he was born. I d., at 206. Dr. Schretlen testified that, in this environment, Solano learned b etrayal and witnessed drug use, prostitution, and police raids. Id., at 206-08. Sola no also witnessed violence between his parents and saw his mother stab his father. Id., at 210-11. Dr. Schretlen described Solano’s struggle to save his mother from her drug addi ction and take care of his younger brother. Id., at 222-24. Dr. Schretlen reviewed Solano’s CYS records, which fur ther detailed the extreme poverty and neglect Solano experienced, and explained its negative impact on his school attendance and, consequently, his academic performance. Id., at 212-17. Dr.[J-56A-2014 and J-56B-2014] - 45

Schretlen stated although Solano’s school records characte rized him as learning disabled, Solano’s frequent absences were the reason for his functioning below normal level. Id., at 218-19. Dr. Schretlen noted, accordin g to the records, Solano’s mother asked for help from CYS because her drug addiction was p reventing her from taking care of her children; she ended up being incarcerated for dr ug-related offenses, and Solano and his siblings went into foster care. Id., at 226-27 . Dr. Schretlen testified Solano functioned well in his foster home’s stable environment, and his school attendance and performance improved. Id., at 228-29. However, af ter his mother was released and eventually reunited with her children, Solano had sev eral juvenile arrests. Id., at 231-32. Dr. Schretlen opined although Solano exhibited anti -social behavior, he did not have anti-social personality disorder. Id., at 232-37, 248-50. Although Dr. Schretlen did not disagree with Dr. Dattilio’s 2002 diagnosis of maj or depressive disorder, he did not find Solano to be depressed when he examined him in 2 008. Id., at 238-39. Dr. Schretlen concluded Solano was of average intelligence, with no significant mental or learning disorders; however, he did have mild circumscrib ed cognitive defects, which affected his ability to navigate personal relationship s and read cues in personal interactions. Id., at 239-40, 244-45, 257. Dr. Schre tlen opined Solano “could have been a much more successful person if he had been raised in different circumstances[,]” id., at 239, noting he performed well in structured environments such as foster care and prison, id., at 228, 250-53, and observing he “had ca lmed down considerably, and H matured” since his initial evaluation before trial, id ., at 240, 258. Dr. Schretlen believed this information about Solano would have been helpfu l to the jury in determining whether to sentence Solano to life imprisonment or death. Id ., at 261-62. Finally, he stated all of

the information he obtained from Solano was consistent with the affidavits from family members and teachers, which he reviewed. Id., at 263-6 4.[J-56A-2014 and J-56B-2014] - 46

Lenore Kohl, the former principal at the school where Solano attended first grade, reviewed Solano’s permanent records from kindergarten t hrough when he left school. Id., 1/29/10, at 7. She testified he was ranked in t he bottom quarter of his kindergarten class and was significantly below average in several area s of study. Id., at 9-11. Kohl recalled Solano’s attendance record, specifying he missed 44 days in first grade and 55 days in second grade. Id., at 11-14. She indicated h e spent time in a “learning disabilities program, special education,” had “poor num ber conceptualization,” and “[could not] relate numbers to objects,” which resulted i n his being recommended for learning support. Id., at 18-21. She opined academi c limitations, such as those exhibited by Solano, could be for a variety of reason s, but believed Solano’s limitations were due to “intellectual H deficiencies, not coming fro m the environment or the culture” in which he was growing up. Id., at 31, 33. Kohl te stified no lawyer or investigator contacted her regarding Solano at the time of trial, but she would have provided the same information had she been contacted then. Id., at 25- 26. Karen Short, Solano’s third-grade teacher, testified a lthough she had been teaching for 22 years, Solano specifically stuck out to her because his case was “unique.” Id., at 38. She explained she remembered very few st udents, but Solano stood out due to his significant academic struggles. Id., at 51. Notin g Solano was in foster care during his time in her classroom, Short stated he was not a beha vioral problem and was very quiet. Id., at 41. She further testified Solano, w ho was in her class for part of the day and in special education part of the day, “worked very hard[,]” and “wanted to succeed” and “do well.” Id., at 39, 41. Short specified she b elieved Solano’s learning disabilities were a result of “not having the learning experiences other children had.” Id., at 43-44. She indicated she believed Solano’s parents were in ja il, and she was told he and his brother were seen eating out of trash cans. Id., at 3 8. 52. She stated she and another[J-56A-2014 and J-56B-2014] - 47

teacher once purchased clothes for Solano because “he wor e the same thing all the time H so we [] thought he might need a couple of extra thi ngs.” Id., at 42. Finally, she

