Com. v. Cherry, L.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

:

:

LAMONT CHERRY :

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Appellant : No. 1011 MDA 2020

Appeal from the PCRA Order Entered July 1, 2020 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003610-2009

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J. MEMORANDUM BY NICHOLS, J.: FILED: NOVEMBER 8, 2021 Appellant Lamont Cherry appeals from the order denying his timely first Post Conviction Relief Act1 (PCRA) petition. Appellant contends that the PCRA court erred in denying his motion to recuse, denying his motion to compel a witness to testify, and denying his PCRA petition asserting that his conviction was based on false and/or flawed expert testimony. We affirm.

On May 29, 2009, Appellant was babysitting Z.M., the one-year-old daughter of his paramour, Christa Smith. When Smith returned home, she noticed that Z.M. was limp and foaming at the mouth. Smith called for an ambulance. Z.M. was then airlifted to Geisinger Hospital in Danville for surgery. A CT scan showed that Z.M. had multiple skull fractures, specifically, a piece of bone in Z.M.’s skull had separated from the rest of her skull. Z.M.

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1 42 Pa.C.S. §§ 9541-9546.

did not have a laceration on the back of her head or any external bleeding. While Z.M. was in the hospital, Smith asked Appellant what happened to Z.M. Appellant told Smith that Z.M. might have fallen down the stairs and hit her head on the dumbbells at the base of the stairs. The doctors declared that Z.M. was brain dead, therefore, Smith decided to remove Z.M. from life support, after which Z.M. died. Appellant was later charged with the homicide of Z.M.

Frank Maffei, M.D., the chief of pediatric trauma care at Geisinger Hospital, testified at Appellant’s trial2 as an expert in the fields of pediatric medicine, pediatric emergency care, and pediatric critical care. Doctor Maffei observed that Z.M. had retinoschisis, i.e., the retinas of her eyes had detached, and retinal hemorrhage, i.e., there was bleeding in her retinas. Doctor Maffei testified that retinal detachment plus retinal hemorrhage is “almost uniquely associated with abusive head trauma in small children and infants.” N.T. Trial, 10/18/11, at 245. Doctor Maffei explained “we have never seen this injury in children outside of abusive head trauma except in three documented cases. One was a fall from a three-story window; one was a crush injury, the child was crushed; and then the other one was a motor vehicle accident.” Id. at 245-46. Z.M. also had a subdural hemorrhage, i.e.,

bleeding under the dural space around her brain. Id. at 239. Doctor Maffei

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2 A previous jury trial, which concluded on January 14, 2011, was declared a

mistrial. N.T. Trial, 1/14/11, at 741-42, 748-49; see also Commonwealth v. Cherry, 245 MDA 2012, 2013 WL 11257205, at *1 n.1 (Pa. Super. filed July 12, 2013) (unpublished mem.).

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testified that Z.M. falling down the stairs and hitting her head on the metal dumbbells would not cause the “constellation” of injuries that Z.M. had. Id. at 250. Doctor Maffei concluded within a reasonable degree of medical certainty that Z.M. was the victim of abusive head trauma.

Samuel Land, M.D., testified as an expert in forensic pathology. Doctor Land performed Z.M.’s autopsy. Doctor Land observed during the autopsy that Z.M. had swelling in her left eye, but she did not have any bruising on her arms and legs, or any other significant external injuries. Doctor Land explained that after an internal examination, he found that Z.M. had bruising on the back of her head inside her scalp, two skull fractures going downwards towards the base of her skull, one on the left side of her head and the other on the right side. Z.M. also had bleeding around her brain and swelling of the brain. Doctor Land also found retinal hemorrhage in both of her eyes. Z.M. also had torn muscles and torn ligaments in her neck where her neck joined her head. Lastly, Z.M. had bruising under both of her buttocks with no evidence of healing, which Doctor Land explained meant that the bruises occurred immediately prior to her admission to the hospital, therefore, he concluded they occurred close in time to her head injuries.

Doctor Land opined that when retinal hemorrhaging is seen immediately after the child’s injury, “it is significant, because it suggests that there was some type of rotational force placed on the child’s head[,]” meaning that the child’s head moved back and forth in different directions. Id. at 277. Doctor Land explained that a child would have experienced linear force, i.e., force in

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only in one direction, if a child fell flat and hit his or her head. Id. He further characterized the torn muscles and ligaments in Z.M.’s neck as consistent with “whiplash type injuries in which the head is flung forward and backwards . . . .” Id. at 278. Doctor Land concluded that Z.M.’s head injuries were fatal, specifically that she “died as a result of blunt force trauma to the head.” Id. at 278, 280. Doctor Land ruled Z.M.’s death a homicide. He testified that he did not believe Z.M. fell down the stairs and hit her head on the dumbbells at the base of the stairs because he did not observe injuries, such as a laceration or an abrasion, that would result from hitting a hard object like the dumbbells. Id. at 283-84. Doctor Land explained his conclusion as follows:

I believe that she was violently manipulated and slammed into something hard, either a wall, a floor. It could even be something like a cushion or mattress, but you usually don’t see skull fractures in those events, you see other--the same--the other injuries that we see, but you don’t see the skull fracture. So, most likely, it’s my opinion, she was slammed against something hard and flat, like a wall or a floor.

Id. at 289.

John Lenox, M.D, Ph.D., was admitted as an expert in fields of head and neck injury, trauma and medical research, injury causation, and biomechanics. Doctor Lenox testified that it was more probable than not that Z.M. was injured in a fall down the stairs and hit her head on dumbbells at the base of the stairs. Further, Doctor Lenox explained that while there is a debate among pediatricians, forensic pathologists, neurologists, and neurosurgeons about whether a fall could produce injuries like Z.M.’s, but in the

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biomechanical community there was no debate because there are documented cases of falls causing those types of injuries.

Marguerite Salam-Host, M.D., testified as an expert in the areas of pathology and pediatric pathology. Doctor Salam-Host testified that there is debate within the medical field concerning whether retinal hemorrhages should automatically be determined as child abuse. Doctor Salam-Host explained that she reviewed the police report, the autopsy report, medical records, and Doctor Land’s testimony from a previous proceeding. Based on her review of those materials, she concluded that Z.M.’s death was caused by blunt force trauma to the head from an accidental fall.

