Commonwealth v. Kevin Brian Dowling
No. 952 CA 1997 / York County
Filed 8-5-2008
Robbery Case P.C.R.A. / Innocence Claim

196. [75] In Petitioner’s case, the Jarmons were subjected to highly suggestive pre-identification influences, influences which rendered the identification of Petitioner unreliable. Jarmon was never asked to identify Petitioner in a fair (i.e. non-suggestive) pre-trial procedure such as a photo array or lineup. Yet, he was exposed to almost immediate and unrelenting media coverage, which included the display of Petitioner’s arrest photo, along with news reports identifying him as the suspect, and a highly suggestive in-court identification of Petitioner at his pre-trial hearing. The improper hypnosis further tainted the identification of Petitioner and his car. The admission at trial of the identifications of Petitioner and the car violated Petitioner’s right to due process of law secured by the Fourteenth Amendment to the Constitution and Article I, Sections 1 and 9. All prior counsel were ineffective for failing to raise these claims.

Claim V. As a Result of Court Error, Prosecutorial Misconduct, and Ineffective Assistance of Counsel, Compelling Evidence of Petitioner’s Innocence Was Not Presented to the Jury in Violation of Petitioner’s Sixth and Fourteenth Amendment Rights and His Rights Under Article I, Sections 1, 6, 9, 14, and 25 of the Pennsylvania Constitution.

197. The matters set forth in all other sections of this Petition are repeated and realleged as if set forth entirely herein.

198. The duty to investigate is fundamental to counsel’s role as an advocate. Counsel has “a duty to bring to bear such skill and knowledge as will render the [proceeding] a reliable adversarial testing process.” Strickland v. Washington, 466 U.S. 668, 688 (1984); Commonwealth v. Bailey, 390 A.2d 166, 169-70 (Pa. 1978); Commonwealth v. Mabie, 359 A.2d 369, 374 (1976). This can be done only if counsel actually investigates, Strickland 466 at 691; [76] Mabie 359 A.2d at 474-75. ABA STANDARDS FOR CRIMINAL JUSTICE, 4-4.1 (2d ed. 1982 Supp.) (“[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case”).²⁴

199. Moreover, a criminal defendant may not be denied the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.”); Davis v. Alaska, 415 U.S. 308 (1974); United States v. Cronic, 466 U.S. 648, 656 (1984); Strickland, 466 U.S. at 684-685 (1984); California v. Trombetta, 467 U.S. 479, 485 (1984); Rock v. Arkansas, 483 U.S. 44, 51 (1987). Likewise, the Pennsylvania Constitution [77] requires that an accused be given a fair opportunity to defend against criminal charges. Commonwealth v. Deans, 620 A.2d 32, 34 (Pa. 1992) (“Due Process requires a full opportunity to defend against the charges”); see also Commonwealth v. Martin, 727 A.2d at 1141-42 (noting that the due process component of Article I, Section 1 is more expansive than federal due process). Whether by court error, trial counsel’s ineffectiveness, or prosecutorial misconduct, the denial of these fundamental rights requires relief.

200. As described below, as a result of counsel’s ineffectiveness, police and prosecutorial misconduct, and court error, compelling evidence of Petitioner’s innocence was never presented to the jury in violation of Petitioner’s Sixth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 14 and 25 of the Pennsylvania Constitution.

A. Counsel’s Failure to Investigate, Develop and Present Evidence of Other Possible Perpetrators.

201. In Pennsylvania, “[i]t is well established that proof of facts showing the commission of the crime by someone else is admissible.” Commonwealth v. Boyle, 368 A.2d 661, 669 (Pa. 1977); see also Commonwealth v. Loomis, 113 A. 428 (Pa. 1921); Commonwealth v. Winegrad, 180 A. 160 (Pa. Super. 1935). As described below, there existed a number of others who had motive or opportunity to commit these offenses or a history of committing similar crimes. Yet, as a result of counsel’s ineffectiveness, court error and prosecutorial misconduct, the jury did not hear this compelling defense evidence in violation of Petitioner’s Sixth, Eighth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 6, 9, 13 and 25 of the Pennsylvania Constitution. [78]

1. Howard Poteet.

202. Howard Poteet committed a robbery spree in the York County area, then fled to Virginia and was arrested after a standoff with police. At the time of Petitioner’s trial, Poteet faced state and federal charges, including charges for armed robbery.

203. Evidence existed at the time of trial demonstrating that: (1) Poteet was in the Spring Grove area at the time of the murder;²⁵ (2) Poteet was known to commit crimes similar to the robbery/attempted rape of Jennifer Myers, including armed robbery; (3) descriptions given of the perpetrator in the various armed robberies committed by Poteet were strikingly similar to the descriptions provided by Ms. Myers of the perpetrator in this case; and, (4) statements made by the perpetrator in this case were consistent with Poteet’s history and record.

204. The records of his York County offenses demonstrate that Poteet was in the vicinity of the location of the Tailfeathers robbery at the time of the robbery.²⁶ For example, the affidavit of probable cause for a burglary committed by Poteet described Poteet’s theft of items belonging to Joseph Smith. See Exhibit 21 (Commonwealth v. Poteet, 2499 C.A. 1998 (York County Court of Common Pleas) (affidavit of probable cause)).²⁷ The affidavit further indicated that Joseph Smith told the police that he knew Poteet from his employment at Progressive Services in Dover, York, Pennsylvania during the summer of 1997. Id. [79]

205. As the prosecution was aware, Poteet had been involved in armed robberies, including robberies of businesses, and was described wearing clothing similar to that described by Ms. Myers regarding the perpetrator’s clothing in this offense. For example, Poteet committed an armed robbery of a Holiday Hair salon on March 9, 1998 (the weapon was apparently never recovered),²⁸ wherein the perpetrator was described as wearing a black baseball cap, jeans, a blue button-down shirt, and hard sole shoes, (either boots or dress shoes). See Exhibit 22 (Commonwealth v. Poteet, 4519 C.A. 1998 (York County Court of Common Pleas)). Ms. Myers described the perpetrator in this case as wearing a black baseball cap and a cream-colored button-down shirt and dress shoes. NT at 113. Witnesses described the perpetrator in the First Capital Bank robbery on March 10, 1998, also committed by Poteet, as wearing a black baseball cap and mirrored sunglasses. Ms. Myers described the perpetrator in this case as wearing the black baseball cap and “aviator sunglasses.” NT at 113.

206. Ms. Myers also told the police that the perpetrator in this case told her during the assault that he had recently been released from prison and had no desire to return. NT at 124. Poteet had been charged and convicted of forgery counts in York County. He was sentenced to a county prison term of nine to twenty-three months in September, 1995, and paroled in December, 1995. Thus, he had recently been in prison and clearly would have had no desire to return at the time of the offense in this case. Notably, Petitioner had not previously been in prison, as the perpetrator stated to Ms. Myers. Instead, the record demonstrates that, at or around the time of [80] the robbery, Petitioner was gainfully employed in the management field, having been similarly employed for over twenty years, and had never been in prison.

207. Had counsel conducted a constitutionally adequate investigation, she would have been able to marshal a wealth of evidence supporting the theory Poteet was a viable suspect. Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth, Eighth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 14 and 25 of the Pennsylvania Constitution.

