IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

)
COMMONWEALTH )
) CP-51-CR-0532781-1992
Respondent )
)
v. ) CAPITAL PCRA
)
WALTEROGROD )
)
Petitioner )

AMENDED PETITION FOR HABEAS CORPUS RELIEF

PURSUANT TO ARTICLE I, SECTION 14 OF THE
PENNSYLVANIA CONSTITUTION AND
STATUTORY POST-CONVICTION RELIEF
UNDER 42 PA.C.s. § 9542 ET SEQ.
AND CONSOLIDATED MEMORANDUM OF LAW

Tracy L. Ulstad
Pa. Bar No. 87377
Samuel J.B. Angell
Pa. Bar No. 61239
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut St., Suite 545W
Philadelphia, PA 19106
(215) 928-0520

-and-

Robert E. McDonnell
Andrew J. Gallo
Bingham McCutchen LLP
One Federal Street
Boston, MA 02110
(617) 951-8000

Counsel for Petitioner

Walter J. Ogrod

Dated: June 24,2011

 TABLE OF CONTENTS

INTRODUCTION AND BACKGROUND FACTS 1

A. The Unsolved 1988 Murder of Barbara Jean Hom ;l.
B. The 1986 Murder of Maureen Dunne and Police Familiarity with the Ogrod
Residence Q
C. 1992: The Cold Case Team Takes Over 1
D. A Man of Whom Others Took Advantage Jl.
E. The Police Take a False Confession .u
F. Mark Greenberg, Trial Counsel 16

RELEVANT PROCEDURAL HISTORY 25

PRIOR COUNSEL 27

STATEMENT OF JURISDICTION 27

ELIGIBILITY FOR RELIEF 27

I. Federal Constitutional Standards. . 27
II. State Law and Eligibility for PCRA Relief 27
III. None of the Issues Raised Herein are "Previously Litigated" or "Waived." 30
IV. United States Human Rights Obligations Foreclose the Application of Any
Procedural Rule as a Bar to Review of Petitioner's Substantive Claims for Relief.
............................................................... 32
V. Standard of Review for Claims ofIneffective Assistance of Counsel. 35
VI. Petitioner is Entitled to an Evidentiary Hearing 36
VII. Statement Regarding Discovery and Further Amendments of Claims Presented.
............................................................... 37

CLAIMS FOR RELIEF 38

Claim I. PETITIONER IS ACTUALLY INNOCENT AND HIS CONTINUED
INCARCERATION AND DEATH SENTENCE VIOLATE HIS RIGHT
TO DUE PROCESS, CONSTITUTE CRUEL AND UNUSUAL
PUNISHMENT, AND REPRESENT A GRAVE MISCARRIAGE OF
JUSTICE 38
A. The Eighth and Fourteenth Amendments to the United States Constitution
Prohibit the Incarceration and Execution of an Innocent Person. . ..... 38
B. Sections 9 and 13 of Article I of the Pennsylvania Constitution Prohibit the
Incarceration and Execution of an Innocent Person. . 39
C. Mr. Ogrod is Innocent. 41
Claim II. TRIAL COUNSEL'S FAILURE TO GATHER AND PRESENT
EVIDENCE THAT CASTS COMPELLING, SERIOUS AND
SUBSTANTIAL DOUBT ON THE PROSECUTION'S CASE DURING

1
 THE GUILT/INNOCENCE STAGE OF MR. OGROD'S TRIAL WAS
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF
PETITIONER'S 6TH, 8TH AND 14TH AMENDMENT RIGHTS
UNDER THE UNITED STATES CONSTITUTION AND UNDER
ARTICLE 1, SECTIONS 1,9 AND 13 OF THE PENNSYLVANIA
CONSTITUTION, AND APPELLATE COUNSEL WAS INEFFECTIVE
FOR FAILING TO RAISE THESE CLAIMS 46
A. Governing Legal Standard. . 46
B. Trial Counsel Was Ineffective for Failing to Adequately Investigate and
Present Forensic Expert Testimony that the Weight Bar Was Not the
Murder Weapon, and, to the Extent he was Responsible for Raising this
Aspect of Trial Counsel's Ineffectiveness, Post-Verdict/Appellate Counsel
W!iS Ineff()ciivefor Failing to Rajs~ thisC!aim, 47
i. Trial Counsel's Performance was Deficient 48
ii. Trial Counsel Had No Reasonable Basis for His Failure to
Adequately Investigate, Develop, and Present Forensic Expert
Testimony about the Murder Weapon. . 50
111. Mr. Ogrod Was Prejudiced 51
IV. The Issue of Trial Counsel's Ineffectiveness is Not Waived, but to
the Extent that Post-Verdict/Appellate Counsel Was Responsible
for Raising Trial Counsel's Ineffectiveness, Post-Verdict/Appellate
Counsel Was Ineffective. . 53
C. Trial Counsel Was Ineffective for Failing to Investigate and Present
Forensic Expert Testimony Showing That the Victim Would Have Bled
Profusely at the Crime Scene and onto the Murderer's Clothing as well as
Lay Witness Testimony to Establish That Mr. Ogrod's Basement Was Free
of Fresh Blood - Facts That Would Have Contradicted the Prosecution's
Theory of How the Crime Occurred and Undermined Petitioner's
Purported Statements to the Police and to Wolchansky, the Jailhouse
Snitch; This Claim is Not Waived, and to the Extent he was Responsible
for Raising this Claim, Post-Verdict/Appellate Counsel Was Ineffective. 54
i. Trial Counsel's Performance was Deficient Because He Failed to
Adequately Investigate, Develop, and Present Relevant Forensic
Expert Testimony About the Amount of Blood That Would Have
Been All Over the Crime Scene Following Blunt Force Blows to
the Human Head and Lay Witness Testimony About the Lack of
Blood in Mr. Ogrod's Basement. 55
11. Trial Counsel Had No Reasonable Basis for His Failure to
Adequately Investigate, Develop, and Present This Forensic Expert
and Lay Witness Testimony Concerning the Role of Blood in the
Crime 58
111. Mr. Ogrod Was Prejudiced by Trial Counsel's Deficient
Performance with Respect to Blood Issues 58

ii
 IV. The Issue of Trial Counsel's Ineffectiveness in Failing to Present
Expert Forensic Testimony and Lay Witness Testimony about
Blood Issues is Not Waived, but to the Extent that Post-
Verdict/Appellate Counsel Was Responsible for Raising Trial
Counsel's Ineffectiveness and Investigating these Aspects of the
Cases, Post-Verdict/Appellate Counsel was Ineffective 59
D. Trial Counsel was Ineffective for Failing to Rebut the Purported Jailhouse
Confession with Evidence and Argument That the Victim had No Vaginal
Trauma, and Appellate Counsel Was Ineffective for Failing to Raise this
Meritorious Claim 61
E. Trial Counsel was Ineffective for Failing to Investigate and Present
Important Eye-Witness Testimony and Other Supporting Testimony
Demonstrating thl!t Mr. Ogrod WasNotthe Man ~axrying the Box in
Which the Victim Was Found. This Claim Is Not Waived. To the Extent
That Post-Verdict/Appellate Counsel Was Responsible for Raising this
Claim, He Was Ineffective 63
i. Trial Counsel's Performance Was Deficient Because He Failed to
Investigate, Develop, and Present Evidence From an Eyewitness
Who Was Available to Testify, Willing to Testify, and Who Would
Have Testified That the Man with the Box Was Not Mr. Ogrod. 66
11. Trial Counsel Had No Reasonable Basis Not to Interview Peter
Vargas and Not to Present Him as a Helpful Eyewitness at Trial.
. . . . .. . .. . . . . . . . .. . . .. . .. . . .. . . . . . . .. . .. . . . . . .. .. . . 68
iii. Mr. Ogrod Was Prejudiced by Trial Counsel's Failure to Present an
Important Eyewitness to the Jury Because There Is a Reasonable
Probability that Mr. Vargas's Testimony Would Have Created a
Reasonable Doubt in the Mind of the Jury 69
F. Trial Counsel Was Ineffective for Failing to Investigate, Develop, and
Present Evidence that Rebutted the Commonwealth's Assertion that
Walter Ogrod's Mother Believed He Was Guilty of This Murder. ..... 72
i. Trial Counsel's Performance Was Deficient Because He Failed to
Rebut False Testimony and Prosecutorial Arguments 74
11. Trial Counsel Had No Reasonable Basis Not to Rebut Assertions
Made by the Jailliouse Snitch and the Prosecutor. 77
111. Trial Counsel Prejudiced Mr. Ogrod's Case by Failing to Rebut
Assertions Made by the Jailliouse Snitch and the Prosecutor. ... 78
IV. The Issue of Trial Counsel's Ineffectiveness is Not Waived. To the
Extent that Post-Verdict/Appellate Counsel Was Responsible for
Raising Trial Counsel's Ineffectiveness regarding Olga Ogrod's
Efforts to Defend Petitioner, Post-Verdict/Appellate Counsel Was
Ineffective. . 78
G. Trial Counsel was Ineffective for Failing to Establish Mr. Ogrod's Height,
Weight, and Hair Color at the Time of the Offense. Trial Counsel's

iii
 Ineffectiveness is this Respect is Not Waived. To the Extent Post-
Verdict/Appellate Counsel was Responsible for Raising the Issue, He was
Ineffective. . 80
H. Trial Counsel was Ineffective for Failing to Cross Examine Wolchansky
About His Use of Aliases and the Fact that He Was Testifying Under an
Alias. This Claim is Not Waived. To the Extent he was Responsible for
Raising the Issue, Post-Verdict/Appellate Counsel was Ineffective for
Failing to Properly Raise and Litigate this Claim 82
1. Trial Counsel was Ineffective For Failing to Present Readily Available
Witnesses to Establish Mr. Ogrod's Sleep-Deprived Condition at the Time
of His Purported Confession to Police 85
J. Cumulative effect 88
Claim III. TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT
LAY AND EXPERT TESTIMONY DEMONSTRATING THAT
WALTER OGROD'S PURPORTED STATEMENT TO POLICE WAS
INVOLUNTARY, UNRELIABLE AND FALSE AT A MOTION TO
SUPPRESS HEARING AND DURING TRIAL CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF MR.
OGROD'S 6TH, 8TH AND 14TH AMENDMENT RIGHTS UNDER
THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS I, 9 AND 13 OF THE PENNSYLVANIA CONSTITUTION.
APPELLATE COUNSEL COMPOUNDED THIS INEFFECTIVENESS
BY FAILING TO RAISE THIS MERITORIOUS CLAIM 88
A. Introduction 88
B. Mr. Greenberg's Deficient Attempt to Attack the Confession 89
C. Expert and Lay Witness Testimony That Mr. Greenberg Failed to Present
. 91
D. Trial Counsel Had No Reasonable Basis for his Failure to Present Expert
and Lay Witness Testimony as Set Forth Above 112
E. Trial Counsel's Failure to Present Expert and Lay Witness Testimony to
Cast Doubt on the Reliability and Validity of Mr. Ogrod's Confession
Prejudiced Mr. Ogrod. . lIS
F. The Issue of Trial Counsel's Failure to Prepare and Present Lay and Expert
Testimony About False Confessions and Mr. Ogrod's Inherently
Suggestible Nature is Not Waived. To the Extent that Post-
Verdict/Appellate Counsel was Responsible for Raising the Issue, He was
Ineffective. . 116
Claim IV. THE COMMONWEALTH VIOLATED THE FIFTH, SIXTH, EIGHTH,
AND FOURTEENTH AMENDMENTS WHEN IT FAILED TO
CORRECT FALSE TESTIMONY AND DISCLOSE EXCULPATORY
IMPEACHMENT EVIDENCE REGARDING INFORMANTS JAY
WOLCHANSKY AND JOHN HALL; TO THE EXTENT THIS
INFORMATION WAS AVAILABLE TRIAL COUNSEL WAS

iv
 INEFFECTIVE FOR FAILING TO UNCOVER AND PRESENT THIS
INFORMATION. THIS CLAIM IS NOT WAIVED. TO THE EXTENT
THAT POST-VERDICT/APPELLATE COUNSEL WAS RESPONSIBLE
FOR RAISING TRIAL COUNSEL'S INEFFECTIVENESS FOR THIS
CLAIM, POST-VERDICT/APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES 118
A. The Commonwealth Failed to Correct Wolchansky's False Testimony or
Disclose the Leniency He and John Hall Received in Exchange for Their
Cooperation 121
B. Wolchansky Did Not Receive Any Information From Walter Ogrod,
Rather He Conspired With John Hall to Manufacture Mr. Ogrod's
Purported Jailhouse Confession. . 121
C. John HallilAd J<ty WQlchilAsky F<tbricated Mr, OgrQd'sP]lfpQrted
Jailhouse Confession as Part of a Plea-Bargaining Gambit. 123
D. Both Hall and Wolchansky Bargained Successfully for Leniency in
Exchange for Their Cooperation and Testimony Against Mr. Ogrod.
. .. . .. . .. . . . .. . . . ... . . . . . . .. . .. . . . . .. . . .. . . .. .. .. . .. .. .. 124
E. The Commonwealth Failed to Reveal That It Provided Lenient Sentences
to Both Hall and Wolchansky in Consideration for Their Cooperation in
the Prosecution of Mr. Ogrod 125
F. The Commonwealth Violated Brady and Napue by Withholding Evidence
of the Agreements Made With Both Hall and Wolchansky and by Failing
to Correct the False Testimony ofWolchansky 128
G. The Commonwealth Never Disclosed The Full Extent ofWolchansky's
Criminal History to Trial Counsel and Thereby Deprived the Jury of
Important Information to Assess Wolchansky's Credibility 129
i. Wolchansky's Real Criminal Record 129
11. The Commonwealth Only Disclosed A Portion ofWolchansky's
Criminal Record. . 132
iii. The Full Extent of Hall's And Wolchansky's Prior Cooperation -
Including Their Joint Cooperation in the Prosecution of David
Dickson - Was Not Disclosed to Trial Counsel, Nor Was It
Revealed to the Jury That Decided Petitioner's Fate. . 133
H. The Full Extent ofWolchansky's Mental Health and Substance Abuse
History Was Not Disclosed to Trial Counsel, Nor Was It Revealed to the
Jury That Decided Petitioner's Fate. . 138
i. The Commonwealth's Failure to Disclose this Evidence Violated
Brady v. Maryland 138
11. The Court Erred in Denying Mr. Ogrod Access to Wolchansky's
Pre-Sentence Investigation Report 140
111. Mr. Ogrod was Prejudiced by The Commonwealth's Failure to
Reveal This Vital Impeachment Evidence and the Court's Failure
to Provide it Upon Request 141

v
 I. The Commonwealth's Failure to Disclose the Above-Referenced Evidence
Concerning Hall and Wolchansky Violated Brady and its Progeny.... 142
J. The Evidence that the Prosecutor Failed to Disclose Was Material and
Requires a New Trial. 144
K. To the Extent That The Above-Referenced Information was Available to
Trial Counsel, He was Ineffective for Failing to Use it to Cross Examine
Wolchansky. The Issue of Trial Counsel's Ineffectiveness is Not Waived.
To the Extent Post-Verdict!Appellate Counsel was Responsible for
Raising Trial Counsel's Ineffectiveness in this Aspect of the Case, Post-
Verdict!Appellate Counsel was Likewise Ineffective 146
Claim V. THE COMMONWEALTH WITHHELD MATERIAL EXCULPATORY
AND IMPEACHMENT EVIDENCE IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE_UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 9 OF THE
PENNSYLVANIA CONSTITUTION 148
Claim VI. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT
TO THE ADMISSIBILITY OF, OR TO ADEQUATELY REBUT, THE
TESTIMONY OF DR. HARESH MIRCHANDANI AND HIS
CONCLUSIONS REGARDING THE MURDER WEAPON,
VIOLATING WALTER OGROD'S RIGHTS UNDER THE 5TH, 6TH
AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTIONS 1,9 AND 13 TO THE
PENNSYLVANIA CONSTITUTIONS. THIS CLAIM IS NOT
WAIVED. TO THE EXTENT THAT POST-VERDICT/APPELLATE
COUNSEL WAS RESPONSIBLE FOR CHALLENGING THIS ASPECT
OF TRIAL COUNSEL'S INEFFECTIVENESS, POST-
VERDICT/APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE THIS MERITORIOUS CLAIM 151
A. Trial Counsel's Failure to Object to the Testimony of Dr. Mirchandani as
Violating Petitioner's Rights Under the Confrontation Clause and
Pennsylvania Law and Constituted Deficient Performance and This Claim
Has Arguable Merit. 154
B. Trial Counsel's Failure to Cross-Examine Dr. Mirchandani Regarding the
Contrary Conclusions of Dr. Hoyer Was Deficient Performance 156
C. There Was No Reasonable Basis For Trial Counsel's Failure to Object to
the Testimony of Dr. Mirchandani or For His Failure to Present Dr.
Hoyer's Contrary Conclusions to the Jury Either Through Rebuttal or
Cross Examination. . 157
D. Mr. Ogrod Suffered Prejudice as a Result of Trial Counsel's Failure to
Object to Mirchandani's Testimony and/or His Failure to Present Dr.
Hoyer's Contrary Conclusions to the Jury Through Cross Examination or
Rebuttal 158
Claim VII. THE PROSECUTOR'S PERVASIVE MISCONDUCT THROUGHOUT

vi
 PETITIONER'S TRIAL - DURING OPENING STATEMENT,
EXAMINATION OF WITNESSES AND CLOSING ARGUMENT-
VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR
TRIAL IN VIOLATION OF THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 1,6,9, AND 14 OF
THE PENNSYLVANIA CONSTITUTION; ALL PRIOR COUNSEL
WERE INEFFECTIVE FOR FAILING TO PROPERLY LITIGATE THIS
CLAIM 159
A. Introduction 160
B. Legal Standard for Prosecutorial Misconduct 161
C. Repeated References to Mr. Ogrod's Failure to Testify 163
D. Improper Statements Shifting the Burden of Proof 166
E. Improper Argument Equating Arrest and Prosecution with Guilt. 167
F. Improper Speculation and Extra-Record Comments 168
i. The Prosecutor Improperly Argued that Mr. Ogrod Was a Pervert
Who Possessed Child Pornography and Visited Sex Shops.... 168
ii. The Prosecutor Improperly Argued that Mr. Ogrod Confessed to
Other Inmates in Addition to Wolchansky 169
iii. The Prosecutor Improperly Argued that Eyewitness Identifications
are Unreliable 171
iv. The Prosecution Argued that Mr. Ogrod's Change of Address
Showed Consciousness of Guilt. 175
v. Speculation as to Why Nobody Saw Barbara Jean Enter Mr.
Ogrod's Home 176
vi. Speculation as to Why Mr. Ogrod Supposedly Cried During the
Police Interrogation 176
vii. Suggestion that Jury Put Themselves in the Victim's Shoes 176
V1l1. The Prosecutor's Improper Comments Were Harmful and
Prejudiced Petitioner, Denying Him Due Process and a Fair Trial.
.................................................. 177
G. Trial Counsel's Failure to Object to Each and Every One of These
Improper Comments and His Failure to Request Specific Curative
Instructions and a Mistrial Constitutes Ineffective Assistance of Counsel.
........................................................ 177
1. Petitioner's Claim ofProsecutorial Misconduct Has Arguable
Merit. 178
11. Trial Counsel Had No Reasonable Basis for His Inaction in
Response to Each of These Instances of Misconduct. 179
iii. Trial Counsel's Inaction Prejudiced Mr. Ogrod Such that He Was
Denied a Fair Trial. 180
iv. Ineffective Assistance of Post-Verdict/Appellate Counsel 180
Claim VIII. MR. OGROD'S CONVICTION AND SENTENCE WERE PRODUCTS