Michael D’Ambrosio, D.O., testified as an expert in the fields of emergency medicine and neurology. Doctor D’Ambrosio reviewed Z.M.’s medical records as well as the testimony of Doctors Maffei, Lenox, and Salam- Host. Doctor D’Ambrosio concluded that Z.M.’s injuries could have been caused either by abuse or by an accident.

On October 20, 2011, a jury found Appellant guilty of third-degree murder. The trial court sentenced Appellant to a term of twenty to forty years of incarceration on December 21, 2011. On direct appeal, this Court affirmed Appellant’s sentence. See Commonwealth v. Cherry, 2013 WL 11257205, at *1. Appellant did not file a petition for allowance of appeal with our Supreme Court.

A previous panel of this Court summarized the subsequent procedural history of this case as follows:

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On May 28, 2014, the PCRA court[3] appointed Jeffrey Yelen, Esquire (“Attorney Yelen”) as PCRA counsel. On June 4, 2014[fn2], Appellant filed the instant pro se PCRA Petition, his first, averring, inter alia, that his trial counsel had been ineffective. The Commonwealth filed a Response Brief on August 11, 2014, responding to each of Appellant’s claims raised in his pro se PCRA Petition.

[fn2] Appellant dated his PCRA Petition May 15, 2014, which

may explain the appointment of counsel before Appellant filed his pro se PCRA Petition as reflected in the docket entries and time stamps.

Attorney Yelen did not file an Amended PCRA Petition, and he did not seek to withdraw pursuant to Turner/Finley.[4] Instead, Attorney Yelen appeared at a brief hearing on January 16, 2015, at which Appellant agreed not to present any evidence and submitted his case to the PCRA court on the basis of his pro se pleadings alone. [The PCRA court informed Appellant that this hearing was his opportunity to provide testimony in support of his petition and asked if it was his desire to rely on his petition and trial transcripts alone. Appellant replied that it was.] On June 18, 2015,[5] the PCRA court denied Appellant’s PCRA Petition.

Appellant filed a timely Notice of Appeal. The PCRA court appointed [Matthew Kelly, Esquire (“Attorney Kelly”)] to represent Appellant on appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

On June 15, 2016, Attorney Kelly filed a Turner/Finley no-merit letter . . . .

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3 The Honorable Tina Polachek Gartley presided over both of Appellant’s trials

and Appellant’s PCRA proceedings. For consistency, we refer to Judge Polachek Gartley as “the PCRA court” throughout.

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 This order was dated June 18, 2014, and time-stamped and docketed on June 18, 2015.

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On August 12, 2016, Cheryl Sturm, Esquire (“Attorney Sturm”)

filed an Application for Relief seeking to enter her appearance as privately retained counsel. On September 7, 2016, we granted Attorney Kelly’s Petition to Withdraw in light of Attorney Sturm’s entry of appearance as privately retained counsel . . . .

Commonwealth v. Cherry, 155 A.3d 1080, 1081-82 (Pa. Super. 2017) (citations and some footnotes omitted). This Court observed that Attorney Yelen did not file an amended petition or a petition to withdraw under Turner/Finley. Id. at 1083. This Court also noted that the January 16, 2015 PCRA hearing was not a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). For these reasons, this Court concluded “that Appellant was effectively denied his right to assistance of counsel[,]” vacated the June 18, 2015 order denying Appellant’s PCRA petition, and remanded this case for the PCRA court to determine if Attorney Sturm would continue to represent Appellant, and if so, to permit the filing of an amended PCRA petition. Id.

Following remand to the PCRA court, Attorney Sturm entered her appearance on behalf of Appellant. Appellant filed a motion for recusal on April 17, 2017, arguing that the PCRA court had failed to hold a Grazier hearing after Attorney Yelen failed to file an amended PCRA petition, the PCRA court had prejudged Appellant’s PCRA petition, and that the PCRA court erred in declaring a mistrial during Appellant’s first trial. Mot. for Recusal, 4/17/17, at 2-8. The PCRA court denied the motion for recusal on May 23, 2017.

Appellant filed a counseled, amended PCRA petition on October 24, 2017 arguing multiple issues, including the alleged use of false and faulty expert

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testimony at trial that violated Appellant’s due process rights. Appellant also renewed his request for the PCRA court to recuse itself.

PCRA Court Evidentiary Hearings The PCRA court held an evidentiary hearing on May 21, 2018. During that hearing, Appellant presented the testimony of Zhongxue Hua, M.D., Ph.D., and Doctor Maffei. Doctor Hua testified as an expert in the fields of forensic pathology and neuropathology. Doctor Hua had previously testified in cases involving Shaken Baby Syndrome and abusive head trauma. N.T. PCRA Hr’g, 5/21/18, at 24-25. Doctor Hua reviewed Z.M.’s medical records from May 2009, the autopsy report, toxicology report, microscopic report, brain report, autopsy photographs, and the trial transcripts. According to Doctor Hua, Doctor Land concluded that Z.M. had sustained “significant blunt head trauma to the back of head area . . . .” Id. at 26. Doctor Hua also concluded that Z.M.’s cause of death was “blunt force head trauma”. Id. Based on Doctor Land’s autopsy report, “the scene photographs, as well as autopsy photos,” Doctor Hua concluded that Z.M.’s injury was “consistent with a fall[] backwards, landing on [a] protruding object on the floor[,]” specifically one of the dumbbells. Id. at 26, 30. Doctor Hua disagreed with Doctor Land’s trial testimony that retinal hemorrhaging is only associated with injuries caused by rotational force. Id. at 29. Doctor Hua explained that “retinal hemorrhage can be due to lots of reasons. Rotational injury could cause retinal hemorrhages, . . . but other head injury in general can cause retinal hemorrhage as well.” Id. Doctor Hua also noted the absence of holding or

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grip marks on Z.M., which are bruises caused by an adult holding a child in a shaken baby case. Id. at 43-44.