2. Randall Turner.

208. Randall Turner was a business partner of Jennifer Myers until Ms. Myers left to start her own business. Exhibit 23. (Tpr. Mowrey, 10/22/97 interview of Jacqueline Rutledge). Witnesses, including Jacqueline Rutledge and Marie Ellis, told the police that Ms. Myers had expressed concerns that Mr. Turner did not take her leaving Turner’s business and going out on her own very well and indicated that Turner may have been involved in the robbery/attempted rape. Id. Indeed, immediately following the robbery/attempted rape, Ms. Myers told witnesses, including Gary Altland, that she knew who the perpetrator was and that the attack was some type of “joke” and that, as a result, she did not want to contact the police.

209. Petitioner avers and expects to prove at an evidentiary hearing, that: (1) Ms. Myers told her husband that she suspected that Turner was involved in the robbery; (2) Ms. Myers reported having an argument with Turner mere days before the robbery occurred; (3) Ms. Myers repaid Turner the full amount of a business loan and moved the location of her business shortly after the robbery; (4) Ms. Myers indicated to others that she had a conversation with Turner following the robbery wherein Turner was crying and apologized to her; (5) Mr. Myers [81] gave the police information that Turner had people who would “do things for him (Turner)”; and, (6) following Ms. Myers’ murder, Mr. Turner shared the proceeds from the sale of Ms. Myers’ business.

210. Nevertheless, counsel failed to investigate, develop or present this evidence at trial. This was a particularly egregious failure because counsel was aware that the police considered Turner a principal suspect yet failed to pursue this exculpatory evidence. See Exhibit 43 (Attorney Kuebler notes of meeting with Detective Arthur Smith, 12/11/96). Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 6, 9, 14 and 25 of the Pennsylvania Constitution. For this reason as well, relief is required.

211. Moreover, the Court precluded counsel from eliciting these statements during cross-examination of Mr. Altland and other witnesses. These rulings denied Petitioner of his state and federal constitutional rights to present a full and fair opportunity to present defense evidence as well as his rights to due process and cross-examination in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9 , 14, and 25 of the Pennsylvania Constitution. See also Claims II and XI.

212. Petitioner further avers that the prosecution considered Turner a viable suspect in the robbery. The prosecution’s possession of information and evidence connecting Turner to the robbery was never disclosed to Petitioner or his counsel in violation of Petitioner’s state and federal due process rights. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995). There is no question that evidence indicating that another [82] committed the crime is exculpatory and material. Accordingly, for this reason as well, Petitioner is entitled to relief. Moreover, the prosecution’s duty to disclose exculpatory evidence continues past a defendant’s arrest, conviction and sentencing. Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976). Accordingly, even now, the prosecution is constitutionally required to turn over all evidence regarding Turner and Petitioner herein requests that the prosecution fulfill its constitutional obligations.

B. Counsel’s Failure to Challenge the Unreliable Forensic Evidence.

213. At trial, the prosecution presented forensic witnesses from the Federal Bureau of Investigation, (“FBI”), “trace evidence” unit, see NT 4/28/98 at 222 (Kerry Oien), and a chemist, also from the FBI, id. at 242-43 (Ronald Menold). Without any voir dire, defense counsel stipulated to the expertise of these witnesses. See id. at 223 (Oien); id. at 244 (Menold).

214. Mr. Oien was provided sections of rope purportedly seized from Petitioner’s car and the scene and asked to conduct testing to compare those rope sections. Id. at 225. Based on his purported visual and microscopic examination, Mr. Oien concluded that the sections of rope were “consistent with having come from the same source.” Id. at 230. Mr. Oien also testified that he found debris fibers that, in his opinion—once again based on a visual and microscopic examination—were “black trilobular carpet fibers,” and that these debris fibers were “consistent with having come from the same source.” Id. at 236. Nevertheless, at no time did the police or any forensic expert obtain fibers from the police cruisers involved in the transportation of the physical evidence, the decedent’s vehicle or even Petitioner’s car.

215. On cross-examination, Mr. Oien acknowledged that it was possible to obtain rope made by the same manufacturer from different sources, and that there were no microscopic [83] characteristics of the debris fibers that would allow him to say that they were from a trunk versus an automobile floor carpet or truck cab carpet. Id. at 239. That, however, was the extent of defense counsel’s cross-examination.

216. Mr. Menold testified that he conducted a chemical analysis of two debris fibers and seven pairs of rope fibers. Id. at 246. Mr. Menold testified that the debris fibers were “of the same polymer composition.” Id. Of the seven pairs of rope fibers, he found six were “consisted with nylon six,” and that the seventh was “a subclass of nylon as nylon six.” Id. at 246-47. On cross-examination, Mr. Menold acknowledged that “[y]ou can have many different things that are composed of the same polymers.” Id. at 248. That, however, was the extent of counsel’s cross-examination.

217. Thus, as a result of counsel’s failure to challenge this testimony on a number of available fronts, the prosecution was able to argue to the jury that the rope found at the scene was the same as the rope purportedly found in Petitioner’s car. As described below, however, there existed a number of avenues to challenge the reliability and credibility of these witnesses’ conclusions, and counsel’s failure to raise any of these challenges constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

1. The failure to challenge the reliability of the methods employed by the FBI forensic witnesses and/or to present evidence demonstrating the inadequacies of the FBI laboratory at the time the purported testing was conducted.

218. During the same time-period in which the police sent these materials to the FBI for testing and review, the FBI laboratory was under scrutiny arising from allegations by Supervisory Special Agent Frederic Whitehurst of improper testing methods and protocol as well [84] as allegations of presenting false statements in reports and court testimony. See THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES, USDOJ/OIG Special Report, April, 1997, http://www.usdoj.gov/oig/special/9704a/00exesum.htm (hereinafter “OIG Report”). The Department of Justice and Office of Inspector General conducted an eighteen-month-long investigation of the FBI laboratory that culminated in the April, 1997 report. Id.

219. The investigators found “significant instances of testimonial errors, substandard analytical work, and deficient practices.” Id. at 2. The review and investigation included review of the performance and standards of the Materials Analysis Unit (“MAU”), and the Chemistry-Toxicology Unit, (“CTU”) (those units involved in the above-described testimony).

220. Indeed, at the time of the report, and at the time the “analyses” were conducted on the evidence in this case, the FBI laboratory was not certified by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (“ASCLD/LAB”). OIG Report Part 6, at 4. The ASCLD/LAB is the watchdog organization over criminal laboratories and conducts an intensive evaluation of laboratories to ensure quality control and compliance with standards and protocols required in the scientific community:

As part of the review process, ASCLD/LAB will send a team of inspectors to review not only whether the Laboratory has satisfactory procedures and protocols, but also whether they are demonstrably followed in practice. ASCLD/LAB bases accreditation on 128 objective criteria, which are categorized as Essential, Important, or Desirable. The 53 essential criteria address matters that directly affect and have a fundamental impact on the work product of the laboratory or the integrity of the evidence. Examples of essential criteria are that new procedures be validated before they are used in casework and that each examiner understand the equipment and procedures used. [85]

A laboratory’s compliance with the ASCLD/LAB criteria is evaluated by a team of qualified inspectors. After completing a thorough on-site review, the inspection team prepares a detailed written report to the Laboratory Accreditation Board. Accreditation is recommended only if a laboratory meets 100% of the essential criteria, 70% of the important criteria, and 50% of the desirable criteria. After the inspection report is prepared, the laboratory has one year in which to address any shortcomings before the Board acts on the application for accreditation.

