J-S66019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

WILLIAM R. LANDIS, JR.,

Appellee No. 28 MDA 2016

Appeal from the PCRA Order December 18, 2015 

In the Court of Common Pleas of Berks County

Criminal Division, at No(s): CP-06-CR-0005405-2009

BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 30, 2016

This is an appeal by the Commonwealth from the order granting 

William R. Landis Jr., (“Landis”) a new trial in response to his first timely 

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-9546. We affirm.

The PCRA court summarized the pertinent facts as follows:

On October 28, 2009, at approximately 9:20 p.m., Berks 

County Radio dispatched Spring Township police officers to 

[Landis’s] residence to investigate a possible shooting. [Landis] 

had called to report that a woman had been shot. [Landis’s] wife 

was found dead on the second floor from a gunshot wound to 

the head. While performing a clearing operation of the residence, 

officers discovered [Landis] barricaded in the basement. [He] 

had a knife and two guns in his possession and threatened to 

shoot anyone who came down into the room. [Landis] became 

increasingly intoxicated as the evening progressed. Throughout 

the evening, [he] expressed suicidal ideas and asked about his 

wife’s condition.
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PCRA Court Opinion, 12/18/15, at 1. Appellant ultimately surrendered to the 

police and was charged with the murder of his wife as well as various 

charges as a result of his standoff with the police. Although Landis was to be 

tried separately on the latter charges, the trial court permitted the 

Commonwealth to present testimony regarding the standoff as evidence of 

Landis’s consciousness of guilt. Landis did not testify, but presented fifteen 

character witnesses. 

On April 5, 2013, a jury convicted Appellant of first-degree murder, 

and the trial court sentenced him to life in prison. Appellant filed a timely 

appeal to this Court. In an unpublished memorandum filed on April 10, 

2014, we affirmed Landis’s judgment of sentence. See Commonwealth v. 

Landis, 1018 MDA 2013 (Pa. Super., filed April 10, 2014). Landis did not file 

a petition for allowance of appeal.

On December 22, 2014, Appellant filed a timely counselled PCRA 

petition in which he asserted that his trial attorneys were ineffective 

because: 1) “despite sensational pre-trial publicity slanted toward conviction 

[that] was so extensive, sustained and pervasive that the community was 

saturated with it, there was never a motion to change venue or to enlist an 

out-of-county venire;” 2) “despite a defense expert prepared to testify that 

[he] lacked the requisite intent necessary to support a finding of guilt for 

first degree murder, trial counsel failed to present the expert and failed to 

articulate a clear diminished capacity defense at trial;” and 3) “trial counsel 

failed to collectively investigate the case before trial, failed to prepare [him] 
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for trial, failed to properly prepare witnesses to testify, and, despite having 

received $250,000 to represent [him] ‘through the Common Pleas stage,’

demanded an additional $50,000 on the first day of trial under threat of 

withdrawal from the case as evincing a decision not to present any defense 

at all.” PCRA Petition, 12/22/14, at 3-4. In addition, Landis claimed that his 

appellate counsel was ineffective for failing to raise an issue regarding the 

denial of a mistrial in his statement of errors complained of on appeal, 

thereby resulting in waiver.

The PCRA court held evidentiary hearings over two days in June 2015, 

and the parties agreed to file written closing arguments. By opinion and 

order entered December 18, 2015, the PCRA court granted Landis a new 

trial based on his claim that trial counsel failed to present the available 

expert testimony in support of a diminished capacity defense. This timely 

appeal follows. The Commonwealth raises the following issue on appeal: 

A. Did the PCRA court err in granting [Landis] PCRA relief after 

finding [his] trial counsel ineffective for deciding not to call a 

psychiatrist who would have offered an opinion to the jury 

that [Landis] was acting under diminished capacity and/or 

voluntary intoxication when he murdered his wife, despite 

evidence at the PCRA hearing that:

1. Trial counsel’s strategy was based on Landis’s own decision to 

seek a full acquittal?