V11
 OF IMPROPER RACIAL DISCRIMINATION AND VIOLATE THE
PENNSYLVANIA CAPITAL SENTENCING STATUTE, THE
PENNSYLVANIA CONSTITUTION, AND THE UNITED STATES
CONSTITUTION; AND TRIAL AND POST-VERDICT/APPELLATE
COUNSEL WERE INEFFECTIVE FOR FAILING TO PROPERLY
RAISE AND LITIGATE THIS CLAIM 181
A. Introduction 181
B. Mr. Ogrod's Jury Was Selected in a Discriminatory Manner. 183
i. Mr. Ogrod can establish a prima facie case that the prosecution
used its peremptory strikes to exclude African-Americans from
participating on his jury. . 183
ii. Inferences of Discrimination Based Upon the Trial Prosecutor's
Historical Pattern and Practice of Discrimination in Capital Cases.
. .. . .. . . .. . .. . .. . .. . .. .. .. . . . . . . . . . . . . .. .. .. . ... . . 184
C. The Pattern of Racially Discriminatory Prosecutorial Strikes in Mr.
Ogrod's Trial Is Consistent with the District Attorney's Office's History of
Striking Non-White Venire Members 190
D. Mr. Ogrod Can Establish That The Prosecution's Use of Peremptory
Strikes to Exclude African-Americans From Participating on His Jury Was
the Product of Purposeful Discrimination 193
E. Post-Verdict!Appellate Counsel was Ineffective for Failing to Raise this
Issue. . 194
F. Conclusion 195
Claim IX. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST
DNA OR SEROLOGICAL TESTING OF AVAILABLE BIOLOGICAL
MATERIAL WHEN SUCH EVIDENCE COULD HAVE
DEMONSTRATED PETITIONER'S INNOCENCE AND HAD A
REASONABLE PROBABILITY OF CHANGING THE OUTCOME OF
HIS 1996 TRIAL. APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE THIS CLAIM 195
ClaimX. PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY
COUNSEL'S FAILURE TO PROPERLY INVESTIGATE AND
PRESENT MITIGATING EVIDENCE AT THE SENTENCING PHASE
OF HIS CAPITAL TRIAL, AND APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM. . 199
A. The Mitigation Presented at Trial. 202
B. Arguable Merit and Prejudice: The Unpresented Mitigation. . 203
i. Counsel Failed to Interview and Call Family and Neighbor
Witnesses. . 204
11. Evidence that Petitioner Was Slow, Gullible Follower Who Was
Often Teased 212
111. Failure to Get Petitioner's Anny Records Admitted as Evidence.
. .. .. . . . .. . .. . .. . . .. . . . .. . . . .. . . .. . . . .. . .. . . ..... . 214

viii
 iv. Trial Counsel Failed to Obtain Available Mitigation from the
Witnesses He Called. . 216
v. Trial Counsel Failed to Call an Expert or Experts who had
Performed Recent Evaluations of Walter and Could present a
Present Diagnosis for Walter Ogrod, Including a Statutory
Mitigator. 217
C. Trial Counsel's Performance Was Deficient and He Had No Reasonable
Strategic Basis for Not Eliciting the Foregoing Testimony. . 220
D. Appellate Counsel Was Ineffective 222
Claim XI. PETITIONER IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE COURT IMPROPERLY EXCLUDED A JUROR FOR
CAUSE IN VIOLATION OF THE SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS TO TBEUNJTED STATES
CONSTITUTION AND ARTICLE 1, SECTIONS 9 AND 13 OF THE
PENNSYLVANIA CONSTITUTION; TRIAL AND APPELLATE
COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT TO
AND RAISE THIS ISSUE 223
A. The Trial Court Improperly Excluded a Death-Qualified Juror on the Basis
of Religion. . 224
B. Counsel Were Ineffective 226
Claim XII. PETITIONER'S RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO
BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT UNDER
THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND UNDER ARTICLE I,
SECTIONS 9 AND 13 OF THE PENNSYLVANIA CONSTITUTION
WERE VIOLATED BY THE JURY'S ARBITRARY REJECTION OF
STIPULATED MITIGATING EVIDENCE, AND COUNSEL WERE
INEFFECTIVE 227
A. Trial Counsel Was Ineffective 230
B. Post-Verdict/Appellate Counsel Was Ineffective 232
Claim XIII. PETITIONER IS ENTITLED TO A NEW SENTENCING PHASE
BECAUSE THE PROSECUTOR REPEATEDLY ENGAGED IN
PREJUDICIAL PROSECUTORIAL MISCONDUCT IN VIOLATION OF
THE 6TH, 8TH AND 14TH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND PENNSYLVANIA LAW, AND TRIAL
AND APPELLATE COUNSEL WERE INEFFECTIVE 234
A. Trial Counsel Was Ineffective. . 239
B. Post-Verdict/Appellate Counsel Was Ineffective 239
ClaimXN. PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTION
AND SENTENCES BECAUSE OF THE CUMULATIVE EFFECT OF
THE ERRORS DESCRIBED IN THIS BRIEF. . 240

PRAYER FOR RELIEF 241

IX
 IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

)
COMMONWEALTH )
)
v. ) CP-51-CR-0532781-1992
)
WALTEROGROD )
)
-----------)

AMENDED PETITION FOR HABEAS CORPUS RELIEF

PURSUANT TO ARTICLE I, SECTION 14 OF THE
PENNSYLVANIA CONSTITUTION AND
STATUTORY POST-CONVICTION RELIEF
UNDER 42 PA.C.S. § 9542 ET SEQ.
AND CONSOLIDATED MEMORANDUM OF LAW

Petitioner Walter J. Ogrod ("Mr. Ogrod" or "Petitioner") is a prisoner under sentence of

death at State Correctional Institution at Greene. Mr. Ogrod, by his counsel, submits this

Amended Petition pursuant to Article I, Section 14 of the Pennsylvania Constitution and

pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9542 et seq.!

INTRODUCTION AND BACKGROUND FACTS

I. At the end of his first trial, conducted in 1993, Walter Ogrod was seconds away

from being acquitted and walking away a free man. The jury had returned a unanimous verdict

of not guilty when, as the foreperson was about to read the not guilty verdict, one juror stated

that he wished to change his mind. The judge then declared a mistrial.

2. Mr. Ogrod's second trial was conducted in 1996. Despite the fact that the police

obtained no physical evidence linking Mr. Ogrod to the murder of Barbara Jean Hom; despite

the fact that Mr. Ogrod did not fit the description ofthe perpetrator; despite the fact that

! All emphasis in this Amended Petition is supplied unless otherwise noted.

numerous eyewitnesses who saw the murderer on the day ofthe murder, one even speaking with

him as he dragged the box containing the body, could not identify Mr. Ogrod; despite the fact

that no murder weapon was ever located, no physical evidence of the crime was ever removed

from the Ogrod house and none of the five people living with Mr. Ogrod in his home on July 12,

1988 (the day of the murder) offered any evidence of Mr. Ogrod's guilt, Mr. Ogrod was

convicted. His conviction was based solely upon Mr. Ogrod's purported confession that he has

consistently denied since the date it was transcribed by the police -- four years after the date of

the crime -- and the highly unreliable testimony of a jail house snitch.

3. As a result of pervasive prosecutorial misconduct and Trial Counsel's ineffective

assistance, Mr. Ogrod's conviction was a miscarriage ofjustice. As is set forth below, experts

who would have presented exonerating evidence were not called by the defense. These experts

included: 1) a medical examiner who would have testified that the alleged murder weapon (as set

forth in the purported confession) could not have caused the injuries to the victim, 2) experts in

police interrogation and false confessions who would have testified that Mr. Ogrod's statement

to police contains all the hallmarks of a false confession, and 3) psychologists and psychiatrists

whose testimony would have shown that Mr. Ogrod was an innately suggestible person with

mental disturbances which made him highly susceptible to giving a false confession.

4. Trial Counsel also failed to present other important lay witnesses, including an

eyewitness who saw the man carrying the box and would have testified that it was not Mr.

Ogrod; numerous family members, friends, and neighbors of Mr. Ogrod who would have

testified that he was easily influenced and taken advantage of by others; and occupants ofMr.

Ogrod's home who would establish facts that raise serious doubts that the murder could have

occurred in Mr. Ogrod's basement. Evidence obtained since Mr. Ogrod's second trial also

2
shows that the 'Jailhouse snitch" whom the prosecution called in the second trial to corroborate

Mr. Ogrod's purported confession fabricated his story that Mr. Ogrod confessed to him in

exchange for leniency from the Commonwealth in his own case.

5. The prosecutor in this case infected Mr. Ogrod's trial with unfairness. She

presented prejudicial, irrelevant, and false evidence and argument - including that Mr. Ogrod

possessed child pornography, frequented pornography establishments, and confessed to his

mother. She secreted Brady evidence that could have been used to undermine the credibility of

the jail house snitch. She repeatedly asked the jury to draw negative inferences from Mr.

Ogrod's silence. She improperly excluded African-Americans from Mr. Ogrod's jury. Trial

Counsel failed to properly respond to much of this misconduct.

6. Trial Counsel was also ineffective at Mr. Ogrod's penalty phase - failing to

present experts and lay witnesses to establish compelling mitigating circumstances, failing to

object when the jury did not find a stipulated mitigating circumstance, and failing to object to

instances of prosecutorial misconduct.

7. In the end, Mr. Ogrod was convicted and sentenced to death for a crime he did not

commit on the basis of a false confession, the false testimony of a professional snitch, numerous

acts ofprosecutorial misconduct, and Trial Counsel's overall ineffectiveness. Mr.Ogrod

respectfully petitions this Court for relief from his unconstitutionally-obtained conviction and

sentence.

A. The Unsolved 1988 Murder of Barbara Jean Horn

8. On July 12,1988, Barbara Jean Hom, a four-year-old girl who lived with her

mother and step-father at 7245 Rutland Street in Northeast Philadelphia, was discovered dead

inside a cardboard television box. When discovered, the victim's body was naked and had been

3
recently washed. She had been killed by blows to the head and back. The box with the body in

it was discovered at 5:30 p.m. on the curb in front of the residence at 1409 St. Vincent Street,

which was less than 1,000 feet from the victim's home. NT 9/30/1996 at 140. The next

morning, Philadelphia Assistant Medical Examiner Paul Hoyer conducted an autopsy and opined

that the child had been injured between 3:30 and 4:30 p.m. on July 12th. Postmortem Report,

Case No. 3336-88 (Attached in Appendix).

9. At least four different witnesses saw a man 5'6" to 5'9" tall and wearing a tee-

shirt and shorts alternately carrying and dragging the TV box through the neighborhood late on

the afternoon of the murder. Police were able to trace the television box to Wesley Ward - a

resident ofthe 7400 block of Rutland Street. Based on eyewitness statements, police artists drew

a sketch of the suspect and posted it widely throughout the neighborhood. Two of the

eyewitnesses who had the best view of the man with the box, David and Lorraine Schechtman,

confirmed the accuracy of the sketch. Mr. Schechtman had actually conversed with the man, and

Lorraine Schechtman was a few feet away when that conversation took place. Both Mr. and

Mrs. Schechtman subsequently made an in-person identification of Ross Felice as the man they

had seen and Mr. Schechtman made a photo identification of yet another person -- Raymond

Sheehan.' A grand jury was empaneled targeting both Ross Felice and Wesley Ward, but neither

man was indicted. Despite the eyewitnesses and the short time interval between the murder and

the discovery of the body, the police were unable to make an arrest.

10. On the day of the murder, Walter Ogrod was 23 years old, 6'1" tall, and weighed

• Based on a cold DNA hit a decade after the crime, Raymond Sheehan was convicted of the February 1987
murder and sexual assault of a young girl that occurred within a mile ofwhere Barbara Jean Hom was murdered.
Petitioner filed a DNA motion and during the course of the litigation over that motion (which has been set aside for
the time being by order of the court) was unable to isolate any DNA evidence in Mr. Ogrod's case to compare to Mr.
Sheehan's DNA. Petitioner wishes to continue this litigation during th, course of post-conviction proceedings.

4
220 lbs. He was overweight and self-conscious about it. Even at the beach he always wore

loose-fitting clothes and long pants as a result of his self-consciousness about his weight.

Affidavit/Declaration ofHeidi Guhl ("Guhl Aff.") at ~ 11 (Attached in Appendix). He lived at

7244 Rutland Street, directly across the street from the victim's residence. Mr. Ogrod, like many

other people in the neighborhood, was questioned by police as part of the neighborhood survey

the police conducted. He informed the interviewing officer that at 3 :30 p.m. he had been home

when the father of the victim, John Fahy, knocked on the door and asked ifhe or others in the

house had seen his daughter. Police Neighborhood Survey, SOK08610 (Attached in Appendix).

See also NT 10/29/1993 at 817.

11. On the day of Barbara Jean Hom's murder, Mr. Ogrod shared his residence with

.four members of the Green family: Charles and Linda Green and their children, Ingrid and

Charlie, Jr. The Greens were rough, wild-living bikers and drug users. Guhl Aff. at ~ 10;

Affidavit/Declaration ofGregory Ogrod ("G. Ogrod Aff.") at ~ 14 (Attached in Appendix). An

adult male friend of the Greens, Tom Wiest, also rented a basement room in the house - the

same room that the police later claimed was the scene of Barbara Jean Hom's murder. Linda

Green and other members of the Green family were inside Mr. Ogrod's house at 7244 Rutland

Street throughout the day on July 12,1988. Linda Green Statement to Police, April 7, 1992 ("L.

Green Statement") at 2-4 (Attached in Appendix). Hal Vahey lived at the residence at the time

and never saw fresh blood, signs of a struggle, or signs of a clean-up. See Affidavit/Declaration

ofHarold Vahey at ~ 18 ("Hal Vahey Aff.") (Attached in Appendix).

12. As would be expected, the Philadelphia police combed the neighborhood

repeatedly in the hours, days, weeks and months after Barbara Jean Hom's murder. The police

did not consider Mr. Ogrod a suspect. No one - including the four eyewitnesses - has ever

5
identified Mr. Ogrod as the man who was carrying the TV box.

13. Shortly after Barbara Jean Hom's body was discovered, four witnesses came

forward to describe the man carrying the cardboard box a few hours earlier. The police

identified two persons of concern: Ross Felice, who lived at 7061 Castor Avenue, and Wesley

Ward, who lived at 7208 Rutland Street - both within 1000 feet of the victim's home. The

police collected organic evidence from both the Felice and Ward residences, but never subjected

it to DNA testing. Time passed and no arrests or indictments were made, and the Barbara Jean

Hom murder became a cold case.

B. The 1986 Murder of Maureen Dunne and Police Familiarity with the Ogrod
Residence

14. On July 12, 1988, the Philadelphia Police were already quite familiar with Walter

Ogrod and the Ogrod residence. Mr. Ogrod had no criminal record, but several years earlier, his

younger brother Gregory Ogrod ("Greg") had become involved in drug dealing. Greg had also

become involved in disputes with some ofthe people who lived at, or hung out in, the Ogrod house.

15. On the night ofJuly 31,1986, at approximately 4 a.m., three men attacked the Ogrod

house, intending to kill Greg. Greg was asleep in the basement with his l6-year-old girlfriend,

Maureen Dunne, the daughter of Philadelphia Police Department Detective William Dunne.

Gaining access to the house, the attackers stormed down the basement stairs. They stabbed Maureen

Dunne to death and badly wounded Greg. Walter Ogrod had been asleep upstairs, but awoke and

called the police. He subsequently cooperated with the police in the investigation and prosecution

of the Dunne murderers. See Statements afWalter Ograd, July 31, 1986, undated, and August 4,

1986 (Attached in Appendix); G. Ogrod Aff. at ~ 19.

16. The police aggressively investigated the killing of Maureen Dunne. During the

6
investigation, the police interrogated Mr. Ogrod and his brother, and also fully documented

conditions in the Ogrod basement where Dunne had been killed. The Dunne investigation file

contained numerous detailed photographs of the basement, including pictures ofMaureen Dunne's

corpse. The photographs also included pictures of a weight machine in the Ogrod basement and a

weight bar that was part of the machine's equipment. See Photographs of Weight Machine, Trial

Ex. C-16-A and C-16-B ("Weight Machine Photos") (Attached in Appendix). Interestingly, the

. weight bar exhibited in these photographs later became central to the Commonwealth's case against

Mr. Ogrod as the purported murder weapon.

17. The Philadelphia Police Department's comprehensive familiarity with the Ogrod

residence and the Ogrods themselves is highlighted by the fact that the Maureen Dunne murder case

was literally on trial on July 12, 1988, the day Barbara Jean Hom was murdered. Two days later,

while the Barbara Jean Hom murder investigation was in full swing, a jury handed down a

conviction in the Dunne case. Nevertheless, the police did not develop any suspicions about Walter

Ogrod in the Barbara Jean Hom case, nor did they consider the Ogrod residence the possible scene

of Barbara Jean Hom's murder.

18. The Ogrod house at 7244 Rutland Street was very small. The total dwelling livable

area - six rooms that include three bedrooms, one bathroom and a basement - is only 1,088 square

feet. See City of Philadelphia tax assessment data at www.city-data.comlPhiladelphialRJRutland-

Street-38.htrnl (last visited 2/2412011).

C. 1992: The Cold Case Team Takes Over

19. In early 1992, nearly four years after Barbara Jean Hom's death, police detectives

Paul Worrell and Martin Devlin were assigned to the unsolved murder. Worrell and Devlin

reviewed the case file and re-interviewed people who had been interrogated during the original,

7
unsuccessful investigation. Since Barbara Jean Hom sometimes played with the Green children,

they reviewed information about the Ogrod house that had been collected during the Dunne murder

investigation.

20. In ApriI1992, Devlin and Worrell decided to contact Mr. Ogrod, who then was living

in Glenside, Pennsylvania, where he had moved in 1990 to be closer to his job as a delivery driver

for Bake-Rite Rolls, a large commercial bakery near Philadelphia. The detectives went to Mr.

Ogrod's residence and spoke to his landlord Howard Serotta, who worked in the shop below Mr.

Ogrod's apartment. They left a card at Mr. Ogrod's residence indicating that they wanted to talk

to him about John Fahy, who is the stepfather of Barbara Jean Hom.

D. A Man of Whom Others Took Advantage

21. On April 5, 1992, Mr. Ogrod was ahigh-school educated, self-supporting 27 year-old

man who had no criminal record. Unfortunately, he had a long history of people taking advantage

ofhim. See Guhl Aff. at 'if 5 ("Walter was gullible and easily manipulated."); G. Ogrod Aff. at 'if 17

(My friends and 1"took advantage of Walter in every way imaginable, yet Walter seemed oblivious

to it all."); Affidavit/Declaration ofWilliam Daka ("Daka Aff.") at 'if 2 (Attached in Appendix) (As

a young child "everyone in the neighborhood picked on Walter and made fun of him. They used

to call him names and tease him. They would also beat him up pretty bad and throw snowballs at

him. They ganged up on him and he didn't really have a chance."); Affidavit/Declaration afTara

Doherty ("Doherty Aff.") at 'if'if 2-3 (Attached in Appendix) ("Walter seemed slow and everyone

manipulated him to get what they wanted from him. He was an easy person to bully and I think

people saw that and targeted him."); Affidavit/Declaration of Kim Ward ("Ward Aff.") at 'if 4

(Attached in Appendix) ("Walter was very gullible ... [he] did whatever people asked of him...

I think Walter was happy to just have some friends so he let people walk all over him.");

8
Affidavit/Declaration ofJane Zacher ("Zacher Aff.") at '1]2 (Attached in Appendix) ("People used

to take advantage ofWalter because he was slow."); Affidavit/Declaration ofEdward Pettit ("Pettit

Aff.") at '1]'1]4-6 (Attached in Appendix) (Walter was gullible and never seemed together mentally.

Walter let people walk allover him. "Some of the people in our group of friends treated him like

a personal servant"); Affidavit/Declaration of Robert Fritz ("Fritz Aff.") at '1] 3 (Attached in

Appendix) ("Walter was bossed around by all of our friends. Walt would do anything we said

because he wanted to be liked and accepted. Walt was like this with everyone.");

Affidavit/Declaration of John Shinn ("Shinn Aff.") at '1] 4 (Attached in Appendix) (People took

advantage of Walter; he was a "lamb among sharks"); Affidavit/Declaration ofAlonzo Balthrope

("Balthrope Aff.") at '1]7 (Attached in Appendix) ("That's just how it was for Walter; people just

used and abused him. They took advantage of him because he was socially awkward and he really

wanted to have friends."); Affidavit/Declaration ofMelanie Ostash ("Ostash Aff.") at '1]6 (Attached

in Appendix) ("Walter was a pushover, and everyone knew it and took advantage of him. He was

the kind of guy that people manipulated to get what they wanted").

