[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 

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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 

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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 Raymond Solano relief 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in the form 

of a new penalty phase, based on trial counsel’s ineffectiveness for failing to present 
[J-56A-2014 and J-56B-2014] - 2 

sufficient mitigating evidence. Solano cross-appeals from the portion of the same order 

denying him guilt-phase relief.1 We affirm. 

 In 2003, a jury convicted Solano of first-degree murder for the shooting death of 

victim, who was playing basketball in a crowded park. After 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 grave-risk aggravating circumstance, 

42 Pa.C.S. § 9711(d)(7) (in commission of offense, defendant 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 environment and lack of nurturing. 

The jury determined the aggravator outweighed the mitigator, and sentenced Solano to 

death. See id., § 9711(c)(1)(iv). This Court affirmed on direct appeal, and the United 

States Supreme Court denied certiorari. Solano v. Pennsylvania, 127 S. Ct. 2247 

(2007). 

 Solano timely filed a pro se PCRA petition and received appointed counsel, who 

filed an amended petition raising claims of ineffective assistance of counsel, 2

 

1

 The facts of the underlying crimes are detailed in our 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 rule in Commonwealth v. Hubbard, 372 

A.2d 687 (Pa. 1977), that ineffectiveness claims had to be raised at first opportunity 

where defendant has new counsel, and instead holding defendant should wait to raise 

claims of trial counsel’s ineffectiveness on collateral review), he was not required to 

“layer” his claims by alleging appellate counsel’s ineffectiveness. Although Solano 

layered his PCRA claims to include allegations of appellate counsel’s ineffectiveness, the 

(continuedH) 
[J-56A-2014 and J-56B-2014] - 3 

prosecutorial misconduct, and trial court error. Following a hearing, the PCRA court 

denied Solano’s guilt-phase claims but awarded him a new penalty phase, holding trial 

counsel was ineffective for failing to investigate, develop, and present mitigating evidence 

of the cognitive and psychological impact of Solano’s traumatic and abusive childhood. 

See PCRA Court Opinion, 12/30/11, at 35-43. The Commonwealth 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 relief, an appellate 

court will consider whether the PCRA court’s conclusions are supported by 

record evidence and are free of legal error.” Commonwealth 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 one or more of the 

errors found in 42 Pa.C.S. § 9543(a)(2), his claims have not been previously 

litigated or waived, id., § 9543(a)(3), and “the failure to litigate the issue prior 

to or during trial, during unitary review or on direct appeal could not have 

been the result of any rational, strategic or tactical decision by counsel.” 

Id., § 9543(a)(4). An issue is previously litigated if “the highest appellate 

court in which the petitioner could have had review as 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 state postconviction 

proceeding.” Id., § 9544(b). 

Commonwealth v. Keaton, 45 A.3d 1050, 1060 (Pa. 2012). We will first address 

Solano’s issues, as most of them pertain to the guilt phase; 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 performance, 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 previously litigated or waived. 

Five of these claims focus on trial counsel’s alleged ineffectiveness in conducting the 

guilt-phase investigation,3 failing to impeach certain witnesses or object to prejudicial 

testimony, and failing to challenge last-minute presentation of eyewitness testimony; 

another claim alleges trial counsel’s ineffectiveness in connection with the application of 

the (d)(7) aggravator. Solano also claims trial counsel, who was from the public 

defender’s office, labored under a conflict of interest because the same office 

simultaneously represented two of the alternative murder suspects on unrelated matters. 

In two issues, Solano alleges misconduct by the Commonwealth, and in another, he 

argues the PCRA court erred in dismissing his claim of newly 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 performance lacked a 

reasonable basis, and counsel’s ineffectiveness caused him prejudice. 

Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa. 2001); see 

also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa. 1987).4 

Prejudice in the context of ineffective assistance of counsel means 

demonstrating there is a reasonable probability that, but for counsel’s error, 

the outcome of the proceeding would have been different. Commonwealth 

v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (Pa. 1999). This standard is 

 

3

 Solano was represented by different counsel at the guilt and penalty phases. 

4

 See Strickland v. Washington, 466 U.S. 668, 687 (1984) (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 claims are raised on 

direct review. Id. Failure to establish any prong of the test will defeat an 

ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 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 showing petitioner’s 

evidence fails to meet any one of three prongs for claim)). 

Keaton, at 1060-61 (footnote in original; renumbered). 

 

A. Counsel’s failure to investigate/present evidence supporting defense theory of 

case 

 Solano claims guilt-phase counsel was ineffective for failing to conduct a thorough 

investigation of evidence supporting the defense’s theory that the shooting was gang 

related, committed by one of victim’s rival-gang members, Alexis Concepcion. Solano 

contends information contained in police reports and a newspaper 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 gang, 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 been used to impeach Detective 

Wayne Simock’s testimony that the shooting was not gang related. Solano further 

contends counsel should have impeached the detective with the affidavit of probable 

cause for Solano’s arrest, in which the detective stated there 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, whose testimony would have 

linked Concepcion and one of his fellow gang members, Catalino Morales, to the murder; 

Solano argues this evidence would have cast further doubt 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 in the shooting.5 It was the 

Commonwealth’s position that the same shooter fired both weapons; however, an expert 

Solano presented at the PCRA hearing testified the guns 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 were 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 the 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, Solano raised a related claim concerning 

the applicability of the grave-risk aggravating circumstance, 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 to others. He also contended 

penalty-phase counsel was ineffective for failing to object or request a limiting instruction 

when the prosecutor presented evidence beyond the limited scope of the aggravator. 

We remanded the case to the PCRA court to file a supplemental opinion fully addressing 

certain issues not addressed in its initial opinion. On remand, the PCRA court found 

counsel’s failure to introduce evidence regarding a second shooter in the penalty phase 

prejudiced Solano and thus was an additional ground for relief. PCRA Court 

Supplemental Opinion, 8/23/13, at 9-10. The parties filed new appeals and 

supplemental briefs, in which the Commonwealth challenged the PCRA court’s finding 

that penalty-phase counsel was ineffective in connection with the grave-risk aggravator. 

Solano now contends, in light of the PCRA court’s finding that evidence regarding a 

second shooter may well have resulted in a different penalty-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 phase was flawed because it “credited” 

the evidence regarding two shooters in its supplemental opinion. Solano’s 

Supplemental Brief, at 8. However, the PCRA court did not make a credibility finding 

regarding such evidence; rather, it simply stated that had the jury considered testimony 

casting doubt on who put persons other than victim at grave risk of harm, the jury may not 

have found the aggravator to be established, which would have changed the sentence to 

life imprisonment. See PCRA Court Supplemental Opinion, 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 [Solano] from his role in killing 

(continuedH) 
[J-56A-2014 and J-56B-2014] - 7 

acknowledging the resources available to counsel were limited, 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; Solano’s case was counsel’s primary 

focus, and he met with his client weekly, used two investigators, 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 untrue. In light of the sketchy 

information Solano provided, the Commonwealth asserts counsel made a tactical 

decision to argue the shooting was gang related and Solano 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 evidence linking Concepcion 

to the shooting, the Commonwealth notes that to the extent Solano claims counsel should 

have called the witnesses whose statements in the police reports indicated Concepcion 

was angry with victim, these witnesses were not presented at the PCRA hearing; thus, 

Solano cannot prove they were willing and available to testify at trial. The 

Commonwealth also points out counsel, after interviewing 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 Concepcion, 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 victim; 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 potentially damaging witness. 