2. Trial counsel’s strategy was based upon avoiding a second 

mental health evaluation by a Commonwealth expert which 

would have heightened a risk of further inconsistencies in the 

version of events provided by [Landis]? 

3. Trial counsel’s strategy was based upon an informed decision 

to prevent the jury from hearing testimony concerning 
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[Landis’s] unfavorable admissions to the defense expert which 

included heavy drug use and shooting the firearm that killed 

his wife?

Commonwealth’s Brief, at 4-5.1 

This Court has recently summarized the applicable standard of review 

as follows:

We review an order granting a petition under the PCRA in 

the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court and 

the evidence of record. We will not disturb a PCRA court’s ruling 

if it is supported by evidence of record and is free of legal error. 

Further, we afford great deference to the factual findings of the 

PCRA court and will not disturb those findings unless they have 

no support in the record. Instantly, [Landis], the defendant, was 

the prevailing party at the PCRA level. Thus, we must review the 

record in a light most favorable to him, not the Commonwealth.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en 

banc) (citations omitted). In addition, we note that PCRA court made 

credibility determinations in Landis’s favor. “We are bound by a PCRA court’s 

credibility decisions.” Id. at 708 (citation omitted).

To be entitled to relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that the conviction or sentence 

____________________________________________

1

The Commonwealth also raises issues regarding Landis’s other claims of 

trial counsel’s ineffectiveness as enumerated above. The PCRA court did not 

grant relief on any of these claims, and Landis has not filed a cross-appeal. 

Thus, although both the PCRA court and the parties discuss these additional 

claims, we confine our review to the only reason given by the trial court for 

granting post-conviction relief in the form of a new trial. 
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arose from one or more of the errors enumerated in § 9543(a)(2) of the 

PCRA. One such error involves the ineffective assistance of counsel.

To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish by a preponderance of the evidence 

that counsel’s ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

See 42 Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner to 

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel 

had no reasonable strategic basis for his or her action or inaction; and (3) 

petitioner was prejudiced by counsel's act or omission. See Stewart, 84 

A.3d at 706. In this context, a finding of “prejudice” requires the petitioner 

to show “there is a reasonable probability that, but for the error of counsel, 

the outcome of the proceeding would have been different.” 

Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999) (citation 

omitted). The law presumes counsel’s effectiveness; it is the petitioner’s 

burden to prove the contrary. See Commonwealth v. Payne, 794 A.2d 

902, 906 (Pa. Super. 2002). Counsel does not render ineffective assistance 

for failing to pursue a meritless claim. See id. 

In order to establish that trial counsel was ineffective for failing to 

investigate and/or call a witness at trial, a PCRA petitioner must 

demonstrate that: 
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(1) the witness existed; (2) the witness was available; (3) trial 

counsel was informed of the existence of the witness or should 

have known of the witness’s existence; (4) the witness was 

prepared to cooperate and would have testified on appellant’s 

behalf; and (5) the absence of the testimony prejudiced 

appellant.

Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation 

omitted).

In its opinion accompanying its order granting Landis a new trial the 

PCRA court discussed the evidence presented at the PCRA hearings. The 

court summarized the evidence relevant to Landis’s claim of failure to call 

the defense expert as follows:

At the request of [Landis’s] pretrial counsel, Larry A. 

Rotenberg, M.D., a criminal forensic psychiatrist, examined 

[Landis] for a total of six hours at Berks County Prison (BCP) 

during March 2010. Dr. Rotenberg also interviewed [Landis] for 

one hour on April 30, 2010 and an additional hour on May 12, 

2010.

Dr. Rotenberg testified that [Landis] had a history of 

excessive use of drugs and alcohol. Although [Landis] thought 

about AA meetings, he never went to any. According to his 

report, [Landis] attended AA meetings at BCP. [Landis] told Dr. 

Rotenberg that he had used cocaine on the night of the incident. 

His urine was positive for cocaine at the time of his arrest. He 

had used more than his usual amount. His average use was 

between $200.00 and $350.00 per week. He had used cocaine 

on and off for five years. He smoked marijuana between the 

ages of nineteen and twenty-five and had taken “speed pills” 

approximately twenty-five years before his examination by Dr. 