OIG Report, Part 6 at 3. Although it is unclear at what point after the April, 1997 investigation report the FBI began the accreditation process, what is clear is that the laboratory was not accredited until September 23, 1998, almost a year after the testing was conducted in this case and almost six months after Petitioner’s trial. See PANEL APPROVES ACCREDITATION FOR F.B.I. LAB, New York Time, September 23, 1998; Exhibit 24 (Menold report); Exhibit 25 (Oien report).²⁹

221. Nor did the laboratory administration have any internal reliable peer-review process for determining compliance with accepted scientific methods in both testing and conclusions reached by the forensic examiners. The OIG Report found that often the reviews of reports and testing were conducted by individuals lacking the required expertise to provide any meaningful review of the methods used to conduct testing or the conclusions reached in specific reports. See e.g., OIG Report, Part 6 at 13-14. Absent any internal or external peer review, there is no question that the reliability of the methods used and conclusions reached by the examiners in this case were, at best, suspect.

222. Although the problems with the FBI laboratory described in the OIG report were [86] well known at the time of Petitioner’s trial, and, although the OIG Report was readily available at the time of Petitioner’s trial, counsel failed to challenge the accuracy and reliability of the testing conducted or, even, the qualifications of the forensic witnesses presented by the prosecution. Nor did counsel present the above-described compelling evidence calling into question the reliability of the standards and protocols employed by the laboratory at the time the testing was conducted. Counsel’s failure to do so constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

2. The failure to adequately cross-examine the forensics experts.

223. In addition to failing to investigate and present the above-described evidence regarding the inherent unreliability of testing and conclusions from the FBI laboratory, counsel also failed to adequately cross-examine these purported experts, or the relevant police officers, regarding the deficiencies in the chain of custody of the items presented to the FBI. Mr. Oien testified that he received five separate packages, but did not “know whether specifically [the evidence] was [in] a tape sealed bag.” NT 4/28/98 at 224-25. The absence of any evidence regarding the condition of the items at the time they were received by the FBI failed to establish the absence of any opportunities for contamination impacting the reliability of the forensic examination.

224. Moreover, as the police testimony demonstrates, there were other circumstances of likely contamination, left unexplored by counsel. For example, the record demonstrates that it was Officer Roehm who purportedly seized the rope from the unconstitutional search of Petitioner’s car, see Claim III, NT 4/28/98 at 194 (Detective Smith testifying that he received the [87] rope along with other items from Officer Roehm). It was not, however, until that rope was transferred to the custody of Detective Smith that the rope was placed in an evidence envelope. Id. at 195. Moreover, contrary to Mr. Oien’s testimony, Detective Smith testified that he sent the rope to the FBI in two bags, one with two pieces of rope and one with three pieces of rope. Id. at 194-95. Nevertheless, counsel failed to explore or present these indicators of likely contamination of the rope evidence.³⁰

225. Nor did counsel cross-examine the witnesses on the subjective nature of their “evaluation.” For example, Mr. Oien first observed sections of the rope under a microscope to determine if there was any debris or foreign fibers. Id. at 227. After placing found debris on a slide, Mr. Oien then merely observed the rope sections for “color, construction and composition.” Id. Mr. Oien further testified that he viewed individual fibers from the rope under a “comparison microscope,” purportedly to determine if there were any consistencies. Id. Thus, the extent of his “testing” was nothing more than a subjective view of the various fibers as opposed to any clinical or scientific testing. Yet, counsel failed to cross-examine Mr. Oien regarding the subjective nature of that “testing,” nor did counsel inquire into Mr. Oien’s prior training or experience in making such comparisons.³¹ [88]

226. As a result of counsel’s failure to adequately cross-examine the prosecution’s forensic witnesses, the jury was not provided with critical evidence disputing the reliability and credibility of that testimony. Had the jury heard the questions regarding the likely contamination of the evidence, as well as the flaws in the testing methods employed by the FBI witnesses, it is reasonably likely that the jury would have rejected the prosecution’s theory that the rope purportedly found in Petitioner’s car was used during the robbery. Counsel’s failure to raise these challenges constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Section 1, 9, 14 and 25 of the Pennsylvania Constitution.

3. The failure to investigate, develop and present expert testimony challenging the reliability of the methods employed by the FBI forensic witnesses and/or the conclusions reached by those witnesses.

227. In addition to failing to investigate and present the above-described evidence calling into question the reliability of the testing and conclusions offered by the forensic witnesses, counsel also failed to obtain their own forensic expert. Undersigned counsel have obtained the assistance of a forensics expert, Nicholas Petracco, who informs counsel that, after reviewing the trial record and available police and forensic reports, he has significant questions regarding the reliability of the forensic testimony presented by the prosecution, particularly the testimony indicating that the rope fibers “matched” as the prosecution contended at trial. Based on that review, it is Mr. Petracco’s view that, following a full and extensive forensics evaluation, he would reach a different, and contrary, conclusion than that presented by the prosecution. Accordingly, counsel’s failure to investigate, develop and present forensic expert evidence challenging the prosecution’s evidence constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9, 14 and 25 of the [89] Pennsylvania Constitution.

228. Although Mr. Petracco has significant concerns regarding the reliability of the testing conducted, in order to conduct a full and thorough forensic assessment, he will need access to the following materials that are presently in the exclusive custody and control of the prosecution:

A copy of all crime scene search photographs with a chronological list explaining each photograph as well as the time, date, person and agency taking the photographs for each crime scene and vehicle processed in this case;
A copy of all handwritten, typed and/or computer-generated crime scene reports, notes drawings, sketches, and/or diagrams for each crime scene and vehicle processed in this case; and,
A copy of all handwritten, typed and/or computer-generated laboratory reports, notes, drawings, sketches and/or diagrams for all of the physical evidence processed in this case.

229. Absent access to these materials, Petitioner cannot fully and fairly develop additional evidence supporting the claims raised herein as well as other claims arising out of the prosecution’s presentation of unreliable forensic evidence. As Petitioner has set forth specific allegations demonstrating his entitlement to these materials, he has met the requirements for discovery under Rule 902(E)(1).

4. Counsel’s Failure to Adequately Raise and Litigate the Prosecution’s Failure to Present Evidence Demonstrating an Unbroken Chain of Custody of the Vehicle Unlawfully and Unconstitutionally Seized or Present Evidence to the Jury Demonstrating the Absence of an Unbroken Chain of Custody.

230. The record demonstrates that, following the police’s unlawful and unconstitutional seizure of Petitioner’s car, the police obtained the services of a private towing company to tow Petitioner’s car from the Sheetz parking lot and store the car in that company’s [90] garage. NT 4/27/98 at 192 (testimony of Detective Smith indicating that Zech’s garage towed and stored Petitioner’s car). Counsel objected to the admission of items purportedly found within the car following the removal of the car from the Sheetz parking lot on the basis of the absence of a proper chain of custody. Id. at 193. The court overruled that objection. Id. That was the extent of counsel’s chain of custody challenge. Counsel did not cross-examine Detective Smith regarding the nature of the relationship between himself or other police officers and Zech’s garage, nor did counsel elicit any testimony regarding the absence of any protocols or precautions to preserve the car intact pending a police search. Nor did counsel raise or litigate the absence of a proper and valid chain of custody post-trial or on appeal.

231. Moreover, other evidence bears against the reliability of the chain of custody of the rope purportedly found at the scene of the robbery/assault. For example, Officer Crider testified that he saw “a length of rope,” as opposed to multiple pieces of rope the prosecution claimed were taken from the scene. NT 4/27/98 at 119. Later, following prompting from the prosecution, Officer Crider testified that he “believe[d] there were several pieces” of rope. NT 4/27/98 at 127. Detective Snell, however, testified that he saw two strands of rope in the kitchen area, one with knots and one without. NT 4/27/98 at 133-34. Accordingly, the prosecution failed to demonstrate the reliability of the chain of evidence of the items taken from the scene of the robbery and counsel’s failure to challenge that evidence constitutes prejudicially deficient performance.