testified no one contacted her about Solano at the ti me of trial, but she would have testified had she been contacted. Id., at 44. Kathleen Kaib, a mitigation specialist for the Philade lphia Federal Community Defender Office, testified about the social history repo rt she prepared for Solano’s PCRA hearing. Id., at 61-62, 67-71. She testified the r eport was compiled to look for mitigating factors such as “any indication of child ab use, H neglect, drug usage, alcohol usage[,] H truancy issues[,] ... proper housing, proper clo thing, [or] proper food[.]” Id., at 73. In preparing the report, she reviewed records fo r Solano and his parents, as well as affidavits of family members, and interviewed Solano, his mother, two aunts, and an uncle. Id., at 68-70, 105. Kaib noted Solano’s mother had a “very horrific upbri nging.” Id., at 74. She further stated his mother had two alcoholic parents who were violent to each other and to the children, including one occasion when the father “sh ot at one of the children.” Id. Kaib indicated Solano’s mother was abused physically and sexually, had no food or clothes, and did not attend school. Id., at 75. Kaib clarified his mother’s upbringing was important in the context of Solano because “it shows sh e was ill[-]equipped to parent her own children” and “[her] drug usage [led to neglect o f her children] in this case.” Id., at

76. Kaib also testified about Solano’s childhood, stating bo th parents had a “severe drug problem” and Solano’s mother was unable to prope rly care for her children. Id., at 69-70, 77. Both parents, even while the mother was p regnant, used alcohol, marijuana, heroin, cocaine, and pills. Id., at 76-77 She describe d one event in which police executed a drug raid on then-four-year-old Solano’s home and arrested both his parents[J-56A-2014 and J-56B-2014] - 48

in front of him. Id., at 77-78. She further describ ed Solano frequently moving from place to place, including a shelter in Allentown. Id., at 80. Kaib characterized Solano’s childhood as “[coming] from a background with two drug addicted parents, who were alcoholics, who both abandoned him several times[.]” I d., at 88. Kaib testified to Solano’s progress after being placed in a foster home, st ating Solano’s grades and attendance subsequently began to improve, and creditin g the “stable environment” as the reason for his improvement. Id., at 84. However, Ka ib explained, when Solano was reunited with his mother around age 13, his grades wen t down again. Id., at 86-87. Finally, Kaib indicated she did not testify at Solano’ s trial, but all of the information she presented at the PCRA hearing would have been availa ble at trial. Id., at 88. Jorge Negron, the CYS caseworker who testified at Solano ’s penalty phase, testified he specifically remembered Solano. Id., at 1 10. He recounted Solano’s childhood and upbringing, stating Solano and his broth ers “had no father.” Id., at 132. Negron indicated he had not met, been interviewed by , or talked to Solano’s counsel prior to the day he was to testify at the penalty phase. Id ., at 123-25. He also noted he did not review, nor had he been asked to review, any of Solano’s CYS records prior to testifying. Id. Negron also confirmed Solano’s signifi cant progress while in foster care. Id., at 133-34. Anne Hibshman, Solano’s first- and second-grade special education teacher, recalled Solano’s poor attendance and academic struggles. Id., 2/1/10, at 9, 12. She said Solano “always had a good attitude toward his wor k,” but had difficulty retaining things. Id., at 14. She remembered Solano as “very quiet, very sad, didn’t seem to have many friends[,]” and not being well groomed or appropriately dressed, which caused his classmates to shun him. Id., at 10-11, 15. She reca lled buying him clothes. Id., at[J-56A-2014 and J-56B-2014] - 49

10, 13. She stated although no one contacted her abou t testifying at Solano’s trial, she would have done so if asked. Id., at 11. Lisa Pinter, Solano’s second-grade teacher, testified he was “a very low-achieving academic, nice boy” who “didn’t give any problems in t he classroom” and “was friendly, but not well taken care of.” Id., at 18. Pinter reca lled a class field trip during the winter when she had to borrow socks for him because he was inadeq uately dressed, and his clothes were not always as clean as they should have been. Id., at 19. She stated his attendance was very poor, which did not help his academi c performance. Id. She said no one contacted her about testifying at Solano’s tria l, but had they done so, she would have. Id., at 21. Victor Alvaredo, Sr., Solano’s paternal uncle, testifi ed about Solano’s parents’ use of marijuana, cocaine, and heroin, confirming Solano’ s mother was often high when she was with her children. Id., 2/2/10, at 7-10. He fur ther testified no one contacted him about testifying at Solano’s trial, and he would have done so if asked. Id., at 10. Miguel Alvaredo, another paternal uncle, also testifi ed about Solano’s parents’ cocaine and heroin addiction and daily drug use while t heir children were living with them. Id., at 16-17, 22. He stated no one contacted him abo ut testifying at Solano’s trial; however, he would have, had he been asked. Id., at 20. Robert Solano, Solano’s maternal uncle, testified abo ut the daily abuse Solano’s mother endured during her childhood at the hands of a n alcoholic father, who also sexually molested her. Id., at 28-29. This was follow ed by time spent in an orphanage, where there was “a lot of physical discipline by the nun s.” Id., at 30. Solano’s uncle described Solano’s mother’s drug use around her children, as well as the drug sales and police raids the children witnessed. Id., at 33-35. He stated no one contacted him[J-56A-2014 and J-56B-2014] - 50

about testifying at Solano’s trial, but that he would have been willing to do so. Id., at

