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Commonwealth v. Brown4/29/2005
itigating circumstances when Appellant has failed to establish that such evidence of mental illness existed at the time of trial. Thus, Appellant has failed to demonstrate that he was prejudiced by trial counsel's performance during the penalty phase. Accordingly, the issue of trial counsel ineffectiveness fails and renders the claim of appellate counsel's ineffectiveness untenable.
Appellant's next claim of appellate counsel ineffectiveness involves trial counsel's failure to impeach the misleading testimony of the medical examiner (Argument VI). At trial, Bennett Preston, M.D., the Assistant Medical Examiner for the City of Philadelphia, testified that the victim had been hit by three bullets: two of those bullets entered the victim's left chest and the third entered his upper left outer arm, passed through the arm, reentered the victim's body under his left arm and traveled under the skin, partially exiting through the back. Dr. Preston testified that the path of the bullet that entered the victim's arm was consistent with the victim having his left hand raised in a defensive posture at the time he was shot, thus discounting Appellant's theory that he had acted in self-defense. (N.T. 7/18/91, 758-766).
Appellant argues that Dr. Preston's testimony is scientifically unsound and that trial counsel was ineffective for failing to obtain an expert to rebut it. He relies on two declarations of Dimitri Contostavlos, M.D., who opined that it was impossible to tell from a single gunshot wound whether the victim's left arm was raised in a defensive position. Dr. Contostavlos found that one could not determine whether the victim's palm was facing away from the body or whether the victim's left hand was holding a firearm. Declaration of Dr. Dimitri Contostavlos, Appendix of Exhibits to Initial Brief of Appellant, Exhibit 16.
The Commonwealth argues that, contrary to Appellant's contentions, Dr. Preston's opinion was not based upon a "single gunshot wound," but instead on a total of four wounds inflicted by a single bullet. Moreover, it persuasively notes that Dr. Contostavlos' proposition, that the victim's left arm was wounded while it was holding a weapon at Appellant, is belied by Appellant's own testimony. At trial, Appellant testified that his father pointed a gun at him with his right hand. (N.T. 7/19/91, 902). Thus, whether the victim's left hand was raised or by his side is irrelevant to the question of whether he was aiming a firearm at Appellant. The Commonwealth further notes that Dr. Contostavlos and Dr. Preston agreed that the bullets passed through the victim's body in a downward direction, which refutes Appellant's trial theory that he dove to the ground and fired up at his father in self-defense. Under these circumstances, we agree with the Commonwealth that trial counsel's failure to secure Dr. Contostavlos to testify at trial did not prejudice Appellant and therefore trial counsel cannot be deemed ineffective. This being the case, Appellant cannot sustain his burden of satisfying the Pierce standard as to appellate counsel's ineffectiveness.
Appellant's next claim of appellate counsel ineffectiveness alleges that trial counsel failed to present material guilt phase evidence in support of his theory of self-defense (Argument X). Identical to his claims in Argument III, Appellant argues that trial counsel ignored evidence of the decedent's history of firearm offenses and the abuse that Appellant suffered by the hands of his father. As noted in disposing of Appellant's previous claims of ineffectiveness at 12, supra, Appellant did not demonstrate that he made counsel aware of his father's abusive behavior. See Commonwealth v. Bracey, 795 A.2d at 944 (trial counsel n
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