232. Counsel’s failure to raise and litigate these claims arising from the prosecution’s failure to demonstrate an unbroken chain of custody constitutes prejudicially deficient performance. As a result of counsel’s failure to adequately cross-examine the prosecution [91] witnesses, the jury was never apprised of the potential issues regarding contamination and tampering of the physical evidence relied on by the prosecution. As it is reasonably likely that, had the jury been properly informed, it would have rejected that physical evidence, prejudice is demonstrated and relief is required. Similarly, counsel’s failure to raise the absence of a proper chain of custody on direct appeal and in the prior post-conviction proceedings constituted prejudicially deficient performance. For each of these reasons, Petitioner was denied his Sixth and Fourteenth Amendment rights as well as his rights under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

C. Counsel’s Failure to Challenge Hearsay Identification Evidence Attributed to Jennifer Myers.

233. The Commonwealth proved its case through inadmissible hearsay. See Claim IX The facts of the offense and the identification of Petitioner were admitted as excited utterances or other hearsay exceptions. Yet other statements made by the complainant were materially inconsistent with the admitted statements. Effective counsel would have completely undermined any confidence the factfinder could have in the admitted out-of court statements. Counsel was ineffective for failing to put these material inconsistencies before the jury.

234. The Court admitted Jennifer Myers’ “identification” of Petitioner at the Sheetz convenience store through hearsay testimony. Much of the testimony was orchestrated to enhance the reliability of the identification before the jury. For example, Steven Myers testified:

I asked her, I said, how do you know it’s the man. I said he had glasses on and a cap. She said the voice. She said I’ll never ever forget the voice. She said the skin. She said it’s kind of a weird skin, she said, and something you don’t forget when you are that close to somebody that frightened you. So the way she got there I just quit questioning. I left her go because I didn’t want to go back into the state she was in. [92]

NT 170.³² This hearsay statement, left unimpeached, portrayed the identification as a reliable one. The witness could never forget the voice, the skin tone was distinctive and the description of her demeanor gave the impression the witness had confidence in the identification.

235. What the jury did not hear however was that the witness was anything but confident in the identification. The purported viewing by Ms. Myers did not occur until three months after the robbery. Ms. Myers did not report her observations at the convenience store for two or three weeks, and only after the police contacted her to inform her that they had no suspects in the robbery. Even then, Ms. Myers explained her failure to report her purported sighting earlier by confessing that she was “not certain” the person she saw in the Sheetz store was the perpetrator. This powerful impeachment evidence was never put before the jury. See Exhibit 26 (Smith Report, 11/27/1996 at 2).

236. Counsel failed to put other compelling impeachment evidence before the jury. The initial description given to police immediately after the incident failed to match that of Petitioner. She described the male as being in his late forties; petitioner was thirty-eight. The perpetrator was 5'6"; Petitioner is at least 5'11". She estimated the perpetrator weighed 185 lbs; Petitioner weighed 205 lbs. Exhibit 26 (Smith Report at 1); Exhibit 27 (arrest report, 12/4/96). Myers could only say the perpetrator’s hair was “possibly light” and was unable to describe his eye color. Petitioner has red hair and blue eyes. Id. Counsel failed to make any efforts to [93] undermine this critical testimony. Myers’ statements to police indicated that her belief Petitioner was the perpetrator was due principally to similarity of voice and skin tone rather than recognition of facial features. See Exhibit 11 (Police Report, Det. Smith, 11/25/1997 (interview of Steven Myers)). Myers’ opportunity to observe her assailant’s face was limited because the perpetrator wore sunglasses and a hat which would have obscured portions of his face. See Exhibit 28 (West Manchester Township Police Report, 8/5/1996, interview of Jennifer Myers)).

237. The initial report to police also casts doubt on Myers’ later claim that Petitioner, a complete stranger, was the perpetrator. Myers, who initially refused to call the police, told the UPS driver that she had been “set up,” and indicated that she knew her attacker. Exhibit 29, 911 summary. She also failed to promptly report her claim that she was a victim of an attempted sexual assault (and did not report those allegations until December 3, 1996, four months after the robbery), and claimed to have the discarded torn clothing in the interim.

238. Counsel failed to argue the significance of the perpetrator’s use of a gun. There was testimony the gun was pointed at “the center of her mouth.” NT 10/26/98 at 38 (Testimony of Officer Steven Crider). Effective counsel could have shown when there is a weapon present the witness would more likely focus on the weapon, thus reducing the amount of time spent looking at the face. This presence of a weapon also increases stress, thereby reducing the reliability of any subsequent identification.

239. Counsel also failed to argue that the police work in this case was slovenly and incomplete. Once Myers expressed her lack of certainty to the police they should have performed a fairly presented photographic or corporeal lineup (the police arrested Petitioner without ever asking Myers to confirm he was the same man she saw in the store). Instead, their failure to [94] utilize proper investigative tools ensured any later identification would be suggestive and unreliable.

240. The police also permitted destruction of the 911 calls containing critical impeachment evidence, yet counsel failed to raise or litigate the destruction of this evidence. The first 911 call made by Ms. McDowell of the West York Animal Hospital at 11:09 am, following Mr. Altland’s notifying her of the robbery, contained evidence impeaching the testimony of Altland and Steven Myers. The tape of the 911 call made by the complainant, at 11:15 am, contemporaneously recorded, would have provided a “real time” look at the witness’ ability to observe, recall, and communicate the description of the perpetrator. It would have permitted an assessment of her opportunity to observe and the level of confidence she possessed.

241. Other facts raise questions about the reliability of the complainant’s account. The complainant had confided to close friends that she suspected others of involvement. She told Jackie Rutledge and Marie Ellis that she believed she knew who did it, and that her business partner, Randall Turner, orchestrated the attack in retribution for a failing business relationship. Exhibit 23 (Police Report, 10/22/97 at 5) (Tpr. Mowrey interview of Jacqueline Rutledge and Marie Ellis).

242. Trial counsel was ineffective for failing to put this crucial impeachment evidence before the jury. Had counsel done so the jury would have rejected this dubious testimony.

D. Failure to Challenge Identification By William Jarmon.

243. William Jarmon identified Petitioner as the man he saw crossing the road near the Tailfeathers gallery. Yet the circumstances of the initial observation and ultimate in-court (and suggestive identification) rendered this evidence unreliable. Counsel failed to ensure a fair line-up [95] or other procedure was conducted prior to the in-court confrontation, failed to request cautionary instructions or otherwise challenge this testimony.

244. Numerous factors render the identification by William Jarmon unreliable. The opportunity to observe could not have been more limited, and is reflected in the minimal description given at the initial report. The observations were made from a moving car and would have lasted mere seconds. Jarmon was not impeached with the paucity and inaccuracy of his initial description. Jarmon reportedly said “the actor looked to be a well-dressed salesman wearing a ballcap.” The man was “not young”, “not heavy,” neither tall nor short, and “appeared to have sandy colored hair.” Exhibit 31, at 4. Jarmon did not even claim to have seen the perpetrator’s face in his initial account. There was no description of complexion, hair style, facial features, clothing (other than a ballcap and that the man was “well-dressed”). The sole feature described, the “sandy” hair, was not confidently given (“appeared to have”) and was otherwise inaccurate. Petitioner had thinning red hair. Nor did counsel bring out during cross-examination that Jarmon focused on the car, not the individual driving that car. Counsel made no attempt to cross-examine Jarmon with these inconsistencies. Moreover, the Jarmons observed the individual at the same time that Officer Haines, a trained observer, saw him. Yet, Officer Haines did not identify Petitioner as the person he saw on that date. Yet, counsel failed to bring out or argue this discrepancy.