22. Mr. Ogrod's parents adopted him shortly after his birth in 1965, though he did not

learn he was adopted until he was an adult. His parents' marriage ended in divorce in the early

1970's. Mr. Ogrod and Greg lived in poverty with their adoptive mother, Olga. They obtained food

from a local church and the boys often went to bed hungry. G. Ogrod Aff. at '1]3; Doherty Aff. at

'1] 6. Olga Ogrod, an artist and dressmaker, was severely mentally ill and had been admitted to

psychiatric hospitals a few times. Id. at '1] 4. See also Affidavit/Declaration ofDr. Peter D. Ganime

("Ganime Aff.") at '1]'1] 5-7 (Attached in Appendix). Her psychiatric difficulties included an

obsession with litigation and repeated instances of her taking her son Walter to Family Court or to

hospitals to assert that he was mentally disturbed. Eventually, upon the recommendation ofvarious

9
doctors, the young Mr. Ogrod was removed from his mother's custody, and he went to live with his

father in 1976 when he was 11 years old.

23. Mr. Ogrod developed a positive relationship with his father, but over the course of

the next several years his father developed a severe case of diabetes and associated mental

depression. The senior Mr. Ogrod died in 1984 when Mr. Ogrod was 19 and left Mr. Ogrod a

financial inheritance. The house at Rutland Street was left to an aunt, and Mr. Ogrod and Greg were

allowed to live there. Olga Ogrod was still alive but mentally disturbed and had infrequent contact

with her sons. Mr. Ogrod and his younger brother Greg were essentially on their own.

24. Mr. Ogrod was a socially awkward, baby-faced young man. GOOl Aff. at ~ 8; Fritz

Aff." at ~ 2; Zacher Aff. at ~ 6. He appeared "slow" or even mentally retarded to other people. G.

OgrodAff. at~~ 6-7; Shinn Aff. at~2; Pettit Aff. atp; Ward Aff. at ~3; Zacher Aff. at~2; Ostash

Aff. at ~ 5; Affidavit/Declaration ofJohn Trasser ("Trasser Aff.") at ~ 7 (Attached in Appendix);

Affidavit/Declaration of Fr. John Bonavitacola ("Bonavitacola Aff.") at ~~ 7-8 (Attached in

Appendix). This played a role in others taking advantage of him.

25. Greg admits that he frequently took advantage ofhis brother between 1984 and 1988.

Mr. Ogrod was often the butt ofjokes, and Greg and his friends bossed him around all the time. G.

Ogrod Aff. at~ 12. After Mr. Ogrod turned 21, Greg and his friends constantly made him buy beer

for them. Several people moved into Mr. Ogrod's house, failed to pay any rent, and used it as a

party house. [d. at ~~ 12-13. Greg frequently would borrow Mr. Ogrod's car and keep it for days

or weeks at a time. Greg and others frequently asked Mr. Ogrod for money but never paid him back.

[d. at ~ 15. Mr. Ogrod was gullible and easily manipulated. He was so used to abuse that he just

accepted it. [d. at ~~ 15-17.

26. Other friends and acquaintances confirm Greg's recollection. They all joined in

10
manipulating Mr. Ogrod, taking his money and making other demands on him that he usually did

not protest. In addition to others' use of the Rutland Street residence as a party house, Mr. Ogrod's

acquaintances convinced him to buy a dilapidated house at the shore in Wildwood, N.J. Pettit Aff.

at ~ 4; Ward Aff. at ~ 6. That, too, was used as a party house by Greg and his friends. Guhl Aff. at

~ 5; G. Ogrod Aff. at ~ 16; Ward Aff. at~ 6. The party crowd would order Mr. Ogrod around, even

telling him that he could not watch the color television in his own living room, and that he would

have to go upstairs and watch a small black and white television if they wanted to party. Guhl Aff.

at~ 4; Fritz Aff. at ~ 4; Zacher Aff. at~~ 4 & 6; WardAff. at~2. They borrowed his car all the time

and because Walter was older, had him buy beer for them. Balthrope Aff. at ~ 7. Another "friend"

took Mr. Ogrod's car and wrecked it, leaving Mr. Ogrod to pay for the damages. Shinn Aff. at ~ 3.

27. Over a short period of time, Mr. Ogrod was essentially scammed out of the

inheritance from his father by Greg's friends and hangers-on. In many respects, Greg controlled Mr.

Ogrod, Fritz Aff. at ~ 5, but Mr. Ogrod passively accepted the abuse from Greg and his friends. As

Greg recalls, "I'm not proud of the way I treated Walter. It was just too easy to abuse him because

Walter was so gullible. He would believe anything he was told and do anything we asked of him.

We all took advantage of Walter in every way imaginable, yet Walter seemed oblivious to it all."

G. Ogrod Aff. at ~ 17. As Alonzo Balthrope explained it, "[t]hat's just how it was for Walter, people

just used and abused him. They took advantage ofhim because he was socially awkward and really

wanted to have friends." Balthrope Aff. at ~ 7.

28. At age 15, in 1980, Mr. Ogrod had started doing local landscaping and snowplowing

work with a school acquaintance. Eventually, they built the business up to 140 customers. Mr.

Ogrod paid for some of the equipment but was not compensated for it and was treated like an

employee rather than a partner. Guhl Aff. at ~ 5. In 1986, Mr. Ogrod was planning to buyout the

11
other half of the business for $75,000. His business partner, however, got into trouble and his

parents seized all the equipment. As a result, Mr. Ogrod lost the entire business, could no longer

work for himself and had to find a job.

29. Not surprisingly, Maureen Dunne's murder stunned the Ogrod brothers and

frightened away many people in the party crowd. A week after the murder, the Rutland Street house

was still a mess. There was blood allover the doorways and bloody handprints on the walls. The

mattress in the basement was covered with blood. Guhl Aff. at "i[9. Mr. Ogrod seemed "at a

complete loss as to how to clean the place up." ld. A month after the murder, there was still blood

on the doorway and it "seemed like [Walter] just didn't know what to do." Shinn Aft'. at "i[5. Mr.

Ogrod had come downstairs during the attack and saw Greg with over a dozen stab wounds in his

head and chest. G. Ogrod Aff. at "i[19. Although Mr. Ogrod also saw the killers running from the

house, the prosecutors did not use him as a witness in any of the trials because they did not consider

Mr. Ogrod competent. !d.

30. Although the Dunne murder scared away much ofthe crowd that had hovered around

the Ogrod house, Mr. Ogrod still failed to find any tranquility at 7244 Rutland Street. In the spring

of 1987, Charles and Linda Green and their two children moved into the house. They too bossed

Walter around and exploited him in any way they could. They verbally and physically abused him

to the point that he often was forced to retreat to his bedroom. Zacher Aft'. at "i[4. Walter was afraid

ofthe Greens and did not want them living in his house, but he didn't seem to be able to do anything

about it. Doherty Aff. at "i[ 4; Affidavit/Declaration of Steven Mulvey, April 27, 2011 ("Second

Mulvey Aff.") at"i[3 (Attached in Appendix). They were supposed to pay rent every two weeks, but

failed to do so. The Greens used drugs and were hostile to anyone who came to the house to visit

Mr.Ogrod. G. Ogrod Aft'. at "i[15. Heidi Guhl, Mr. Ogrod's long-time friend, found them "rough"

12
and "scary." Guhl Aff. at 'ill O. When she attempted to visit Mr. Ogrod, the Greens were "nasty"

and told Ms. Guhl "to get out and never come back." ld.

E. The Police Take a False Confession

3I. On Sunday, AprilS, 1992, in response to Detectives Devlin and Worrell's visitto his

residence, Mr. Ogrod voluntarily appeared at the Philadelphia Police Administration Building at

1:30 p.m. NT 10/29/1993 at 808. At the time, Mr. Ogrod had been awake fornearly 30 hours after

completing an all-night, 18-hour shift driving the bakery delivery truck over a 300-mile route. ld.

at 800-1 I. Mr. Ogrod waited at the station for several hours and Detectives did not begin to

interview him until approximately 5:00 p.m. When the interview began, Mr. Ogrod had not slept

for more than 33 hours. The police interrogation tactics included confronting Walter with pictures

of the body of Barbara Jean Hom in the cardboard box. !d. at 819-20.

32. The detectives also accused Mr. Ogrod of having committed the murder of Barbara

Jean Hom. They asserted he was mentally blocking any memory of the murder and claimed that

they were only trying to help him. Mr. Ogrod described the interrogation as follows:

A. (Ogrod) Well, that seemed to be about it, and all, getting up, ready to leave,
and Devlin comes up and says, "Well, we think that you might know
something, we think YOU may have done it and that you may be blocking it,
and that you know, we want you to remember what happened and all, that
you know, you just don't want to bring out that, YOU are blocking it out
entirely and all and we are going to help vou bring it out todav.

Q. What was his attitude like when he said that to you?

A. He was like, sounded like he wanted to help, but he wanted just to get
something over with and all, to bring out something. He wouldn't let me
leave. They shut the door to the room. I says, "Look, you know, if I am
going to stay here I want a phone call." He said, "You get that later. We
want to help you and alL We think you iust don't want to remember it"

A. He started taking photographs out of a folder, the box where Barbara Jean

13
 Fahylie.

Q. When he took that out and showed it to you, did he say anything?

A. "Does it help remember anything, and all, this box that Barbara Jean was
found in?" And in other words, "Does it bring back any memories and
all? Do you know anything? Does it help?" I said, "No man, I didn't do
it."

I said, "I want the phone." He said, "Look, we will get that later on. We
iust want to help you remember. That is all." They bring out two more
photos, one witliBarbara Jean in the box with the bagover her with part
of her head showing and the other one with the bag removed. And her
body in the box.

Q. When they showed you those photographs, were they saying anything?
A. Yes, well, man, you know, "You killed this girl here. man. and we want
to help vou. We want to help you. You killed her. We want to help you
remember it, and you know. get vou some help."

NT 10/29/1993 at 818-20 (emphasis added).~

33. After hours of interrogating an exhausted Mr. Ogrod without counsel, keeping

him in the police station for approximately 18 hours, the detectives purportedly obtained Mr.

Ogrod's written statement to the murder of Barbara Jean Horn. ld. at 824-25. By then, Mr.

Ogrod had been without sleep for more than 40 hours. The statement was handwritten by one of

the detectives, not by Mr. Ogrod. ld. at 823; Walter Ogrod Statement, April 5, 1992, Trial Ex.

C-21 ("Ogrod Statement 4/5/92") (Attached in Appendix). Additionally, the police did not tape

the purported confession or their interrogation. Nor did they videotape the purported confession.

"The circumstances of April 5, 1992, present a classic example ofthe type ofpoHce interrogation tactics
that result in false confessions. "[Ilnterrogation tactics which can lead innocent people to confess ... involve: Ca)
isolating and cutting off the person being interrogated... and then confronting the person with strong accusations of
guilt. .. even though some of this evidence may not even exist... (b) weating the interrogated person down with
lengthy interrogations; Cc) the interrogator pretending to ...provide sympathy... ; and Cd) the interrogator suggesting
to the individual that he or she would be treated with leniency ifhe or she confesses." Commonwealth v. Wright, 14
A.3d 798,816 n.16 CPa. 2011).

14
Nor, as it would tum out, did the police pursue basic procedures to corroborate independently the

supposed facts of Mr. Ogrod's confession.

34. The AprilS, 1992 statement was composed entirely in the handwriting of

Detective Devlin. See Ogrod Statement 4/5/1992. In the statement, the police detectives portray

Mr. Ogrod as breaking down into tears and sobbing after supposedly being tripped up about

whether or not Linda Green was in the dining room of the Ogrod house or the kitchen. ld. at 5-6.

The police used language entirely different from and uncharacteristic of Mr. Ogrod's typical

diction: "Detectives, you got to understand what it was like for me growing up ...." ld. at 6.

"I'm going to tell you guys something I never told anybody before in my life." ld. at 7. "This is

going to be hard for me to say, please be patient and let me take my time." ld. at 8. See

Affidavit/Declaration ofCharles Graham ("Graham Aff.") at ~ 5 (Attached in Appendix) ("I did

not believe that Mr. Ogrod was the source of the confession because when he took the stand [at

the first trial] it was clear to me that he could not have authored something as sophisticated as

the confession. I came to this conclusion because on the stand Mr. Ogrod was not very articulate

and had difficulty expressing himself.").

35. The AprilS, 1992 statement portrays Mr. Ogrod as luring Barbara Jean Hom into

the basement of 7244 Rutland Street where the two "play doctor" and then Mr. Ogrod forces the

girl's head down to his erect penis. Ogrod Statement 4/5/92 at 8-9. Barbara Jean Hom,

according to what Detective Devlin wrote, then "started to scream." ld. Mr. Ogrod then

supposedly didn't know what happened to himself. "I just went crazy." ld. Next, he supposedly

held down the victim's head and hit her with "what felt like a pipe" at least four times in the

head. ld. at 9- 10. Detective Devlin then wrote: "It might have been my small 'pull down' bar

to my weight set." Id. at 10. Subsequently, the statement describes Mr. Ogrod as washing the

15
victim's body in a tub. He then covers her with a trash bag, and without washing himself or

changing his clothes, goes down the alley to retrieve a cardboard box, puts the body in the box,

and goes out through the door to the garage to dispose of the body. fd. at 10-11. At some point,

"the box was really heavy" and Mr. Ogrod purported alternately puts it down and carries it. He

then leaves it by some trash cans on St. Vincent Street. fd. at 12. According to the statement

written by Detective Devlin, disposing of the blood from the crime scene is a simple matter of

rolling up a small throw rug and getting rid of it. fd. at 13.

36. The purported confession, written entirely by the police and obtained after

approximately 18 hours of interrogation, became the only piece of evidence linking Mr. Ogrod

to the Hom murder. The police obtained no physical, or even circumstantial, evidence linking

Mr. Ogrod to the crime. No witness identified Mr. Ogrod as the man carrying the box. No

murder weapon was ever located, no physical evidence of the crime was ever removed from the

Ogrod house, and none of the five people living in the house with Mr. Ogrod on July 12, 1988

ever offered any evidence of his guilt. It is Mr. Ogrod's purported confession alone, a statement

that Mr. Ogrod has consistently denied since April 5, 1992, in addition to the highly unreliable

testimony of repeat felon Jay Wolchansky, that confines him to Death Row today.

F. Mark Greenberg, Trial Counsel

37. After Mr. Ogrod's arrest, the court appointed attorney Mark Greenberg ("Mr.

Greenberg" or "Trial Counsel") to defend Mr. Ogrod against charges of capital murder, rape, and

related charges. Mr. Greenberg notified Mr. Ogrod of the appointment on April 15, 1992. See

Letter from Greenberg to Ogrod, April 15, 1992 (Attached in Appendix).

38. Soon thereafter, Mr. Greenberg obtained funding for an investigator, and in

September 1993 engaged the services of Clark E. Fuss. Mr. Fuss spent a total of eight hours and

16
45 minutes working on the investigative matters that Mr. Greenberg asked him to conduct.

Affidavit/Declaration ofClark E. Fuss ("Fuss Aff.") at ~ 7 (Attached in Appendix). Mr. Fuss's

assignments focused mainly, if not exclusively, on the guilt phase ofthe trial. Unlike in other

death penalty cases he had worked on, he was not asked to interview Mr. Ogrod's family

members, friends, or employers in pursuit of mitigation to present at the penalty phase. Id. at ~

10.

39. On July 30, 1992, Mr. Greenberg met with Dr. Paul Hoyer, the Assistant Medical

Examiner who had examined the body of Barbara Jean Hom on the morning of July 13,1988,

and performed an autopsy. See Notes ofMark Greenberg, July 30, 1992 ("Greenberg Notes

7/30192") (Attached in Appendix). During the interview, Mr. Greenberg learned that Dr. Hoyer

had a one-page summary of his autopsy observations that had been typed up for him by Sgt.

Robert A. Snyder at 1:15 p.m. on July 13, 1988. This one-page summary contained eleven key

observations by Dr. Hoyer, including his opinion that head injuries had been the cause of death

and the manner of death had been homicide. As to the weapon used to inflict the head injuries,

Dr. Hoyer opined as follows: "Weapon: Probably a 2x2 or 2x4. Something lighter than a

baseball bat or tire iron." Autopsy Notes ofDr. P.J. Hoyer, 1:15 p.m., July 13, 1988, Case No.

3336 ("Hoyer Notes 7/13/88") (Attached in Appendix). Mr. Greenberg demanded a copy of this

record from the Assistant District Attorney Joseph Casey, but Mr. Casey did not produce the

document. Finally, in January 1993, Mr. Greenberg filed a motion for its production and

obtained a copy.

40. On September 27, 1993, just a few weeks before Mr. Ogrod's first trial, Mr.

Greenberg contacted Dr. Hoyer by telephone and confirmed that the one-page memorandum

typed by Sgt. Snyder was consistent with the findings that Hoyer had made. See Greenberg

17
Memo to File, September 28, 1993 ("Greenberg Memo 9/28/93") (Attached in Appendix).

Despite the fact that Dr. Hoyer had opined the day after the murder that the weapon was

something inconsistent with Mr. Ogrod's pull-down weight bar, Mr. Greenberg did not call Dr.

Hoyer as a witness at either the 1993 or the 1996 murder trial. He did not subpoena Dr. Hoyer to

testify at either trial, he did not cross examine the medical examiner who testified for the

Commonwealth at trial, Dr. Haresh Mirchandani, with the substance of Dr. Hoyer's notes or

object to his testimony on 6th Amendment grounds.

41. In September 1992, Mr. Greenberg retained psychologist Dr. Allan Tepper to

evaluate Mr. Ogrod to determine ifhis psychological make-up would make him vulnerable to

giving a false confession and to assess any potential mitigation issues. See Letter from

Greenberg to Dr. Tepper, Sept. 25, 1992 (Attached in Appendix). Mr. Greenberg received a

report from Dr. Tepper but never called Dr. Tepper to testify at the guilt or penalty phases of Mr.

Ogrod's trial.

42. Mr. Greenberg retained a forensic pathologist, Dr. Richard Saferstein, to assist

with Mr. Ogrod's case, but he only asked Dr. Saferstein to perform one specific task: evaluate

the purported spermatozoa head that police investigators retrieved from the TV box. Greenberg

Memo to File, Jan. 25, 1993 (Attached in Appendix). Dr. Saferstein examined the specimen and

testified during Mr. Ogrod's first trial that the specimen was not a spermatozoa head. NT

10/27/1993 at 652-92. The Commonwealth did not present the purported spermatozoa head as

evidence at the second trial. Mr. Greenberg never asked Dr. Saferstein to consider any other

forensic evidence in the case. As a result, neither Dr. Saferstein nor any other expert pathologist

examined the autopsy photographs or provided any expert advice about what weapon might have

been used to cause the lacerations on the skull of Barbara Jean Horn. In other words, no expert

18
witness was consulted to detennine whether the prosecution's allegation - that Mr. Ogrod used

the weight bar to kill the victim - was supported by the forensic evidence.

43. Mr. Greenberg also considered retaining a false-confessions expert to help defend

Mr. Ogrod. At one point, in March 1993, Mr. Greenberg even offered the view that a false-

confessions expert would "be instrumental in defending my client." See Letter from Greenberg

to Kimberly A. 0 'Connor, Esq., March 11, 1993 (Attached in Appendix). Mr. Greenberg's file

also makes mention of a sleep deprivation expert. See Greenberg Memo to File, May 7, 1992

(Attached in Appendix). Mr. Greenberg, however, never requested funding for or retained such

experts.

44. Mr. Ogrod's first jury trial commenced on Thursday, October 21,1993, before the

Honorable Juanita Kidd Stout. A week of testimony followed. On Thursday, October 29, Mr.

Ogrod testified in his own defense and patiently answered Prosecutor Joseph Casey's questions

during several hours of cross-examination. NT 10/29/1993 at 795-949.

45. Mr. Ogrod's case went to the jury on November 1,1993, and after several days of

debate all 12 jurors voted to acquit. On November 4, Mr. Ogrod came within seconds of being

declared not guilty. The jury foreman, Charles Graham, was asked by the Court Crier if the jury

had agreed upon a verdict. Mr. Graham replied, "Yes, we have." He also confinned that all 12

jurors had agreed. NT 11/4/1993 at 170. See also Verdict Sheet 1993 (Attached in Appendix).