37-38. Dr. Frank Dattilio, a clinical and forensic psychologist w ho evaluated Solano twice prior to trial and once prior to the PCRA hearing, t estified the public defender’s office provided him with Solano’s school, prison, probation, a nd CYS records, as well as a prior pre-sentence investigation report before trial. Id., 2/3/10, at 16. However, he was not provided with any records pertaining to Solano’s paren ts, nor was he given information from Solano’s teachers, the CYS caseworker, or other r elatives; he stated this information would have been tremendously helpful, as it would hav e shed more light on Solano’s entire situation. Id., at 15-20, 32-33. Dr. Dattil io confirmed he could have offered substantial mitigating evidence on Solano’s behalf and he communicated this to counsel. Id., at 20-21. Dr. Dattilio testified his pre-trial reports concluded Solano’s childhood was marked by neglect, poverty, and parental abandonment, and h e also had a history of drugs and criminal behavior. Id., at 21-22. He diagnosed Sol ano with major depression, citing him as withdrawn and closed off, but also noting there wa s evidence of acting out in angry, abusive ways. Id., at 22, 33-34. He further diagnose d Solano with anti-social personality disorder, narcissistic personality disorder, and borderline personality disorder. Id., at 37, 40, 42, 57, 61-62. Dr. Dattilio explai ned Solano’s “extensive family history of dysfunction H created a psychological conundrum that any child would find impossible to navigate[,]” and that there was “no way out until H h e H became involved with [CYS.]” Id., at 25-26. Dr. Dattilio explained in detail th e long-term psychological effects of being

raised in an environment that was chaotic “to the Nth d egree[,]” id., at 27, 28-31, 43-44, and further noted this was a case of “transgenerational exchange,” where the

tumultuousness of Solano’s mother’s childhood continued into her children’s upbringing,[J-56A-2014 and J-56B-2014] - 51

id., at 30. He also testified regarding the psychologi cal impact of Solano’s mother’s emotional and physical unavailability; Solano lacked th e ability to form healthy attachments to people, and although he had a strong b ond with his mother despite her shortcomings, he was a parental figure to her because of her addiction. Id., at 44-47, 49.

Dr. Dattilio testified the information in the school records that he was not given for his pre-trial evaluation revealed Solano’s excessive absences, which he said were a “red flag” for further investigation into Solano’s family background and also indicated Solano was exposed to more of the drug use and chaos at home be cause he was not in school. Id., at 31-32. Turning to Solano’s foster-care experience, Dr. Dattil io noted the CYS records were replete with instances of abuse and neglect during Solano’s time with his mother, but he responded positively to his foster-care situation ; he did well in a structured, stable environment. Id., at 35-37. Dr. Dattilio explaine d this information was critical regarding the anti-social personality disorder diagnosis because it showed Solano was able to change and his disorder was largely environmentally ind uced, as opposed to being genetic. Id., at 38-40. Dr. Dattilio testified the same was true regarding Solano’s narcissistic personality disorder; it was a survival mechanism developed in tandem with the anti-social personality disorder, as he would disrega rd others’ rights in an attempt to protect himself and get his own needs met. Id., at 4 0-42. Dr. Dattilio clarified the existence of Solano’s psychological disorders did not make h im hesitant to testify on Solano’s behalf; rather, these were mitigating facto rs explaining how his environment contributed to his actions. Id., at 42-43.

Dr. Dattilio stated counsel never sat down with him t o review his findings; there were fleeting conversations by telephone and happenstan ce meetings, but it was not until he called to inquire about his status as a witness that cou nsel said he would not be[J-56A-2014 and J-56B-2014] - 52

testifying. Id., at 50-51, 53-54. He commented he was shocked by this decision, as it was the only time he had ever been involved with a ca pital case and was not called as an expert witness. Id., at 51. He admitted he had not met with Solano at the time of his evaluation for the PCRA proceedings, which was made sole ly on the basis of his past reports and the records provided by PCRA counsel. Id., at 67. He explained a possible

reason for the difference in his and Dr. Schretlen’s con clusions regarding Solano’s intelligence 27 was that Dr. Schretlen’s test was more comprehensive; he also noted Solano’s being in institutional confinement for a long period of time was potentially why Dr. Schretlen did not find him to have anti-social per sonality disorder, and Dr. Schretlen’s test was not designed to measure such disorders. N.T. PCR A Hearing, 2/3/10, at 69-71.