Doctor Hua explained that he was familiar with the Atkinson study, which was published in 2017. Id. at 50. The Atkinson study was one of several recently published studies regarding head trauma in infants and young children. Id. at 47. In the Atkinson study, there was an examination of young children who suffered retinal hemorrhaging after accidental falls. Id.; Appellant’s Ex. 5 at 4, R.R. at 689.6 Doctor Hua characterized the Atkinson study, and others like it, as the result of people “learning from [their] mistake[s]” about Shaken Baby Syndrome and “start[ing] to look at this thing []holistically . . . .” N.T. PCRA Hr’g, 5/21/18, at 47. According to Doctor Hua, thirty years ago, when he was in medical school, the diagnosis for a young child with a skull fracture and bleeding in the brain was always considered child abuse. Id. at 45. He stated that after the 2017 Atkinson study, accidental injury should be considered as a possible cause. Id. at 50; see also R.R. at 689 (concluding, “if a pediatrician or a medical examiner is confronted with a child with a [subdural hemorrhage] and [retinal hemorrhage] and a history of a fall with an occipital impact, in the absence of other signs of maltreatment, accidental injury should be considered. Further research should be conducted regarding this mechanism of history in young children”).

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6 We may refer to the reproduced record for the parties’ convenience.

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Doctor Maffei, who testified as an expert at Appellant’s trial, also testified at the May 21, 2018 PCRA hearing. He had reviewed the Atkinson study, and stated that he found it “absolutely not compelling[,]” and described it as “the lowest quality of evidence[.]” N.T. PCRA Hr’g, 5/21/18, at 63-64; see also id. at 73 (Doctor Maffei opined that the Atkinson study “is not compelling science”). He explained that the Atkinson study was survey based, meaning doctors responded to a survey regarding injuries to minor children those doctors had treated. Id. at 66. He noted that none of the eight children documented in the Atkinson study had detached retinas or a complex skull fracture, while Z.M. had both. Id. at 64, 77, 83. Doctor Maffei explained that a detached retina is a more severe injury than retinal hemorrhage because of the greater forces involved. Id. at 76. He testified that he did not know of any new studies that would change his opinion as to Z.M.’s cause of death. Id. at 77, 79-80.

John G. Galaznik, M.D., testified on behalf of Appellant at another evidentiary hearing on August 12, 2019. The PCRA court accepted Doctor Galaznik as an expert in the field of pediatrics with a focus on physical injury of small children. N.T. PCRA Hr’g, 8/12/19, at 29. Doctor Galaznik reviewed Z.M.’s medical records, but did not review the transcript of Appellant’s trial. Id. at 29, 38.

Doctor Galaznik explained that at the time of Appellant’s trial in 2011, the American Academy of Pediatrics (Academy) recognized that abuse and accidents could cause the same type of injuries often referred to as “Shaken

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Baby Syndrome.” Id. at 41-43. He further explained that in 2010, it was the Academy’s position that only repetitive acceleration and deceleration, i.e., shaking, could cause retinal detachment and retinal hemorrhaging, and that a single impact, such a slam or an accidental fall, could not cause those injuries. Id. at 43-44, 51.

Doctor Galaznik described two studies from 2010 to 2012 that recreated injuries consistent with abuse cases involving shaken babies using piglets and lambs as substitutes for human babies. Id. at 52-59. Neither study was able to produce retinal detachment or retinal hemorrhaging in the eyes of the animals shaken for the experiments. Id. Doctor Galaznik explained that these studies called into question the medical conclusion that shaking a baby produces retinal damage. Id. at 56. Doctor Galaznik proposed an alternate explanation for Z.M.’s injuries: a short distance fall with significant impact could cause an increase in intracranial pressure that would cause the retinal hemorrhaging. Id. at 58-59, 78, 81.

Doctor Galaznik described the Atkinson study as a “paradigm shifting study . . . .” Id. at 69. He also stated that it was “a pivotal article, not something to be disregarded.” Id. at 70-71. Doctor Galaznik explained that the current scientific biomechanical research data would not support an assertion[ that shaking caused Z.M.’s injuries].” Id. at 71. He concluded that “[s]ince 2011 [] it is now undeniable that [a] short distance head drop could account for large volume subdural bleeding, retinal hemorrhage with [retinal detachment] . . . and death as an accidental injury.” Id. at 102.

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On October 29, 2018, Appellant filed a motion to compel compliance with subpoena for Doctor Samuel Land. Therein Appellant averred that he had served Doctor Land with a subpoena to testify at the PCRA hearing and offered to pay him a witness fee of $100 pursuant to Pa.R.C.P. 234.2(c). Mot. to Compel, 10/29/18, at 1, R.R. at 296. Appellant asserted that Doctor Land replied that he wanted to be paid as if Appellant had retained him as an expert witness. Id. Appellant requested that the PCRA court compel Doctor Land’s appearance to testify at the PCRA hearing without payment as an expert witness. Id. at 2, R.R. at 297. In his brief in support of the motion to compel, Appellant argued he “has the right to recall a witness to confront that witness with new scientific evidence that has come to light since Dr. Land’s trial testimony and examine Doctor Land on whether this new evidence would cause [Doctor] Land to change his professional opinion” that Z.M.’s death was caused by being violently slammed against a surface. Appellant’s Brief in Supp. of Mot. to Compel, 11/13/18, at 2-3, R.R. at 303-04. Appellant requested that Doctor Land be ordered to appear and testify at the PCRA hearing and be compensated with the ordinary witness fee. Id. at 5, R.R. at 306. Appellant alternatively argued that because he had previously been found to be in forma pauperis (IFP) and that his family was paying counsel and witness fees, the Commonwealth should pay Doctor Land’s witness fee. Id. (citing Pa.R.Crim.P. 904(G)).

Doctor Land filed an answer to Appellant’s motion to compel, and a supporting brief, requesting that the PCRA court deny the motion to compel

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his testimony without being paid his expert witness fee because he was not an ordinary witness. The Commonwealth also filed an answer to Appellant’s motion to compel, arguing that Appellant had not filed a petition for appointment of funds to pay Doctor Land’s expert witness fee, and requested that the PCRA court deny Appellant’s request for the Commonwealth to pay Doctor Land’s expert witness fee.

The PCRA court heard oral argument on Appellant’s motion to compel on December 17, 2018. During oral argument, Appellant, through counsel, again argued that because he had been granted IFP status, he should not be required to pay Doctor Land’s expert witness fee. N.T. Mot. Hr’g, 12/17/18, at 7. The Commonwealth responded it would have a chilling effect on experts from testifying for the Commonwealth if they could be recalled to testify in PCRA proceedings without compensation. Id. at 10-11. The PCRA court denied Appellant’s motion to compel on May 17, 2019.