Suddenly, however, one juror - Philadelphia fireman Al Sczweczak - blurted out ''No.'' Chaos

erupted in the courtroom. Without further interrogation of the foreman, the jurors, or the

lawyers, Judge Stout immediately declared a mistrial and remanded Mr. Ogrod to jail. Id.

46. After an unsuccessful appeal on double-jeopardy grounds, Mr. Ogrod's second

trial began on September 30, 1996. Mr. Greenberg remained Mr. Ogrod's trial counsel. Mr.

19
Greenberg's efforts during the second trial, however, were ineffective. Mr. Greenberg's

ineffective assistance in the second trial denied Mr. Ogrod a fair trial and a just outcome.

47. In August 1996, less than two months before Mr. Ogrod's second trial began, the

Commonwealth finally disclosed to Mr. Greenberg that more than 18 months earlier, in January

1995, the Commonwealth had obtained evidence of a jailhouse confession in which Mr. Ogrod

purportedly implicated himself in the killing of Barbara Jean Hom. See Greenberg Discovery

Request to ADA Judith Rubino, Aug. 6, 1996 (Attached in Appendix). The jailhouse confession

was supposedly given to Jay Wolchansky, a veteran jailhouse snitch1 who was in league with

John Hall, another veteran snitch. Hall, in fact, had cut so many deals with prosecutors for

jailhouse confessions that he was commonly referred to as "The Monsignor." Bonavitacola Aff.

at ~ 10.

48. Mr. Greenberg again obtained funding for an investigator, and on August 12,

1996, he engaged the services of Mark H. Shaffer. Affidavit/Declaration ofMarkH Shaffer

("Shaffer Aff.") at ~ 3 (Attached in Appendix). Mr. Greenberg gave Shaffer a limited

investigatory role, asking him to focus solely on attacking the credibility of the two jailhouse

snitches John Hall and JayWolchansky. Id. at ~ 5.

49. Mr. Greenberg never asked Shaffer to review the transcript of the first trial, the

discovery in the case, or Mr. Fuss's reports in order to understand the issues in the case. Id. at ~

6. He never asked Shaffer to look into the details of Mr. Ogrod's jailhouse confession in an

effort to debunk them. Id. at ~ 10. Mr. Greenberg also never asked Mr. Shaffer to locate key

guilt-phase witnesses who could have cast significant doubt upon Mr. Ogrod's confession. Id. at

~ Wolchansky had previously testified for the Couunouwealth iu the murder prosecution of David Dickson.
Affidavit/Declaration ofDavid Dickson (''Dickson Aff.") at 1]8 (Attached iu Appendix).

20
"i[11; See infra.

50. Mr. Greenberg never discussed the penalty phase or a mitigation investigation

with Mr. Shaffer, who was more than qualified to conduct such an investigation, having a

Master's degree in psychology and experience as a mitigation investigator. ld. at "i["i[2, 14. In

fact, Mr. Shaffer does not even recall knowing the case was a death penalty case. ld. at "i[12.

51. Mr. Greenberg later explained that he changed his strategy for the second trial,

attempting to persuade the jury to acquit on the basis that there were inconsistencies betweenthe

purported confession to police and the supposed jailhouse confession to Wolchansky. NT

12/20/1999 at 12-13. Mr. Greenberg changed course, however, without effectively investigating

and considering the fundamental expert analyses and lay witness accounts that would

simultaneously demonstrate both the falseness ofMr. Ogrod's statement to police and the

equally fictitious character of the Wolchansky jailhouse confession.

52. Although Mr. Greenberg was aware of the fact that Assistant Medical Examiner

Hoyer had opined that the murder weapon was something other than the weight bar and was

likely something lighter with a straight rather than curved edge (a "2x2 or a 2x4"), Mr.

Greenberg did not further investigate this issue by asking a forensic pathologist to evaluate the

autopsy evidence. By failing to investigate this point, Mr. Greenberg denied Mr. Ogrod

persuasive expert evidence that would have directly rebutted the prosecution's assertion that

Barbara Jean Hom was killed with the pull-down weight bar from Mr. Ogrod's weight set. See

infra.

53. Mr. Greenberg also failed to investigate and have a forensic pathologist advise

him on the issue of the amount of blood that Barbara Jean Hom would have lost during the fatal

beating. He did not consider where that blood would have gone. Expert analysis would have

21
informed Trial Counsel and ultimately the jury that the human head and scalp contain many

blood vessels and bleed profusely when struck hard enough to break the skin. Barbara Jean

Hom was struck in the head multiple times, and a profuse amount of blood undoubtedly

splattered where she was killed. Undoubtedly it splattered upon the killer, the killer's clothing,

and the surrounding area. Armed with this information, Mr. Greenberg would have realized that

both Mr. Ogrod's false 1992 confession and the fictitious Wolchansky jailhouse confession

completely overlook the fact that if Mr. Ogrod had beaten Barbara Jean Hom in the basement of

7244 Rutland Street, he would have had a significant amount of blood allover his clothes and

body. Both false confessions, however, portray Mr. Ogrod as beating the victim with the weight

bar and promptly going outside into the neighborhood with the box - all without doing anything

about what surely would have been blood-spattered clothes. The 1992 false confession portrays

him as killing the victim, washing her in the basement tub, and then immediately carrying the

body in the box through the neighborhood. He then supposedly returns to the basement and

cleans up some blood on the basement rug. The jailhouse confession is essentially the same. It

portrays Mr. Ogrod as beating the victim to death and then promptly carrying the body in a box

on a long, roundabout route through the neighborhood immediately thereafter.

54. Although blood surely would have splattered onto the clothing of the person who

beat Barbara Jean Hom to death, none of the eyewitnesses who saw the man carrying the box-

including David Schechtman and Peter Vargas, who actually spoke to him - noticed any blood

on the man. None of the eyewitnesses testified there was blood on the man's clothing.

Moreover, there is no evidence that any of the other six people who were living in the Ogrod

house on July 12, 1988, noticed any blood in the basement. One occupant was actually living in

the basement at the time. Given the amount ofbleeding that would have occurred as the result of

22
the victim's head wounds, and given the blood splatters that would have occurred, and given the

short window of time between the killing and the discovery of the body in the box, it strains

belief to think that Mr. Ogrod could have killed Barbara Jean Hom in the basement of 7244

Rutland Street and cleaned up himself and the supposed crime scene in time for no one to

observe any blood. Had Trial Counsel effectively investigated and prepared the blood spatter

issue with expert testimony, he could have presented evidence to the jury that would have

exposed the preposterous nature of each supposed confession. See infra.

55. Mr. Greenberg also proceeded to trial without adequately investigating the

potential for expert evidence about false confessions. Had he done so, he would have presented

expert evidence that would have corroborated the falseness of the confessions, as also

demonstrated by the forensic evidence about the weapon and the blood.

56. Mr. Greenberg's lack of diligence and lack of a reasonable trial strategy also

resulted in his failure to interview and present Peter Vargas, an air-conditioning repairman who

was approached on July 12, 1988, by the man carrying the TV box. Vargas spoke to the man, lit

a cigarette for him, and would have testified that the man carrying the box was not Mr. Ogrod.

See Affidavit/Declaration ofPeter Vargas ("Vargas Aff.") (Attached in Appendix). Additional

witnesses would have testified that Mr. Ogrod never smoked cigarettes. See Ostash Aff. at 'If 8;

Zacher Aff. at 'If 7; Second Mulvey Aff. at 'If 5; Doherty Aff. at 'If 3.

57. Trial Counsel's lack of diligence and lack of a reasonable trial strategy also

resulted in his failure to identify and present Marie Terpeluk, Ogrod's aunt. Ms. Terpeluk could

have and would have testified against the prosecutor's unsupported and incredibly prejudicial

trial assertion that Mr. Ogrod's mother, who died between his first and second trial, thought he

was guilty of murder. See Affidavit/Declaration ofMarie Terpeluk ("M. Terpeluk Aff.") at

23
'If'lf 11-14 and Exhibit A thereto, Amnesty International Questionnaire on Torture and III

Treatment, Signed by Olga Ogrod, Oct. 13, 1992 ("Amnesty International Questionnaire")

(Attached in Appendix); NT 10/4/1996 at 22-23; NT 10/7/1996 at 64-65.

58. Trial Counsel failed even to present a newspaper article, published in 1992,

detailing Olga Ogrod's belief in her son's innocence. See Jill Porter, A Long Ago Mother Fights

to Save Son, PHILADELPIDA DAILY NEWS, Oct. 9, 1992 ("Porter Article") (Attached in

Appendix).

59. Mr. Greenberg also failed to speak to and present Hal Vahey, who lived in the

home at the time of Barbara Jean Hom's death, or Greg Ogrod - both of whom would have cast

significant doubt on the prosecution's assertion that the crime occurred in Mr. Ogrod's

basement. This in tum would have cast doubt on the reliability and validity of Mr. Ogrod's

purported confession to police and to Wolchansky. See Hal Vahey Aff. at 'If'lf 9-10, 16, 18; G.

Ogrod Aff. at 'If 18.

60. Trial Counsel also failed to object to, or otherwise respond to, numerous instances

of prosecutorial misconduct that occurred during the second trial.

61. After the second jury convicted Mr. Ogrod of first-degree murder, Mr. Greenberg

was unprepared to save Mr. Ogrod's life. Mr. Greenberg failed to investigate, develop and

present both lay and expert evidence that would have made a compelling mitigation case at Mr.

Ogrod's sentencing hearing. Proper preparation would have allowed counsel to present to the

jury significant mitigating evidence. Trial counsel also failed to object when the jury did not

find the stipulated mitigating factor that Mr. Ogrod did not have a prior significant history of

criminal convictions.

62. Trial Counsel's ineffectiveness violated Mr. Ogrod's rights under the United

24
States Constitution and the Constitution of the Commonwealth of Pennsylvania. Due to the

ineffective assistance of counsel during the guilt/innocence and penalty phases ofMr. Ogrod's

second trial, compelling exculpatory and mitigating evidence was not investigated, developed, or

presented to the jury, and the reliability of Mr. Ogrod's conviction and sentence is undermined.

RELEVANT PROCEDURAL HISTORY

63. In October 1993, Mr. Ogrod's first trial began. Mr. Ogrod was charged with murder,

rape, involuntary deviate sexual intercourse, and abuse of a corpse.

64. After deliberating, the jury announced that it had reached a unanimous verdict on

November 4, 1993. As the jury was announcing Mr. Ogrod's acquittal, one juror stated that he did

not agree with the verdict. The Court immediately declared a mistrial.

65. On November 12, 1993, Mr. Ogrod moved to bar retrial on Double Jeopardy grounds.

The trial court denied that motion on November 30, 1993, and the Pennsylvania Superior Court

affirmed that decision on December 7, 1994, Commonwealth v. Ogrod, No. 3855/93, slip op. at 2,

657 A.2d 52 (Pa. Super. Dec. 7, 1994). The Pennsylvania Supreme Court denied allowance of

appeal on June 21, 1995, and the United States Supreme Court denied certiorari on January 16,

1996. Ogrodv. Pennsylvania, 516 U.S. 1076 (1996).

66. Mr. Ogrod then filed a petition for habeas corpus arguing that his retrial would

violate federal constitutional protections against double jeopardy. The United States District Court

for the Eastern District of Pennsylvania denied the habeas petition on September 18, 1996. Ogrod

v. Shields, No. 96-cv-4587, slip op. at 8 (Report and Rec. of Magistrate Judge James R. Melinson,

E.D. Pa. Aug. 27,1996), adopted by Order ofJudge Stewart Dalzell (E.D. Pa. Sept. 18, 1996).

67. Mr. Ogrod was re-tried by a jury on one count of murder and related offenses. On

October 8, 1996, Mr. Ogrod was convicted offirst degree murder and attempted involuntary deviate

25
sexual intercourse. On October 9, 1996, the jury found one aggravating circumstance - that the

murder occurred during the perpetration of a felony - and found no mitigating circumstances. It

returned a sentence of death on the first degree murder conviction.

68. The court formally imposed the death sentence on November 8, 1996. Judge Stout

also sentenced Mr. Ogrod to five to ten years imprisonment for attempted involuntary deviate sexual

intercourse and permitted Mr. Greenberg to withdraw as counsel.

69. On September 9, 1998, the court reassigned the case to the Honorable David N.

Savitt. Attorney Scott O'Keefe ("Mr. O'Keefe," "Appellate Counsel," or "Post-Verdict/Appellate

Counsel") filed post-sentence motions on Mr. Ogrod's behalf. However, Mr. O'Keefe relates that

the Court significantly restricted the scope ofthe motion he could file. He was appointed at the time

Unitary Review was in place, but that the actual post-verdict motions were filed after Unitary

Review had been suspended. He recalls, "Judge Savitt specifically limiting the post-verdict motion

to issues that were apparent from the record." Affidavit/Declaration ofScott 0 'Keefe, Esq. at"j[3.

Accordingly, Mr. O'Keefe thought that post-conviction counsel would undertake an investigation

of the case. Id. The Court heard testimony on Mr. O'Keefe's motions on December 20,1999. The

Court denied the post-sentencing motions on May 25, 2000.

70. The Pennsylvania Supreme Court affirmed Mr. Ogrod's convictions and death

sentence on direct appeal on December 30,2003. Commonwealth v. Ogrod, 839 A.2d 294 (Pa.

2003). By operation of law, reargument was denied on April 27, 2004, by a tied 3-3 vote.

Commonwealth v. Ogrod, 850 A.2d 614 (Pa. 2004).

71. The United States Supreme Court denied Mr. Ogrod's petition for a writ ofcertiorari

on February 28,2005. Ogrod v. Pennsylvania, 543 U.S. 1188 (2005)

72. On June 7,2005, Governor Edward G. Rendell signed a death warrant scheduling Mr.

26
Ogrod's execution for August 2,2005.

73. On June 8, 2005, Mr. Ogrod filed a pro se petition for PCRA relief and a petition to

stay his execution. The court issued a stay ofexecution pending the outcome ofPCRA proceedings.

PRIOR COUNSEL

74. Petitioner was represented at his trial and retrial by Mark Greenberg. Esquire. Scott

O'Keefe, Esquire represented Petitioner on post-verdict motions and direct appeal.

STATEMENT OF JURISDICTION

75. This court has jurisdiction pursuant to Article I, Section 14 of the Pennsylvania

Constitution and 42 Pa.C.S. §§ 9542 et seq.

ELIGIBILITY FOR RELIEF

I. Federal Constitutional Standards.

76. Petitioner is eligible for reliefunder the standards ofthe United States Constitution.

His claims set forth violations ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution. He seeks substantive review of these claims under the established principles

of constitutional law discussed herein.

77. Among Petitioner's constitutional claims are claims of ineffective assistance of

counsel. He meets the two-prong standard of ineffectiveness under the Sixth and Fourteenth

Amendments: his counsel provided deficient performance (i.e., objectively unreasonable

representation) in critical areas of the pretrial, trial, post-trial and direct appeal proceedings; and,

as a result ofthese deficiencies, confidence in the outcome ofthe relevant proceeding is undermined,

establishing prejudice. Petitioner seeks review under this established precedent.

II. State Law and Eligibility for PCRA Relief.

78. Petitioner is also eligible for relief under the PCRA, submitting:

27
 2) That the conviction or sentence resulted from one or more of the following:

A violation of the Constitution of this Commonwealth or the

Constitution or laws ofthe 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.
(ii) Ineffective assistance of counsel which in the circumstances of
the particular case, so undermined the truth-determining process that
no reliable adjudication ofguilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(iv) _. The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable issue
existed and was properly preserved in the trial court.
(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.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.

(4) That the failure to litigate the issue prior to or during trial, during unitary
review or on direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel.

42 Pa. C.S. §§ 9543(a)(2)-(4).

79. To the extent that the Commonwealth argues, or this Court finds, that any of the

claims presented by Petitioner in these proceedings are not cognizable under the PCRA, Petitioner

also specifically seeks substantive review of these claims, and relief, under Petitioner's state

constitutional right to life and liberty (Art. I, § I); his inviolate right to trial by jury (Art. I, § 6); his

right of access to open courts for review of those claims (Art. I, § 11); his rights to due process and

to effective assistance of counsel (Art. I, § 9); his right to the guarantees offree speech (Art. I, § 7);

and, his state constitutional right to habeas corpus (Art. I, § 14). As described throughout this

Petition, the circumstances of this case demonstrate numerous denials of Petitioner's separate and

28
distinct rights under these sections.

80. Each of these provisions must be read in pari materia with Article I, Section 25

which provides that everything in Article I "is excepted out of the general powers of government

and shall forever remain inviolate." Pa. Const. art. I, § 25. While this section was not a part of the

original version of the constitution, it was added in 1790 after a period of unchecked legislative

actions arising out of political 'growing pains.' See Ken Gormley, ed., The Pennsylvania

Constitution - A Treatise on Rights and Liberties (2004) at 53-54. The 1790 revision included the

above language in Article XI, Section 26. Like Section 1, this Section remained in all versions of

the constitution since 1790, despite numerous revisions over the years.

81. Longstanding controlling authority has held that legislative action is not necessary

to provide a forum for vindicating the rights protected under Article I:

This clause, unlike many others in the constitution, needs no affirmative legislation,
civil or criminal, for its enforcement in the civil courts. Wherever a court ofcommon
pleas can be reached by the citizen, these great and essential principles of free
government must be recognized and vindicated by that court, and the indefeasible
right of liberty and the right to acquire property must be protected under the
common-law judicial power of the court. Nor does it need statutory authority to
frame its decrees or statutory process to enforce them against the violators of
constitutional rights.

Erdman v. Miller, 56 A. 327, 331 (Pa.1903).

82. While Erdman involved the absence of a legislative avenue to vindicate these rights,

more recently, in Gondelman v. Commonwealth, 554 A.2d 896, 904 (Pa. 1989), the Court reaffirmed

the general principle that it also precludes affirmative legislative, judicial or governmental agency

restrictions on the vindication of rights.

83. Petitioner submits that the substantive grounds for relief set forth in the body ofthis

Petition demonstrate prejudicial constitutional errors in the circumstances of this case. In

29
Gondelman, the Pennsylvania Supreme Court was presented with the validity of the constitutional

provision setting mandatory retirement for judges who reach a certain age. Rejecting the claim on

the basis that the challenged provision involved a constitutional section that had been approved by

the people, the Court noted that the "rights enumerated in the Declaration of Rights are deemed to

be inviolate and may not be transgressed by government;" that "[t]he concept ofthe sanctity ofthose

rights set forth under Article I is expressly articulated in Article I, section 25;" and, that

Gondelman's "argument would be convincing if its focus was directed at a legislative enactment,

an executive regulation or a judicial decision." Id. 554 A.2d at 904. Thus, the long-standing

principles that no governmental body can close the courthouse doors to an individual vindicating

his rights under Article I remains. See also Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.

1998) ("the writ [of habeas corpus under Article I, Section 14] continues to exist ... in cases in

which there is no remedy under the PCRA"); Commonwealth v. Judge, 916 A.2d 511, 521 (Pa.

2007) ("since the PCRA does not provide a remedy for Appellant's claims regarding the ...

determination that his deportation from Canada violated [international human rights treaties], they

may be raised in a petition for writ of habeas corpus.").

84. Petitioner submits that the substantive grounds for relief set forth in the body of this

Petition demonstrate prejudicial constitutional errors in the circumstances of this case.

III. None of the Issues Raised Herein are "Previously Litigated" or "Waived."

85. Petitioner proffers evidence, legal argument, and claims that have not been previously

presented to this Court or the Pennsylvania Supreme Court. The Pennsylvania Supreme Court has

held that claims are reviewable when the petitioner does not rely solely on previously litigated

evidence. Moreover, even previously litigated legal theories are cognizable if they are presented

as claims that the manner in which counsel presented the claims was ineffective. Commonwealth

30
v. Collins, 888 A.2d 564 (pa. 2005).

86. Where prior counsel completely failed to present a claim at trial, post-verdict

proceedings, or on direct appeal, Petitioner alleges that all such counsel were ineffective under the

prevailing state and federal constitutional standards. Where prior counsel submitted and/or litigated

part of a claim contained herein, but not all of the claim, Petitioner alleges that this incomplete

submission and/or litigation constituted ineffective assistance of counsel as to the unpresented

portiones) of the claim(s).