Dr. Dattilio believed his evaluations conducted at the time of trial would have been more accurate than those administered for the PCRA proceedin gs. Id., at 70. Finally, Dr. Dattilio testified he had reviewed the affidavit of Kathleen Kaib, the mitigation specialist, and her work product would have b een “[e]xtremely” helpful to him in performing his evaluation. Id., at 77-78. He added he currently will not participate in a capital case without a mitigation expert. Id., at 79 . He confirmed his more recent

evaluation of Solano did not differ from the two he did prior to trial, but was more detailed and bolstered his previous conclusions. Id., at 84-85. He noted, had the data he was given for the PCRA proceedings been made available to him at the time of trial, his earlier report would have been much lengthier and stronger. Id., at 85.

27 Dr. Dattilio’s report placed Solano in the borderlin e range of intelligence, see Psychological Evaluation by Dr. Frank Dattilio, 11/18/0 2, at 6-7, Appendix to Amended PCRA Petition, 5/4/12, Vol. I, Ex. 2, whereas Dr. Sch retlen’s report placed him in the lower half of the average range, see Report of David J. Schretlen, Ph.D., 1/20/09, at 10-11, Appendix to Amended PCRA Petition, 5/4/12, V ol. I, Ex. 7.[J-56A-2014 and J-56B-2014] - 53

The Commonwealth argues the additional life-history mitigation evidence Solano presented at the PCRA hearing was merely cumulative of that presented at the penalty phase, and, given the strength of the evidence support ing the grave-risk aggravator, it

cannot be said the additional cumulative evidence is en ough to undermine confidence in the jury’s verdict. The Commonwealth contends the PCR A court minimized the actions penalty-phase counsel took in her investigation and prep aration, overlooking the fact counsel presented witnesses who conveyed to the jury what counsel believed was important: Solano’s traumatic upbringing with a drug- addicted mother, his time in foster care, and his being a funny, likeable child who perfo rmed well in a structured environment. The Commonwealth notes counsel’s strategy was to humanize Solano, and the evidence counsel allegedly overlooked was of the same nature as what she actually presented. The Commonwealth contends the PCR A court focused excessively on counsel’s PCRA testimony, during which she “[fell] on her proverbial sword” and asserted she lacked a reasonable basis for not calling addi tional life-history-mitigation witnesses. Commonwealth’s Brief, No. 647 CAP, at 23. The Commonwealth posits that, as courts are to view counsel’s self-accusations of ine ffectiveness with disfavor, the PCRA court improperly emphasized penalty-phase counsel’ s PCRA testimony, allowing a subjective evaluation of counsel’s performance to repl ace an objective inquiry. Regarding penalty-phase counsel’s failure to present m ental-health mitigating evidence, the Commonwealth argues counsel made a reas onable, strategic decision not to have Dr. Dattilio testify, as his reports contained possibly inflammatory information that could have sabotaged counsel’s strategy of humanizing S olano. The Commonwealth further notes, although Dr. Dattilio’s reports containe d life-history facts about Solano’s traumatic childhood and his mother’s drug addiction, the se facts were made known to the jury through the other witnesses counsel called to testif y. Finally, the Commonwealth[J-56A-2014 and J-56B-2014] - 54

contends counsel had no reason to believe Solano had me ntal-health issues; he does not contend he told counsel of any problems, Dr. Dattilio’s evaluation did not reveal any issues and indicated Solano denied having any, and Sola no told Dr. Schretlen he did not want psychological evidence used in his appeal. The Commo nwealth points to Dr. Schretlen’s conclusion that Solano had a “fairly mild an d circumscribed cognitive disorder,” id., at 32 (quoting N.T. PCRA Hearing, 1/ 28/10, at 192-93), arguing this conclusion would not have been enough to establish the extreme-mental-or-emotional-disturbance mitigator, 42 Pa.C.S. § 9711(e)(2), and at best, would have only contributed to the catch-all mitigato r that was already established. Therefore, the Commonwealth concludes counsel had a reas onable basis for not having a neuropsychologist evaluate Solano and testify at the penalty phase. Solano responds that penalty-phase counsel’s inexperience and lack of training adversely impacted her performance in her interviews w ith life-mitigation witnesses, her procurement of records, and her interaction with mental -health experts in preparing for the penalty phase. First, Solano contends counsel did n ot know how to conduct social-history interviews or prepare witnesses to testify, and her use of a questionnaire to seek sensitive information concerning physical or sexual ab use was inadequate. He points to the fact the interview with his mother took place in the presence of his girlfriend, which may have affected his mother’s candor about her own turbulent past, and the questions asked of his foster parents were superficial, pro ducing very little tangible mitigation evidence. Solano notes although counsel in terviewed and presented the testimony of Negron, the CYS caseworker assigned to Solan o’s family, Negron actually