Rotenberg. At the time of his arrest, [Landis] was fifty-one years 

old.

Dr. Rotenberg concluded that [Landis] did not have the 

capacity to form the specific intent for the commission of 

murder. [Landis] was intoxicated with a Blood Alcohol Content of 

.230, nearly three times the definition of intoxication in the 

Commonwealth of Pennsylvania. According to Dr. Rotenberg, 
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[Landis’s] behavior on the night of this incident fits the criteria 

for diminished capacity.

Dr. Rotenberg also believed that [Landis] fits the 

M’Naghten criteria for not guilty by reason of insanity with 

regard to the charges arising from the standoff with the police 

when he was in the basement. [Landis] had taken two sleeping 

pills and a Xanax. He was drowsy and in such a state of 

disorganization, that he was incapable of understanding that his 

actions were wrong. After he was incarcerated, the prison 

psychiatrist found that [Landis] had disorganizing anxiety. Dr. 

Rotenberg testified that it was “impossible” to compartmentalize 

the events of the shooting of [Landis’s] wife and the subsequent 

basement standoff with the police.

Dr. Rotenberg did not testify at [Landis’s] trial. He was 

astonished that [Landis’s] trial attorneys did not use him as a 

witness. He believed that his report had a chance of being of 

significant assistance to [Landis]. Dr. Rotenberg believes that he 

may have had a telephone call with trial counsel. The only 

correspondence [from trial counsel] he could recall was an email, 

stating that he would not be called to testify, sent to him right 

before [Landis’s] trial.

Dr. Rotenberg opined that [Landis’s] behavior had been so 

bizarre, so delusional, so purposeless, and so out of keeping with 

his personality when he was not intoxicated and on drugs, that it 

only showed that he wanted his own annihilation. Dr. Rotenberg 

made his medical/psychiatric conclusions to a reasonable degree 

of medical certainty.

According to Dr. Rotenberg’s report, by the time of the 

murder, [Landis] had consumed three doubles of [Ketel] One 

vodka. Although the police said four shots were fired, [Landis] 

remembered only two shots. [Landis] told Dr. Rotenberg that he 

has no recollection of shooting at the police, “It is as if to him it 

never happened” (Dr. Rotenberg’s Report, [at] 12). [Landis] had 

wanted to hurt himself, but he told Dr. Rotenberg that he would 

never want to harm anyone else.

Both trial counsel, Fortunato N. Perri, Jr., Esquire, and 

William J. Brennan, Esquire, testified at the PCRA hearing[s]. 

Both could not recall details of Dr. Rotenberg’s report. Mr. 

Brennan testified that some things were good in the report, and 

some things were not. Mr. Perri disagreed with Mr. Brennan that 

overall Dr. Rotenberg’s conclusions were helpful. The attorneys 
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agreed that a classic M’Naghten defense could result in an

acquittal.

Mr. Perri further testified that the decision not to call Dr. 

Rotenberg was made sometime in September 2012, six months 

prior to the actual trial conducted in April 2013. Mr. Perri stated 

that his concern with the report was that [Landis] had made 

admissions to Dr. Rotenberg that he had not wanted the jury to 

hear. He had talked to Dr. Rotenberg. He testified that the 

attorneys had agreed not to call him because there had been 

inconsistencies between [Landis’s] statements to Dr. Rotenberg 

and to them. Mr. Brennan was also concerned that the 

Commonwealth would have called an “anti-Rotenberg” [expert] if 

trial counsel had used Dr. Rotenberg.

[Landis] agreed with the decision not to call Dr. Rotenberg 

because he had thought that he would testify. He did not testify 

at his trial.

***

Jonathan Kurland, Esquire, was lead counsel for the 

Commonwealth in [Landis’s] trial. . . . Mr. Kurland wanted a 

rebuttal expert opinion. He had scheduled an examination of 

[Landis] in late March 2013, but had canceled it after receiving 

an email from Mr. Perri stating that Dr. Rotenberg was not going 

to testify.