 Regarding Williams and Price as potential witnesses, the Commonwealth notes 

counsel testified he determined Williams would not have been helpful after interviewing 

Concepcion, who told counsel and police that Solano admitted 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 Commonwealth asserts the version of events 

Williams gave at the PCRA hearing did not exculpate Solano but merely established 

Morales, Concepcion’s fellow gang member, went out with two guns 15 minutes before 

shots were heard; Williams did not see who fired any of the shots or, most significantly, 

who shot victim. The Commonwealth argues Price’s version of events conflicts with 

Williams’s and Morales’s, is incredible, and would not have changed the trial’s outcome. 

 The Commonwealth contends counsel’s failure to have the 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 shoot victim and retreat in the 

direction he came from, firing into the crowd. The Commonwealth 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 altered 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, the notion there may have been two 

shooters was before the jury. In light of the fact multiple witnesses identified Solano as 

the one who shot victim, however, the Commonwealth reasons that whether a second 

 

7

 When counsel disclosed he had interviewed Concepcion and determined he would not 

be helpful as a witness, Solano told him not to interview Williams because he likewise 

would not be helpful. Thus, counsel did not interview Williams. 
[J-56A-2014 and J-56B-2014] - 9 

person fled with Solano and fired the additional shots was irrelevant to the issue of 

Solano’s guilt. 

 The PCRA court aptly noted the question was not whether counsel lacked 

adequate resources to investigate and prepare for trial, but whether additional resources 

were required such that counsel should have requested them. PCRA Court Opinion, 

12/30/11, at 30-31. The court acknowledged counsel hired 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 “whole 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 benefit 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 behest, noting Williams testified at 

the PCRA hearing that he probably would not have spoken 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 merely indicated Morales left with two guns 

15 minutes before the shots were heard; this did not preclude 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 Williams at the time of the shooting 

and was told Morales was shooting someone — conflicted with 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 the crime and Morales told him he 

was the shooter conflicted with Morales’s assertion that only Concepcion accompanied 

him. Id. Finally, the court noted in addition to being incredible, Price’s version of events 

 

8

 Solano gave conflicting information about his whereabouts at the time of the shooting, 

telling counsel he was in New Jersey but constantly changing the facts and details, and 

ultimately testified he was in Connecticut. See N.T. PCRA 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 Solano failed to show the 

outcome of his trial would have differed had the proffered testimony been presented, 

especially in light of multiple eyewitness testimony identifying Solano as the shooter. Id., 

at 14, 16. 

 In ruling on Solano’s claim that counsel should have pursued additional ballistics 

evidence in support of the “two shooter” theory, the PCRA court stated the presence of an 

additional shooter, if proven, would not have exonerated Solano, as the eyewitness 

testimony established he shot victim. Id., at 19-20. Additionally, 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 separate 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 conclusions 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) the 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 testify; and (5) the absence of the 

witnesses’ testimony was so prejudicial that it denied Solano 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 did 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 Solano 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 state, as he claimed, at the time of the 

murder. Id., at 94-95, 102-03. When counsel learned 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 counsel talked to Concepcion and told 

Solano he would not be helpful, Solano told counsel not to “bother” with Williams, so 

counsel “backed off,” id., at 166-67, 172. Furthermore, Williams’s PCRA hearing 

testimony was equivocal regarding whether he would have 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 Amendment privilege. Counsel hired a 

ballistics expert and a psychologist as part of his pre-trial investigation, and he called a 

police detective to testify regarding two witnesses’ accounts that there were multiple 

shooters at the incident. Counsel also presented the testimony of Solano, who claimed 

to be in Connecticut the day of the shooting and implicated Morales as the culprit. 

Counsel’s defense theory was Solano had no motive to commit this gang-related 

shooting, and — with the limited information Solano gave him — he did his best to cast 

doubt on the Commonwealth’s case through cross-examination. See Commonwealth v. 

Fears, 836 A.2d 52, 72 (Pa. 2003) (reasonableness of counsel’s stewardship depends, in 

critical part, upon information supplied by defendant). Accordingly, we conclude 

guilt-phase counsel acted reasonably in both his pre-trial 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, counsel cannot be faulted 

for failing to pursue a different path.” Commonwealth v. Fisher, 813 A.2d 761, 767 (Pa. 

2002) (citation omitted); see also Commonwealth v. Dunbar, 470 A.2d 74, 77 (Pa. 1983) 
[J-56A-2014 and J-56B-2014] - 12 

(test is not whether other alternatives were more reasonable, employing hindsight 

evaluation of record). Alternatively, we agree with 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 evidence, we note although 

counsel acknowledged at the PCRA hearing that he would have wanted to present 

independent expert testimony to cast doubt on the Commonwealth’s “one shooter, two 

guns” theory, see N.T. PCRA Hearing, 1/27/10, at 93-94, 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. Wright, 961 A.2d 119, 155 (Pa. 2008) 

(where witness’s testimony would have been cumulative and 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 that 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 represented him at trial and on 

direct appeal, labored under a conflict of interest because 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 present 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 was a gang member, we conclude, as 

further discussed in Part I, Issue D., infra, Solano has not shown, but for counsel’s failure 

to impeach Detective Simock with this information, he would have been found not guilty. 
[J-56A-2014 and J-56B-2014] - 13 

Morales and Concepcion — two alternative suspects in his 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 Morales (who had been its client 

since 1994) from January 29, 2003, through April 23, 2003, 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 the public defender’s office’s 

representation of these individuals prevented guilt-phase 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 counsel and a fair trial. 

 The Commonwealth asserts the mere fact the public defender’s office represented 

Morales and Concepcion in addition to Solano does not establish a conflict; Solano must 

show an actual conflict existed. The Commonwealth further asserts Solano has not 

demonstrated any potential or actual prejudice resulting 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 PCRA hearing and thus did not indicate how 

the record supported his contention. PCRA Court Supplemental 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 petitioner’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 only 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 general statement: “‘Petitioner 

incorporates by reference all other pleadings, submissions, factual assertions, legal 

arguments and claims previously submitted to this [c]ourt in support of post-conviction 

relief. Although such other claims H are not addressed in 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 developed the issue in his 

post-PCRA-hearing brief, we conclude he has not established a meritorious issue. To 

establish an actual conflict of interest hampered counsel, Solano must show counsel 

actively represented conflicting interests and the conflict adversely affected counsel’s 

performance. See Commonwealth v. Padilla, 80 A.3d 1238, 1248 (Pa. 2013) (citations 

omitted). Beyond bald assertions that the public defender’s office represented him, 

Morales, and Concepcion during overlapping time periods,12 Solano offers nothing to 

show an actual conflict hindered trial counsel’s performance. See Commonwealth v. 

Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012) (noting mere existence of overlap in 

representation did not prove counsel’s actions, although troubling, adversely affected his 

representation of defendant). Counsel interviewed both 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 appoint 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 Morales 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 pursuit 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 favorable evidence that was 

material to his guilt or sentencing, in violation of Brady 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 claims, with respect to eyewitness Carlos 

Carrasquillo,13 the Commonwealth failed to disclose a plea agreement the witness 

entered into in exchange for his testimony. Carrasquillo 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 Carrasquillo, 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 counsel could have used this 

information on cross-examination of Carrasquillo to undermine his credibility. 