had no one-on-one contact with Solano and thus his test imony was speculative. As for other potential witnesses, Solano points out counsel only conducted brief telephone interviews with them, and the only family members she interviewed were his mother and[J-56A-2014 and J-56B-2014] - 55

brother, despite being given contact information for o ther relatives. Solano states counsel, upon receiving only one- or two-word responses to her questionnaire, never followed up to gain more information. Solano argue s counsel could have discovered more about his mother’s tragic upbringing and her own history of poverty, neglect, and abuse; this background could have been used to demonstrat e her inability to nurture and provide structure for him. Solano claims he told counsel of his mother’s drug abuse, gave her his family contact information, and answered h er questionnaire to the best of his ability, given the questions’ sensitive nature and his a cademic impairment. Solano argues even if he could be viewed as having been unco operative, counsel still had enough basic information from which to conduct an inde pendent investigation, but failed

to do so. Solano further contends counsel’s investigation into ava ilable records was inadequate because she did not understand the scope a nd breadth of the records needed to present a compelling case for a life sentence. He no tes she only obtained records bearing his name, arguing had she looked into his drug -using relatives’ institutional records, she would have learned more about his dysfunctio nal background, particularly his mother’s story. Although counsel had his school records, Solano asserts she did not follow up on information they contained concerning his poor academic performance, which could have implicated his mental health; furtherm ore, counsel failed to introduce these records at the penalty phase because she did not understand the evidentiary rules regarding introducing documents into evidence. Solano also contends counsel should have contacted and interviewed his teachers. He point s out, although counsel presented his caseworker’s testimony, she did not introduc e the CYS records, which contained background information concerning his family situation.[J-56A-2014 and J-56B-2014] - 56

Additionally, Solano contends counsel’s lack of understa nding regarding his mental-health diagnoses and how to present the jury with such information led her to make the fatal decision not to present mental-health e xpert testimony at the penalty phase. Solano notes counsel decided not to call Dr. D attilio, who had examined him twice prior to trial, because she was concerned this exp ert’s report contained the diagnosis of anti-social personality disorder, which the j ury might find inflammatory. Solano argues counsel should have consulted Dr. Dattilio for edification concerning his diagnosis before deciding not to use him; Solano points to the numerous records PCRA counsel was able to provide this expert, which enabled him to explain his diagnosis would not have made him hesitant to testify, as such disorders are typically environmentally induced. Penalty-phase counsel, however, failed to pro vide Dr. Dattilio with any records and did not consult with him prior to deciding not to call him as a witness. Solano also contends there were notations in Dr. Dattilio’s July, 2 002 report that should have alerted counsel of the need to retain a neuropsychologist, yet counsel failed to do so; the report mentioned significant aspects of depression, borderline in tellectual functioning, and permanent disability with cognitive functioning. Sola no notes Dr. Schretlen, the neuropsychiatrist retained by PCRA counsel, diagnosed him with organic brain damage resulting from his traumatic childhood and major depressi ve disorder, both of which were factors the jury should have been able to consider. Al though the Commonwealth asserts Dr. Schretlen found merely a “fairly mild” cognitive disorder, Solano argues this expert stated even mild brain damage indicates clinically signi ficant impairments. Finally, Solano disputes the Commonwealth’s contention that the PCRA court afforded too much weight to penalty-phase counsel’s test imony regarding her ineffectiveness. Solano argues, unlike the cases the Comm onwealth cites (involving instances where counsel deliberately built in error a imed at securing the client a favorable[J-56A-2014 and J-56B-2014] - 57

position on appeal), counsel in his case was simply inexpe rienced and unknowledgeable, which prevented her from presenting a coherent case for a life sentence. Solano further argues, contrary to the Commonwealth’s contention, non e of the mitigation evidence presented at the PCRA hearing was cumulative, as the ju ry heard almost nothing about his extensive history of poverty, neglect, and family d ysfunction. The PCRA court held “the abject failure of [Solano’s] trial counsel at the penalty phase necessitates a new trial limited to the question of whether the death penalty is warranted in this case.” PCRA Court Opinion, 12/30/11 , at 4. The court initially noted penalty-phase counsel’s general lack of experience: she was a part-time member of the public defender’s office with no prior experience in h omicide cases, let alone capital ones, and no training in how to handle the penalty phase of a capital case. Id., at 37. Lead

counsel did not assist her and was often unavailable to consult about her progress on the case. Id. The court further noted the public defender ’s office did not employ a mitigation specialist, and counsel did not know such po sitions existed. Id. The office had no social workers but employed two investigators, who took their direction from the attorneys; however, due to her inexperience, counsel d id not know where to begin her preparation and did not utilize the investigators. I d. Regarding counsel’s failure to present more life-mitig ation witnesses, the PCRA court mentioned counsel’s hindsight belief “that she did not take the time or make the effort necessary to develop a relationship with [Solan o] or to glean pertinent information about him from other sources.” Id., at 38. The court cited counsel’s admitted fear of having a frank discussion with Solano’s mother regardin g her parenting deficiencies and noted counsel’s rationale for not contacting other famil y members was that they would not be credible witnesses, and “‘since I am probably not goin g to call them as a witness, why do I need to even go find them.’” Id., at 39 (quot ing N.T. PCRA Hearing, 1/28/10, at 106).[J-56A-2014 and J-56B-2014] - 58