Mr. Perri also testified that his work is ninety-five [percent] 

criminal defense. He had informed [Landis’s] family that Mr. 

Brennan had not been needed, but it had been up to them if 

they wanted both attorneys. He believed that there had been 

eleven visits to [Landis] from one of the two attorneys; however, 

his notes are different than the jail records.

As he had talked to [Landis], [Landis’s] version of the

incident had changed. He therefore concluded that no versions 

were justified and that [Landis] had no defense. [Landis] had 

refused to accept a manslaughter theory; he had wanted 

complete acquittal. Attorney Perri had not believed that there 

was any chance of winning the case if [Landis] had testified. He 

had not believed that [Landis] could have gotten through direct 

examination without admitting to murder. He had also been 

concerned about [Landis’s] cocaine use.

***
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The attorneys had not hired any experts. Attorney Brennan 

had believed that Dr. Rotenberg’s conclusions were helpful, but 

he had been concerned with [Landis’s] long-term alcohol and 

drug abuse.

Mr. Brennan had thought that [Landis] could have gotten 

through direct examination but would have folded on cross 

examination. Therefore, he had believed that it would have been 

too risky to have [Landis] testify.

[Landis] . . . had wanted to testify but had listened to his 

attorneys’ advice and had not testified on his [own] behalf.

PCRA Court Opinion, 9/18/15, at 2-9.

Based on this testimonial evidence, the PCRA court concluded:

This court finds that trial counsel had no reasonable basis 

for not having Dr. Rotenberg testify. The potential damage of 

revealing through Dr. Rotenberg a history of drug and alcohol 

use does not outweigh the benefit of establishing a diminished 

capacity defense to the crucial element of specific intent to 

commit murder.

***

There was little likelihood of avoiding a history of either 

drug or alcohol use being revealed to the jury in the course of 

the Commonwealth’s through presentation of evidence. Further, 

Dr. Rotenberg is an experienced forensic physiatrist who has 

performed thousands of psychiatric evaluations. He has testified 

many times for both the Commonwealth and defense. He is a 

compelling witness, and there is a reasonable probability that his 

testimony could have resulted in a conviction to Third rather 

than First Degree Murder. 

Most criminal trials have “anti-Rotenbergs” testifying for 

the [Commonwealth]. If the presence of an opposing psychiatrist 

were the main issue, a diminished capacity defense could not be 

presented. To avoid having a Commonwealth expert testify is not 

sufficient reason to eliminate the best witness the defense had.

Mr. Brennan testified as to the apparent dangers of 

opening the door for anti-Rotenberg testimony. Although the 

Commonwealth had scheduled an evaluation of [Landis] by its 
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anti-Rotenberg expert, it was cancelled when the defense 

notified Mr. Kurland that they would not be calling Dr. 

Rotenberg. Therefore, missing from this entire analysis is a very 

crucial document—how helpful or harmful to the defense would 

this anti-Rotenberg report have been if the Commonwealth 

would have hired its own expert to evaluate [Landis] and issue 

his/her report.

Did trial counsel have a valid strategy to defend their 

client? First and foremost, trial counsel did not present any 

testimony to contradict any evidence that was presented by the 

Commonwealth. Second[,] the evidence of [Landis] shooting and 

killing his wife is overwhelming. Third, defense had everything to 

gain and nothing to lose in presenting Dr. Rotenberg’s 

testimony. [Landis] needed his testimony to present [Landis’s] 

lack of intent to kill, the crucial element the defense was striving 

to disprove to raise a reasonable doubt that if and when [Landis] 

killed his wife he was not guilty of all the necessary elements of 

murder of the first degree. Without [Dr. Rotenberg’s] testimony, 

[Landis] had no real defense. With it, he had a renowned 

forensic psychiatrist who issued a 25 page report concluding 

diminished capacity of [Landis] to possess the specific intent to 

kill. 