The PCRA court issued an opinion and order denying Appellant’s PCRA petition on July 1, 2020.7 See PCRA Ct. Op. & Order, 7/1/20. Appellant filed a timely notice of appeal on July 30, 2020. Appellant complied with Pa.R.A.P.

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7 We note that Appellant captioned this appeal as arising from the PCRA court’s

“June 30, 2020” order. See Notice of Appeal, 7/30/20. While, the PCRA court’s order was dated and docketed June 30, 2020, it was served on July 1, 2020. Under our appellate rules, the date of entry of an order is “the day the clerk of the court . . . mails or delivers copies of the order to the parties, . . .” Pa.R.A.P. 108(a)(1), (d)(1). We have amended the caption accordingly.

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1925(b).8 The PCRA court issued a Rule 1925(a) opinion addressing Appellant’s recusal and subpoena issues. The PCRA court also adopted its July 1, 2020 opinion and order addressing Appellant’s claim that his conviction was based on false or flawed expert testimony.

Appellant raises three issues for our review:

1. Whether the PCRA [court] erred when she denied [Appellant’s]

motions for recusal based on the appearance of bias?

2. Whether the PCRA judge erred and denied due process when she denied the PCRA petition establishing the conviction for third degree murder was based on flawed science supported by false and flawed expert testimony?

3. Whether the PCRA judge erred and denied Appellant’s Sixth Amendment right to compulsory process when she did not enforce Appellant’s subpoena for the testimony of Samuel Land, M.D.?

Appellant’s Brief at 2 (formatting altered).

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8 Appellant also raised a claim of ineffective assistance of trial counsel for failing to file a motion to dismiss based on double jeopardy after Appellant’s first trial ended in a mistrial. See Appellant’s 1925(b) Statement, 9/11/20, at 8-10. Appellant does not argue this claim in his appellate brief, therefore, that claim is waived. See Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (stating, “an issue identified on appeal but not developed in the appellant’s brief is abandoned and, therefore, waived” (citation omitted and formatting altered)). We note, however, that in his statement of the case, Appellant refers to trial counsel being ineffective for not objecting to the trial court declaring a mistrial. See Appellant’s Brief at 20. Our Rules of Appellate Procedure strictly prohibit argument in a statement of the case. See Pa.R.A.P. 2117(b) (stating “[t]he statement of the case shall not contain any argument”).

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Motion to Recuse

In his first issue, Appellant argues that the PCRA court erred by denying his motion for recusal. Id. at 23-29; Appellant’s Reply Brief at 19-22. Appellant asserts the PCRA court was biased because it had decided to deny Appellant’s 2014 PCRA petition before holding a hearing, as evidenced by the date on the order denying the petition, which was shortly after the date on which the petition was filed and prior to the January 16, 2015 hearing. Appellant’s Brief at 24-25. Appellant claims that “reasonable inference from the public record, including the opinion denying the pro se PCRA, is that the [PCRA] court made up its mind to deny the PCRA [petition] at the moment it was filed and the[n] gave the PCRA petition no real consideration, at all.” Id. at 24 (formatting alerted).

Appellant further asserts that the PCRA court was biased against him because it appointed Attorney Yelen as PCRA counsel and Attorney Yelen rendered ineffective assistance. Id. at 25; Appellant’s Reply Brief at 20. Appellant claims that the PCRA court acted with bias when it appointed Attorney Yelen because the court knew or had reason to know that Attorney Yelen was incompetent. Appellant’s Brief at 22. Appellant contends that after Attorney Yelen failed to meet with Appellant and file an amended PCRA petition on his behalf, the PCRA court should have conducted a Grazier hearing. Id. at 24-25. Appellant contends that the PCRA court violated its obligation “to ensure [Attorney Yelen’s] compliance with the duty to” file an amended PCRA petition that would “present the issues in a legally meaningful

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fashion to [e]nsure a trial court that all relevant considerations will be brought to its attention[.]” Id. at 25 (citation omitted and formatting altered).

The third claim of PCRA court bias Appellant argues on appeal is that the PCRA court prejudiced Appellant by declaring a mistrial during Appellant’s first trial after a juror conducted outside research “instead of taking a balanced approach and instructing the jury to disregard any information not presented in open court.” Id. at 29.

Lastly, Appellant also claims that the PCRA court’s denial of his motion to compel Doctor Land to testify and denial of the instant PCRA petition are evidence of the PCRA court’s bias.9 Id. at 28-29; Appellant’s Reply Brief at 20-21.

The Commonwealth responds that Appellant has failed to carry his burden to establish that the PCRA court was biased or prejudiced such that

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9 In the statement of case portion of his brief, Appellant includes additional

argument in support of his claim that the PCRA court acted with bias or prejudice in denying his PCRA petition. Specifically, he argues that the PCRA court refused to consider the federal habeas cases that he cited in support of his PCRA petition. Appellant’s Brief at 18-19. This contention of judicial bias is not included in the argument section of Appellant’s brief. As discussed above, our Rules of Appellate Procedure strictly prohibit the inclusion of argument in the statement of the case. See Pa.R.A.P. 2117(b). Therefore, we will not consider this allegation with respect to the claims of bias presented in the argument section of Appellant’s brief.

Additionally, we remind Appellant’s counsel that in addition to not containing argument, the statement of the case must present a balanced and therefore neutral statement of the facts and procedural history. See id. (stating “[i]t is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties” (emphasis added)).

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substantial doubt would be raised concerning whether the PCRA court could preside impartially. Commonwealth’s Brief at 29-35. Specifically, the Commonwealth claims that the typographical error in the PCRA court’s June 18, 2015 order “do not come remotely close to meeting the strict requirements for recusal.” Id. at 32. The Commonwealth also argues that there is no evidence to support Appellant’s claim that the PCRA court appointed an incompetent attorney as his first PCRA counsel. Id. at 35.

This Court has stated:

Our standard of review of a trial court’s determination not to recuse from hearing a case is exceptionally deferential. We recognize that our trial judges are honorable, fair and competent, and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially.

The party who asserts that a trial judge should recuse bears the burden of setting forth specific evidence of bias, prejudice, or unfairness. Furthermore, a decision by the trial court against whom the plea of prejudice is made will not be disturbed absent an abuse of discretion.