Counsel did not understand she did not have to call ev ery person she interviewed to testify, but could instead use them simply to gain more leads for information regarding Solano’s social history. Id., at 43 (quoting N.T. PCRA Hearing, 1/28/10, at 132). The court reasoned, had counsel contacted relatives such as Sol ano’s uncle and extended family on his mother’s side, she would have learned th at Solano’s father was a drug dealer, that Solano regularly witnessed drug sales and abuse, and that his mother suffered physical and sexual abuse as a child and was sent to an orphanage at age nine. Id., at 40. Instead, counsel “‘sort of rested back and H let [Solano’s mother] bring whoever she thought might be appropriate, to me. An d she didn’t really do that, and I didn’t follow up, and try it on my own.’” Id., at 40-41 (quoting N.T. PCRA Hearing, 1/27/10, at 212).

The PCRA court also reviewed counsel’s failure to intro duce Solano’s records into evidence at the penalty phase, citing counsel’s admitted unfamiliarity with the admission of documents into evidence. Id., at 41 (“‘My lack of e xperience of how to get evidence into evidence, including all this mitigation, is part of the problem.’” (quoting N.T. PCRA Hearing, 1/28/10, at 70)). The court noted Solano’s school records revealed his excessive absences, but counsel deemed the records irrelevant . Id. (quoting N.T. PCRA Hearing, 1/28/10, at 108-09). Finally, the PCRA court condemned counsel’s decision no t to call a mental-health expert witness without having consulted with one. The court again cited counsel’s lack of experience, her lack of understanding regarding Sola no’s diagnoses, and her failure to prepare a social history or obtain records for Dr. Datti lio to review. Id., at 42. The court noted Dr. Dattilio’s shock upon learning he would not b e called to testify, and further concluded counsel should have consulted a neuropsychologist based on the information she had. Id., at 43. Again, the court emphasized cou nsel’s testimony that “no one[J-56A-2014 and J-56B-2014] - 59

supervised her or had any idea what she was doing. As evidenced by her own work, as well as her own admissions, neither did she.” Id. Accordingly, the PCRA court concluded there was a reasona ble probability, “had counsel’s conduct approached anything resembling the pro fessional standards applicable to a competent mitigation defense,” id. (cit ation omitted), the jury would have given more weight to the mitigating factor and retur ned a life sentence. Thus, the court awarded Solano a new penalty phase. Our standard of review regarding a PCRA court’s grant of penalty-phase relief based on counsel’s failure to present mitigating evidence is well settled:

Generally, the question of whether the PCRA court err ed in its determination that trial counsel was ineffective for f ailing to investigate and present sufficient mitigating evidence depends upon a m yriad of factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually presented, and the mitigatio n evidence that could have been presented. None of these factors, by i tself, is dispositive of the question presented, because even if the investiga tion conducted by counsel was unreasonable, such fact alone will not result in relief if the defendant cannot demonstrate that he was prejudiced by counsel’s conduct. Commonwealth v. Ligons, 971 A.2d 1125, 1149 (Pa. 200 9) (citations omitted). Although the jury found the catch-all mitigator was established, Solano can still demonstrate prejudice by showing the jury may have given this miti gator more weight had counsel presented additional life-history mitigating evidence . See Commonwealth v. Tharp, 101 A.3d 736 (Pa. 2014) (majority of Court reasoned weig hing of mitigating circumstances is qualitative, not quantitative; therefore, jury’s fin ding catch-all mitigator was established does not per se preclude this Court from deeming counsel ineffective because jury may have given that factor more weight had counsel proffer ed additional mitigation evidence); id., at 775-77 (Castille, C.J., concurring); id., at 7 77 (Saylor, J., concurring); id., at 778 (Eakin, J., concurring); see also Commonwealth v. Rivera , 108 A.3d 779, 807 n.18 (Pa.[J-56A-2014 and J-56B-2014] - 60