 Regarding Concepcion, although guilt-phase counsel determined he would not be 

a good defense witness, the Commonwealth initially planned to use him to testify — 

according to his initial police statement — he hired Solano 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 Solano as the shooter, the description he 

gave corroborated other eyewitnesses’ identifications, matching Solano’s physical 

characteristics. 
[J-56A-2014 and J-56B-2014] - 16 

Concepcion retracted this version of the crime in a subsequent police interview, instead 

placing the blame solely on Solano, who he claimed killed victim in retaliation for victim’s 

gang assaulting Solano’s brother. The prosecutor in Concepcion’s federal case14

testified at the PCRA hearing that the federal government had agreed to seek a lesser 

sentence for him in exchange for his testimony against Solano. 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 Solano and thus no lesser sentence 

would be recommended. Solano claims the Commonwealth should have disclosed 

Concepcion pled guilty in federal court four months before Solano’s trial. Solano further 

argues had guilt-phase counsel known about the plea agreement and the letter, he could 

have used this information to cast doubt on the Commonwealth’s “single shooter” theory 

of the case, as well as impeach Detective Simock’s testimony that the shooting was not 

gang related and suggest a perpetrator other than Solano.15 Thus, Solano claims, even 

though Concepcion did not testify, counsel’s preparation for trial was adversely impacted 

by not having the information about his plea and police statements. 

 The Commonwealth asserts there was no evidence of any plea agreement with 

Carrasquillo and the fact he received a lesser federal sentence does not automatically 

prove an agreement existed. The Commonwealth further 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-examination by referring to 

 

14 A county assistant district attorney who was specially deputized to prosecute county 

cases that went to federal court prosecuted Concepcion’s case. 

15 Solano argues had counsel known Concepcion was not going to testify, counsel would 

have used Concepcion’s initial police statement to suggest he, not Solano, was the 

shooter. 
[J-56A-2014 and J-56B-2014] - 17 

his federal charges. Regarding Concepcion, the Commonwealth asserts there was no 

evidence of any plea agreement, and even had there been one, Solano cannot 

demonstrate it was material evidence because Concepcion did not testify. The 

Commonwealth again emphasizes the numerous identification witnesses who testified, 

pointing out any assertion that Concepcion was the perpetrator would have been flatly 

contradicted by these witnesses, who either directly identified Solano or gave a 

description of the shooter that matched Solano’s characteristics. 

 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 receive leniency in his federal 

sentence if he testified. PCRA Court Opinion, 12/30/11, at 22-24. The PCRA court 

noted there was no credible evidence establishing Carrasquillo had a plea agreement; to 

the contrary, the prosecutor credibly testified no agreement ever existed. Id., at 24. 

Finally, the PCRA court reasoned even if there had been an agreement, its nondisclosure 

was harmless error, as guilt-phase counsel cross-examined Carrasquillo regarding his 

pending federal charges, and his testimony was corroborative 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 disclose the arrangement with 

Concepcion as long as he was going to testify at trial; however, 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 establish a Brady violation, 

appellant must demonstrate: the evidence at issue was favorable to him, 

because it was either exculpatory or could have been used for 

impeachment; the prosecution either willfully or inadvertently suppressed 

the evidence; and prejudice ensued. Id., at 276 (citation omitted). “The 

evidence at issue must have been ‘material evidence that deprived the 

defendant of a fair trial.’ ... ‘Favorable evidence is material ... if there is a 

reasonable probability that, had the evidence been disclosed 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) (omissions 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 hearing. At trial, Carrasquillo denied 

on cross-examination having been promised “a better deal” 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 court 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 supports such determinations, 

they are binding on reviewing court (citations omitted)). 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 consideration by the sentencing court 

— something any testifying witness with pending charges hopes will happen. See 

Commonwealth v. Chmiel, 30 A.3d 1111, 1131 (Pa. 2011) (holding mere conjecture as to 
[J-56A-2014 and J-56B-2014] - 19 

understanding between prosecution and witness is insufficient 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 exchange for Commonwealth’s 

nolle prossing charges against him; other than own assertion, appellant provided no 

support for allegation). Furthermore, in light of the other identification witnesses who 

offered testimony nearly identical to Carrasquillo’s, Solano 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 material if there is reasonable probability 

that, had it been disclosed, result of trial would have differed). Thus, Solano’s claim 

regarding Carrasquillo also fails. 

 Regarding Solano’s claim that the Commonwealth’s failure to disclose 

Concepcion’s plea agreement hampered counsel’s trial preparation, 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 and had access to Concepcion’s 

police statements. Since Concepcion did not testify, there was no need to present the 

plea agreement as impeachment evidence. Additionally, any suggestion that 

Conception was the shooter would have been contradicted by the trial testimony of 

numerous eyewitnesses who identified Solano or gave descriptions matching Solano’s 

physical characteristics. Finally, as we observed in Commonwealth v. Williams, 105 

A.3d 1234 (Pa. 2014), “The United States Supreme Court has never held Brady 

materiality is measured in terms of ‘effects on the defense 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 regarding 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 committed 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 victim 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, constituted misconduct that violated his 

due process rights and denied him a fair trial. He further contends guilt-phase counsel 

was ineffective for failing to object to or impeach this testimony, which undermined the 

defense’s theory the shooting was gang related. Specifically, 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 victim’s name, recovered from 

victim’s car, and mentioned victim’s juvenile record. Solano claims counsel had access 

to all of this evidence and should have used it to impeach the detective. 

 The Commonwealth asserts Detective Simock’s and the prosecutor’s PCRA 

testimony provided a reasonable explanation for the detective’s trial testimony and the 

prosecutor’s closing argument — i.e., although victim was suspected 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 adult. Additionally, the prosecutor 

testified at the PCRA hearing that he had no reason to believe the detective’s trial 

testimony was inaccurate; in fact, at least four other witnesses also testified victim was 

not a gang member. Thus, there was no perjured testimony 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, the result at trial would not have 

differed. 

 The PCRA court credited Detective Simock’s PCRA testimony 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 adult criminal record. Additionally, the 

court noted although earlier records indicated the prosecution had information suggesting 

victim was in a gang, as the investigation progressed, the prosecution’s theory and 

understanding of events changed; therefore, the difference in the Commonwealth’s 

theory of the case at trial from what its original theory had been “cannot be reasonably 

understood to rise to the level of misconduct so as to deprive [Solano] of a fair trial.” 

PCRA Court Opinion, 12/30/11, at 29. The court noted any discrepancy in an officer’s 

trial testimony from earlier sworn statements was a topic for cross-examination, but that 

here, where the issue lacked materiality, counsel’s failure to cross-examine did not 

prejudice Solano’s trial. Id., at 30. 

 Our review of the record supports the PCRA court’s findings. Detective Simock 

provided credible explanations for his statement in the affidavit and his trial testimony; 

additionally, he stated there was no proof the sweatshirt 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 investigation of the case did not reveal 

independent evidence that victim was a gang member; thus, 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 and there was no prosecutorial 

misconduct. Furthermore, impeaching Detective Simock with the evidence Solano 

mentions would not have changed the outcome of the trial, 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 PCRA 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, counsel was not ineffective for 

failing to impeach the detective in the manner Solano suggests. 

E. Counsel’s failure to challenge Commonwealth’s anticipated last-minute 

presentation of eyewitnesses 

 Solano claims guilt-phase counsel was ineffective for failing 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 object and request a cautionary 

instruction regarding the identifications. When the prosecutor met with counsel before 

trial, he told counsel although only Jose Aquino, Israel’s brother, had positively identified 

Solano at that time, he would not be surprised if other 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, based upon this exchange with 

the prosecutor prior to trial, counsel should have requested a line-up, moved to preclude 

such identification testimony, and requested a jury instruction pursuant to Commonwealth 

v. Sexton, 400 A.2d 1289, 1292-93 (Pa. 1979) (holding where defendant’s request for 

pre-trial identification is denied, remedy is jury instruction that defendant’s opportunity for 

more objective identification was denied, and subsequent in-court identification could be 

viewed with caution). Solano argues Israel Aquino’s and Rosario’s unreliable 

testimony16 bolstered Jose Aquino’s questionable eyewitness testimony,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 police 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 evidence linked Solano to 

the shooting. Thus, he claims counsel’s failure to challenge these witnesses’ in-trial 

identification of him, nearly two years after the shooting, 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 identified Solano at trial did not merit 

a motion in limine; such motion would have been baseless and frivolous, as counsel could 

not presciently determine which testimony should be precluded. 