[Landis] had no defense against the overwhelming 

Commonwealth evidence of First Degree Murder, especially 

without [Landis] having taken the stand to testify[.]

***

Trial counsel contended [Landis] had changed his story 

over time; specifically, that [Landis’s] version changed from the 

time that he had talked to Dr. Rotenberg. That fact could 

actually help [Landis] because it could be convincing evidence of 

his diminished capacity at the time of the incident. Dr. Rotenberg 

examined [Landis] closer to the time of the shooting than 

counsel did. Dr. Rotenberg did not simply rely on [Landis’s] 

account of that evening. He consulted medical records, including 

those of the prison psychiatrist who had examined [Landis] 

shortly after his arrival at BCP. He also reviewed the incident 

reports, conducted interviews with [Landis’s] family and 

considered the results of a battery of psychological tests 

performed independently by an experienced psychologist, Dr. 

Peter Thomas.
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Id., at 12-15. 

The PCRA court further concluded that Dr. Rotenberg’s testimony was 

necessary to counter the Commonwealth’s presentation of multiple police 

witnesses regarding the standoff in an attempt to demonstrate 

consciousness of guilt. The PCRA court reasoned:

Dr. Rotenberg was also prepared to testify to a “M’Naghten 

defense” contrary to the Commonwealth’s theory that the 

basement standoff showed [Landis’s] consciousness of guilt for 

the killing of his wife. Dr. Rotenberg’s report also supported 

these expert opinions to a medical degree of certainty.

***

Dr. Rotenberg, as stated previously, also concluded that 

[Landis] was legally incapacitated, fitting the classic M’Naghten 

defense, during the standoff in the basement. Thus, this 

evidence controverted the Commonwealth’s argument of 

[Landis’s] consciousness of guilt. The Commonwealth found it 

extremely critical to its case in chief to argue to the jury 

[Landis’s] consciousness of his own guilt to the murder by his 

subsequent standoff with the police. This issue is so critical to 

the Commonwealth that the Commonwealth stated its case was 

“substantially handicapped” by this court previously granting 

habeas corpus relief to a single charge involving the basement 

standoff. 

[Landis’s] consciousness of guilt was so important to the 

Commonwealth that it filed an appeal to the Superior Court 

challenging this court’s habeas corpus ruling. Further when a 

Superior Court panel ruled against the Commonwealth and 

affirmed this court’s habeas corpus ruling[,] the Commonwealth 

appealed for a review by the entire Superior Court [which 

reversed. See generally, Commonwealth v. Landis, 48 A.3d 

432 (Pa. Super. 2012) (en banc).]

Thus, Dr. Rotenberg’s expert opinion was essential to the 

most serious charges against [Landis], First Degree Murder of 

his wife. If the jury had heard that [Landis] was not responsible 

for his actions during this time in the basement, there is a 

reasonable likelihood that the outcome would have been 
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different; the jury would have heard an expert testify that 

[Landis] was incapable of knowing what he had been doing and 

therefore his actions did not mean that he was conscious of his 

guilt in killing his wife. The defense would argue that, if believed 

by the jury, it explained that he was not consciously fighting the 

police solely to avoid being captured and severely punished for 

his first degree murder of his wife. By defeating a consciousness 

of guilt it proves that [Landis] did not have the requisite intent, 

knowledge or state of mind to kill his wife by his actions in the 

basement.

Id., at 15-16.

Following the above discussion, the PCRA court concluded:

Consciousness of guilt of having killed his wife was used 

against [Landis] by the Commonwealth as evidence to prove his 

guilt of First Degree Murder. The jury was free to reject that 

argument. Expert testimony of Dr. Rotenberg was available to 

show to a degree of medical certainty that [Landis] was legally 

incapacitated to even have known that he killed his wife when he 

was in the basement holding off the police. This testimony, 

although available, was not presented by defense [counsel].

The second legal defense, diminished capacity to possess 

the conscious intent to kill his wife, was also available through 

Dr. Rotenberg.