2014) (applying Tharp); Commonwealth v. Daniels, 104 A.3d 267, 303-04 (Pa. 2014) (same). Thus, we must determine whether there is a re asonable probability the entirety of the mitigation evidence presented at the PCRA hea ring, along with that already presented at the penalty phase, may have made a diffe rence to at least one juror’s assessment of the weight to be afforded the mitigating and aggravating circumstances. See Wiggins v. Smith, 539 U.S. 510, 537 (2003); Comm onwealth v. Malloy, 856 A.2d 767, 789 (Pa. 2004). Furthermore, as previously noted, w e are required to affirm the PCRA court’s order if there is record support for its factual f indings and its legal conclusions are free from error. See Keaton, at 1060; Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). While this inquiry involves a mixed quest ion of law and fact, for which the standard of review is de novo, see Commonwealth v. Ri os, 920 A.2d 790, 810 (Pa. 2007), we continue to adhere to the principle that “the tria l court is in the best position to review

claims related to trial counsel’s error in the first inst ance as that is the court that observed firsthand counsel’s allegedly deficient performance,” Gra nt, at 737. Accordingly, where, as here, the same judge presided at the trial and the PCRA proceedings, we give great deference to the PCRA court’s findings. See Commonweal th v. Martin, 5 A.3d 177, 197 (Pa. 2010) (citing Williams v. Taylor, 529 U.S. 362, 396 (2000)). Here, counsel admittedly lacked experience trying homicid e cases and had never tried a capital case. Lack of experience, by itself, ho wever, does not amount to ineffectiveness. See id., at 193 (noting lawyer’s inex perience in capital cases does not render him presumptively ineffective; “inexperience a lone is not equivalent to ineffectiveness[,]” and appellant still must make out el ements of ineffectiveness claim (quoting Commonwealth v. Blystone, 725 A.2d 1197, 12 05 (Pa. 1999))). Counsel testified her strategy was to humanize Solano in the j ury’s eyes, showing he was basically a likeable young man who had a rough childhood. Such strategy is plausible; if counsel[J-56A-2014 and J-56B-2014] - 61

can arouse the jury’s sympathy by painting a picture of the defendant’s life history, the jury may choose a life sentence instead of the death penal ty. See Keaton, at 1092 (“Evidence about a defendant’s background and character is relevant because of the

societal belief that defendants who commit crimes attribu table to a disadvantaged background, or to emotional and mental problems, may b e less culpable than those without such excuses.” (citation omitted)). Counsel, however, despite her good intentions of garn ering the jury’s compassion for Solano, did not employ the means necessary to achi eve this end. Solano, although closed and guarded in his interactions with counsel, was n ot uncooperative; however, counsel gave up on trying to elicit more detailed inf ormation from him, deciding to “go around” him by using family members for her research in to his background. She used a questionnaire to attempt to elicit sensitive informatio n from a defendant with whom she already had failed to build a good rapport, and who se academic ability was sub-par. She only interviewed two family members, and the conversat ion with Solano’s mother, who potentially would have had the most to tell her reg arding the sordid details of Solano’s upbringing, was conducted in the presence of Solano’s g irlfriend, which counsel admitted probably had a chilling effect on the mother. Addit ionally, counsel treated the mother with kid gloves, being afraid to upset her by probing for information concerning her tragic childhood and drug addiction; counsel inferred the mo ther felt guilty and ashamed about her parental shortcomings and their impact on Solano. Counsel did not attempt to expand on what little she learned from Solano’s moth er by researching the mother’s records or talking to other family members to fill in t he details of the mother’s story, i.e., how her drug addiction caused Solano to be subjected t o extreme violence, neglect, and poverty. Counsel did not understand she did not have to call every witness she[J-56A-2014 and J-56B-2014] - 62

interviewed; therefore, she dismissed several family me mbers from her pool of resources

for information. Although counsel had Solano’s CYS records, she did not go over them with Negron before he testified; thus, his testimony concernin g Solano’s childhood circumstances was general and vague. Counsel did not know how to get documents admitted into evidence, so the details in Solano’s rec ords were lost; the witnesses counsel had hoped would share their personal knowledge about these details did little to fill in the blanks regarding the degree of neglect, t rauma, and instability Solano experienced. Additionally, although Solano’s school re cords indicated frequent absences, counsel did not attempt to contact any school per sonnel to ascertain the reason for the absences; Solano’s teachers’ testimony woul d have corroborated the fact of his poverty and neglect, as well as emphasized he did not have behavioral issues. Rather, his teachers described a boy whose academic struggle s stemmed from intellectual deficiencies. Had counsel pursued these lead s, she might have been able to give the jury a more complete picture of Solano’s stru ggles as a child. See Daniels, at 302 (noting question might be close if only alleged d eficiency was counsel’s failure to call several witnesses and question one witness more fully concer ning various hardships in defendant’s childhood; however, “that unexplained la pse was heightened by counsel’s failure to pursue the leads in the school recor ds (assuming counsel even reviewed those records). The records revealed that [th e defendant] had struggled in school and eventually was placed in classes for socially and emotionally disturbed children when he was fourteen; these facts would have sup ported and corroborated the family accounts.”). This lack of detailed life history was compounded by coun sel’s decision not to call Dr. Dattilio, who could have provided a detailed ana lysis of how Solano was impacted by[J-56A-2014 and J-56B-2014] - 63