 The PCRA court held: 

In the absence of any failure to disclose information under the applicable 

rules of procedure, let alone active concealment, by the 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 any positive 

identification, broadened their testimony to implicate [Solano] once placed 

on the stand. 

PCRA Court Supplemental Opinion, 8/23/13, at 7. Thus, the court concluded counsel 

could not be ineffective for failing to raise a meritless claim. 

 We agree with the PCRA court’s conclusion, which we find 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 or 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 address Solano’s claim concerning 

counsel’s failure to object or request a cautionary instruction 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 within which to view the 

perpetrator. He does not develop this argument in connection 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 Pierce, 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’ identification, other evidence pointed 

to Solano as the shooter. Jose Aquino unequivocally identified Solano both before and 

at trial, and several other witnesses, including Carrasquillo, gave consistent descriptions 

of the shooter and what he wore, which matched Solano’s characteristics. These 

witnesses testified the same person who shot victim also fired 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 crime, 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 from the same weapons police 

seized when they arrested Solano and Morales in Connecticut two weeks after the 

shooting. Thus, we agree counsel had a reasonable basis for not taking preemptive 

measures to preclude these two witnesses’ identification testimony, and Solano was not 

prejudiced by counsel’s failure to object or request a cautionary instruction when they 

testified. 

F. Counsel’s failure to impeach Commonwealth witnesses with prior crimen falsi 

convictions and potential bias or motive, and failure to request appropriate jury 

instructions 

 Solano claims guilt-phase counsel should have impeached Commonwealth 

witnesses Carrasquillo and Julio Santiago with their prior 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 prior 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 direct examination by the 

prosecutor, guilt-phase counsel was ineffective for failing to request an appropriate jury 

instruction regarding this witness’s testimony. Solano argues counsel’s inactions 

prejudiced his case because impeachment of crucial identification witnesses was central 

to the defense. 

 The Commonwealth contends that because the jury was informed of Carrasquillo’s 

prisoner status and Jose Aquino’s prior crimen falsi conviction, 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 Commonwealth also points out 

counsel vigorously cross-examined all witnesses, attempting to impeach them through 

various means; as their testimony was corroborated and the 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 inquiry would [not] have provided 

more than merely a general assault upon the veracity of a witness by showing prior 

criminal behavior[,]” as opposed to “evidence directly relevant 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 court held, as “there was nothing about 

the background of the Commonwealth’s witnesses that H would have directly refuted the 

 

18 At trial, Rosario testified he chased after the shooter with his gun, but never fired 

because the gun malfunctioned; however, in his police statement, Rosario denied having 

a gun at the crime scene. Additionally, the Commonwealth’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 questioning as being beyond the 

scope of redirect examination. 
[J-56A-2014 and J-56B-2014] - 26 

Commonwealth’s theory of the case or significantly undermined 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 counsel 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.” Commonwealth v. Nolen, 634 A.2d 192, 195 

(Pa. 1993). “[E]vidence of prior convictions can be introduced 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, 1329 (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 version of the facts or the 

Commonwealth’s theory of the case, the Rules of Evidence 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 jury’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 his police statement and his trial 

testimony, mentioning witness’s pending gun and drug charges, 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 identification 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 Aquino 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 pled 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 Solano a fair trial, as Santiago was 

merely one of several identification witnesses; thus, Solano’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 convictions or introducing 

ballistics evidence to rebut Rosario’s testimony. We further agree with the PCRA court 

that counsel’s foregoing a jury instruction on Jose Aquino’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 Commonwealth witness Jose 

Aquino with his probation status and counsel’s failure to object and litigate claim 

 Solano claims the trial court erred in precluding guilt-phase counsel from 

impeaching Jose Aquino regarding his potential bias or motive 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 violation, the prosecutor objected, and the trial 

court precluded this line of questioning. Solano argues 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 that not being able to impeach 

Aquino in this manner violated his right to confrontation, and counsel was ineffective for 

failing to object to the trial court’s ruling. He further argues counsel should have attacked 

the veracity of Aquino’s identification with the fact that Aquino had charges pending when 

he identified Solano from the photo array, was serving a sentence for these charges when 

he identified Solano in a line-up and at the preliminary hearing, and was hoping to curry 

favorable treatment if he cooperated with law enforcement. 

 The Commonwealth notes Jose Aquino was already impeached with his prior crimen 

falsi conviction and his testimony was cumulative of the other identification witnesses’ 

testimony, so Solano suffered no prejudice from not being able to impeach Aquino with 

his probation status. 

 The PCRA court held any error resulting from inadequate 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 Supplemental Opinion, 8/23/13, at 

2-3. 

 We find support in the record for the PCRA court’s conclusions. Counsel used 

Jose Aquino’s crimen falsi conviction to impeach him; therefore, further impeachment 

regarding bias was unnecessary. See Commonwealth v. Small, 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 conviction was not prejudicial); 

Commonwealth v. Dennis, 715 A.2d 404, 408-09 (Pa. 1998) (holding counsel not 

ineffective for failing to impeach witness in one particular way, where counsel impeached 

witness in other ways). Although Jose Aquino was the only witness to identify Solano 

prior to trial, eyewitnesses Israel Aquino and Rosario identified Solano at trial, other 
[J-56A-2014 and J-56B-2014] - 29 

witnesses gave descriptions of the shooter’s characteristics that were consistent with 

Solano’s appearance, and there was other overwhelming evidence of guilt, such as the 

ballistics evidence mentioned supra, linking Solano to the crime. See Commonwealth v. 

Cox, 728 A.2d 923, 933 (Pa. 1999) (holding, where evidence was overwhelming, 

defendant not prejudiced by counsel’s failure to impeach witnesses regarding bias 

stemming from open charges, probation, or parole). Thus, Solano fails to demonstrate 

the outcome of the guilt phase would have differed but for counsel’s inability to use Jose 

Aquino’s probation status to impeach him; no prejudice has been shown. 

H. Counsel’s failure to properly object to the admission of prior bad act testimony 

 When Solano was arrested in Connecticut for victim’s murder, he had an open 

bench warrant for failing to appear in court for unrelated drug and gun charges in 

Pennsylvania. At trial, Solano’s uncle, Victor Alvarado, testified for the Commonwealth 

that Solano told him he fled to Connecticut because “[he] 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 hearsay 

grounds, which the trial court overruled, and counsel declined the court’s offer to instruct 

the jury regarding hearsay. Solano claims counsel should have objected to Alvarado’s 

testimony on the basis it referred to irrelevant, inadmissible prior bad acts, and that 

counsel should have requested a cautionary instruction limiting the use of this evidence. 

He argues this testimony was prejudicial because it informed the jury he was a fugitive on 

 

20 At the hearing on counsel’s motion in limine, the prosecutor informed the court he did 

not intend to elicit testimony regarding Solano’s outstanding bench warrant, see N.T. 

Pre-Trial, 5/12/03, at 14; counsel indicated this addressed his concerns. Despite this 

agreement, the prosecutor’s direct examination of Alvarado elicited a response 

referencing the prior charges. 
[J-56A-2014 and J-56B-2014] - 30 

additional criminal charges, leaving the jury to speculate as to the nature of the charges, 

and the jury was not told it could only consider the evidence for the limited purpose of 

explaining his reason for being in Connecticut, not for his criminal propensity. 