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009) (citations omitted and formatting altered); see also Commonwealth v. King, 839 A.2d 237, 239-40 (Pa. 2003) (explaining that “where a judge has refused to recuse h[er]self, on appeal, we place the burden on the party requesting recusal to establish that the judge abused h[er] discretion” (citation omitted)).

The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of

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giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

King, 839 A.2d at 240 (citation omitted and formatting altered).

This Court has explained that

recusal is required wherever there is substantial doubt as to the jurist’s ability to preside impartially. A jurist’s impartiality is called into question whenever there are factors or circumstances that may reasonably question the jurist’s impartiality in the matter.

Thus, in order for the integrity of the judiciary to be compromised, we have held that a judge’s behavior is not required to rise to a level of actual prejudice, but the appearance of impropriety is sufficient. In this regard, the appearance of impropriety sufficient to disqualify a judge exists when a significant minority of the lay community could reasonably question the court’s impartiality.

Commonwealth v. Dip, 221 A.3d 201, 206-07 (Pa. Super. 2019) (citations omitted and formatting altered), appeal denied, 229 A.3d 567 (Pa. 2020).

This Court has explained:

In this Commonwealth, a party must seek recusal of a jurist at the earliest possible moment, i.e., when the party knows of the facts that form the basis for a motion to recuse. If the party fails to present a motion to recuse at that time, then the party’s recusal issue is time-barred and waived.

Commonwealth v. Blount, 207 A.3d 925, 930-31 (Pa. Super. 2019) (citation omitted), appeal denied, 218 A.3d 1198 (Pa. 2019).

It is well established “‘simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant.’”

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Commonwealth v. McCauley, 199 A.3d 947, 951 (Pa. Super. 2018) (quoting Commonwealth v. Travaglia, 661 A.2d 352, 367 (Pa. 1995)). When reviewing a trial court’s denial of a motion to recuse, this Court will not consider evidence of the trial court’s bias that allegedly occurred after the date the motion was filed. See, e.g., Commonwealth v. Williams, 69 A.3d 735, 750 (Pa. Super. 2013) (relying only on evidence from prior to the date the defendant filed her motion to recuse to conclude the trial judge did not abuse his discretion in denying that motion). Furthermore, “it is well-settled that an appellant cannot bootstrap a series of meritless claims into a cumulative claim of error.” Commonwealth v. Kearney, 92 A.3d 51, 62 (Pa. Super. 2014) (citations omitted).

A PCRA petitioner has a statutory right to effective counsel on a first PCRA. Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa. 2013). Additionally, our Supreme Court has explained that when a defendant seeks to waive the right to counsel at the post-conviction stage of the case or on appeal, the trial court must make “an on-the-record determination . . . that the waiver is a knowing, intelligent, and voluntary one.” Grazier, 713 A.2d at 82. This Court further explained that “where an indigent, first-time PCRA petitioner was denied his right to counsel—or failed to properly waive that right—this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011).

Here, the PCRA court explained, in relevant part:

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[Appellant] claims that the undersigned judge erred by refusing to recuse herself from Appellant’s PCRA Petition for the following reasons:

1. The first order denying the PCRA Petition was dated shortly after the Petition was filed and included clerical irregularities;

2. The Court did not hold a Grazier hearing or remove Appellant’s court appointed PCRA counsel who did not provide effective representation;

* * *

[Appellant] requested recusal based on the allegation that this court pre judged his petition as evidenced by irregularities in the Order denying his petition. The order was filed on June 18, 2015 and was dated June 18, 2014. This was an obvious clerical error and in no way implies the court pre-judged the merits of the petition without the opportunity for [Appellant] to present his case at a hearing. Similarly, [Appellant] alleges that the court was biased or the appearance of impropriety existed because some of the dates cited in the procedural history portion of the opinion accompanying the order were incorrect. Again, these were clerical, not substantive errors and are certainly not evidence of bias, prejudice or prejudgment. The substance of the opinion discussed the merits of [Appellant’s] petition.

Next, [Appellant] sought recusal alleging [Attorney Yelen]

provided no representation and, therefore, the [PCRA c]ourt should have held a Grazier hearing to determine whether [Appellant] wanted to proceed pro se. The Superior Court has determined that [Appellant] was effectively denied his right to assistance of counsel, vacated this [c]ourt’s decision and remanded the case so [Appellant] could obtain new counsel and file an amended petition. Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017). This, however, does not cast any doubt on the [PCRA c]ourt’s continued ability to preside over the case impartially and, as previously discussed, this jurist has never wavered in her ability to preside without prejudice or bias and there is no evidence to suggest otherwise. To the contrary, the court granted multiple requests for continuances and other accommodations requested by [Appellant]. . . . The [PCRA c]ourt granted a motion for [Attorney Yelen] to speak with [Appellant]

via telephone. During the January 16, 2015 hearing, [Appellant]

confirmed that, per his request, he was provided all of the trial transcripts for his personal review and that he had the opportunity

21

to review them. At the hearing, [Attorney Yelen] stated that after speaking with [Appellant], it was [Appellant’s] decision to proceed on the original petition as opposed to offering testimony. Upon [Attorney Yelen’s] confirmation that, upon review of the transcripts, there was nothing additional to offer with respect to recusal, the [PCRA] court likewise confirmed that there was nothing in the motion or transcripts which would lead her to reconsider her decision to deny the motion to recuse.

* * *

In his motion for recusal filed on May 23, 2017, [Appellant] alleged numerous grounds for recusal. None of these allegations constitute evidence that this court was unable to act impartially and without personal bias or prejudice with respect to this matter or raise sufficient grounds for recusal. A series of meritless allegations cannot be combined together to create a simple cumulative claim of bias. Commonwealth v. Kearney, 92 A.3d 54, 62 (Pa. Super. 2014). [Appellant’s] claims have no merit, and when each are examined individually, they do not form as sufficient basis for recusal, nor are they sufficient when examined as a whole.

This court has presided over this case since 2010. There are no instances in the record where the trial judge displayed or articulated displeasure or impatience toward [Appellant]. After careful consideration of the points raised by [Appellant] in his motion for recusal, this court made a conscientious determination that it was able to assess the case in an impartial manner, without any personal bias toward [Appellant] or the Commonwealth or interest in the outcome. Furthermore, this jurist disagrees that her continued involvement in the case created an appearance of impropriety or would tend to undermine public confidence in the judiciary.