245. Nor did counsel cross-examine Jarmon about his hypnosis.³³ The fact that the [96] police subjected Jarmon to hypnosis itself suggests the police had no confidence in any non-hypnotically refreshed memories. This alone would have undermined any confidence the jury may have had in his identification. Finally, the circumstances of the in-court identifications were extremely suggestive. At the pretrial motions hearing, Mr. Jarmon identified Petitioner as the individual “in the orange suit” (NT 12/22/97 at 4), obviously concluding that the person he saw was Petitioner because Petitioner was in the prison garb and, therefore, the person the police arrested. Likewise, at trial, Mr. Jarmon’s identification was based on Petitioner’s arrest photograph, (NT 4/27/98 at 87), once again sending the clear message to Mr. Jarmon to identify that individual because the police had arrested him.

246. Counsel was also ineffective for not presenting an expert witness at the suppression hearing and at trial to explain why hypnotically refreshed memories in this case are unreliable. Hypnotically induced testimony is unreliable and can impair the accuracy of any account. Witnesses undergoing such a procedure display a false confidence in their observations. They conflate the initial observations with the “refreshed one.” There is an increased likelihood that memory is altogether a false one. Moreover, cross-examination becomes ineffectual as the witness may confidently believe that a false memory reflects reality and thus cannot distinguish pre- and post-hypnotic memories. Moreover, such effects occur even if the subject does not recall the hypnosis or otherwise feels unaffected by the attempt. See Certification of Dr. Steven J. Lynn. An expert would also have exposed the procedure used in this case as a flawed, thus increasing the likelihood of false memories. Counsel was ineffective for failing to retain an expert on the reliability of hypnotically refreshed memory and the procedures used in this case.

247. Counsel also was ineffective for failing to cross-examine Jarmon, or otherwise [97] expose, the suggestive circumstances of the prior pre-trial identification. Jarmon was exposed to relentless pretrial publicity and then made his initial identification of Dowling under highly suggestive circumstances at the pretrial hearing, a one-on-one showup where Petitioner was shackled and wearing prison garb.³⁴ The jury heard none of the circumstance of the showup and only that Jarmon had seen Petitioner’s picture in the press. NT 4/27/98, 89.

248. Direct appeal counsel and post-conviction counsel were also ineffective. Counsel could have no reasonable strategic or tactical basis for failing to raise these meritorious claims. Counsels’ failure to do so constitutes ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9, 14, and 25 of the Pennsylvania Constitution. Accordingly, for these reasons, counsel was ineffective and relief is required.

E. Counsel’s Failure to Investigate and Develop Lay and Documentary Evidence Demonstrating Petitioner’s Innocence.

249. In addition to failing to effectively challenge the prosecution’s case, counsel also failed to conduct an adequate investigation and to develop readily available evidence demonstrating that Petitioner is innocent. Counsel’s failure to marshal this evidence and present it to the jury constitutes prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments and Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.³⁵ [98]

1. Failure to investigate and present readily available evidence that would have provided the jury with an alternative reason for Petitioner’s location at or near the crime scene.

250. At trial, the prosecution presented testimony of Officer Haines, William and Linda Jarmon, each of whom contended that they saw a car parked on Route 30 near the crime scene.³⁶ The Jarmons claimed to have seen the same car nearly five miles away at the Route 74 exit ramp.

251. Nevertheless, there existed evidence available to defense counsel through both Petitioner’s former wife, Joanne Dowling, as well as his former employer, that would have provided the jury with an innocent explanation for his presence at the exit ramp, evidence which also would have shown how the Jarmon’s conflated the sightings, on that particular date. See Exhibit 41 (interview of Joanne Dowling by Investigator Bob Harmon).

252. For example, during the time of the robbery, Petitioner was in the course of interviewing and considering employment with Sheetz. Both his former employer and Ms. Dowling would have been able to tell the jury that Petitioner was also in the course of making a determination regarding which Sheetz store he preferred to work. The Sheetz in which Petitioner was ultimately stationed, (temporarily for training purposes), after accepting employment (after the robbery in this case), was in the same area as the Tailfeathers gallery. Id. Indeed, Ms. Dowling told the defense investigator that Petitioner had a habit of making “test runs” to the prospective locations for employment. She also told the defense investigator that Petitioner was looking forward to working at Sheetz and was curious about the location. Id. [99]

253. Accordingly, there was a perfectly innocent reason for Petitioner’s presence in the area yet counsel failed to present evidence supporting that aspect of Petitioner’s defense. Counsel’s failure to do so constitutes prejudicially deficient performance.

254. Nor did counsel present evidence indicating that Petitioner accepted the position with the Sheetz and agreed to work at the very Sheetz that is located in the same area as Tailfeathers shortly after the Tailfeathers robbery. It belies common sense that, if Petitioner was the individual who had actually committed the robbery, that he would have accepted a position at a location so close to the Tailfeathers gallery. Counsel’s failure to develop or present this evidence constitutes prejudicially deficient performance.

2. Failure to develop and present evidence demonstrating that Petitioner did not have, or wear, the clothing described by Ms. Myers as that worn by the perpetrator.

255. In addition to informing the defense investigator that Petitioner had a completely innocent reason for being in the area of the crime scene, Ms. Dowling also told the defense investigator that Petitioner did not own, and did not wear a green suit (the clothing described by Ms. Myers). Ms. Dowling further told the investigator that Petitioner was more likely to wear browns or other colors. She also told the investigators that Petitioner did not possess any ballcap with a military logo or indicating anything remotely close to the military, nor did Petitioner possess any “aviator type” sunglasses. Moreover, Ms. Dowling told the investigator that Petitioner was scheduled to work at Wendy’s on the date of the offense. Petitioner wore a uniform for his employment with Wendy’s (white shirt with a logo and name tag; dark black slacks; no hat), that bore no resemblance to the clothing described by Ms. Myers. Id.

256. Despite the existence of this readily available evidence directly disputing the [100] prosecution theory that Petitioner was involved in this robbery/assault, counsel failed to investigate or present this evidence in violation of Petitioner’s state and federal constitutional rights.

3. Failure to develop and present evidence disputing the prosecution’s contentions regarding the contents of Petitioner’s car and the prosecution’s failure to disclose exculpatory evidence.

257. It was the prosecution’s theory that certain items purportedly found in Petitioner’s car were connected to the robbery/assault. These included: a pair of sunglasses (not mirrored), a newspaper, rope, bullet rounds, and, the gun for which Petitioner held a permit.³⁷ As described elsewhere, the forensic testimony presented by the prosecution was inherently flawed and unreliable. Moreover, there existed further innocent explanations for the contents of the vehicle, yet counsel failed to investigate, develop and present that evidence.

258. First, it was the prosecution’s theory that Petitioner purportedly saved a section of a newspaper containing an article about the Tailfeathers robbery and that this was indicia of consciousness of guilt. Ms. Dowling received the vehicle from the police after they illegally seized, impounded and searched that car. Ms. Dowling cleaned out the car upon its return and found within the other debris a number of newspapers and could not understand why the police claimed that there were no other newspapers in the car. She specifically recalled a newspaper from December 4th.