 The Commonwealth argues Alvarado’s testimony regarding why Solano was in 

Connecticut was admissible because it explained Solano’s arrest in proximity to the 

murder weapon and demonstrated his consciousness of guilt by fleeing out of state; thus, 

it was part of the natural development of the case’s history. The Commonwealth further 

notes the reference to the unidentified crimes was brief and, in light of the other 

overwhelming evidence against Solano (including eyewitness identification), the 

reference did not prejudice Solano’s case. 

 The PCRA court held the facts surrounding Solano’s apprehension in Connecticut 

were admissible as res gestae because they were part of the 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 Supplemental Opinion, 8/23/13, at 5. Thus, 

the court found Solano’s claim lacked arguable merit. It 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 police had a “mugshot” of Solano 

before his arrest,21 which signaled he had a prior criminal record; the court 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 supplemental brief after the PCRA court 

addressed it in its supplemental opinion. Having reviewed the trial court’s curative 

instruction, see N.T. Trial, 5/27/03, at 91-92, we agree 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 other 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 the character. 

(2) Permitted Uses. This evidence may be admissible for another purpose, 

such as proving motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake, or lack of accident. In a criminal case this 

evidence is admissible only if the probative value of the 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 admissible 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 admitted, 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. 2002). 

 While we do not condone the prosecutor’s foray into this topic of questioning after 

assuring guilt-phase counsel he would not bring up Solano’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 Connecticut was a family visit, 

using it as an alibi; evidence that he fled there to avoid prosecution on other charges 

called into question the veracity of his version of the shooting and surrounding events, 

including his alibi. Additionally, although Solano was 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 prior bad acts is fleeting or vague 

reference, counsel might reasonably decline to object or to request limiting instruction to 

avoid drawing jury’s attention to reference). Accordingly, 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 Morales’s PCRA hearing 

testimony that he and Concepcion committed the shooting, not Solano. Morales testified 

Concepcion wanted revenge against victim’s gang, which had robbed Concepcion. 

Morales claimed he and Concepcion planned the shooting together that morning; he was 

staying with Williams and went out to confirm the other 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 stated they first went to 

Concepcion’s mother’s house, where he gave Concepcion a gun. 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 into the crowd after Concepcion shot 

victim on the basketball court; he and Concepcion then fled to Indiana. Morales claimed 

he later went to Connecticut to give Solano the guns in an attempt to clear himself and 

Concepcion because he knew Solano was a suspect in the shooting. 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 light 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 shortly 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 testimony that he and 

Concepcion previously fired numerous rounds of bullets into buildings in victim’s gang’s 

neighborhood. 

 The Commonwealth asserts Morales’s testimony was unreliable and did not 

satisfy the test for newly discovered evidence. The Commonwealth argues although 

Morales’s testimony cannot be viewed as a recantation because he did not testify at trial, 

it should be viewed with the same skepticism because it contradicts his prior statements 

to police. The Commonwealth points out Morales, already serving what was essentially 

a life sentence, had nothing to lose by subsequently inculpating himself. 

 The PCRA court found “Morales utterly lacked credibility as a witness and, 

therefore, his testimony can be accorded no weight.” PCRA Court Opinion, 12/30/11, at 

8. The court noted Morales was serving a 37-year sentence in Connecticut for 

attempted murder arising from his shooting at the police 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 statements, 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 lately” in an effort to have a 

better relationship with his daughter, N.T. PCRA Hearing, 2/8/10, at 9-10, the PCRA court 

found he “offered no convincing explanation for his newfound love of truth[,]” PCRA Court 

Opinion, 12/30/11, at 9. The court further noted Morales said Concepcion wore a 

windbreaker over his hoodie when he shot victim, but numerous eyewitnesses testified 

the shooter wore a hoodie, not a windbreaker, and none of them placed Morales at the 
[J-56A-2014 and J-56B-2014] - 34 

crime scene. Id., at 8. Based on the foregoing, as well 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 stand, his jailhouse 

conversion is wholly unpersuasive and his credibility remains 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 newly discovered evidence claim. 

 The PCRA provides relief for a petitioner who demonstrates his conviction or 

sentence resulted from “[t]he unavailability at the time of trial of exculpatory evidence that 

has subsequently become available and would have changed 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 diligence; (2) is not cumulative; (3) is not 

being used solely to impeach credibility; and (4) would likely compel a different verdict. 

Washington, at 595-96. As this test is conjunctive, failure 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 testimony cannot be considered a true 

recantation, his testimony “contradicts his pre-trial statement to police and is a confession 

to the crime for which [Solano] was convicted and sentenced.” Washington, at 597. 

Therefore, we view it with the same “jaundiced eye” because 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 technically 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 that contradicted Morales’s version of 

events surrounding the shooting, the circumstances under which 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 would not have likely compelled a 

different verdict. Accordingly, analysis of the remaining prongs of the newly discovered 

evidence test is unnecessary, see Pagan, at 292-93, and Solano is not entitled to relief on 

this claim. 

III. Cumulation Claim 

 Solano contends he is entitled to a new guilt phase because the cumulative effect 

of the errors in his case undermines confidence in the verdict.22 Although the general 

rule is that “no number of failed claims may collectively warrant relief i[f] they fail to do so 

individually[,]” Commonwealth v. Rainey, 928 A.2d 215, 245 (Pa. 2007), where “multiple 

instances of deficient performance are found, the assessment 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: failing 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 subsequently 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 argument further. 
[J-56A-2014 and J-56B-2014] - 36 

Israel Aquino’s and Francisco Rosario’s identification testimony, failing to request an 

instruction regarding Jose Aquino’s crimen falsi conviction, failing to impeach Santiago 

with his prior crimen falsi convictions and probation status, and failing to object to the trial 

court’s ruling precluding impeachment of Jose Aquino with his probation status.23 We do 

not find, even when these instances are viewed cumulatively, that the outcome of the guilt 

phase would have been different had counsel impeached these witnesses or sought 

additional instructions regarding their testimony. Although 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 cannot 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 the 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 claim 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 connection with 42 Pa.C.S. § 

9711(d)(7)’s grave-risk aggravating circumstance 

 As noted in n.6, supra, on remand for the preparation 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 adequately 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 entitled to a new penalty phase on this 

 

23 Lack of prejudice was an alternative holding in our rejecting Solano’s claim that 

guilt-phase counsel inadequately investigated and presented 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 of our conclusion, infra, that the award 

of a new penalty phase was proper on the basis of penalty-phase counsel’s 

ineffectiveness for failing to present sufficient mitigating evidence, we need not address 

this claim. 

B. Penalty-phase counsel’s failure to investigate and present life-history mitigating 

evidence 

 The Commonwealth claims the PCRA court erred in awarding a new penalty 

phase based on penalty-phase counsel’s failure to investigate 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 Services (CYS) caseworker assigned 

to Solano’s family, testified Solano and his two brothers were placed in foster care when 

Solano was nine years old, and they remained there until he was 12; they were then 

reunited with their mother. N.T. Penalty Phase, 5/30/03, at 11. Negron recalled Solano 

as being cooperative, a “clown,” doing well in school, and 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 was 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 facility during that time, and Solano 

and his brothers behaved normally during their supervised 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 problems 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 Solano 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 kidding around — a playful, happy child 

who enjoyed playing jokes on her. Id., at 28-29. She 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 school, but was average and had no 

unusual behavioral problems there, other than occasionally picking fights. Id., at 31, 41. 