The difference between first degree and third degree is, of 

course, very significant: mandatory life without parole versus a 

maximum of twenty to forty years with parole. Still trial counsel 

chose not to call a key witness to this very issue which goes 

directly to diminished capacity to have the specific intent to 

commit first degree murder. Trial counsel did not even meet with 

Dr. Rotenberg or talk with him beyond perhaps one telephone 

call. Considering the evidence against [Landis], there is far less 

risk that Dr. Rotenberg’s testimony could have harmed [him], 

compared to the greater benefit to be gained by presenting Dr. 

Rotenberg’s expert testimony to the jury.

Id., at 16-17.
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Our careful review of the record supports the PCRA’s conclusions that 

Landis’s claim that failing to call Dr. Rotenberg as a witness at his murder 

trial was of arguable merit, that trial counsel had no reasonable basis for not 

calling him, and that Landis sufficiently demonstrated how he was prejudiced 

by its omission. As noted above, the Commonwealth presents several 

reasons why the PCRA court’s conclusion is in error. We address each claim 

separately.

The Commonwealth first contends that because Landis desired an 

outright acquittal on all charges, trial counsel cannot be ineffective for failing 

to pursue their client’s wishes. We agree with the Commonwealth that if the 

record establishes the defendant wanted only such a result, ineffectiveness 

is not established. See, e.g., Commonwealth v. Spotz, 47 A.3d 63, 91 

(Pa. 2012) (explaining that our Supreme Court has “consistently declined to 

hold that trial counsel was ineffective for failing to advance a defense that 

directly and irreconcilably conflicted with the accused’s claims of 

innocence”). Our review of the PCRA hearing in this case, however, reveals 

that while both trial counsel unequivocally testified that Landis wanted 

nothing other than a full acquittal, the same cannot be said of Landis’s own 

testimony. 

When questioned by PCRA counsel, Landis testified that he “had 

basically two defenses. One would be Mr. Rotenberg’s report or testifying on 

my own behalf, and the jurors wanted to hear from me.” N.T., 6/29/15, at 
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193. According to Landis, “if [he] was going to be testifying, we would need 

- - we wouldn’t need [Dr. Rotenberg’s] report” but if he was not going to 

testify “[t]hen you need the report.” Id. at 197. Landis further testified that 

his one adult daughter “had mentioned something that, you know, the 

attorneys were saying to them about me not going on the stand and that I 

should listen to my attorney.” Id. Although Landis expected to be called to 

testify up until the last day of trial, he informed the trial court of his decision 

not to, and relied upon counsel’s advice. See id. at 199-202; 214-15. 

Upon cross-examination by the Commonwealth, Landis originally 

conceded that he was seeking an acquittal. See id. at 217. He then stated 

that his trial counsel never understood how the struggle over the gun 

occurred, and that he never intentionally shot his wife. When asked whether 

his desire for going into trial “was to argue a lesser type of murder or was it

for you to be acquitted of all the charges[,]” Landis answered that he “[j]ust 

wanted the truth to come out.” Id. at 219. When the Commonwealth 

objected to this answer as non-responsive, and asked Landis again whether 

he told his attorneys he wanted a not guilty verdict, Landis responded: “I 

wanted the truth out, yes.” Id. at 220. 

The PCRA court interpreted Landis’s testimony as stating that Landis, 

as with any criminal defendant, would ultimately desire a not guilty verdict. 

Nevertheless, the PCRA court noted that such an expectation “was 

completely contrary to the evidence.” PCRA Court’s Opinion, 3/4/16, at 5. 
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Landis informed the court of his alternative defenses—call Dr. Rotenberg or 

testify on his own behalf. Trial counsel presented neither. Thus, as stated by 

the PCRA court, the failure to meet with Dr. Rotenberg and then “call [him] 

as a witness . . . denied [Landis] the opportunity of establishing any defense 

at all.” Id. at 6. Given these circumstances, we agree that Landis is entitled 

to a new trial. See, e.g., Commonwealth v. Legg, 711 A.2d 430 (Pa. 