PCRA Ct. Op., 11/13/20, at 3-4, 5-8 (some citations omitted and formatting altered).

Turning to Appellant’s first claim of judicial bias, he asserts the date on the PCRA court’s order denying his first PCRA petition indicates that the PCRA court did not fairly consider his claims and had decided to deny his PCRA

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petition shortly after it was filed, prior to any hearing. We conclude that the record does not support Appellant’s claim. Recusal is required “whenever there are factors or circumstances that may reasonably question the jurist’s impartiality . . . .” See Dip, 221 A.3d at 206-07 (emphasis added). We cannot say that the date on the PCRA court’s June 18, 2015 order, which the PCRA court stated was a typographical error, is a factor that can reasonably call the PCRA court’s impartiality into question. See id.

In his second claim of judicial bias, that the PCRA court erred by not holding a Grazier hearing, we do not find support in the record for his claim. Firstly, the notes of testimony of the January 16, 2015 hearing indicate that Appellant had discussed his PCRA petition with Attorney Yelen and decided that he wanted to proceed without Attorney Yelen filing an amended petition. Further, Appellant did not request to represent himself in this matter prior to or during the January 16, 2015 hearing. Under Grazier, a court must conduct a hearing when a defendant requests to proceed pro se. See Grazier, 713 A.2d at 82. Appellant has not cited any case law that requires a PCRA court to sua sponte conduct a Grazier hearing if that court believes that PCRA counsel has rendered ineffective assistance. The fact that this Court reversed the PCRA court’s June 18, 2015 order because this Court concluded that Attorney Yelen was ineffective does not establish that the PCRA court was biased against Appellant for not holding a sua sponte Grazier hearing. Lastly, Appellant has not presented any evidence to support his contention that the PCRA court knew or should have known that Attorney Yelen was not

23

competent to represent Appellant in a PCRA matter. See Harris, 979 A.2d at 391-92. Therefore, Appellant has not shown that the PCRA court was biased or acted with prejudice with respect to the appointment of Attorney Yelen in the PCRA proceedings.

Appellant’s third claim of bias relating to the PCRA court declaring a mistrial with respect to Appellant’s first jury trial is waived because Appellant did not raise this claim at the earliest possible moment. See Blount, 207 A.3d at 930-31. Appellant’s first trial ended in a mistrial on January 14, 2011, Appellant first requested that the PCRA court recuse itself in his pro se PCRA petition on June 4, 2014, after the PCRA court presided over his second trial and sentencing hearing. Therefore, this claim of bias is waived because he did not raise this recusal claim until 2014, more than three years after his second trial in 2011. See id.

Lastly, we conclude that Appellant’s final claims of bias, relating to the denial of his motion to enforce the subpoena and his PCRA petition are both waived. Both of these decisions occurred after Appellant filed his motion for recusal, and this Court will not consider evidence presented after the filing date of the motion to recuse when evaluating the PCRA court’s decision to

deny said motion.10 See Williams, 69 A.3d at 750.

____________________________________________

10 Even if these claims were not waived, “simply because a judge rules against

a defendant does not establish any bias on the part of the judge against that defendant.” See McCauley, 199 A.3d at 951 (citation and quotation marks omitted). Therefore, Appellant has failed to present evidence that the PCRA court was biased with respect to these claims. See Harris, 979 A.2d at 391- 92.

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Appellant “cannot bootstrap a series of meritless claims into a cumulative claim of error.” See Kearney, 92 A.3d at 62. Because Appellant has not met his burden of proving the PCRA court was biased with respect to his individual claims, he cannot use them collectively to establish the PCRA court was biased. See id. Therefore, we conclude that the PCRA court did not abuse its discretion in denying Appellant’s motion to recuse, and he is not due relief on this claim. See King, 839 A.2d at 239-40; Harris, 979 A.2d at 391-92.

Unreliable Scientific Evidence at Trial In his second claim, Appellant argues that the PCRA court erred in denying his PCRA petition arguing that the forensic evidence regarding shaken baby syndrome presented at his second trial was flawed and based on outdated science. Appellant’s Brief at 29-34. Specifically, Appellant contends that the evidence presented at the PCRA hearing established that the Commonwealth’s experts’ conclusion that detached retinas and retinal hemorrhage could not have been caused by a fall was based on outdated medical science. Id. at 31-32. Appellant asserts that he presented evidence at the PCRA hearings that established that Z.M.’s death was caused by an accidental fall down the stairs. Id. at 31. Appellant argues that the presentation of flawed scientific evidence undermined the fundamental fairness of his trial, which was a violation of his due process rights. Id. at 32-

25

33. Appellant cites several federal habeas corpus11 cases and decisions from other states in support of his due process claim. Id. Appellant emphasized that his claim is not an after-discovered evidence claim. Appellant’s Reply Brief at 22.

The Commonwealth treated Appellant’s medical science claim as an after-discovered evidence claim, not as a due process claim. Commonwealth’s Brief at 35-42. Specifically, the Commonwealth responded that Appellant’s theory that the victim died as a result of a fall down the stairs is implausible based on the evidence presented at trial, including a lack of hair or blood on the dumbbells Appellant claims that the victim’s head hit as she fell. Id. at 37-39. The Commonwealth contends that most of the studies cited by Appellant’s experts at the PCRA hearings already existed at the time of his trial. Id. at 42. The Commonwealth notes that Doctor Maffei described the Atkinson study as “absolutely not compelling”, and interpreted the Atkinson study as stating more research was necessary regarding its conclusions. Id. at 41.

This Court has explained that

____________________________________________

11 Under 28 U.S.C. § 2254(d), federal habeas relief may be granted to a state prisoner only if the state court’s review of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts. . . .”

Commonwealth v. Lesko, 15 A.3d 345, 363-64 (Pa. 2011).

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our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa. 2019).

“To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2) . . . .” Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013).

Section 9543 provides in relevant part:

(a) General rule.—To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:

* * *

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

* * *

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

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42 Pa.C.S. § 9543(a)(2)(i), (vi).

“It is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (citing, inter alia, 42 Pa.C.S. § 9542, and Commonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999)). “Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition.” Id. at 466 (citation omitted); see also Commonwealth v. Moore, 247 A.3d 990, 996-97 (Pa. 2021) (holding that the defendant’s claim that the statute under which he was sentenced was void for vagueness implicated the legality of his sentence and must be raised in a PCRA petition and not in a petition for writ of habeas corpus).