87. As to all his claims, Petitioner alleges prejudicially deficient representation by all

prior counsel in violation of Petitioner's Sixth and Fourteenth Amendment rights. 42 Pa. C.S. §

9545(a)(2). Accordingly, such claims are not previously litigated. Collins, supra. 15. N or are

Petitioner's claims "waived." Petitioner alleges prior counsel's ineffectiveness in failing to properly

raise and litigate the claims contained herein. Petitioner submits that prior counsel's representation

in the circumstances of the pretrial, trial, post-verdict, and direct appeal was deficient and

prejudicial; the legal issues and facts that prior counsel failed to present are of arguable merit; there

is no conceivable reasonable tactic for counsel's failures to present them and the failures to do so

were objectively unreasonable; and that Petitioner suffered prejudice, because counsel's deficiencies

undermined confidence in the outcome at all stages listed immediately above.

88. Petitioner's claims are not waived for the additional reason that, as stated above, the

Court limited the post-verdict motions that Post-Verdict/Appellate Counsel could raise. O'Keefe

Aff. at ~ 3. Attorney Scott O'Keefe states that the Court limited the post-verdict motion in this case

to "issues that were apparent from the record." Id. Accordingly, O'Keefe did not thoroughly

investigate the case, retain experts or raise all the issues ofarguable merit that were available to him.

Id. at ~~ 6-8. As regards other issues in the record, O'Keefe states that he does not know why he

31
did not raise them. Id. at ~~ 10-12. That is, he has presented the Court with no tactical or strategic

reason for not presenting additional issues to the Court during post-verdict motions, for instance,

Trial Counsel's ineffectiveness for failing to object to the testimony of a medical examiner who was

not the medical examiner who performed the autopsy, Batson or Witherspoon claims, the Court's

denial ofTrial Counsel's access to the Commonwealth informant's presentence report, and thejury's

failure to find that Mr. Ogrod had no significant history of prior criminal convictions. Id. at ~ 10.

89. Any waiver of claims by Petitioner because of Mr. O'Keefe's failure to raise claims

under the circumstances of Judge Savitt's order would violate Mr. Ogrod's federal and state due

process rights and his rights to habeas relief under the Pennsylvania Constitution.

90. Petitioner also submits that his claims demonstrate that his conviction was a

miscarriage of justice. The Pennsylvania Supreme Court has held that the state courts will act to

correct error when a miscarriage ofjustice is shown. The constitutional errors in the circumstances

of this case skewed all prior proceedings, and rendered them unreliable.

IV. United States Human Rights Obligations Foreclose the Application of Any Procedural
Rule as a Bar to Review of Petitioner's Substantive Claims for Relief.

91. The United States is subject to international treaty obligations that foreclose the

application of any procedural rule as a basis to deny substantive review of a federal constitutional

violation in a capital case.

92. Article 7 of the International Covenant on Civil and Political Rights ("ICCPR")

contains the proscription against "cruel, inhuman or degrading treatment or punishment."

93. In its ratification of the ICCPR, 128 Congo Rec. S4781-01 (daily ed. Apr. 2,1992),

the United States Senate indicated:

the United States considers itself bound by Article 7 to the extent that "cruel,
inhuman or degrading treatment or punishment" means the cruel and unusual

32
 treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States.

U.S. reservations, declarations, and understandings, ICCPR Part 1(3),128 CONGo REC. S4781-01

(daily ed. Apr. 2, 1992). The Senate accepted without reservation the ICCPR proscription against

arbitrary deprivation of life. ICCPR, Article 6, ~ 1 ("Every human being has the inherent right to

life.... No one shall be arbitrarily deprived of his life.").

94. In its advice and consent on the ICCPR, the Senate further reserved the right under

the ICCPR to impose the death penalty provided that it was applied "subject to· [United States]

Constitutional constraints" upon persons "duly convicted" of capital offenses. Id. Part 1(2). The

Senate also declared that nations that were party to the Covenant "should wherever possible refrain

from imposing any restrictions or limitations on the exercise ofthe rights recognized and protected

by the Covenant." Id. Part III(2).

95. In addition to the ICCPR, Article 16 of the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention") contains the

proscription against cruel, inhuman, or degrading treatment or punishment. In ratifying the Torture

Convention, and giving its advice and consent the Senate declared:

the United States considers itself bound by Article 16 to the extent that "cruel,
inhuman or degrading treatment or punishment" means the cruel and unusual
treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States.

U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, Part 1(1), Congo Rec. S17486-01 (daily ed. Oct.

27,1990).

96. Moreover, the Senate expressed its understanding that the Torture Convention does

not "restrict or prohibit the United States from applying the death penalty consistent with the Fifth,

33
Eighth and/or Fourteenth Amendments to the Constitution of the United States." ld. Part II(4).

97. In ratifying these treaties, the Senate agreed that under its international human rights

obligations, the United States is bound to ensure that defendants are not unconstitutionally capitally

convicted and that unconstitutional convictions do not result in executions in contravention of the

substantive standards embodied in the Fourth, Fifth, Eighth, and Fourteenth Amendments.

Procedural rules are not substantive constitutional standards. On the contrary, they are by definition

technical hurdles that prevent consideration and application of the very substantive constitutional

standards that the United States' treaty obligations require the judiciary to apply. Application of

technical procedural bars to merits review violates the Senate's clear declaration that the United

States should "refrain from imposing any restrictions or limitations on the exercise of the rights

recognized and protected by the Covenant." See also ICCPR, art. 2 ~ 3.

98. A party to a treaty may take no actions in derogation of its treaty obligations. On the

contrary, "[e]very treaty in force is binding upon the parties to it and must be performed by them

in good faith." Vienna Convention on the Law of Treaties, art. 26. See also Judge v. Canada,

CCPRIC/78/D/829/1998 ~ 10.4. The application of a state-law procedural doctrine to foreclose

judicial review of an international human rights treaty obligation is in derogation of the treaty

obligation. See, e.g., LeGrand Case (Germany v. United States of America), 2001 LC,J. 104 (27

June200l) (United States violated ICCPR obligations when it interposed procedural default doctrine

to prevent review of international treaty claim). See also Case Concerning Avena and Other

Mexican Nationals (Mexico v. United States), 2003 LC.J. No. 128, Orderre: Request for Indication

of Provisional Measures (5 Feb. 2003) (granting "provisional measures" - the international

equivalent of a preliminary injunction - against application of"various [procedural] rules ofUnited

States municipal law" that render ineffective enforcement ofhuman rights treaty obligations in the

34
domestic courts of the United States).

99. Accordingly, the courts may not apply any procedural rule as a basis to deny review

of any of the substantive claims presented on behalf of Petitioner in these proceedings.

100. Moreover, Pennsylvania's provision of ineffective counsel to Petitioner during his

capital trial and appellate proceedings also violates the United States' international human rights

treaty obligations, customary international law, and peremptory international human rights norms,

to which the Commonwealth of Pennsylvania is bound under Article VI of the United States

Constitution.

V. Standard of Review for Claims of Ineffective Assistance of Counsel.

101. Allegations of ineffective assistance at trial, in post-verdict motions, and on direct

appeal, in violation ofboth the state and federal constitutions, lie at the heart ofmany ofthe claims

presented here. Thus, Petitioner now sets forth the general standards applicable to all of the claims

of ineffective assistance of both Trial and Appellate Counsel raised in this Petition.

102. As to each claim of ineffectiveness of counsel, Petitioner meets the two-prong

standard of the Sixth and Fourteenth Amendments: his counsel provided deficient, unreasonable

representation in critical areas of the pretrial, trial, post-trial and direct appeal proceedings; and

confidence in the outcome is undermined as a result, establishing prejudice. For trial-level

ineffectiveness, Petitioner seeks review under established Sixth Amendment law. See Strickland

v. Washington, 466 U.S. 668 (1984); Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539

U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005).

103. The same standards apply to claims of appellate ineffectiveness. See, e.g., Roe v.

Flores-Ortega, 528 U.S. 420 (2000) (applying Strickland standard to consideration of appellate

counsel's ineffectiveness); United States v. Mannino, 212 F.3d 835 (3d Cir. 2000); Orazio v.

35
Dugger, 876 F.2d 1508, 1513 (11th Cir. 1989); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th

Cir. 1987). Where, as in this case, there is a "reasonable probability that the neglected claim[s]

would have succeeded on appeal, [] counsel's failure to raise the claim [falls] outside the range of

reasonably competent assistance." Claudio v. Scully, 982 F.2d 798, 799 (2d Cir. 1992); Starr v.

Lockhart, 23 F.3d 1280 (8th Cir. 1993) (finding trial and appellate counsel ineffective for failing to

object to and raise an erroneous jury instruction); Murphy v. Puckett, 893 F.2d 94 (5th Cir. 1990)

(counsel's failure to raise valid defense at trial and on direct appeal constituted ineffective

assistance).

104. Pennsylvania applies a three-part test to claims of ineffective assistance. For

instance, in Commonwealth v. Moore, 805 A.2d 1212 (Pa. 2002), the Supreme Court held,

In order to establish a claim ofineffective assistance of counsel under the PCRA, an

appellant must show that: (1) the claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or his action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that the outcome of the
proceedings would have been different. Commonwealth v. Kimball, 724 A.2d 326,
333 (pa.1999).

ld. at 1215. Petitioner alleges that the ineffectiveness in this case meets the Pennsylvania three-part

test as well as the federal two-pronged standard.

VI. Petitioner is Entitled to an Evidentiary Hearing.

105. Petitioner is entitled to summary relief on the record-based claims as to which there

are no disputed issues of material fact. Pa. R. Crim. P. 907(2). Where the pleadings "raise[]

material issues offact" an evidentiary hearing is required. Pa. R. Crim. P. 908(A)(2).

106. A hearing cannot be denied unless the Court "is certain of the total lack of merit" of

the petition. Commonwealth v. Bennett, 462 A.2d 772, 773 (pa. Super. 1983) (quoting

Commonwealth v. Rhodes, 416 A.2d 1031, 1035-36 (Pa. Super. 1979)); accord Commonwealth v.

36
Korb, 617 A.2d 715, 716 (Pa. Super. 1992) (remanding for evidentiary hearing where "[i]t appears

that appellant has presented a claim of ineffective assistance of counsel which contains at least

arguable merit" (citing Commonwealth v. Copeland, 554 A.2d 54, 60-61 (Pa. 1988»). Even in

"borderline cases Petitioners are to be given every conceivable legitimate benefit in the disposition

of their claims for an evidentiary hearing." Commonwealth v. Pulling, 470 A.2d 170, 173 (Pa.

Super. 1983) (remanding for evidentiaryhearing) (quoting Commonwealth v. Strader, 396 A.2d 697,

702 (Pa. Super. 1978) and Commonwealth v. Nahodil, 239 A.2d 840, 840 (pa. Super. 1968».

107. The claims Petitioner has pled in this case - including the claims of ineffective

assistance of counsel - are not frivolous; nor is this a borderline petition. On the contrary, the

petition sets forth material facts that, if uncontested by the Commonwealth or proven at an

evidentiary hearing, entitle Petitioner to relief. Ifthe Commonwealth contests these material facts,

an evidentiary hearing is required. Otherwise, Petitioner is entitled to summary relief.

VII. Statement Regarding Discovery and Further Amendments of Claims Presented.

108. Petitioner has not yet secured all of the relevant records pertaining to the current

litigation despite diligent attempts to do so. In fact, by order of the Court (Hughes, J.), Petitioner's

counsel were directed to have no further contact with the medical examiners involved in this case,

and they were directed to discontinue their efforts to speak with all ofthe jurors, which would have

revealed the races ofPetitioner's venire panel members. Petitioner will diligently continue to pursue

relevant records in order to investigate his case. However, since records and discovery are not in

his possession or control, there may remain undiscovered state misconduct, Brady, or other claims

that Petitioner cannot raise with specificity at this time despite his diligence. Thus, Petitioner will

continue his investigation and reserved the right to seek discovery from this Court.

37
 CLAIMS FOR RELIEF

Claim I. PETITIONER IS ACTUALLY INNOCENT AND HIS CONTINUED

INCARCERATION AND DEATH SENTENCE VIOLATE HIS RIGHT TO
DUE PROCESS, CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT,
AND REPRESENT A GRAVE MISCARRIAGE OF JUSTICE.

109. The matters set forth in all other sections of this Petition are repeated and realleged

as if set forth entirely herein.

A. The Eighth and Fourteenth Amendments to the United States Constitution

Prohibit the Incarceration and Execution of an Innocent Person.

110. Walter Ogrod is innocent. He did not commit the crime of which he was convicted.

111. Under United States Supreme Court precedent, Mr. Ogrod's innocence is an

independent ground for relief from his incarceration and death sentence. In re Davis, 130 S.Ct. 1

(Mem.) (2009) (remanding habeas proceedings for an evidentiary hearing and a determination of

whether the evidence "clearly establishes petitioner's innocence"); id. at 1-2 (Stevens, J., joined by

Ginsberg, J., and Breyer, J., concurring) ("Decisions of this Court clearly support the proposition

that it would be an atrocious violation of our Constitution and the principles upon which it is based

to execute an innocent person.") (internal quotations omitted); Herrera v. Collins, 506 U.S. 390,419

(1993) (O'Connor, J., concurring, joined by Kennedy, J.) ("[T]he execution ofa legally and factually

innocent person would be a constitutionally intolerable event."). Accord Herrera, 506 U.S. at 437

(Blackrnun, J., dissenting,joined by Souter, J., and Stevens, J.) (because "it violates the Eighth and

Fourteenth Amendments to execute a person who is actually innocent, there should be no bar ...

to consideration of an actual innocence claim."). See also House v. Bell, 547 U.S. 518 (2006)

(remanding capital case for evidentiary development on whether petitioner was actually innocent;

the petitioner now has been fully exonerated); Kuhlman v. Wilson, 477 U.S. 436, 452 (1986) ("a

prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is

38
innocent of the charge for which he was incarcerated"); Cabana v. Bullock, 474 U.S. 376, 386

(1986) (the execution of a person without "the requisite culpability" is an "Eighth Amendment

violation" that must be "remedied by any court that has the power to find the facts and vacate the

sentence."), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497 (1987); In re Winship, 397

U.S. 358, 364 (1970) ("It is critical that the moral force of the criminal law not be diluted by a

standard of proof that leaves people in doubt whether innocent men are being condemned.").

112. In accordance with the Fourteenth Amendment's guarantee of Due Process and the

Eighth Amendment's prohibition against the imposition of cruel and unusual punishment, Mr.

Ogrod's convictions and death sentence must be vacated.

B. Sections 9 and 13 of Article I of the Pennsylvania Constitution Prohibit the

Incarceration and Execution of an Innocent Person.

113. In addition to the protections afforded by the United States Constitution, the

Pennsylvania Constitution provides two independent grounds for relief for an innocent person who

is being incarcerated and is under a sentence ofdeath: Article I, Section 9 (providing that trials must

follow the "law of the land") and Article I, Section 13 (prohibiting "cruel punishments"). See also

42 Pa.C.S. § 9542 ("[The PCRA] provides for an action by which persons convicted of crimes they

did not commit ... may obtain collateral relief.").

114. Article I, Section 9 is the functional equivalent of the Due Process Clause under the

Fourteenth Amendment to the United States Constitution, and is therefore referred to as "the due

process clause of our state constitution." Commonwealth v. Heck, 535 A.2d 575, 576 (Pa. 1987).

See also Appeal of Palairet, 67 Pa. 479 (1871) ("By the 'law of the land,' is meant - not the

arbitrary edict of any body of men - ... but due process oflaw").

115. "[T]he strictures imposed by the due process clause of the Fourteenth Amendment

39
of the United States Constitution" are the starting point for analyzing the protections afforded by

Article I, Section 9. Commonwealth v. Davis, 586 A.2d 914, 916 (Pa. 1991). The federal clause,

however, does not control where "the due process clause of the Pennsylvania Constitution sets a

higher standard." Id. In other words, state due process rights are more robust than federal due

process rights. See, e.g., id. at 917 (finding "no doubt that the due process clause of the

Pennsylvania Constitution prohibits the deprivation of liberty solely on the basis of hearsay

evidence" while acknowledging doubt whether the Fourteenth Amendment would as well). Cf

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) (declining to recognize federal law's "good

faith exception" to warrant requirement under state law); Commonwealth v. Kohl, 615 A.2d 308 (Pa.

1992) ("Article I, Section 8 has an identity and vitality that is separate and distinct from that of the

Fourth Amendment.").

116. The continued imprisonment and potential execution of an innocent person cannot

be countenanced. Accordingly, other state courts have found a freestanding innocence claim under

their own due process clauses even in the face of prior federal reluctance to do so, i.e., before In Re

Davis provided a firm basis for such a federal claim. For example, as the Supreme Court of Illinois

recognized, "[i]mprisonment of the innocent would also be so conscience shocking as to trigger

operation of substantive due process." People v. Washington, 665 N.E.2d 1330, 1336 (Ill. 1996)

(recognizing a free standing innocence claim under illinois Constitution). Numerous other state

courts have adopted this approach. See, e.g., Montoya v. Ulibarri, 163 P.3d 476 (N.M. 2007);

People v. Cole, 765 NY.S.2d 477 (NY. Sup. Ct. Kings Cty. 2003); Amrine v. Roper, 102 S.W.3d 541

(Mo. 2003); Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Ct. Crim. App. 1996), superseded by statute

on other grounds; Summerville v. Warden, 641 A.2d 1356 (Conn. 1994); In re Clark, 855 P.2d 729,

796-97 (Cal. 1993).

40
 117. In light of the trend in other states and this Commonwealth's long history of

protecting its citizens' rights against arbitrary state action, this Court should recognize Petitioner's

actual innocence claim under Article I, Section 9 and should grant relief.

118. Further, where a sentence would "shock the moral conscience of the community,"

it violates Article I, Section 13 of the Pennsylvania Constitution. Commonwealth v. Sourbeer, 422

A,2d 116, 123 (Pa. 1980). There is no question that the continued incarceration and potential

execution of a person who is actually innocent of the crime "shock[s] the moral conscience of the

community." Indeed, it is the greatest injustice the law confronts. This Court should vacate Mr.

Ogrod's convictions and death sentence on that ground as well.

C. Mr. Ogrod is Innocent.

119. At the second trial, the Commonwealth sought to present three types of evidence

against Mr. Ogrod: eyewitness evidence, physical evidence, and Mr. Ogrod's alleged statements.

120. The eyewitnesses who testified for the Commonwealth, however, failed to identifY

Mr. Ogrod as the person seen dragging the box in which the corpse was found. See, e.g., NT

10/1/1996 at 24.

121. The Commonwealth was likewise unable to present any fingerprint evidence, blood

evidence, or other biological evidence connecting Petitioner to the crime. The Commonwealth

elicited testimony about only one piece ofphysical evidence: that the murder weapon was a weight

bar purported to be in Mr. Ogrod's basement at the time of the crime. NT 10/1/1996 at 118.

However, there was no evidence presented at trial (other than Mr. Ogrod's false confession and

W olchansky's repetition of that false claim) to prove that the weight bar was even in the basement

on the date of the murder.

122. The Commonwealth also presented Petitioner's alleged statements. The first alleged

41
statement to police recounted a version of the crime in which Petitioner used the weight bar to kill

the victim and carried the victim's body into the street without having changed out of his bloody

clothes.

123. The second alleged statement was testified to by JayWolchansky, who testified under

the alias Jason Banachowski. He provided a similar version ofhow the crime occurred, with a more

elaborate, fantastical, version of events leading up to the actual killing. NT lO/4/1996 at 41-42.

Wolchansky's rendition has Petitioner telling him that his own mother thought he committed the

crime and that she in fact believed he was guilty.

124. New evidence proffered in this Petition and which can be proven at an evidentiary

hearing affirmatively demonstrates Petitioner's innocence; undermines and refutes the

Commonwealth's entire case against Petitioner; and reveals that the Commonwealth's evidence, to

the extent it is probative at all, actually proves Petitioner's innocence.

125. New evidence from an eyewitness who saw the man dragging the TV box on the date

of the crime definitively states that the person he saw carrying the box and lit a cigarette for was

not Walter Ogrod. See Vargas Aff. at ~ 9. Additional new evidence will establish that Mr. Ogrod

never smoked. See Ostash Aff. at ~ 8; Second Mulvey Aff. at ~ 5.