259. Second, the prosecution contended that the rope purportedly found in Petitioner’s [101] car was for the purpose of tying Ms. Myers up during the robbery/assault. However, Ms. Dowling told the investigator that Petitioner always had rope in the car in case they purchases something that needed to be secured as well as hunting and that Petitioner considered rope another part of the tools he habitually kept within the car. Likewise, the knife was part of the tools and used for hunting and other lawful activities as opposed to any nefarious use.

260. Indeed, Petitioner participated in the deer hunting season in 1996 and, on December 2, 1996, the first day of deer hunting season, Petitioner shot a seven-point buck. Game Commission officers took a report of his accomplishment, see Exhibit 30 (report, 12/2/96), and the press did a story on it. As a result, Petitioner had an eight foot long section of rope in his car that was used to tie and drag the deer carcass to his car.

261. Moreover, there was a videotape of Petitioner’s deer catch that was turned over to the prosecution by Petitioner’s wife. That tape included a picture of Petitioner’s car and the deer tied to that car. That tape would have substantiated the innocent reasons for the rope as well as disputed the prosecution’s chain of custody regarding that rope in light of the prosecution’s claims that the rope had no blood animal blood on it. Accordingly, counsel’s failure to obtain the tape from the prosecution constitutes ineffective assistance of counsel and the prosecution’s failure to turn over the videotape to the defense violated Petitioner’s state and federal due process rights arising out of the prosecution’s constitutional obligation to disclose exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Commonwealth v. Burke, 566 Pa. 402, 410, 781 A.2d 1136, 1141 (2001).

262. Where, as here, the best of the prosecution’s case, even overlooking the inherently [102] unreliable nature of that testimony, was that the ropes found at the crime scene and the rope purportedly found in Petitioner’s car were “consistent,” counsel’s failure to present evidence providing the jury with a perfectly innocent reason for possessing that rope constitutes prejudicially deficient performance, and the prosecution’s failure to disclose evidence demonstrating the innocent explanation for that rope violated Petitioner’s state and federal due process rights.

4. Failure to adequately present discrepancies regarding the car observed by Officer Haines and the Jarmons at the side of the road and counsel’s failure to raise and litigate the improper admission of photographs that did not accurately depict Petitioner’s car.

263. During the testimony of Officer Haines and William and Linda Jarmon, the prosecution elicited testimony regarding their viewing of a vehicle parked on the side of Route 30 near the Tailfeathers gallery. See NT 4/27/98 at 48 (Officer Haines); id. at 64 (William Jarmon); id. at 92 (Linda Jarmon). Although there existed discrepancies between these witnesses’ original descriptions of the car that they viewed parked on the side of the road and Petitioner’s car, counsel failed to bring out those discrepancies during cross-examination. For example, Officer Haines, a trained observer, described the car as a mid to full sized vehicle with a slanted rear end. See Exhibit 13 (Crider report, 8/6/96). Petitioner’s vehicle did not have a sloping rear end. Counsel’s failure to bring out these discrepancies constitutes prejudicially deficient performance.

264. Likewise, the Jarmons described the vehicle that they viewed at the side of the road as a white colored vehicle with a grey tint. Id. Yet, Petitioner’s car was blue, not white or grey. Mr. Jarmon told the police that the license plate on the car was a Ship of Niagara plate, [103] while Petitioner’s car had a Wildlife Resources plate. Counsel’s failure to present evidence regarding these discrepancies constitutes prejudicially deficient performance.

265. Moreover, the prosecution admitted photographs of Petitioner’s car that did not fairly and accurately reflect the condition of Petitioner’s car, particularly the color, a key point disputing the accuracy and reliability of the Jarmons’ identification of that vehicle. NT 4/27/98 at 185 (Detective Smith identifying the photographs but noting that they did not accurately reflect the actual color of Petitioner’s car). Counsel failed to object at the time those photographs were discussed, nor did she object when the prosecution presented those photographs to various witnesses. Instead, counsel waited until the close of the prosecution’s case when the prosecution sought to formally admit the photographs into evidence. NT 4/28/98 at 252. Counsel’s failure to move pretrial or prior to the presentation of the photographs constitutes prejudicially deficient performance. Nor did counsel raise or litigate the improper admission of photographic evidence even though the prosecution failed to demonstrate the required evidentiary foundation for admission: that the photographs must fairly and accurately depict the particular item. See Pa. R.E. 901; Nyce v. Woffley, 119 A.2d 530, 532 (Pa. 1956); Tolbert v. Gillette, 260 A.2d 463, (Pa. 1970) (“Photographs are properly excluded where they do not fairly and accurately represent the object ...”).

F. Failure to Object to Admission of Rank Hearsay.

266. Prior to trial, the trial court ruled on a motion in limine regarding the admission of out-of-court statements by the complainant, Ms. Myers. The trial court restricted that admission [104] to those the court deemed an “excited utterance.”³⁸ Those “excited utterances” were limited to statements made to Gary Altland on the date of the offense, Officer Crider on the date of the offense, and the complainant’s husband, Steven Myers, following the purported viewing of Petitioner at the Sheetz. See Commonwealth v. Dowling, 952 CA 1997, Opinion and Order, 12/30/97.³⁹

267. Despite the court’s limitations, the prosecution admitted other hearsay statements in violation of Petitioner’s Sixth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

268. For example, during the testimony of Detective Smith, the prosecution asked about a conversation the police had with the district manager of Sheetz. See NT 4/27/98 at 178. In response, the detective testified that another police officer spoke with the district manager, provided that individual with a description of the perpetrator provided by the complainant and was told by the district manager that Petitioner “matched” that description. Id. Thus, the prosecution was permitted, without objection, to admit double hearsay evidence regarding an identification by someone who was not present at the time of the robbery/assault. The admission [105] of this rank hearsay and wholly unreliable identification evidence violated Petitioner’s Sixth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

G. Counsel’s Failure to Obtain and the Prosecution’s Failure to Disclose the Contents of the 911 Taped Calls Containing Evidence Directly Disputing Key Prosecution Witnesses and the Improperly Admitted Hearsay Statements of Ms. Myers.

269. There were at least two 911 calls regarding the robbery/assault of Ms. Myers. The first was from the receptionist of the veterinary office following Mr. Altland’s report to that receptionist regarding what he purportedly saw and the second was a call from Ms. Myers. The 911 calls were taped and preserved for a period of time prior to Petitioner’s trial. Although these tapes contained critical impeachment information counsel failed to ensure that those tapes were preserved and disclosed prior to trial. Nor did counsel litigate the prosecution’s failure to turn over the contents of these taped conversations, although the prosecution was obliged to do so under the state and federal constitutions. Counsel’s failure to obtain those tapes and counsel’s failure to raise and litigate the prosecution’s destruction of these tapes constitute prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments. Moreover, as the failure to disclose these tapes violated Petitioner’s state and federal due process rights to disclosure of exculpatory evidence, the claim is of arguable merit. Counsel could have no reasonable strategic basis for failing to obtain competent and reliable impeachment evidence directly disputing Mr. Altland’s testimony and the improperly admitted hearsay statements of Ms. Myers. As the failure to obtain these tapes precluded Petitioner from presenting compelling impeachment evidence, prejudice is demonstrated and Petitioner has also demonstrated that counsel was ineffective under state-law standards and thus his entitlement to relief. [106]

270. Similarly, as these 911 tapes contained statements contrary to the testimony presented at trial, those tapes constitute exculpatory evidence that the prosecution was obliged to disclose under the state and federal constitutions. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972); United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Commonwealth v. Burke, 566 Pa. 402, 410, 781 A.2d 1136, 1141 (2001). Accordingly, relief is also required because the failure to disclose, or at a minimum, preserve, these 911 tapes violated Petitioner’s state and federal due process rights.