Our Supreme Court has treated claims about advances in scientific understanding, which were not available at the time of trial, as claims of after- discovered evidence under the PCRA. See, e.g., Commonwealth v. Albrecht, 720 A.2d 693, 706-07 (Pa. 1998) (discussing a claim regarding advances in fire investigation science in the context of after-discovered evidence under Section 9543(a)(2)(vi)).

It is well settled that an after-discovered evidence claim requires a petitioner to establish that “(1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to

28

impeach credibility; and (4) it would likely compel a different verdict” if a new trial were granted. Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (citation omitted). “The test is conjunctive; the defendant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).

In determining “whether the alleged after-discovered evidence is of such nature and character that it would likely compel a different verdict if a new trial is granted[,] a court should consider the integrity of the alleged after- discovered evidence, the motive of those offering the evidence, and the overall strength of the evidence supporting the conviction.” Id. at 365 (citations omitted).

The PCRA court correctly evaluated Appellant’s claim as an after-

discovered evidence claim under the PCRA, the sole means for post-conviction relief, and concluded that the Atkinson study was not after-discovered evidence and that the Commonwealth’s experts did not rely on faulty medical science at trial. See PCRA Ct. Op., 7/1/20, at 6-19. Specifically, the PCRA court noted that Appellant presented experts at his trial who opined Z.M. sustained her injuries in an accidental fall. See id. at 17-19. The PCRA court concluded that the evidence presented at the PCRA hearings was not after- discovered evidence because Appellant used it to impeach and challenge the credibility of the Commonwealth’s experts from trial, and that the disagreement between Appellant’s experts and Commonwealth’s experts did

29

not establish that the Commonwealth’s experts relied on false or faulty science. See id. at 15-16, 19.

We recognize that Appellant has argued that he is entitled to relief because the presentation of purportedly flawed scientific evidence at trial violated his due process rights, and he asserts that he is not presenting an after-discovered evidence claim. However, under Pennsylvania law, “the PCRA is intended to be the sole means of achieving post-conviction relief” and a claim that is cognizable under the PCRA must be raised in a PCRA petition, and not in a request for habeas relief. See Taylor, 65 A.3d at 465-66; see also Moore, 247 A.3d at 996-97. Further, under the PCRA, a claim regarding new scientific evidence which undermines or discredits the scientific evidence presented at trial is properly raised as an after-discovered evidence claim

under Section 9543(a)(2)(vi), and not as a due process claim.12 See 42

____________________________________________

12 Even if we were to treat Appellant’s claim as a due process claim and not

an after-discovered evidence claim under the PCRA, we would necessarily follow the precedent of the appellate courts of this Commonwealth and the United States Supreme Court. Appellant relies on federal habeas decisions and decisions from the courts of other states, which are generally not binding on this Court and are not cognizable under the PCRA. See Commonwealth v. Hicks, 208 A.3d 916, 936 n.13 (Pa. 2019) (holding decisions of the Third Circuit are not binding on the courts of this Commonwealth), cert. denied, 140 S. Ct. 645 (2019); Commonwealth v. Lukach, 163 A.3d 1003, 1009 n.5 (Pa. Super. 2017) (decisions of the federal courts and the courts of other states have persuasive value only); see also Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc) (holding that “the failure to develop an adequate argument in an appellate brief may [] result in waiver of the claim under Pa.R.A.P. 2119” (citation and quotation marks omitted, emphasis added)).

(Footnote Continued Next Page)

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Pa.C.S. § 9543(a)(2); Moore, 247 A.3d at 996-97; Taylor, 65 A.3d at 465- 66.

Based on our review of legal authority and this record, we agree with the PCRA court that Appellant’s claim that the Commonwealth’s medical evidence was flawed is meritless. Appellant argues that the Commonwealth’s scientific evidence was faulty because his expert witnesses testified at trial that the Shaken Baby Syndrome was a controversial diagnosis, Z.M.’s fatal injuries could have been the result of a fall down the stairs, and he presented evidence that injuries such as retinal hemorrhages should not automatically be diagnosed as the result of child abuse. See PCRA Ct. Op., 7/1/20, at 5- 19. The PCRA court observed that Appellant had not shown that the medical community generally accepted his evidence consistent with Pa. Rule of Evidence 702(c), and further that disagreement between experts did not establish the medical evidence was false or faulty. See id. at 18-19. Appellant has not shown that the PCRA court abused its discretion in its evidentiary rulings concerning the conflicting expert testimony presented by the Commonwealth and Appellant. See Sandusky, 203 A.3d at 1043.

Therefore, we affirm on the basis of the PCRA’s court opinion and conclude

____________________________________________

In any event, Appellant’s due process claim, which could be raised under the federal habeas statute, is not cognizable under the PCRA; therefore, the trial court properly considered his claim as after-discovered evidence under the PCRA and determined in its discretion that Appellant is not entitled to relief. See 42 Pa.C.S. § 9543(a)(2)(i) (relating to PCRA relief for violations of the United States and/or Pennsylvania Constitutions); Robinson, 82 A.3d at 1005.

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that Appellant is not entitled to relief.13 See PCRA Ct. Op., 7/1/20, at 5-19; see also Cox, 146 A.3d at 228.

Subpoena for Doctor Land

In his final issue, Appellant claims that the PCRA court erred when it denied his motion to compel Doctor Land to comply with Appellant’s subpoena to testify at his PCRA evidentiary hearing. Appellant’s Brief at 34-35. Appellant argues that Doctor Land was an important witness and that Appellant was indigent. Id. at 34. Appellant contends that “[t]he Sixth Amendment guarantees a criminal defendant the right to compulsory process. The right to offer testimony is fundamental.” Id. at 35 (citing Washington v. Texas, 388 U.S. 14 (1967); Commonwealth v. Holloman, 621 A.2d 1046 (Pa. Super. 1993)). Appellant asserts “that Doctor Land could be transformed from a prosecution witness to a defense witness when faced with the new science presented by nationally recognized experts indicating the injuries sustained by [the victim] could have come from a short fall.” Id. Appellant further contends that PCRA court’s “order forcing the indigent Appellant to pay $375.00 for Doctor Land’s appearance denied [Appellant] the Sixth Amendment right to confront witnesses, and denied due process, and tainted the legitimacy of the PCRA [c]ourt’s findings of fact and conclusions of law.”