126. New evidence, or existing evidence that was never presented to the jury, also casts

significant doubt on the prosecution's assertion that Mr. Ogrod's basement was the scene of the

crime. See Affidavit ofDr. Marcella Fierro ("Fierro Aff.") at ~ 18 (if Mr. Ogrod beat the victim in

the head with a blunt force object and carried her to a sink, there would have been significant

amounts ofthe victim's blood on his person); Hall Vahey Aff. at ~~ 9-10,16,18 (there was no blood

in the basement soon after the murder, the basement back door that led to the alley was blocked by

various heavy items, Vahey's dog was in Mr. Ogrod's house on the day of the murder and would

42
have barked if anyone screamed, you could hear what was going on in the basement throughout the

house); L. Green Statement at 2-4 (My husband and I were home on the day ofthe murder and did

not hear or see anything unusual. I was mostly on the first floor and my husband was asleep on a

mattress on the dining room floor.); G. Ogrod Aff. at ~ 18 (the basement door to the alley was

broken and blockaded by an old transmission and other heavy items). This evidence establishes Mr.

Ogrod's innocence, yet Trial Counsel never presented it at trial.

127. New evidence from two pathologists who did not testify at trial, including the

pathologist who conducted the autopsy of the victim - conclusively demonstrates that the weight

bar in Mr. Ogrod's basement was not, and could not have been, the murder weapon. See Fierro Aff.

at ~~ 14-16; Hoyer Notes 7/13/88. Thus, the Commonwealth's only physical evidence against

Petitioner was unfounded. The jury never learned this fact.

128. New evidence establishes that Petitioner's alleged confession to police was

demonstrably false (as the jury at the first trial recognized). New evidence demonstrates that the

statement's account of the weight bar being used as the murder weapon is patently false. New

evidence also proves that the statement's account of leaving the house immediately after having

beaten the victim to death without having washed or changed clothes is untrue. Contrary to the

statement; expert testimony found the wounds inflicted would have bled profusely and that the

person who inflicted these wounds would have blood covering his or her body and clothes. See

Fierro Aff. at~~ 17-18.

129. New evidence also reveals that false confessions, as opposed to true ones, entail

specific characteristics and idiosyncracies, and that those characteristics and idiosyncracies are

present here. See Report ofDr. Richard Leo ("Leo Report") (Attached in Appendix); Report of

Detective James Trainum ("Trainum Report") (Attached in Appendix). New evidence further

43
demonstrates that Petitioner's lifelong mental health problems and innate suggestible and dependent

personality caused him frequently to be bullied, coerced, and cajoled into believing untrue stories,

accepting responsibility for the actions of others, and submitting to the wishes, however

unreasonable, of those he trusted. See Report ofDr. Frank Dattilio ("Dattilio Report") (Attached

in Appendix); Report ofDr. Bruce Frumkin ("Frumkin Report") (Attached in Appendix); Report

of Dr. Neil Blumberg ("Blumberg Report") (Attached in Appendix). See also Guhl Aff.;

Bonavitacola Aff.; Shinn Aff.; Fritz Aff.; G. Ogrod Aff.; Pettit Aff.; Second Mulvey Aff.; Ward

Aff.. This evidence could have established the falseness and unreliability of Petitioner's

"confession," but was never heard by the second jury.

130. Finally, new evidence completely undermines the snitch testimony of Jay

Wolchansky. This new evidence establishes that, in fact, Wolchansky never even spoke with Mr.

Ogrod but instead, with the assistance of John Hall, fabricated the supposed confession in a

(successful) attempt to curry favor with the government. See Affidavit/Declaration ofJohn Hall

("Hall Aff.") (Attached in Appendix); Affidavit/Declaration ofPhyllis Hall ("Phyllis Hall Aff.")

(Attached in Appendix). New evidence substantiates undisclosed benefits that Wolchanskyreceived

in exchange for his fabricated testimony. See Tom Lowenstein, Snitch Work, PHILADELPHIA CITY

PAPER, June 17-24, 2004 ("Lowenstein Article") (Attached in Appendix). New evidence also

establishes that Wolchansky suffered from severe, undisclosed mental health problems that directly

undermined his credibility and reliability as a witness. See Wolchansky Prison Medical Records at

SHAF0000260 (Attached in Appendix); Wolchansky Pre-Sentence Investigation Report, July 12,

1989 ("Wolchansky PSI, 7/12/1989") (Attached in Appendix). New evidence demonstrates that

Wolchansky engaged in a pattern of undisclosed cooperation with the government. See Dickson

Aff.; Hall Aff. New evidence likewise demonstrates that Wolchansky's cohort, a professional

44
cooperator named John "The Monsignor" Hall, with whom Wolchansky fabricated his testimony,

also had a history of undisclosed cooperation with the government, including one homicide case

where Wolchansky cooperated with Hall, see Hall Aff. & Dickson Aff.; and also including ongoing

cooperation with Mr. Ogrod' s trial prosecutor in another case that was active at the time of Mr.

Ogrod's second trial. See Lowenstein Article; Hall Aff. Moreover, new evidence shows that

Wolchansky's testimony that Petitioner told him his mother believed he was guilty is patently false.

See Declaration ofJohn Terpeluk ("J. Terpeluk Aff."); M. Terpeluk Aff.

13l. This new evidence demonstrates that Wolchansky's testimony was completely

unreliable and false. Further, in the absence of this false testimony, Petitioner would not have been

convicted, as the first trial establishes.

132. Individually and cumulatively, this new evidence, which the jury never heard,

"clearly establishes Petitioner's innocence." Davis, 130 S.Ct. at l. Relief is warranted under the

Eighth and Fourteenth Amendments to the United States Constitution and under Sections 9 and 13

of Article I of the Pennsylvania Constitution.

133. At a minimum, the Court should order an evidentiary hearing on this claim. For,

even ifthe Court finds that the proffered evidence does not establish "conclusive exoneration," this

is undoubtedly "[t]he rare case where - had the jury heard all of the conflicting testimony - it is

more likely than not that no reasonable juror viewing the record as a whole would lack reasonable

doubt." Bell, 547 U.S. at 554 (remanding for an evidentiary hearing). See also Davis, 130 S. Ct.

at I (Stevens, J., joined by Ginsberg and Breyer, J,J., concurring) (the "substantial risk of putting

an innocent man to death clearly provides an adequate justification for holding an evidentiary

hearing").

45
Claim II. TRIAL COUNSEL'S FAILURE TO GATHER AND PRESENT EVIDENCE
THAT CASTS COMPELLING, SERIOUS AND SUBSTANTIAL DOUBT ON
THE PROSECUTION'S CASE DURING THE GUlLTIINNOCENCE STAGE
OF MR. OGROD'S TRIAL WAS INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF PETITIONER'S 6TH, 8TH AND 14TH
AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION
AND UNDER ARTICLE 1, SECTIONS 1, 9 AND 13 OF THE
PENNSYLVANIA CONSTITUTION, AND APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THESE CLAIMS.

134. The matters set forth in all other sections ofthis Petition are repeated and realleged

as if set forth entirely herein.

A. Governing Legal Standard.

135. Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant is denied the

effective assistance ofcounsel whenever (1) counsel's performance was deficient, i. e., it "fell below

an objective standard of reasonableness," and (2) the defendant suffered prejudice as a result.

Strickland, 466 U.S. at 687-88. Under Pennsylvania's formulation ofthis standard, Petitioner must

demonstrate that the claim is of arguable merit; that no reasonable strategic basis existed for

counsel's act or omission; and that counsel's error resulted in prejudice. See Commonwealth v.

Pierce, 786 A.2d 203,213 (2001).

136. When a state provides for appellate review of a conviction and sentence as ofright,

the due process clause of the Fourteenth Amendment requires that the defendant be afforded the

effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387 (1985).

137. Pennsylvania law also recognizes the substantive identity of trial and appellate

ineffectiveness claims and applies the same test to each. Commonwealth v. May, 898 A.2d 559, 564

(Pa.2006).

138. Petitioner will address each claim of ineffectiveness separately, although the

prejudicial impact of counsel's errors must ultimately be viewed cumulatively.

46
 B. Trial Counsel Was Ineffective for Failing to Adequately Investigate and Present
Forensic Expert Testimony that the Weight Bar Was Not the Murder Weapon,
and, to the Extent he was Responsible for Raising this Aspect of Trial Counsel's
Ineffectiveness, Post-Verdict/Appellate Counsel Was Ineffective for Failing to
Raise this Claim.

139. On Apri15, 1992, the day that they wrung a false confession from a sleep-deprived

and exhausted Walter Ogrod, Detectives Paul Worrell and Martin Devlin already knew that there

had been a weight machine with a pull-down 1atisimus bar in Mr. Ogrod's basement at 7244 Rutland

Street.~ The detectives knew this because in 1986 - two years before the July 12,1988 murder of

Barbara Jean Hom - Maureen Dunne had been killed in that basement and the Philadelphia Police

Department investigated the crime scene and extensively photographed it. The 1986 pictures

included a weight machine and a pull-down bar leaning against the wall. See Weight Machine

Photos. At some unknown time, those photographs found their way into the Barbara Jean Hom

murder file.

140. The actual weight bar from the Ogrod basement was never found. At Mr. Ogrod's

1996 trial, the prosecution presented a physical example of a similar weight bar to the jury. Weight

Bar, Trial Ex. C-ll; NT 10/2/1996 at 121-26. See also Weight Machine Photos. The prosecution

also presented expert testimony from Philadelphia's Chief Medical Examiner, Dr. Haresh

Mirchandani. Although Dr. Mirchandani did not perform the autopsy, he opined that the weight bar

could have been the blunt instrument used to kill Barbara Jean Hom. NT 10/1/1996 at 107-18. This

physical evidence of a similar weight bar combined with the expert testimony provided the jury with

an alleged murder weapon. It also purported to corroborate Mr. Ogrod's April 5, 1992 confession

'Various witnesses refer to the bar as the "lat bar" (or misspelled "lap" bar) or the pull-down bar.
Photographs taken by the Police Department in the Ogrod basement during the Maureen Dunne murder investigation
illustrate the "Marcy emil weight system" that is referred to throughout the proceedings as Mr. Ogrod's weight set.
The pull-down weight bar with bent grips is technically a "Latisimus bar." See Affidavit ofRichard K Perkins
("Perkins Aff.") at 14, 16 (Attached in Appendix). The term "Iatisimus" refers to broad, flat muscles in the upper
back. THE AMERICAN HERITAGEDICfIONARY, 1018 (3rd ed. 1991).

47
to the police, which alluded to "my small 'pull down' bar to my weight set." Ogrod Statement

4/5/1992 at 10.

i. Trial Counsel's Performance was Deficient

141. Trial Counsel failed to have an independent forensic pathologist investigate the issue

of the weapon used to inflict fatal blunt force trauma on the victim. Trial Counsel made this

omission even though he knew that Assistant Medical Examiner Paul J. Hoyer, the person who

actually performed the autopsy, had opined in 1988 that a 2x2 or a 2x4 - a straight-edged object

rather than a round object like a weight bar - was probably the murder weapon. See Hoyer Notes

7/13/88; Greenberg Notes 7/30/92; Greenberg Memo 9/28/93. Trial Counsel did not present any

expert forensic evidence to rebut this key aspect of the prosecution case even though such expert

testimony could have been obtained and presented at the 1996 trial. When interviewed by

undersigned counsel, Mr. Greenberg did not offer any strategic or tactical reason for his failure. See

Affidavit/Declaration afMark Greenberg, Esq. ("Greenberg Aff.") at ~ 15 (Attached in Appendix).

142. At trial Mr. Greenberg could have presented expert evidence demonstrating that the

weight machine pull-down bar or "Iat bar" was not the weapon used to kill Barbara Jean Horn. Dr.

Marcella F. Fierro, the retired Chief Medical Examiner of the Conunonwealth of Virginia, a past

president of the National Association of Medical Examiners, and a Fellow of the American

Academy of Forensic Sciences, has reviewed the autopsy report - including detailed photographs

of the victim's injuries - and other forensic evidence currently available to Mr. Ogrod. Fierro Aff.

at ~~ 2,3,9. This other evidence includes photographs of the victim's body and an example ofthe

weight bar from the same kind of weight set owned by Mr. Ogrod in 1988, similar to the example

introduced by the prosecution at trial. See Perkins Aff. (attaching exhibits illustrating the Marcy

. ern/I weight set and also illustrating the machine that was located in the Ogrod basement). Based

48
upon her review of the evidence, Dr. Fierro has concluded to a reasonable degree of medical

certainty that the weight bar was not the weapon that caused the injuries to Barbara Jean Hom.

Fierro Aff. at ~ 16.

143. Dr. Fierro adds:

The child had blunt force injuries to her back. Id. at ~ 13 and Exhibit C thereto.

• The bruising on the victim's back shows a distinctive pattern. Each contusion
includes two central parallel lines and two oblique parallel lines impressed into the
victim's skin by the weapon. The imprints in the skin indicate that the blows were
made with considerable force, and thepattemevident in each contusion supports the
conclusion that the weapon used to make the blows was flat on one side. The
bruising on the victim's back was caused by a blunt, flat object with a distinctive
pattern on its surface such as a golf club. Id. at ~ 14.

• The injuries observable on Barbara Jean Hom's back are not compatible with the
weight bar. The pattern evident in the victim's skin could not have been caused by
the weight bar or any other smooth cylindrical object similar to the weight bar. Id.

• The autopsy photographs also show four lacerations and one smaller contusion on
the victim's head. A round object causing lacerations in the skin of the head will
leave abrasions on both sides ofthe laceration. A flat object with an edge causes less
abrasion and is more marked on one side of the wound. The autopsy photographs
of Barbara Jean Hom's head evidence an abrasion on one side of the wound. This
is further evidence that the weapon used to hit Barbara Jean Hom was flat with an
edge. The weapon was not a round shape like the weight bar or a pipe. Id. at ~ 16.

• When blunt force trauma is evident on a victim's body, it is extremely rare that
multiple weapons are used. It is highly likely that the instrument used to cause the
injuries to the back of Barbara Jean Hom was the same instrument used to cause the
injuries to the head. Id.

144. When reviewing the evidence in this case, Dr. Fierro also spoke with Dr. Hoyer about

her findings. She recalls that Dr. Hoyer agreed with her assessment that the weapon used to hit

Barbara Jean Hom was flat with an edge, not a round shape like the weight bar or a pipe. Id. at W

13-14, 16. Upon information and belief, therefore, Petitioner avers that Dr. Hoyer's opinion is

49
consistent with Dr. Fierro's."

145. If Trial Counsel had retained an independent forensic pathologist to investigate the

forensic evidence, he would have obtained the evidence in Dr. Fierro's affidavit. If the jury had

heard that evidence, there is a reasonable likelihood that the outcome would have been different.

Commonwealth v. Daniels, 963 A.2d 409,419 (pa. 2009), citing Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987). See also Strickland v. Washington, 466 U.S. 668, 687 (1984). Trial Counsel's

failure to obtain and present testimony similar to Dr. Fierro's was unconstitutional deficient

performance under the United States Constitution and the Pennsylvania Constitution.

ii. Trial Counsel Had No Reasonable Basis for His Failure to Adequately
Investigate, Develop, and Present Forensic Expert Testimony about the
Murder Weapon.

146. Trial Counsel had no reasonable basis for failing to investigate, develop and present

evidence presented in Dr. Fierro's affidavit. Such testimony would have eliminated the weight bar

as the murder weapon and thus demonstrated the falsity ofMr. Ogrod's purported confession and

the jailhouse snitch's testimony.

147. The assistance of an expert like Dr. Fierro would have assisted Trial Counsel in

preparing and executing an effective cross examination of the Commonwealth's forensic expert.

With an effective cross examination, Dr. Mirchandani would have conceded, among other things,

that he failed to observe, record and analyze a distinctive marking pattern imprinted in the flesh

wounds on the victim's back that is at odds with the weight bar theory.

148. Trial Counsel has not offered any basis for this failure. Greenberg Aff. at 'If 15.

Indeed, there could be no reasonable basis for Mr. Greenberg's failure to hire an expert to at least
2 Undersigned counsel wanted to interview Dr. Hoyer to snbstantiate Dr. Fierro's recollection of their
conversation. Counsel also intended to interview Dr. Mirchandani as well. However, counsel did not pursue these
interviews because the Court directed counsel not to have any further contact with the medical examiner's office
regarding this case. See NT 101112010 at 10-14 (Hughes, J.).

50
explore the issue. That is especially true where he had already retained Dr. Saferstein who was

qualified to analyze the evidence relevant to the murder weapon question. There could be no

strategic advantage whatsoever for failing to offer forensic evidence that countered the prosecution's

theory that Mr. Ogrod's weight bar was the murder weapon.

iii. Mr. Ogrod Was Prejudiced

149. The prosecution built its case around the weight bar as the murder weapon. In her

opening statement, Prosecutor Rubino stated: "[Mr. Ogrod] had a weight set setup in the basement,

and that [was] what he had hit her over the head with after she had started to scream was the lap bar

(sic), a bar that comes with the weight set, and that he had hit her over the head with that after she

had started to scream, and that that's what he had killed her with." NT 9/30/1996 at 124-45.

150. During its case in chief, the prosecution presented Dr. Haresh Mirchandani, the City

of Philadelphia's Chief Medical Examiner, who displayed a weight bar to the jury and testified that

in his "opinion, an object such as this would be consistent" with having inflicted the injuries seen

and measured on the child's body. NT 10/1/1996 at 118. The prosecution then presented Gregory

Baldwin, the manager of a sporting goods store in 1988, who identified a photograph of the weight

machine in Ogrod's basement as a Marcy emil home gym unit, and further identified a pull-down

bar as "the lap bar that came standard with the unit."1 NT 10/2/1996 at 124 (identifying Trial Ex.

C-11).

151. The prosecutor continued with her focus on the weight bar, submitting Mr. Ogrod's

alleged April 1992 confession - the police-induced source of the entire weight bar theory - to the

jury. The purported confession reads: "The best I can see it in my mind is that I was holding her

1 The facts presented to Baldwin were based on the photographs of the basement from the Dmme murder,
not from any investigation related to Barbara Jean Hom. No evidence was presented at trial that the weight bar, or
even the weight set, was present in the Ogrod basement at the time of the crime.

51
head down and hitting her with this pipe. It might have been my small 'pull down' bar to my weight

set." Ogrod Statement 4/5/92. Next the prosecutor presented the testimony of repeat felon Jay

Wolchansky (who testified under the alias "Banachowski"), which, yet again, focused on the weight

bar: "He became enraged, tried to grab an electrical cord he had placed in the basement, but it was

missing, and then he became enraged, and then he grabbed a weight bar and smacked her in the head

with it." NT 10/4/1996 at 13.

152. The questionable nature ofthe Commonwealth's evidence regarding the weight bar,

including Dr. Mirchandani' s conclusion that the weight bar was consistent with having inflicted the

wounds on Barbara Jean Hom, was never brought to the jury's attention because Trial Counsel did

not effectively counter the evidence.

153. Mr. Greenberg did not cross examine Dr. Mirchandani with Dr. Hoyer's notes, which

indicate that the weapon could have been a 2x4 or 2x2. Mr. Greenberg also did not cross examine

Dr. Mirchandani or Mr. Baldwin about the distinctive pattern on the victim's back wound or the fact

that the bar that came with the Marcy ern/I home gym unit did not have any such pattern on it. As

a result of counsel's failures, the prosecution's theory that the weight bar was the murder weapon

went completely unrebutted.

154. Prosecutor Rubino emphasized the uncontested nature ofthe weight bar evidence in

her closing argument. After repeating Mr. Ogrod's confession and the purported jailhouse

confession from the felon Wolchansky, the prosecutor argued: "Do you remember Dr.

Mirchandani's testimony that the width ofthe contusions on her shoulders matched the exact width

ofthe lap bar? And we know that this lap bar matches what was in Walter Ogrod's basement, from

Mr. Baldwin, the expert in this kind of equipment. ..." NT 10/7/1996 at 57-58. Sarcastically, the

prosecutor went on to point out that trial counsel, Mr. Greenberg, had not presented any defense

52
expert testimony:

But the Medical Examiner, not Dr. Greenberg on forensic pathology, but Dr.
Mirchandani, said that this bar, and hitting her with this bar, are consistent with the
injuries he saw. I submit to you that he knows better than Dr. Greenberg whether or
not this bar could inflict the injuries on this child's head.... He told you that this
bar was completely consistent with having inflicted the injuries ... and that the
width matched the contusions on her shoulders." Id.