H. To the Extent Direct Appeal Counsel Could Have Raised These Issues, Counsel Was Ineffective in Violation of Petitioner’s Sixth and Fourteenth Amendment Rights and His Rights Under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

271. Direct appeal counsel should have and could have raised the above-described claims on direct appeal, and counsel’s failure to do so constitutes ineffective assistance of counsel in violation of the Sixth, Eighth, and Fourteenth Amendments and Article I, Sections 1, 9, 13, and 25 of the Pennsylvania Constitution.

272. Counsel can have no reasonable basis for failing to present a meritorious issue on direct appeal. See Commonwealth v. Townsell, 379 A.2d 98 (Pa. 1977); Commonwealth v. Yocham, 397 A.2d 766, 768 (Pa. 1979); Commonwealth v. Pfaff, 384 A.2d 1179 (Pa. 1978) (plurality) (“We are unwilling to conclude that appellate counsel effectively represents one convicted of a crime when appellate counsel, either through inadvertence or otherwise, fails to raise arguably meritorious issues on that appeal. One purpose of the appellate process is to guarantee as much as possible that the defendant’s right to a fair and impartial trial is [107] scrupulously honored.”); Commonwealth v. Jones, 815 A.2d 598, 619 (Pa. 2002) (Newman, J., concurring) (“if the underlying claim of error is of such an important magnitude that it would have entitled a defendant to relief had it been raised on appeal, there can be no justification for the failure of appellate counsel to pursue the claim that would ever qualify as a reasonable professional judgment”).

273. The failure to raise or litigate meritorious claims on appeal, like those presented here, constitutes prejudicially deficient performance under federal constitutional law. E.g., Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996) (appellate counsel was ineffective for failing to raise claim relating to the erroneous admission of hearsay evidence); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (appellate counsel ineffective for failing to raise issue relating to state discovery rule); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987) (appellate counsel ineffective for failing to raise claim relating to comment on defendant’s post arrest silence). A defendant establishes prejudice from appellate counsel’s ineffectiveness where he shows that, but for counsel’s error, there was a reasonable probability that the outcome of the appeal would have been different. Mason, 97 F.3d at 893; Mayo, 13 F.3d at 534; Matire, 811 F.2d at 1439. Since Petitioner would have won the appeal had he fully and properly raised this issue, see McNeil, he has proven prejudice.

274. Petitioner has likewise demonstrated counsel was ineffective under Pennsylvania law. As the above discussion demonstrates, “there is arguable merit to the claim that counsel’s performance was substandard or deficient.” Commonwealth v. Perry, 644 A.2d 705, 708-09 (Pa. 1994). Similarly, in light of the above-cited controlling authority demonstrating clear error, counsel can hardly be said to have had “some reasonable basis designed to effectuate [108] [Petitioner’s] interests.” Id. Accordingly, for these reasons as well, counsel was ineffective and relief is required.

I. These Claims Are Not Previously Litigated, Nor Are These Claims Waived.

275. The claims and allegations raised above were not previously litigated. Nor are these claims waived for a number of reasons. First, trial/appellate counsel’s ineffectiveness, discussed above, overcomes any failure to raise these issues in prior proceedings. In addition, any waiver arising from prior post-conviction counsel’s failure to properly present, raise and litigate these claims is overcome by the ineffectiveness of prior post-conviction counsel.

276. In Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699 (1998), the Pennsylvania Supreme Court held that “Rule 1504 [now Rule 904] requires an enforceable right to effective post-conviction counsel.” See also, Commonwealth v. Priovolos, 715 A.2d 420, 422 (Pa. 1998) (Pa. R. Crim. P. 1504(a) [now Rule 904C] affords a PCRA petitioner the right to effective assistance of counsel on his first PCRA); Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736, 738 (1989) (“It is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel”). The Albrecht Court, recognizing a PCRA petitioner’s right to raise and litigate PCRA counsel’s ineffectiveness, addressed the merits of a claim (involving a challenge to admission of hearsay evidence at trial) that arose out of allegations that PCRA counsel was ineffective for failing to raise and litigate that claim in the lower court. Albrecht, 720 A.2d at 704-05.

277. Here, Petitioner raises a number of meritorious claims, described above, that would have required grant of relief during the prior post-conviction proceedings. Nevertheless, prior counsel did not investigate, develop or present these claims. Counsel’s failure to do so [109] constitutes prejudicially deficient performance in violation of Petitioner’s Sixth and Fourteenth Amendment rights. As the claims described above involve issues upon which Petitioner is entitled to relief, Petitioner has demonstrated that his claims are of arguable merit. As counsel could have no strategic basis for failing to raise claims demonstrating Petitioner’s innocence and, therefore, his entitlement to relief, Petitioner has met the state-law standard for ineffective assistance of counsel, and counsel’s ineffectiveness violated Petitioner’s rights under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution.

278. Moreover, when a state establishes the right to particular appellate, post-conviction, or post-sentencing review, it creates Fourteenth Amendment life and liberty interests in those procedures. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (due process interest in state-created right to direct appeal). Although the right to the particular procedure is established by state law, the violation of the life and liberty interest it creates is governed by federal constitutional law. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980); Ford v. Wainwright, 447 U.S. 399, 428-29; see Evitts, 469 U.S. at 393 (state procedures employed “as ‘an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant’” must comport with due process). See also Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (“There is, of course, nothing in the Constitution of the United States that requires Idaho’s legislature to approach [capital sentencing] as it has done . . . . However, the failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state.”); Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994) (“Where a state creates a right, such as a defendant’s right to a review of his sentence, the Fourteenth Amendment of course entitles him to procedures to ensure that the right is not [110] arbitrarily denied.”).

279. In Pennsylvania, a criminal defendant has two separate and distinct avenues of obtaining relief from an invalid conviction. These rights, established by the Pennsylvania Constitution (through Article I, Section 9) and the legislature (by virtue of the PCRA), are: the opportunity to appeal directly from the initial judgment of sentence; and, once the direct appeal becomes final, challenge the conviction under the PCRA, wherein the litigant has an opportunity to raise additional bases for relief and also litigate the ineffective assistance of trial counsel and appellate counsel.

280. Fundamental due process and equal protection require that one cannot have a right without a remedy. See Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right”). Where, as here, the state has created two distinct and separate rights and processes to challenge the validity of a criminal conviction, the procedures for each of these rights must comport with the demands of due process and equal protection. Evitts, 469 U.S. at 393 (1985).

281. By creating a right to effective assistance of post-conviction counsel, Pennsylvania is also constitutionally obliged to provide an avenue to vindicate the denial of that right. Otherwise, the Albrecht Court’s clear holding that a post-conviction litigant has an enforceable right to effective assistance of counsel is relegated to nothing more than empty promises in violation of federal due process, equal protection and access to the courts. In addition to the state and federal rights to due process and equal protection, the failure to afford [111] Petitioner his right to post-conviction review violated Petitioner’s separate and distinct right to defend life and liberty in Article I, Section 1 of the Pennsylvania Constitution.