She remembered him participating in karate and wrestling, as well as playing outside a 

lot. Id. She characterized him as “the most calm, quiet one[,]” who would smile and 

laugh nervously if he was disciplined. Id., at 32. Urdaz 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 she eventually had removed from her 

home. Id., at 39-40, 44. 

 Jose Urdaz, Solano’s foster father, testified Solano was “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, the middle of her three sons, 

was her “baby,” and his two brothers were in prison. Id., at 51. She had never married 

Solano’s father, and Solano’s relationship with his father 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 for 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, Solano 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 well with his brothers. Id., at 55, 62. 

She said Solano dropped out of school in 11th 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 their 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 department store mannequin, 

carrying a firearm without a license, and several instances of aggravated assault. Id., at 

64, 66, 71-74. 

 Based on the above testimony, penalty-phase counsel argued 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 determined the grave-risk aggravator 

outweighed it. 

 At the PCRA hearing, Solano presented additional mitigating evidence, which he 

claims would have persuaded the jury to give more weight to the catch-all mitigator, 

resulting in a life sentence instead of the death sentence it imposed. He presented 
[J-56A-2014 and J-56B-2014] - 40 

testimony from penalty-phase counsel, two mental health experts, four family members, 

three teachers, a mitigation specialist, and a CYS caseworker.24

 Penalty-phase counsel testified that at the time she represented 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 spoke with a more experienced criminal 

defense attorney for a couple of hours and consulted manuals containing checklists of 

things defense counsel needed to do in preparation for 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 mitigation investigation herself. Id., 1/27/10, at 

196-98. Counsel met with lead counsel, who was handling the guilt phase, “very little,” 

and they communicated about their respective tasks “[o]nly in passing.” Id., at 199. 

Counsel stated, “[T]here was no one overseeing me at all. No one had any idea what I 

was doing.” Id., 1/28/10, at 121. 

 Counsel’s strategy was to try to humanize Solano before 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 guarded” 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 “around him,” obtaining his social and 

 

24 The only witness the Commonwealth presented at the PCRA 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 responded 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 names 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 could 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 failing 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 records or interviewing her relatives; 

counsel explained she told Solano’s mother about the need 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 would 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 incarcerated, 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 not 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 prostitution and drug use had on Solano as a 

child; according to counsel, “she was very delicate, and vulnerable at any kind of 

insinuation that she was to blame for the predicament that [Solano] was in. H I didn’t 

know how to have that conversation with her. I was afraid 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 records, a pre-sentence 

investigation report from a prior criminal matter, and his CYS records, but she did not 

discuss the specific information in them with Solano or his 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 neglect 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 that I had, into evidence[,]” id., at 

54, and she had very little experience in having evidence 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 bad light before the jury, id., at 

63-64, 95-99;26 however, she admitted she made this decision “with really not much 

 

26 Counsel explained Dr. Dattilio’s report contained the following description of Solano: 

Mr. Solano presented himself as a slightly arrogant individual who was 

completely concerned with his own misfortune. He demonstrated no 

remorse for the victim, and claims he simply didn’t know him. In fact, he 

views himself as the victim, and presented himself in a very narcissistic, 

externalized, manner. H He tends to be a very shallow 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 without discussing the diagnosis with Dr. 

Dattilio, id., at 64-66. Counsel stated she had no tactical reason for doing so, id., at 66, 

and she presently recognized she should have had this expert testify at the penalty 

phase, id., at 69-71. In counsel’s words, “My lack of experience 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] best with a lot of limitations on [her]. 

Id., at 122. 

 Christina Solano, a cousin who lives in Connecticut, testified Solano was visiting 

his family there and lived in her home shortly before 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 family, 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 average 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 processing, leading the expert to 

conclude Solano had a fairly mild, circumscribed cognitive disorder, which had been 

present for a long time — possibly since birth, id., at 192-94. Dr. Schretlen explained 

why his diagnosis differed from Dr. Dattilio’s prior conclusion that Solano had no signs of 

neurological impairment; the intelligence test Dr. Dattilio administered was not as 

complete or formal, and Solano had a cast on his dominant 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 information about his 

background; Solano “grew up in an extremely dysfunctional family, and under 

circumstances that were really quite chaotic, and characterized by deprivation, and 

neglect, and mistreatment.” Id., at 200. Solano told 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, causing 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 fatally 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 addiction), and became pregnant at 

age 15. Id., at 202-04, 206-07. Dr. Schretlen explained 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. Id., at 206. Dr. Schretlen 

testified that, in this environment, Solano learned betrayal and witnessed drug use, 

prostitution, and police raids. Id., at 206-08. Solano 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 addiction and take care of his younger 

brother. Id., at 222-24. 

 Dr. Schretlen reviewed Solano’s CYS records, which further 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 characterized him as learning 

disabled, Solano’s frequent absences were the reason for his functioning below normal 

level. Id., at 218-19. Dr. Schretlen noted, according to the records, Solano’s mother 

asked for help from CYS because her drug addiction was preventing her from taking care 

of her children; she ended up being incarcerated for drug-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, after his mother was released and 

eventually reunited with her children, Solano had several 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 major depressive disorder, he did not 

find Solano to be depressed when he examined him in 2008. Id., at 238-39. Dr. 

Schretlen concluded Solano was of average intelligence, with no significant mental or 

learning disorders; however, he did have mild circumscribed cognitive defects, which 

affected his ability to navigate personal relationships and read cues in personal 

interactions. Id., at 239-40, 244-45, 257. Dr. Schretlen 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 calmed 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 helpful 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 263-64. 
[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 through when he left school. 

Id., 1/29/10, at 7. She testified he was ranked in the bottom quarter of his kindergarten 

class and was significantly below average in several areas 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 he spent time in a “learning 

disabilities program, special education,” had “poor number conceptualization,” and 

“[could not] relate numbers to objects,” which resulted in his being recommended for 

learning support. Id., at 18-21. She opined academic limitations, such as those 

exhibited by Solano, could be for a variety of reasons, but believed Solano’s limitations 

were due to “intellectual H deficiencies, not coming from the environment or the culture” 

in which he was growing up. Id., at 31, 33. Kohl testified 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 although 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 students, but Solano stood out due 

to his significant academic struggles. Id., at 51. Noting Solano was in foster care during 

his time in her classroom, Short stated he was not a behavioral problem and was very 

quiet. Id., at 41. She further testified Solano, who 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 believed 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 jail, and she was told he and his 

brother were seen eating out of trash cans. Id., at 38. 52. She stated she and another 
[J-56A-2014 and J-56B-2014] - 47 

teacher once purchased clothes for Solano because “he wore the same thing all the time 

H so we [] thought he might need a couple of extra things.” Id., at 42. Finally, she 

testified no one contacted her about Solano at the time of trial, but she would have 

testified had she been contacted. Id., at 44. 

Kathleen Kaib, a mitigation specialist for the Philadelphia Federal Community 

Defender Office, testified about the social history report she prepared for Solano’s PCRA 

hearing. Id., at 61-62, 67-71. She testified the report was compiled to look for 

mitigating factors such as “any indication of child abuse, H neglect, drug usage, alcohol 

usage[,] H truancy issues[,] ... proper housing, proper clothing, [or] proper food[.]” Id., at 

73. In preparing the report, she reviewed records for 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 upbringing.” 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 “shot 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 she was ill[-]equipped to parent her 

own children” and “[her] drug usage [led to neglect of her children] in this case.” Id., at 

76. 