155. IfTrial Counsel had investigated, developed and presented expert forensic testimony,

or at least consulted with an expert for purposes of preparing for cross examination of the

Commonwealth's witnesses, there is a reasonable probabilitythat the outcome of Mr. Ogrod's 1996

trial would have been different. Daniels, 963 A.2d at 419; Pierce, 527 A.2d 973; Strickland, 466

U.S. at 687. With testimony from an experienced forensic pathologist or with the assistance ofsuch

an expert in preparing for cross examination, counsel would have dismantled the core of the

prosecution's case. Such testimony would have exposed in detail what Dr. Mirchandani missed and

would have eliminated the weight bar as the murder weapon, revealing the falsity of both Mr.

Ogrod's statement to police and the jailhouse snitch testimony.

iv. The Issue of Trial Counsel's Ineffectiveness is Not Waived, but to the
Extent that Post-Verdict/Appellate Counsel Was Responsible for Raising
Trial Counsel's Ineffectiveness, Post-Verdict/Appellate Counsel Was
Ineffective.

156. As explained above, the Court limited Post-Verdict!Appellate Counsel Scott O'Keefe

to issues that were apparent from the record. O'Keefe Aff. at "if 3. Accordingly, Mr. O'Keefe did

not retain experts or analyze the case from the standpoint of how Trial Counsel could have

effectively cross-examined and rebutted the Commonwealth's witnesses, including its expert. Id.

at"if"if 7-8.

157. To the extent that Mr. O'Keefe was responsible for raising and litigating Trial

Counsel's ineffectiveness with respect to cross-examining or rebutting the testimony of Dr.

53
Mirchandani (and related arguments made by the prosecution at trial), Mr. 0 'Keefe was ineffective.

This issue of Trial Counsel's ineffectiveness has arguable merit, as supported by Dr. Fierro's

affidavit and other evidence. Trial Counsel should have investigated and developed expert forensic

testimony to undermine significant elements of the prosecution's case.

158. To the extent he was responsible forraising Trial Counsel's ineffectiveness on these

issues, Mr. O'Keefe could have no reasonable tactical reason for failing to pursue a meritorious

claim. 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 scrupulously honored.").

159. To the extent Mr. O'Keefe was responsible forraisingTrial Counsel's ineffectiveness

on this issue, Mr. 0 'Keefe's ineffectiveness prejudiced Mr. Ogrod. A defense forensic expert would

have created fatal gaps in the thin evidence on which the prosecution based its case. IfMr. O'Keefe

had raised the forensic expert issues, there is a reasonable probability that Mr. Ogrod would have

prevailed on post-verdict motions or on appeal.

C. Trial Counsel Was Ineffective for Failing to Investigate and Present Forensic
Expert Testimony Showing That the Victim Would Have Bled Profusely at the
Crime Scene and onto the Murderer's Clothing as well as Lay Witness
Testimony to Establish That Mr. Ogrod's Basement Was Free of Fresh Blood
- Facts That Would Have Contradicted the Prosecution's Theory of How the
Crime Occurred and Undermined Petitioner's Purported Statements to the
Police and to Wolchansky, the Jailhouse Snitch; This Claim is Not Waived, and
to the Extent he was Responsible for Raising this Claim, Post-Verdict!Appellate
Counsel Was Ineffective.

160. Trial counsel was ineffective for failing to present available expert forensicpathology

54
testimony demonstrating that Barbara Jean Hom would have bled profusely from the hard blows

made to her head by a blunt force weapon. Trial counsel was further ineffective for failing to

present lay witness testimony that, shortly after Barbara Jean Hom was killed, there was no fresh

blood in Mr. Ogrod's basement or on Mr. Ogrod's clothing. Such evidence casts serious doubt on

the validity of Mr. Ogrod's confession, on the validity of the jailhouse confession, and on the

prosecution's claim that Barbara Jean Hom was murdered in the basement ofthe Ogrod house on

Rutland Street.

161. Dr. Fierro has opined that the lacerations on the head and scalp ofBarbara Jean Hom

were significant wounds that would have bled profusely. The skin covering the human head

contains many blood vessels, and a laceration ofthe head will break many veins and rapidly release

a large amount of blood. Moreover, human blood is sticky and hard to clean up. Blood at a crime

scene is difficult to clean up and its residue can be recovered years later. If Barbara Jean Horn had

been murdered in the Ogrod basement, significant amounts ofblood would have been splattered all

over the floor, furniture and walls. Fierro Aff. at~~ 17-18. There also would have been a significant

amount of blood on the skin and clothing of Mr. Ogrod had he committed the crime. Id.

i. Trial Counsel's Performance was Deficient Because He Failed to

Adequately Investigate, Develop, and Present Relevant Forensic Expert
Testimony About the Amount of Blood That Would Have Been All Over
the Crime Scene Following Blunt Force Blows to the Human Head and
Lay Witness Testimony About the Lack of Blood in Mr. Ogrod's
Basement.

162. If Trial Counsel had called an expert forensic pathologist to testify about blood and

blood spatter issues, the expert would have presented this evidence to the jury, and it would have

raised doubts in the jury's mind about the alleged place of the murder. Had Barbara Jean Hom been

beaten to death in the Ogrod basement, the girl's cries and the killer's blows would have been heard

55
throughout the house. See Hal Vahey Aff. at ~10. The murderer would have needed to dispose of

far more than the victim's body. Rugs would have to be destroyed or hidden. Furniture would have

to be cleaned, destroyed or hidden. The floor and walls would have to be cleaned. See Fierro Aff.

at ~~ 17-18. The other persons living in the house, including a person who used the alleged

basement crime scene as his living quarters, would have seen blood or heard something. But this

was not the case. See Hal Vahey Aff. at ~ 18; L. Green Statement.

163. This evidence, combined with the autopsy evidence stating that Barbara Jean Hom

was injured between 3:30 p.m. to 4:30 p.m. and was discovered at 5:30 p.m. -- a mere one to two

hours after the injuries -- would have demonstrated to the jury that Mr. Ogrod did not kill Barbara

Jean Hom in the basement ofhis house. NT 9/30/1996 at 140-141, 154; Postmortem Report. There

simply was not enough time for the perpetrator to clean the crime scene, clean the victim, clean

himself, and dispose of the victim's body on St. Vincent Street all in the space of one to two hours.

Additionally, ifTrial Counsel had called Hal Vahey and other occupants and frequent visitors ofthe

home, he would have been able to establish that soon after Barbara Jean Hom's body was found,

there was not any blood in Mr. Ogrod's basement. Hal Vahey Aff. at ~ 18. Finally, ifTrial Counsel

had called eyewitnesses familiar with the aftermath of the July 1986 Maureen Dunne killing, they

would have informed the jury about the amount ofblood in the basement and the great difficulty that

Mr. Ogrod had cleaning up the blood over the course of the next several weeks and month. See

Shinn Aff. at ~ 5; Guhl Aff. at ~ 10.

164. Expert forensic evidence would also have demonstrated to the jury that significant

amounts of blood would have been on the murderer's clothes from the splattering of blood from a

blunt force object hitting the victim's head. Carrying the victim to a sink or to a box would have

resulted in more blood on the killer's clothes, arms and hands. Dr. Fierro has opined that if Mr.

56
Ogrod beat the victim, then picked her up and carried her to a sink, there would have been

significant amounts of the victim's blood on Ogrod's person and clothes. Fierro Aff. at'1f 18.

165. Mr. Ogrod's purported April 1992 confession states that he supposedly beat the

victim and then carried her to the nearby basin tub. Ogrod Statement 4/5/92. After purportedly

cleaning the victim's body, he carried her into the garage and then supposedly went outside, walked

down his driveway, and walked to a house at the comer where he retrieved the cardboard TV box.

ld. If this had in fact happened, Mr. Ogrod would have been outside, in broad daylight, in clothes

covered with blood.

166. The false 1992 confession then goes on to portray Mr. Ogrod as promptly taking the

box with the body outside, thinking he might just put it in the trash. He could not go to the dumpster

because there were people there. Ifthis had actually happened, there would have been people in the

neighborhood who saw a blood-covered Mr. Ogrod carrying a cardboard box. The confession goes

on to describe a walk with the box on Castor Avenue and back and forth across St. Vincent Street.

Both streets had people on them, and at least four people came forward to give the police evidence

about the man with the box that contained Barbara Jean Hom. If that man had been Mr. Ogrod,

under the purported facts of his confession, it would have been a blood-covered Mr. Ogrod. None

ofthe eyewitnesses, including eyewitnesses who had a conversation with him, testified that the man

carrying the box had any visible signs of blood on his clothing or person.

167. Once the role ofblood in the blunt-foree-trauma killing is understood with the help

of expert testimony, the Wolchansky jailhouse confession becomes even more ludicrous.

Wolchansky portrays Mr. Ogrod as killing Barbara Jean Hom then going outside almost

immediately where he ends up hiding in the bushes for a time. Then he goes on an extended walk

with the box. Wolchansky then portrays Mr. Ogrod as returning to Rutland Street and showering.

57
After that, he supposedly cleans up the basement, while people and a dog are in the house and he

supposedly does not get any blood on himself during the cleanup.

ii. Trial Counsel Had No Reasonable Basis for His Failure to Adequately
Investigate, Develop, and Present This Forensic Expert and Lay Witness
Testimony Concerning the Role of Blood in the Crime.

168. There was no reasonable basis for Trial Counsel's failure to develop and present the

expert forensic pathologist and lay witness testimony set forth above. Trial Counsel had retained

Dr. Saferstein and could have consulted with him about this issue. Moreover, counsel's failure to

investigate this issue forecloses any suggestion that his failure to present this evidence was somehow

strategic.

169. This evidence would have raised another whole layer of doubts in the jury's mind

about the alleged place of the crime, the alleged facts of the crime, the alleged validity of the

confessions, and the alleged perpetrator of the crime. Trial Counsel would have been able to use

the fact that the Autopsy Report estimated the victim's injuries as occurring between 3:30 p.m. and

4:30 p.m., while the man with the box was observed soon thereafter at 5:12 p.m., NT 10/1/1996 at

23,38-39, and the body was discovered in the box by the curb at 5:30 p.m. NT 9/30/1996 at 140-

141, 154. There simply would not have been enough time for Mr. Ogrod to kill the victim, clean

up himself, clean up a blood-spattered crime scene, and dispose of the body so that his activities

would not have been discovered by other people already present in the small house. Simply stated,

there was no conceivable reason not to present this exculpatory evidence.

iii. Mr. Ogrod Was Prejudiced by Trial Counsel's Deficient Performance

with Respect to Blood Issues.

170. The failure to develop and present expert forensic testimony and lay witness

testimony about blood issues prejudiced Mr. Ogrod because that evidence would have raised doubts

58
in the minds ofthe jurors about the validity ofthe purported confessions. The description contrived

by the Police Detectives in the April 5, 1992 false confession and the similar fiction proffered by

Jay Wolchansky, the jailhouse snitch, cannot be matched up with the reality ofhow extensive blood

flows from the human body when it is hit with force and the skin breaks. Consideration ofthe blood

issues through expert testimony would have debuoked both purported confessions. There is a

reasonable probability that the outcome oftrial would have been different.

iv. The Issue of Trial Counsel's Ineffectiveness in Failing to Present Expert

Forensic Testimony and LayWitness Testimony about Blood Issues is
Not Waived, but to the Extent that Post-Verdict!Appellate Counsel Was
Responsible for Raising Trial Counsel's Ineffectiveness and
Investigating these Aspects ofthe Cases, Post-Verdict!Appellate Counsel
was Ineffective.

171. The issue of Trial Counsel's ineffectiveness for failing to present to the jury expert

forensic testimony and lay witness testimony about blood issues is not waived. Post-

Verdict/Appellate Counsel Scott 0 'Keefe was limited by the Court to issues apparent from record.

O'Keefe Aff. at "j[3. Also, Mr. O'Keefe did not retain experts because of the Court's directive. Id.

at "j[8. This particular issue is based in large part on matters and evidence outside the record that Mr.

O'Keefe was not permitted to raise, so it is not waived.

172. To the extent that Attorney O'Keefe was responsible for raising and litigating Trial

Counsel's ineffectiveness for failing to present expert forensic testimony concerning blood spatter

from blunt force trauma and lay witness testimony regarding the condition ofMr. Ogrod's basement

shortly after Barbara Jean Hom was killed, Attorney O'Keefe was ineffective under the 6th and 14th

Amendments. The claim is at least of arguable merit, as the testimony would show that Petitioner

did not commit the crime.

173. To the extent that Attorney O'Keefe was responsible for raising and litigating Trial

59
Counsel's ineffectiveness for failing to present expert forensic testimony concerning blood spatter

from blunt force trauma and lay witness testimony regarding the condition of Mr. Ogrod's basement

shortly after Barbara Jean was killed, Mr. O'Keefe could have no reasonable basis for failing to raise

in post-verdict motions and on appeal an issue that is arguably meritorious.

174. As argued above, this issue has more than arguable merit. See Fierro Aff.; Daniels,

963 A.2d 419. This evidence would have undermined significant elements of the prosecution case,

caused reasonable doubt in the minds of the jurors, and led to a different outcome at trial, and thus

too, on appeal. Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003). See also

Commonwealth v. Jones, 815 A.2d 598, 619 (Pa. 2002) (Newman, J., concurring) ("Ifthe underlying

claim of error is of such an important magnitude that it would have entitled a defendant to reliefhad

it been raised on appeal, there can be no justification for the failure of appellate counsel to pursue

the claim that would ever qualif'y as a reasonable professional judgment.").

175. To the extent that Post-Verdict!Appellate Counsel was responsible for raising this

issue, he had no reasonable basis for his failing to raise it. The evidence Trial Counsel failed to

uncover and present would have benefitted Mr. Ogrod's defense greatly- casting serious doubt on

the credibility and reliability on the sole evidence the Commonwealth had against Mr. Ogrod: his

purported confessions to police and to Jay Wolchansky. Moreover, there is no conceivable

downside to presenting this evidence.

176. To the extent that Post-Verdict!Appellate Counsel was responsible for raising this

issue, Mr. Ogrod was prejudiced by Appellate Counsel's failures. As demonstrated, had Trial

Counsel investigated and presented this evidence regarding the blood, or lack thereof, it would have

significantly undermined the thin evidence on which the prosecution based its case and there is a

reasonable probability that the outcome ofthe trial would have been different if Trial Counsel had

60
pursued this issue. Similarly, had Appellate Counsel raised this issue on appeal, there is a

reasonable probability that the outcome of Mr. Ogrod's appeal would have been different.

D. Trial Counsel was Ineffective for Failing to Rebut the Purported Jailhouse
Confession with Evidence and Argument That the Victim had No Vaginal
Trauma, and Appellate Counsel Was Ineffective for Failing to Raise this
Meritorious Claim.

177. Trial Counsel was ineffective for failing to challenge the purported jailhouse

confession with forensic evidence. In his letter to Philadelphia District Attorney Lynn Abraham,

Wolchansky wrote that Mr. Ogrod confessed to "try[ing] to have intercourse" with the victim but

not succeeding because the victim "was small." Wolchansky Letter to Abraham at 2 (Attached in

Appendix). The Commonwealth introduced this letter at Mr. Ogrod's trial. 10/4/1996 at 19.

Wolchansky also testified to the alleged attempted intercourse at trial, saying Mr. Ogrod had told

him that the victim "was too small to enter." ld. at 12-13. Trial Counsel made no attempt to rebut

the purported confession to attempted rape.

178. One readily-available piece of evidence that Trial Counsel could have used to rebut

the validity of the purported jailhouse confession was the autopsy report, which was already part of

the trial evidence. In the section describing the victim's body, the autopsy report states only that the

genitalia were immature and female. Where the report details the victim's external and internal

injuries, there is no mention of vaginal trauma. See Postmortem Report.

179. Trail counsel should also have presented expert testimony from Dr. Hoyer, the

medical examiner who performed the autopsy and who was in the best position to determine if

vaginal trauma was present, about the lack of vaginal trauma in this case. Counsel failed to

investigate and present this evidence.

180. Once undersigned counsel are permitted to speak with Dr. Hoyer, undersigned

61
counsel will ask Dr. Hoyer to confirm that he saw no evidence of vaginal trauma to the victim.

Moreover, Dr. Fierro will opine that given the young age of the child, vaginal trauma would have

been visible had an adult male made a significant attempt at intercourse.

181. Even without Dr. Hoyer, Trial Counsel could have attacked the validity of the

attempted rape claim in two ways: by recalling Dr. Mirchandani to testify that the autopsy report

noted no vaginal trauma, and by arguing to the jury that vaginal trauma would have been evident

during the autopsy if a grown man such as Mr. Ogrod had attempted to have intercourse with the

four year old victim. Trial Counsel did neither of these things.

182. Trial Counsel's performance in failing to challenge the attempted rape allegation in

the purported jailhouse confession was deficient. Trial Counsel could have had no reasonable

tactical or strategic reason for failing to challenge the facts underlying the purported confession -

particularly the extremely prejudicial allegations of attempted rape of a child. As a result of Trial

Counsel's ineffectiveness, extremely prejudicial and highly inflammatory evidence went unrebutted.

183. This unrebutted evidence impacted the guilt/innocence and penalty phases of Mr.

Ogrod's trial. Had counsel acted effectively, he could have presented evidence and argument that

no attempted rape took place. This would have cast serious doubt on the validity of the purported

jailhouse confession and on the Commonwealth's allegation that Mr. Ogrod murdered the victim.

184. But for counsel's failures, there is a reasonable probability that the outcome of the

guilt/innocence phase of the trial would have been different.

185. Trial counsel's ineffectiveness for failing to rebut this allegation of attempted rape

is not waived. Judge Savitt limited Mr. O'Keefe to issues apparent from the record, O'Keefe Aff.

at "if 3, and this issue relies on extra-record evidence and testimony.

186. To the extent that Mr. O'Keefe was responsible for raising this issue, he was also

62
ineffective for failing to raise it in post-verdict motions or on direct appeal. As argued above, this

issue has arguable merit. The failure to raise an issue on appeal that is arguably meritorious falls

below the constitutional standard of care for effective appellate counsel. Mr. O'Keefe intended to

raise all issues of arguable merit that he identified from the record. 0 'Keefe Aff. at ~ 9. The

evidence and argument that Trial Counsel failed to present to the jury would have benefitted Mr.

Ogrod's defense during the guilt/innocence phase of trial. Mr. Ogrod was prejudiced by Appellate

Counsel's failure. If Appellate Counsel had raised this claim, there is a reasonable probability that

the he would have been granted a new trial and/or a new penalty phase proceeding upon appeal.

E. Trial Counsel was Ineffective for Failing to Investigate and Present Important
Eye-Witness Testimony and Other Supporting Testimony Demonstrating that
Mr. Ogrod Was Not the Man Carrying the Box in Which the Victim Was
Found. This Claim Is Not Waived. To the Extent That Post-Verdict/Appellate
Counsel Was Responsible for Raising this Claim, He Was Ineffective.

187. The Zablocky family found Barbara Jean Hom's body in a cardboard TV box on the

curb in front their home at 1409 St. Vincent Street at approximately 5:30 p.m. on July 12,1988. NT

9/30/1996 at 139. 1409 St. Vincent Street is approximately 1,120 feet from Barbara Jean Hom's

residence of 7245 Rutland Street. Based on the autopsy evidence, the discovery ofher body inside

the TV box took place between one and two hours after she was injured. The July 13, 1988, autopsy

results indicated that the victim was pronounced dead at 6:52 p.m. on July 12. The autopsy report

further states that the victim's injuries occurred between 3:30 p.m. and 4:30 p.m. on July 12,1988.

See Postmortem Report.

188. On the afternoon ofJuly 12, 1988, several eyewitnesses saw a white male alternately

carrying and dragging the cardboard TV box through the neighborhood. NT 9/30/1996 at 155-85;

NT 10/1/1996 at 8-51; NT 10/1/1996 at 53-72.

189. Michael Massi, a salesman at Kutner Buick on the northeast comer ofCastor Avenue

63
and St. Vincent Street, saw a white male carrying a cardboard TV box near the intersection of St.