282. As the allegations and averments described above demonstrate, there existed multiple state and federal constitutional claims requiring grant of relief available at the time of Petitioner’s prior post-conviction proceedings. Petitioner was, therefore, denied his state-created right to effective assistance of post-conviction counsel as well as his state and federal due process rights to a full and fair post-conviction review. For these reasons as well, relief is required.

J. Conclusion

283. The above-described errors, individually and cumulatively, provide compelling bases for doubting the reliability of the jury’s verdict. Indeed, as the above-described evidence demonstrates, there is more than a reasonable probability that Petitioner is innocent and, but for the abject failures of counsel and police and prosecutorial misconduct, his innocence would have been palpable to the jury. Where, as here, the prosecution had no competent evidence connecting Petitioner to these crimes, the denial of Petitioner’s federal constitutional rights is manifest and requires grant of relief, or at a minimum, an evidentiary hearing.

284. For each of these reasons, Petitioner is entitled to relief under 42 Pa. C.S.§§ 9543(a)(2)(I), (ii), and (iv), and Article I, Sections 1, 6, 9, 14, and 25 of the Pennsylvania Constitution. Counsel presented no defense despite being on notice that virtually every part of the Commonwealth’s case was demonstrably flawed or fabricated. Because counsel’s conduct in failing to raise or litigate these issues ran completely afoul of Petitioner’s interests and fundamental constitutional rights, there is no question that there exists no strategic or tactical reason for counsel’s conduct. See 42 Pa. C.S. § 9543(a)(4).

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²⁴ This precise national standard of conduct was referenced by the United States Supreme Court in Strickland, 466 U.S. at 688-89, Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) as national guides to determining what constitutes reasonable attorney conduct. Likewise, state controlling authority has also relied on the ABA standards as guidelines in determining whether or not counsel’s or the prosecution’s conduct was constitutionally reasonable. See, e.g., Commonwealth v. Bailey, 390 A.2d 166, 169-70 (Pa. 1978) (relying on ABA Standards Relating to the Defense Function, Section 4.1 regarding counsel’s obligation to promptly and adequately investigate avenues of defense); Commonwealth v. Boyd, 334 A.2d 610, 615 (Pa. 1975) (relying on ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 5.2(b)); Commonwealth v. McGrogan, 297 A.2d 456, 458 (Pa. 1972) (citing ABA Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function, The Prosecution Function § 5.2(b) (Approved Draft 1971) (commentary)); Commonwealth v. McCaskill, 468 A.2d 472 (Pa. Super. 1983) (citing ABA Standard § 4-4.1 regarding counsel’s duty to investigate); Commonwealth v. White, 450 A.2d 63, 64 (Pa. Super. 1982) (quoting ABA Standards Relating to the Defense Function, § 4.1 as support for the principle that “[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leadingto facts relevant to guilt and degree of guilt or penalty”); Commonwealth v. McFarland, 450 A.2d 1008 (Pa. Super. 1982) (citing § 4-5.2(a) regarding counsel’s duty to advise defendant regarding right to testify); Commonwealth v. Ross, 432 A.2d 1073 (Pa. Super. 1981) (relying on § 4-8.2 regarding counsel’s duty to advise defendant regarding right to appeal).

²⁵ The robbery in this case occurred in West Manchester Township, around five miles from Spring Grove.

²⁶ As described previously, Mr. Poteet was living in the Spring Grove area, around five miles from the Tailfeathers gallery.

²⁷ Indeed, that affidavit of probable cause was executed by Trooper Mowrey, the investigating officer in the homicide case against Petitioner.

²⁸ Although the police did recover a weapon in the Virginia stand-off incident, that weapon was ultimately identified as one taken from Joseph Smith the day after the Holiday Hair robbery. Notably, Detective Arthur Smith, the arresting officer in this case, was also the arresting officer in the Holiday Hair robbery.

²⁹ As indicated in their reports, the reports were generated on October 27, 1997 (Menold), and October 28, 1997 (Oien). Thus the testing and reports occurred long before any request accreditation had begun. Notably, this was ten (10) months after the evidence was sent to the FBI (and a week after the murder).

³⁰ Similarly, the prosecution hearsay evidence indicated that Ms. Myers told the police that the perpetrator retrieved the rope from his pocket, yet the forensic witnesses did not find any other fibers other than those they identified as consisted with automobile carpet fiber. Counsel failed to cross-examine these witnesses on the impact of the absence of any additional factors had on the reliability of their examination or the question of contamination by the police prior to the ropes’ arrival at the FBI laboratory.

³¹ Although Mr. Menold did subject the materials to chemical testing, the best that he could conclude following that testing was that the materials were made of the same material used to manufacture hundreds of other plastics. NT 10/28/98 at 248.

³² Notably, the “weird skin” and “voice” references were never made by Ms. Myers during her descriptions of the perpetrator to the police. In fact, the new version of her descriptive characteristics were not disclosed until after Ms. Myers’ murder when the police were questioning Mr. Myers obviously with the intent of buttressing their contentions regarding her purported “excited utterances” and the reliability of her purported identification in order to make their case against Petitioner.

³³ Indeed, Petitioner expects to prove at an evidentiary hearing that trial counsel viewed the videotape of the hypnosis and knew that Mr. Jarmon changed his description of the suspect crossing the road in order to conform with the Commonwealth’s case, yet counsel failed to bring out these obvious indicators of taint and bias against Petitioner and in favor of the prosecution.

³⁴ While Mr. Jarmon did provide an in-court identification during the December 22, 1997 Motion to Dismiss hearing, that was after the innundation of the press photographs of Petitioner; after at least two prior hearings where Mr. Jarmon observed Petitioner at the defense table and where Petitioner was dressed in prison garb during at least one of those hearings, all clear signals to him regarding whom he needed to identify in order to support the prosecution’s case.

³⁵ Notably, counsel did not even assign an investigator to Petitioner’s case until September, 1997, long after Petitioner’s arrest. As described below, the consequences of this late-assignment is palpable and resulted in counsel’s abject failure to adequately develop and present readily available evidence demonstrating Petitioner’s innocence.

³⁶ Officer Haines described a car with a sloping trunk, completely different from Petitioner’s 1991 Lincoln.

³⁷ Counsel also failed to present evidence that Sheetz policy precluded Petitioner from bringing the weapon into the store, thus explaining why Petitioner left the weapon in the car and directly disputing the prosecution’s contention that Petitioner kept the weapon in the vehicle for nefarious reasons.

³⁸ On direct appeal, Petitioner raised the impropriety of the admission of these hearsay statements as in violation of Petitioner’s state and federal due process and confrontation rights. To the extent counsel failed to adequately raise or plead that the admission of this testimony violated Petitioner’s Sixth and Fourteenth Amendment rights and his rights under Article I, Sections 1, 9, 14 and 25 of the Pennsylvania Constitution, counsel was ineffective.

³⁹ The purported “excited utterances” provided by Mr. Altland were not disclosed to the police by Mr. Altland until October 23, 1997 and November 15, 1997, long after the robbery and, more importantly, after Ms. Myers’ death—a time when the prosecution was clearly motivated to enhance and expand statements Ms. Myers made about the robbery. Similarly, those “excited utterances” presented through the testimony of Officer Crider and Mr. Myers were likewise not disclosed on the date of the offense, but instead, revealed after Ms. Myers’ death, again a time when the prosecution held a clear motive to buttress the weak case against Petitioner.

Commonwealth v. Kevin Brian Dowling No. 952 CA 1997 / York County Filed 8-5-2008 Robbery Case P.C.R.A. / Innocence Claim