Kaib also testified about Solano’s childhood, stating both parents had a “severe 

drug problem” and Solano’s mother was unable to properly care for her children. Id., at 

69-70, 77. Both parents, even while the mother was pregnant, used alcohol, marijuana, 

heroin, cocaine, and pills. Id., at 76-77 She described 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 described 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[.]” Id., at 88. Kaib testified to 

Solano’s progress after being placed in a foster home, stating Solano’s grades and 

attendance subsequently began to improve, and crediting the “stable environment” as the 

reason for his improvement. Id., at 84. However, Kaib explained, when Solano was 

reunited with his mother around age 13, his grades went 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 available at trial. Id., at 88. 

Jorge Negron, the CYS caseworker who testified at Solano’s penalty phase, 

testified he specifically remembered Solano. Id., at 110. He recounted Solano’s 

childhood and upbringing, stating Solano and his brothers “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 significant 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 work,” 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 recalled buying him clothes. Id., at 
[J-56A-2014 and J-56B-2014] - 49 

10, 13. She stated although no one contacted her about 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 the classroom” and “was friendly, 

but not well taken care of.” Id., at 18. Pinter recalled a class field trip during the winter 

when she had to borrow socks for him because he was inadequately 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 academic performance. Id. She said 

no one contacted her about testifying at Solano’s trial, but had they done so, she would 

have. Id., at 21. 

 Victor Alvaredo, Sr., Solano’s paternal uncle, testified 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 further 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 testified about Solano’s parents’ 

cocaine and heroin addiction and daily drug use while their children were living with them. 

Id., at 16-17, 22. He stated no one contacted him about testifying at Solano’s trial; 

however, he would have, had he been asked. Id., at 20. 

 Robert Solano, Solano’s maternal uncle, testified about the daily abuse Solano’s 

mother endured during her childhood at the hands of an alcoholic father, who also 

sexually molested her. Id., at 28-29. This was followed by time spent in an orphanage, 

where there was “a lot of physical discipline by the nuns.” 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 who evaluated Solano twice 

prior to trial and once prior to the PCRA hearing, testified the public defender’s office 

provided him with Solano’s school, prison, probation, and 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 parents, nor was he given information 

from Solano’s teachers, the CYS caseworker, or other relatives; he stated this information 

would have been tremendously helpful, as it would have shed more light on Solano’s 

entire situation. Id., at 15-20, 32-33. Dr. Dattilio 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 he also had a history of drugs and 

criminal behavior. Id., at 21-22. He diagnosed Solano with major depression, citing him 

as withdrawn and closed off, but also noting there was evidence of acting out in angry, 

abusive ways. Id., at 22, 33-34. He further diagnosed Solano with anti-social 

personality disorder, narcissistic personality disorder, and borderline personality disorder. 

Id., at 37, 40, 42, 57, 61-62. Dr. Dattilio explained 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 he H became involved with [CYS.]” 

Id., at 25-26. Dr. Dattilio explained in detail the long-term psychological effects of being 

raised in an environment that was chaotic “to the Nth degree[,]” 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 psychological impact of Solano’s mother’s 

emotional and physical unavailability; Solano lacked the ability to form healthy 

attachments to people, and although he had a strong bond 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 because he was not in school. 

Id., at 31-32. 

 Turning to Solano’s foster-care experience, Dr. Dattilio 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 explained 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 induced, 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 disregard others’ rights in an attempt to 

protect himself and get his own needs met. Id., at 40-42. Dr. Dattilio clarified the 

existence of Solano’s psychological disorders did not make him hesitant to testify on 

Solano’s behalf; rather, these were mitigating factors explaining how his environment 

contributed to his actions. Id., at 42-43. 

 Dr. Dattilio stated counsel never sat down with him to review his findings; there 

were fleeting conversations by telephone and happenstance meetings, but it was not until 

he called to inquire about his status as a witness that counsel 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 capital 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 solely 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 conclusions regarding Solano’s 

intelligence27 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 personality disorder, and Dr. Schretlen’s 

test was not designed to measure such disorders. N.T. PCRA 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 proceedings. Id., at 70. 

 Finally, Dr. Dattilio testified he had reviewed the affidavit of Kathleen Kaib, the 

mitigation specialist, and her work product would have been “[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 borderline range of intelligence, see 

Psychological Evaluation by Dr. Frank Dattilio, 11/18/02, at 6-7, Appendix to Amended 

PCRA Petition, 5/4/12, Vol. I, Ex. 2, whereas Dr. Schretlen’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, Vol. 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 supporting the grave-risk aggravator, it 

cannot be said the additional cumulative evidence is enough to undermine confidence in 

the jury’s verdict. The Commonwealth contends the PCRA court minimized the actions 

penalty-phase counsel took in her investigation and preparation, 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 performed 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 PCRA 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 additional 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 ineffectiveness with disfavor, the 

PCRA court improperly emphasized penalty-phase counsel’s PCRA testimony, allowing 

a subjective evaluation of counsel’s performance to replace an objective inquiry. 

 Regarding penalty-phase counsel’s failure to present mental-health mitigating 

evidence, the Commonwealth argues counsel made a reasonable, strategic decision not 

to have Dr. Dattilio testify, as his reports contained possibly inflammatory information that 

could have sabotaged counsel’s strategy of humanizing Solano. The Commonwealth 

further notes, although Dr. Dattilio’s reports contained life-history facts about Solano’s 

traumatic childhood and his mother’s drug addiction, these facts were made known to the 

jury through the other witnesses counsel called to testify. Finally, the Commonwealth 
[J-56A-2014 and J-56B-2014] - 54 

contends counsel had no reason to believe Solano had mental-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 Solano told Dr. Schretlen he did not 

want psychological evidence used in his appeal. The Commonwealth points to Dr. 

Schretlen’s conclusion that Solano had a “fairly mild and 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 mitigator that was already established. 

Therefore, the Commonwealth concludes counsel had a reasonable 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 with 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 not 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 abuse 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, producing very little tangible 

mitigation evidence. Solano notes although counsel interviewed and presented the 

testimony of Negron, the CYS caseworker assigned to Solano’s family, Negron actually 

had no one-on-one contact with Solano and thus his testimony 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 other relatives. Solano states 

counsel, upon receiving only one- or two-word responses to her questionnaire, never 

followed up to gain more information. Solano argues 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 demonstrate 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 her questionnaire to the best of his 

ability, given the questions’ sensitive nature and his academic impairment. Solano 

argues even if he could be viewed as having been uncooperative, counsel still had 

enough basic information from which to conduct an independent investigation, but failed 

to do so. 

 Solano further contends counsel’s investigation into available records was 

inadequate because she did not understand the scope and breadth of the records needed 

to present a compelling case for a life sentence. He notes 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 dysfunctional 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; furthermore, 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 points out, although counsel 

presented his caseworker’s testimony, she did not introduce 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 understanding 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 expert testimony at the penalty 

phase. Solano notes counsel decided not to call Dr. Dattilio, who had examined him 

twice prior to trial, because she was concerned this expert’s report contained the 

diagnosis of anti-social personality disorder, which the jury 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 provide 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, 2002 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 intellectual functioning, and 

permanent disability with cognitive functioning. Solano notes Dr. Schretlen, the 

neuropsychiatrist retained by PCRA counsel, diagnosed him with organic brain damage 

resulting from his traumatic childhood and major depressive disorder, both of which were 

factors the jury should have been able to consider. Although the Commonwealth asserts 

Dr. Schretlen found merely a “fairly mild” cognitive disorder, Solano argues this expert 

stated even mild brain damage indicates clinically significant impairments. 