____________________________________________

13 The PCRA court’s citations on page 6 of its June 30, 2020 opinion should

read “Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)”, “Commonwealth v. Schuck, 164 A.2d 13 (Pa. 1960)”, and “Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super. 2012)”.

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Appellant’s Reply Brief at 24; see also id. at 12, 20 (arguing that the PCRA court violated his right to confrontation because of his indigency).

The Commonwealth responds that under 42 Pa.C.S. § 5903, an expert witness who has been served with a subpoena to testify is entitled to receive compensation for that testimony. Commonwealth’s Brief at 42-43. The Commonwealth contends that Appellant’s arguments that he was not calling Doctor Land as an expert witness is contradicted by the type of testimony Appellant was seeking from Doctor Land and the fact that Doctor Maffei was qualified as an expert at a prior PCRA hearing in this case. Id. at 43.

We review a trial court’s decision to enforce or quash a subpoena for an abuse of discretion. See Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012); see also Commonwealth v. McKenzie, 581 A.2d 655, 657- 58 (Pa. Super. 1990). This Court “may affirm the decision of the [PCRA] court if there is any basis on the record to support the [PCRA] court’s action; this is so even if we rely on a different basis in our decision to affirm.” Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citation omitted).

This Court has observed that

under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor. The right to compulsory process encompasses the right to meet the prosecution’s case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial.

Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This

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right is a fundamental element of due process of law.

[Washington, 388 U.S. at 19]. The constitutional right, though fundamental, is not, however, absolute. In order to compel the attendance of a witness at trial, it must be shown that the information possessed by the witness is material, i.e., capable of affecting the outcome of the trial, and that it is favorable to the defense. United States v. Valenzuela-

Bernal, 458 U.S. 858 (1982).

McKenzie, 581 A.2d at 657 (some citations and quotation marks omitted) (emphasis added); see also Commonwealth v. Banks, 946 A.2d 721, 725 (Pa. Super. 2008) (holding that, to establish a violation of his or her right to compulsory process, “the defendant must make some plausible showing of how the witnesses’ testimony would have been both material and favorable to the defense” (citation and some formatting omitted)).

A defendant seeking to compel the attendance of a witness is “not relieved of the burden of showing that the missing witness would have given favorable [and material] testimony merely because the defense did not have prior access to the witness.” Commonwealth v. Lahoud, 488 A.2d 307, 311 (Pa. Super. 1985). “In such circumstances it is of course not possible to make any avowal of how a witness may testify. But the events to which a witness might testify, and the relevance of those events to the crime charged, may well demonstrate either the presence or absence of the required materiality.” Id. (citation omitted and emphasis in original).

Further, this Court has held that a defendant’s right to confrontation is a right that applies at trial, and does not apply to PCRA evidentiary hearings. Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014).

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The PCRA court explained that:

Doctor Land is a forensic pathologist who performed an autopsy on the victim nine (9) years ago and testified seven (7) years ago as an expert witness in the trial. Doctor Land never testified as a fact or ordinary witness, but as an expert witness and [Appellant]

sought to call him for the purpose of determining whether new scientific evidence would cause Doctor Land to change any portion of the expert opinion given at the trial of [Appellant]. Clearly, Doctor Land was being asked to render an expert opinion based on the Atkinson [study] utilizing his special knowledge and experience.

The evidence of record does not support the assertion that the Commonwealth should have to pay for [Appellant’s] witness or that Doctor Land is an ordinary witness entitled to ordinary witness fees under 42 Pa. C.S.[] § 5903. Doctor Land is an expert witness who [Appellant] sought to compel attendance and testimony at [Appellant’s] evidentiary hearing, therefore Doctor Land is entitled to reasonable compensation for his time and such reasonable compensation should be at his customary expert rates.

* * *

For these reasons, the [PCRA c]ourt denied [Appellant’s] motion.

PCRA Ct. Op., 11/13/20, at 11-12.

Here, Appellant argues that the PCRA court should have enforced the subpoena and compelled Doctor Land to testify without being paid his expert witness fee because Doctor Land could have changed his opinion about the cause of Z.M.’s fatal injuries when confronted with new medical science. We conclude that Appellant has failed to establish that Doctor Land’s testimony would have been favorable to him. See Banks, 946 A.2d at 725; McKenzie, 581 A.2d at 657. Appellant has only offered speculation that Doctor Land would change his opinion about the cause of Z.M.’s injuries based on the

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Atkinson study.14 Because Appellant failed to make a plausible showing that Doctor Land’s testimony would have been favorable to him, we conclude the PCRA court did not abuse its discretion in denying Appellant’s motion to enforce subpoena. See Walsh, 36 A.3d at 620; McKenzie, 581 A.2d at 657. Furthermore, because the right to confrontation does not apply at post- conviction proceedings, we conclude that the PCRA court did not violate Appellant’s right to confront witnesses by denying his motion to compel Doctor Land to comply with the subpoena. See Wantz, 84 A.3d at 337. Therefore, we affirm the PCRA court’s order, albeit on a different basis. See Wiley, 966 A.2d at 1157.15 For these reasons, we affirm the PCRA court’s order denying Appellant’s PCRA petition.

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14 We note that at trial, Doctor Land did not base his conclusion that Z.M.’s

injuries were the result of abuse solely on the presence of retinal hemorrhaging. Specifically, Doctor Land testified that he did not believe that Z.M. injuries could have been the result of her falling down the stairs and hitting her head on the dumbbells because Z.M. did not have any injuries consistent with falling onto a hard object like the dumbbells. See N.T. Trial, 10/18/11, at 283-84.

15 Insofar as Appellant argued that because he was indigent, the PCRA court

should have ordered Doctor Land to testify without Appellant having to pay his expert witness fee or to require the Commonwealth to pay Doctor Land’s fee, Appellant is incorrect. The proper procedure for an indigent defendant to obtain expert testimony is to request the court to provide public funds to hire an expert. See, e.g., Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014); Albrecht, 720 A.2d at 707. Appellant made no such request before the PCRA court, nor has he argued in his brief that he should have been provided with public funds to pay Doctor Land’s fee. Therefore, this claim is waived. See Pa.R.A.P 302(a); Felder, 247 A.3d at 20.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/08/2021

Circulated 10/27/2021 01:31 PM