1998) (rejecting this Court’s reversal, based upon the defendant’s desire to 

seek an acquittal, of the PCRA court’s grant of new trial where trial counsel 

was ineffective for failing to call an expert when available expert testimony 

indicated that the defendant was suffering from major depression and 

anxiety that would have prevented her from rationally forming the specific 

intent to kill).

The Commonwealth next claims that trial counsel’s failure to call Dr. 

Rotenberg was a reasonable strategy because “avoiding a second mental 

health evaluation by a Commonwealth expert that would have heightened a 

risk of further inconsistencies” in Landis’s version of the events. 

Commonwealth’s Brief, at 27 (emphasis omitted). Citing Mr. Brennan’s 

testimony, it posits that “the Commonwealth’s ability to call an “antiRotenberg” was enough of a deterrent to not use Dr. Rotenberg at all.” Id. 

Like the PCRA court, we find this claim to be speculative, since trial 

counsel did not even have meaningful contact with the expert. As stated by 

the PCRA court:
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This Court found that any harm to [Landis] from the risk of 

sustaining [Landis’s] version of the events to be de minimus. 

First, [Landis’s] version of the events reported to Dr. Rotenberg 

was closer in time to the shooting. Second, the version was 

supported by competent expert evidence and probative facts 

[presented by the Commonwealth at trial]. Any revised versions 

would have lent credence to [Landis’s] testimony of diminished 

capacity. Even if that failed, it would have been harmless to the 

outcome because [Landis] had already admitted that he had 

shot his wife. He either did it intentionally or accidentally. The 

worst case scenario that would have resulted by the presentation 

of a [Commonwealth] expert witness was that [Landis] shot his 

wife intentionally and thus was guilty of First Degree Murder, an 

already certain result with [Landis] having presented no 

evidence to contradict the Commonwealth’s evidence. This 

concern was therefore specious.

PCRA Court Opinion, 3/4/16, at 7.

In its final attempt to establish error with regard to the PCRA court’s 

award of a new trial based upon trial counsel’s ineffectiveness in failing to 

call Dr. Rotenberg to testify at trial, the Commonwealth contends that 

“[c]ounsel’s strategy was based upon on an informed decision to prevent the 

jury from hearing testimony concerning [Landis’s] unfavorable admissions to 

[Dr. Rotenberg] which included the shooting of the firearm.” 

Commonwealth’s Brief at 28 (emphasis omitted). Citing again the PCRA 

hearing testimony of trial counsel, the Commonwealth asserts that trial 

counsel did not want the jury to learn of Landis’s long term drug and alcohol 

use because “jurors have a problem with [evidence of such conduct] 

sometimes.” Id. at 29. While such evidence is generally undesirable, it 

would have been consistent with, and provide the basis for, a diminished 

capacity defense.
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Our review of the record further supports the PCRA court’s conclusions 

regarding Landis’s admission to Rotenberg that he shot the firearm. The 

court explained:

[Landis’s] admission to shooting the firearm was already 

before the jury from the very beginning of the trial. Dr. 

Rotenberg, on the other hand, could have explained [Landis’s] 

mental capacity and confusion at the time of the shooting and 

afterwards, during the standoff. These additional details, if 

proved to the jury, would have changed the result of the trial. 

PCRA Court Opinion, 3/4/16, at 7.

In sum, because our review of the record supports the PCRA court’s 

finding of trial counsel’s ineffectiveness, we affirm the court’s order granting 

Landis a new trial.2

Petition for remand denied. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2016

____________________________________________

2

In light of our holding, we deny Landis’s petition to remand the case so 

that the PCRA court can specifically state that it is vacating Landis’s 

judgment of sentence. Such a result is implied by the PCRA court’s grant of 

a new trial. Moreover, at a subsequent hearing on Landis’s motion for bail, 

Landis’s counsel conceded that, as Appellant is still facing a first-degree 

murder charge bail is prohibited by both statute and our state constitution. 

See N.T. 2/23/16, at 3; 42 Pa.C.S.A. § 5701; and Article 1, Section 14 of 

the Pennsylvania Constitution.