 Finally, Solano disputes the Commonwealth’s contention that the PCRA court 

afforded too much weight to penalty-phase counsel’s testimony regarding her 

ineffectiveness. Solano argues, unlike the cases the Commonwealth cites (involving 

instances where counsel deliberately built in error aimed at securing the client a favorable 
[J-56A-2014 and J-56B-2014] - 57 

position on appeal), counsel in his case was simply inexperienced and unknowledgeable, 

which prevented her from presenting a coherent case for a life sentence. Solano further 

argues, contrary to the Commonwealth’s contention, none of the mitigation evidence 

presented at the PCRA hearing was cumulative, as the jury heard almost nothing about 

his extensive history of poverty, neglect, and family dysfunction. 

 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 homicide 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 positions 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 did not know where to begin her 

preparation and did not utilize the investigators. Id. 

 Regarding counsel’s failure to present more life-mitigation 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 [Solano] 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 regarding her parenting deficiencies and 

noted counsel’s rationale for not contacting other family members was that they would not 

be credible witnesses, and “‘since I am probably not going to call them as a witness, why 

do I need to even go find them.’” Id., at 39 (quoting 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 every 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 Solano’s uncle and extended 

family on his mother’s side, she would have learned that 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. And 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 introduce 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 experience 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 not 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 Solano’s diagnoses, and her failure to 

prepare a social history or obtain records for Dr. Dattilio to review. Id., at 42. The court 

noted Dr. Dattilio’s shock upon learning he would not be 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 counsel’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 reasonable probability, “had 

counsel’s conduct approached anything resembling the professional standards 

applicable to a competent mitigation defense,” id. (citation omitted), the jury would have 

given more weight to the mitigating factor and returned 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 erred in its 

determination that trial counsel was ineffective for failing to investigate and 

present sufficient mitigating evidence depends upon a myriad of factors, 

including the reasonableness of counsel’s investigation, the mitigation 

evidence that was actually presented, and the mitigation evidence that 

could have been presented. None of these factors, by itself, is dispositive 

of the question presented, because even if the investigation 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. 2009) (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 mitigator more weight had counsel 

presented additional life-history mitigating evidence. See Commonwealth v. Tharp, 101 

A.3d 736 (Pa. 2014) (majority of Court reasoned weighing of mitigating circumstances is 

qualitative, not quantitative; therefore, jury’s finding 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 proffered additional mitigation evidence); 

id., at 775-77 (Castille, C.J., concurring); id., at 777 (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 reasonable probability the entirety 

of the mitigation evidence presented at the PCRA hearing, along with that already 

presented at the penalty phase, may have made a difference 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); Commonwealth v. Malloy, 856 A.2d 767, 

789 (Pa. 2004). Furthermore, as previously noted, we are required to affirm the PCRA 

court’s order if there is record support for its factual findings 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 question of law and fact, for which the 

standard of review is de novo, see Commonwealth v. Rios, 920 A.2d 790, 810 (Pa. 2007), 

we continue to adhere to the principle that “the trial court is in the best position to review 

claims related to trial counsel’s error in the first instance as that is the court that observed 

firsthand counsel’s allegedly deficient performance,” Grant, 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 Commonwealth 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 homicide cases and had never 

tried a capital case. Lack of experience, by itself, however, does not amount to 

ineffectiveness. See id., at 193 (noting lawyer’s inexperience in capital cases does not 

render him presumptively ineffective; “inexperience alone is not equivalent to 

ineffectiveness[,]” and appellant still must make out elements of ineffectiveness claim 

(quoting Commonwealth v. Blystone, 725 A.2d 1197, 1205 (Pa. 1999))). Counsel 

testified her strategy was to humanize Solano in the jury’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 penalty. See Keaton, at 1092 

(“Evidence about a defendant’s background and character is relevant because of the 

societal belief that defendants who commit crimes attributable to a disadvantaged 

background, or to emotional and mental problems, may be less culpable than those 

without such excuses.” (citation omitted)). 

 Counsel, however, despite her good intentions of garnering the jury’s compassion 

for Solano, did not employ the means necessary to achieve this end. Solano, although 

closed and guarded in his interactions with counsel, was not uncooperative; however, 

counsel gave up on trying to elicit more detailed information from him, deciding to “go 

around” him by using family members for her research into his background. She used a 

questionnaire to attempt to elicit sensitive information from a defendant with whom she 

already had failed to build a good rapport, and whose academic ability was sub-par. She 

only interviewed two family members, and the conversation with Solano’s mother, who 

potentially would have had the most to tell her regarding the sordid details of Solano’s 

upbringing, was conducted in the presence of Solano’s girlfriend, which counsel admitted 

probably had a chilling effect on the mother. Additionally, 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 mother 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 mother by researching the mother’s 

records or talking to other family members to fill in the details of the mother’s story, i.e., 

how her drug addiction caused Solano to be subjected to 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 members 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 concerning 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 records 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, trauma, and instability Solano 

experienced. Additionally, although Solano’s school records indicated frequent 

absences, counsel did not attempt to contact any school personnel to ascertain the 

reason for the absences; Solano’s teachers’ testimony would 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 struggles stemmed from 

intellectual deficiencies. Had counsel pursued these leads, she might have been able to 

give the jury a more complete picture of Solano’s struggles as a child. See Daniels, at 

302 (noting question might be close if only alleged deficiency was counsel’s failure to call 

several witnesses and question one witness more fully concerning various hardships in 

defendant’s childhood; however, “that unexplained lapse was heightened by 

counsel’s failure to pursue the leads in the school records (assuming counsel even 

reviewed those records). The records revealed that [the 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 supported and corroborated the 

family accounts.”). 

 This lack of detailed life history was compounded by counsel’s decision not to call 

Dr. Dattilio, who could have provided a detailed analysis 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-social personality disorder), 

counsel “didn’t know what she didn’t know,” and did not 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 childhood had on him. 

 We conclude the combination of counsel’s lack of experience, failure to research 

the readily available background information possessed by family and contained in 

records, and lack of oversight or guidance from co-counsel 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 all reasonably available 

mitigating evidence and evidence to rebut any aggravating evidence that may be 

introduced by the prosecutor[,]’” and counsel cannot meet this requirement by 

“abandon[ing] their investigation of [the defendant]’s background after having acquired 

only rudimentary knowledge of his history from a narrow 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 significant details concerning 

Solano’s background that were not mentioned at the penalty phase. 

 Having determined counsel lacked a reasonable basis for not further investigating 

and presenting additional mitigating evidence, we must determine whether her inaction 

prejudiced Solano’s case, which requires us to reweigh all 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 the relative strength of the evidence 

in aggravation and mitigation, as well as the parties’ 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 mitigation 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 presented a fuller account of 

[the defendant]’s life history, there is a reasonable probability that a 

reasonable juror would have given more weight to [the defendant]’s life 

history factors in assessing the catchall mitigator. 

Id., at 304-05. Similarly, had the evidence presented at Solano’s PCRA hearing been 

heard by the jury, it may have evoked sympathy for Solano, 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 power of undiscovered mitigation 

evidence; however, the PCRA court judge, who also presided at trial, was in the best 

position to assess the witnesses’ testimony, and there is record 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 multiple-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 lifetime 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 involving multiple murders, as to make 

jury unreceptive to comparative case in mitigation (citing Commonwealth v. Lesko, 15 

A.3d 345, 383-85 (Pa. 2011) (multiple murders case))).

29 We do not believe the PCRA court inappropriately focused singularly on counsel’s 

testimony; as the court noted, counsel was candid regarding 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 beyond 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 not be evaluated with benefit of 

hindsight; reviewing court must determine whether trial counsel’s chosen course of action 

(continuedH) 
[J-56A-2014 and J-56B-2014] - 65 

PCRA Court Opinion, 12/30/11, at 43. Accordingly, as 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 penalty-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).