the circumstances of his upbringing and opined Solano was a product of his environment, i.e., he was not a bad person and someone worth saving . Regarding the psychological angle of Solano’s case (including the diagnosis of anti-so cial personality disorder), counsel “didn’t know what she didn’t know,” and did no t seek clarification from the available expert before nixing him as a witness. Had she sought this expert’s advice, she might have retained another mental-health expert , such as Dr. Schretlen, for further evaluation of the neuropsychological impact Solano’s chi ldhood had on him. We conclude the combination of counsel’s lack of experien ce, failure to research the readily available background information possessed b y family and contained in records, and lack of oversight or guidance from co-counse l resulted in counsel’s failure to present a coherent case for mitigation. See Wiggins, at 524 (noting “investigations into mitigating evidence ‘should comprise efforts to discover a ll reasonably available mitigating evidence and evidence to rebut any aggrava ting evidence that may be introduced by the prosecutor[,]’” and counsel cannot mee t this requirement by “abandon[ing] their investigation of [the defendant] ’s background after having acquired only rudimentary knowledge of his history from a narro w set of sources” (citation omitted; emphasis in original)). The life-history and mental- health evidence presented at the PCRA hearing was not merely cumulative — it provided si gnificant details concerning Solano’s background that were not mentioned at the pen alty phase. Having determined counsel lacked a reasonable basis for not further investigating and presenting additional mitigating evidence, we mu st determine whether her inaction prejudiced Solano’s case, which requires us to reweigh al l of the mitigating evidence before us against the aggravating factor proven by the Commonwealth. “The task of reweighing is not an exact science: we must evaluate th e relative strength of the evidence in aggravation and mitigation, as well as the partie s’ arguments in light of the full hybrid[J-56A-2014 and J-56B-2014] - 64

record produced at trial and upon collateral attack.” Daniels, at 304. As we recently

observed:

Noting again the relative paucity of the case in miti gation actually forwarded at trial, we believe that, at a minimum, there is a reasonable probability that at least one juror would have found a stronger case for mitigation under the catchall mitigator. Similarly, if counsel had presente d a fuller account of [the defendant]’s life history, there is a reasonable p robability that a reasonable juror would have given more weight to [th e defendant]’s life history factors in assessing the catchall mitigator. Id., at 304-05. Similarly, had the evidence presente d at Solano’s PCRA hearing been heard by the jury, it may have evoked sympathy for So lano, resulting in a life sentence, particularly in light of the relative strength of the sole aggravator. 28 We acknowledge this is a close case, and we do not wish to exaggerate the pow er of undiscovered mitigation evidence; however, the PCRA court judge, who also presi ded at trial, was in the best position to assess the witnesses’ testimony, and there is reco rd support for the court’s conclusion that no one, including counsel, had any idea what counsel was doing. 29 See

28 The grave-risk aggravator, unlike others such as the mult iple-murder or history-of-violent-felonies aggravators, 42 Pa.C.S. § 9711(d)(9), (11), could be viewed by the jury as a one-time incident, as opposed to a life time history of violent behavior. See Daniels, at 303 (noting although mitigation evidence counsel presented was sparse, jury still found two mitigators, and one was unanimous; jury ’s finding suggested it did not view aggravators as being of such quality, as in case involvin g multiple murders, as to make jury unreceptive to comparative case in mitigation (citi ng Commonwealth v. Lesko, 15 A.3d 345, 383-85 (Pa. 2011) (multiple murders case))).

29 We do not believe the PCRA court inappropriately fo cused singularly on counsel’s testimony; as the court noted, counsel was candid regardin g her ineptitude at the time of trial. Furthermore, the court’s assessment of counsel’s performance was not conducted with the benefit of hindsight; counsel admittedly did not follow through on avenues of information readily available to her or seek help beyo nd a brief, initial meeting with a fellow member of the defense bar. See Commonwealth v. Eichinger, 108 A.3d 821, 848 (Pa. 2014) (reasonableness of attorney’s strategy may n ot be evaluated with benefit of hindsight; reviewing court must determine whether tria l counsel’s chosen course of action (continuedH)[J-56A-2014 and J-56B-2014] - 65

PCRA Court Opinion, 12/30/11, at 43. Accordingly, a s the record supports the PCRA court’s findings, we are required to uphold the grant of a new penalty phase. The order denying guilt-phase relief and granting p enalty-phase relief is hereby affirmed; jurisdiction relinquished. Mr. Justice Baer joins the lead opinion. Mr. Chief Justice Saylor files a concurring opinion.

Madame Justice Todd concurs in the result. Mr. Justice Stevens files a dissenting opinion.

(Hcontinued) had some reasonable basis designed to effectuate client’ s best interests, and if so, counsel is deemed effective).