Vincent Street and Castor Avenue to the northwest comer of Castor and St. Vincent. NT 9/30/1996

at 156, 178. That comer of the intersection is occupied by a Lutheran church. At that point, Massi

saw the man put the box down for a few seconds, then drag the box further along St. Vincent Street

toward the northwest (i.e., on St. Vincent in the direction ofLorretto Avenue). Massi never saw the

man's face. ld. at 166. Massi could not identifyMr. Ogrod as the man carrying the box. ld. at 168.

190. On July 12, 1988, David Schechtman, a Lieutenant in the Philadelphia Fire

Department, resided at 1429 St. Vincent Street, which is the first house on St. Vincent past the

Lutheran Church in the direction ofLorretto Avenue. Shortly after 5 p.m. that day, Schechtman was

on the sidewalk in front ofhis house. While waiting for his children to return from summer camp,

Schectman had a briefinteraction with the man who was pulling and carrying the cardboard TVbox.

Schectman saw the man come slightly south on Castor Avenue and tum toward Schectman onto St.

Vincent Street. NT 10/1/1996 at 11-12. The man was dragging the box, and attempted to tum in

between the church property and Schectman's property with the box. ld. at 14. Schectman briefly

spoke with the man, told him he could not leave the box between the church and Schectman's

property, and also told him that trash day had been the day before. ld. at 17. Schectman could not

identify Mr. Ogrod as the man carrying the box: "1 couldn't really tell you. I did not get a good

enough look at the person to tell you whether that person is here or not here." ld. at 24.~

191. On July 12,1988, Christian Kochan was a 14-year-old paperboy who also saw the

white male carrying and dragging the cardboard TV box on St. Vincent Street. Kochan was

approaching Schectman's house when he passed within approximately a foot of the man with the

~ Lorraine Schechtman, the wife of David Schechtman, also saw the man with the TV box at close range
and gave the police a description on July 13, 1988. Later, on June 9, 1989, she identified Ross Felice as the man she
saw carrying and pushing the box. Mrs. Schechtman passed away before trial and did not testify.

64
box. Kochan did not get a good look at the man's face and was not able to identify him. When

asked during Mr. Ogrod's second trial if Kochan could identify the man with the box in the

courtroom, Kochan responded, "Maybe." NT 10/1/1996 at 70. When asked what he meant, he said,

"I don't know." When asked ifhe could not say yes, Kochan answered: "I'm not saying no, I can't

say yes." ld.

192. During her opening statement, the prosecutor directly linked the man carrying the box

to the place where Barbara Jean Horn was killed. The prosecutor then emphasized to the jury that

none ofthe witnesses who saw the man carrying the box could say whether the man was or was not

Walter Ogrod:

You will hear people who saw someone carrying that box, who took it from where
the killing occurred, and who dumped it out for trash outside of 1409 Saint Vincent
Street.

Those people who actually saw the man carrying the box are not going to be able to
tell you that Walter Ogrod is the person they saw carrying that box, they're going to
tell you that they can't say it is, but they can't say it isn't Mr. Ogrod.

So, these witnesses may be helpful, in that they can describe the person generally,
but they cannot identify anybody as being the person that they saw carrying the
box.

NT 9/30/1996 at 116-17.

193. Trial Counsel also placed much weight on the failure of any of the three witnesses

to identify Mr. Ogrod as the man with the box. He did this despite the fact that none of the

witnesses would affirmatively state that the man with the TV box was not Mr. Ogrod and despite

his failure to present defense witnesses who could have testified that the man with the TV box

was not Mr. Ogrod.

65
 i. Trial Counsel's Performance Was Deficient Because He Failed to
Investigate, Develop, and Present Evidence From an Eyewitness Who
Was Available to Testify, Willing to Testify, and Who Would Have
Testified That the Man with the Box Was Not Mr. Ogrod.

194. Trial Counsel was ineffective because he failed to identify and call as a witness

Peter Vargas, a repairman who was working on Rutland Street on July 12, 1988. Mr. Vargas had

a direct interaction with the man carrying the TV box, and he would have testified that the man

carrying the box was not Ogrod.

195; Mr. Vargas was interviewed in connection with this PCRA petition. ML Vargas

reviewed pictures ofML Ogrod stated that "Mr. Ogrod was not the man ... 1 observed carrying

the box along Rutland Street" on July 12, 1988. Vargas Aff. at ~ 9. He also stated that the man

he saw had a box of Marlboro cigarettes in his pocket and asked for a light. Id. at ~~ 5-6.

196. Specifically, Mr. Vargas would have testified that he was employed by the

Philadelphia Gas & Solar Heating Company on July 12,1988. On that day, he was installing an

air conditioning unit at a row house located at 7259 Rutland Street. Id. at ~ 3. That address is on

the same side of the street as 7245 Rutland Street, the house in which Barbara Jean Hom lived.

The two houses are approximately 110 feet apart.

197. ML Vargas parked his truck in the alley behind 7259 Rutland Street. While Mr.

Vargas was at his truck in the mid-afternoon, a white male approached. The man was carrying a

brown cardboard box with writing on the top and blue coloring on the sides. The box had a blue

outline of what looked like a television on it. Id. at ~ 4.

198. Mr. Vargas adds that the man carrying the box was walking in a northerly

direction in the alleyway on the east side of Rutland Street. In other words, he was coming from

the direction of Barbara Jean Hom's house in a northerly direction toward Mr. Vargas in the

66
alley at 7259. The alley ends to the north at the intersection of Rutland and Cottman Avenue.

Vargas Aff. at ~ 6. The man with the TV box had a pack of Marlboro cigarettes in his shirt

pocket. He stopped and asked Mr. Vargas to light a cigarette for him. Mr. Vargas did so, and

then the man with the box continued on his way in a northerly direction. ld. at ~ 6.

199. A number ofMr. Ogrod's family members, friends, and associates have signed

affidavits stating that Mr. Ogrod was never a cigarette smoker and that they would have testified

to this fact had they been asked to do so. See Zacher Aff. at ~ 7; Ostash Aff. at ~ 8; Second

Mulvey Aff. at ~ 5. Had Trial Counsel spoken with Mr. Vargas, he would have known to follow

up on this issue just as undersigned counsel has.

200. Trial Counsel is ineffective for failing to interview or call a witness when (a) the

witness is available; (b) counsel was aware of or had a duty to know of the witness; (c) the

witness was willing and able to cooperate and appear on behalf of the defendant; and (d) the

witness' testimony was necessary to avoid prejudice to the defendant. Commonwealth v. Hall,

701 A.2d 190, 201 (Pa. 1997).

201. Mr. Vargas was available and counsel had reason to know of his existence. Mr.

Vargas has lived in or near Philadelphia County for most of his life (including at the time of Mr.

Ogrod's trial) and would have been willing to testify at Mr. Ogrod's trial ifhe had been

contacted. Vargas Aft'. at ~~ 2, 12. Moreover, the day Barbara Jean Hom's body was discovered

and two times following that, Mr. Vargas was interviewed by the Philadelphia police and gave

them all of the information set forth above. Vargas Aff. at ~~ 7-8. Trial Counsel was provided

with discovery that made mention of Mr. Vargas as an eyewitness, however he failed to contact

him and learn what he had seen. Peter Vargas Statement to Police, Dec. 1, 1989 ("Vargas

Statement 12/1/89") (Attached in Appendix); Peter Vargas Statement to Police, March 5, 1990

67
("Vargas Statement 3/5190") (Attached in Appendix); Vargas Aff. at ~ 11.

202. Finally, Clark Fuss, an investigator who did some work for Trial Counsel in

connection with Mr. Ogrod's defense in 1993, admitted that he was aware of the police report

that mentioned Mr. Vargas as having encountered a man carrying a large box on the day in

question. Fuss Aff. at ~ 8. Mr. Fuss stated that he had not contacted Mr. Vargas, but he

nonetheless alerted Trial Counsel to Mr. Vargas's existence and his last known address. Mr.

Fuss urged Mr. Greenberg to obtain more funds so he could interview Mr. Vargas. Mr.

Greenberg failed to do so. Fuss Aff. at ~ 9.

203. In 1996, before Mr. Ogrod's retrial, Mr. Greenberg retained a second investigator,

Mark Shaffer, but he did not instruct Mr. Shaffer to locate and interview Mr. Vargas so that he

might be called as a witness in Mr. Ogrod's defense. Shaffer Aff. at ~ 11 ("1 was never told to

locate or interview Peter Vargas ... there is no mention of ... Mr. Vargas ... in my

comprehensive written reports to Mr. Greenberg.").

204. Although clearly aware that Mr. Vargas was a vital eye witness in the case, Trial

Counsel failed to locate, subpoena, and present him at Mr. Ogrod's trial. Had Trial Counsel

contacted Mr. Vargas he could have investigated whether or not Mr. Ogrod was a smoker and

could have presented that exculpatory evidence to Mr. Ogrod's jury as well. Trial Counsel's

performance with regard to Mr. Vargas was objectively unreasonable and clearly deficient.

ii. Trial Counsel Had No Reasonable Basis Not to Interview Peter

Vargas and Not to Present Him as a Helpful Eyewitness at Trial.

205. Nothing in the record even hints at a reasonable basis for failing to pursue the

eyewitness testimony of Peter Vargas. Mr. Vargas lived in the area and was more than willing to

testify if needed. Vargas Aff. at ~~ 2, 12. Moreover, Trial Counsel was aware that Mr. Vargas

68
was a vital eye witness in this case, not only from police reports that made mention of him, but

also from information he received from his investigator, Clark Fuss.

206. Counsel failed to conduct a thorough investigation as is his duty in a capital case.

Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 529 U.S. 510(2003). Counsel's

failure to locate Mr. Vargas and determine what he had seen on the day in question forecloses

any argument that his decision not to call Mr. Vargas or any other witnesses who could have

supported Mr. Vargas's testimony (i.e., Mr. Ogrod does not smoke), was somehow strategic. See

Williams supra; Wiggins supra. Even so, there could be no conceivable strategic reason for

counsel's failure to present this directly exculpatory evidence.

iii. Mr. Ogrod Was Prejudiced by Trial Counsel's Failure to Present an

Important Eyewitness to the Jury Because There Is a Reasonable
Probability that Mr. Vargas's Testimony Would Have Created a
Reasonable Doubt in the Mind of the Jury.

207. The Commonwealth went to great lengths to elicit testimony from each of the eye

witnesses indicating that they could not say the man carrying the box was not Mr. Ogrod.

The prosecutor focused extensively on this point in both her opening and closing argument to the

jury, insinuating that this was somehow evidence of Mr. Ogrod's guilt. In closing she argued,

I submit to you, Ladies and Gentlemen, that the identification oflack of

identification in this case, does not prove that Walter Ogrod is not guilty. In fact,
the fact that they are not able to say that he is not the man is as much evidence in
this case as the fact that they never identified anybody else as being the person
that did this killing, they are not able to say that he was not the guy carrying the
box.

NT 10/7/1996 at 44.

208. Mr. Vargas's testimony would have created reasonable doubt as to whether or not

Mr. Ogrod was the man carrying the box and thus whether or not he was the perpetrator of this

crime. His testimony could have been used by Trial Counsel to counter the prosecutor's

69
suggestion that the inability of the eye witnesses she did present to exclude Mr. Ogrod was

somehow inculpatory. Had Mr. Vargas's testimony been presented at Mr. Ogrod's trial, there is

a reasonable probability that the outcome to the trial would have been different.

209. Mr. Vargas's testimony would have fit with the testimony of Massi, who saw the

man with the box on Castor Avenue heading in a southerly direction and turning to the west on

Saint Vincent Street. It would also have fit with the testimony of Schectman, who saw the man

with the box coming south on Castor and turning westerly onto Saint Vincent. Ifhe had called

Mr. Vargas as a witness, Trial Counsel would have been able to argue to the jury that the man

with the box proceeded northerly on the eastern alley of Rutland, turned to the west on Cottman

towards Castor, and then carried the box southerly on Castor to Saint Vincent. Trial Counsel

would have been able to argue to the jury that at least one witness positively affirmed that Mr.

Ogrod was not the man with the box. Since the identity of the man carrying the box through the

neighborhood was at issue in the trial, counsel's failure to pursue evidence which may have

persuaded the jury that Mr. Ogrod was not the man with the box presents an issue of arguable

merit. Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).

210. Mr. Vargas's testimony, in combination with the testimony of Mr. Ogrod's

friends and associates that he did not smoke, would have raised a doubt in the jury's mind and

provided them with proof that Mr. Ogrod was not the man with the box. A reasonable doubt in

the mind of the jury would have resulted in a different outcome to Mr. Ogrod's trial. There is,

accordingly, a "reasonable probability that the outcome ofthe proceedings would have been

different had counsel pursued" Mr. Vargas testimony. Daniels, 963 A.2d at 419. See also

Commonwealth v. Mabie, 359 A.2d 369,374 (Pa. 1976) (reliance on "the prosecution's file is

not a substitute for an independent investigation by defense counsel."); Commonwealth v. Perry,

70
644 A.2d 705, 709 (pa. 1994) ("Counsel's failure to interview witnesses was ineffective,

arguably per se."); United States v. Gray, 878 F.2d 702,711-12 (3d Cir. 1989) (counsel must

contact known witnesses and attempt to obtain available evidence which diminishes the

Commonwealth's case and/or supports the defense).

211. The failure of Trial Counsel to follow-up on the lead from Investigator Fuss to

call Mr. Vargas as a witness rendered Trial Counsel's performance ineffective in violation of

Mr. Ogrod's rights.

iv. The Issue of Trial Counsel's Ineffectiveness in Failing to Present the

Testimony of Mr. Vargas and Other Witnesses Is Not Waived. To the
Extent That Post-Verdict/Appellate Counsel Was Responsible for
Raising Trial Counsel's Ineffectiveness and for Investigating These
Aspects ofthe Cases, He Was Ineffective.

212. The issue of Trial Counsel's ineffectiveness for failing to present to the jury Mr.

Vargas' testimony and the supporting testimony of other witnesses is not waived. Appellate and

post-verdict motions attorney Scott O'Keefe was limited by the Court to issues apparent from

record. O'Keefe Aff. at ~ 3. This particular issue is based in part on matters and evidence

outside the record that Mr. O'Keefe was not permitted to raise, so it is not waived.

213. To the extent that Attorney O'Keefe was responsible for raising and litigating

Trial Counsel's ineffectiveness for failing to present the testimony of Peter Vargas and the other

witnesses, Attorney O'Keefe was ineffective under the 6th and 14th Amendments. The claim is at

least of arguable merit as the testimony would have shown that Petitioner did not commit the

crime.

214. To the extent that Attorney O'Keefe was responsible for raising and litigating

Trial Counsel's ineffectiveness for failing to present the testimony of Peter Vargas and the other

witnesses, Mr. O'Keefe could have no reasonable basis for failing to raise in post-verdict

71
motions and on appeal an issue that is arguably meritorious.

215. Evidence from an eyewitness (and other supporting witnesses) with relevant

exculpatory information creates a claim that has arguable merit. Commonwealth v. Daniels, 963

A.2d 409,419 (2009), citing Commonwealth v. Pierce, 527 A,2d 973 (Pa. 1987). See also

Strickland, 466 U.S. 668, 687. Eyewitness evidence that can separate the defendant from the

inculpatory facts of the prosecution's case is so important that the failure to pursue such a

witness is "ineffective, arguably per se." Commonwealth v. Perry, 644 A,2d 705,709 (Pa.

1994).

216. Given the fundamental importance of Peter Vargas's testimony and other

evidence supporting his testimony, Mr. Ogrod was prejudiced by Mr. O'Keefe's failure to raise

this issue, if counsel was responsible for raising it. The eyewitnesses whom the Commonwealth

presented at trial could not implicate or exonerate Mr. Ogrod. The prosecutor emphasized this

fact in both opening and closing argument - repeatedly insinuating that the inability of these

witnesses to say that the man was not Mr. Ogrod was actually inculpatory. Mr. Vargas's

testimony- and the testimony of the other witnesses - would have made this argument seem

ludicrous. Peter Vargas had a close encounter with the man carrying the TV box in the Rutland

Street neighborhood on July 12, 1988, so close in fact that he actually lit the man's cigarette.

Yet, Mr. Ogrod did not smoke. This testimony would have raised a doubt in the jury's mind and

altered the outcome of the trial. Had Mr. O'Keefe raised this issue on post-verdict motions or on

appeal, there is a reasonable probability that Mr. Ogrod would have prevailed.

F. Trial Counsel Was Ineffective for Failing to Investigate, Develop, and

Present Evidence that Rebutted the Commonwealth's Assertion that Walter
Ogrod's Mother Believed He Was Guilty of This Murder.

217. On day five of the second trial, the Prosecution finished its case by presenting its

72
"star" witness, a jailhouse snitch name Jay Wolchansky. Convicted for numerous crimes

including forgery and burglary, Wolchansky testified under the pseudonym "Jason

Banachowski" and claimed that he had heard Walter Ogrod confess to the killing of Barbara

Jean Hom while both men were in jail. NT 10/4/1996 at 3-82.

218. Among other things, Wolchansky asserted that Ogrod had confessed to him that

Ogrod's own mother thought that he had killed Barbara Jean Hom. Wolchansky testified:

Q. [Prosecutor Rubino] And then what did he tell you?

A. Then he got scared. He thought his mother said something to the police.

Q. Why did he think his mother would have said anything?

A. Because one time Walter was over her house, she - she and him got into
an argument, and she told him that "You and your brother are no good,
and I think you had something to do with killing that little girl." He says,
"Damn right I did, and if you know what's best for you, you'll be quiet."

Q. And what made him think his mother might have told that to the
authorities?

A. After they started questioning him, he thought that was the only person
that knew anything.

Q. Thank you, Mr. Banachowski. I have nothing further.

NT 10/411996 at 22-23.

219. Not only was Wolchansky the prosecution's closing act, the assertion that even

Ogrod's mother thought he committed murder was the last argument that the prosecution made

to the jury.

220. In her closing argument, Prosecutor Rubino emphasized this point to the jury:

"This defendant and no one else admitted to Jason Banachowski that he killed Barbara Jean

Hom.... The defendant admitted to his mother that he killed Barbara Jean and threatened his

73
own mother; there has been no denial ofthat." NT 10/7/1996 at 64-65 (emphasis added).

i. Trial Counsel's Performance Was Deficient Because He Failed to

Rebut False Testimony and Prosecutorial Arguments.

221. Despite the prosecution's having put a purported admission by Mr. Ogrod to his

own mother in evidence, Trial Counsel failed to call witnesses who were available to testify and

who could have rebutted that testimony. Since the prosecutor made the purported beliefs of

Olga Ogrod about her son Walter a prominent issue at trial, counsel's failure to pursue evidence

which "may have challenged" the prosecutor's. and the snitch's assertions "presents an issue of

arguable merit." Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006).

222. Mr. Ogrod's mother was Olga Terpeluk Ogrod. She and her husband adopted

Ogrod in March 31, 1965 when he was only two months old. See M. Terpeluk Aff. Although

Mrs. Ogrod died on December 22, 1993, after the first trial and before the second, she knew that

her son Walter had been arrested and prosecuted in connection with the 1988 death of Barbara

Jean Hom. ld. at ~ 10.

223. Mr. Ogrod's mother never believed that her son had killed Barbara Jean Hom. To

the contrary, she worked to prove her son's innocence. On October 15, 1992, she signed and

notarized an Amnesty International Questionnaire on Torture and III Treatment on her son's

behalf. See Amnesty International Questionnaire.

224. In her notarized Amnesty International submission, Walter Ogrod's mother stated

the following:

• That her son, Walter, is mentally impaired.

• That Philadelphia Police Department detectives Paul Worrell and Martin Devlin
threatened Mr. Ogrod ifhe did not sign a confession.

• That the police accused her son oflying, rejected her son's statements, and built

74
 their own story. That Detectives Devlin and Worrell threatened to place Mr.
Ogrod in a cell with hard-core prisoners who would abuse him, and that her son
was placed in such a cell and was severely beaten by another prisoner.

• That her son was not identified in a police lineup, that he was isolated in an
interrogation room for 20 hours, that he was not allowed to consult a lawyer, and
that he was not allowed to visit a restroom, to walk or stretch, to eat or drink, or to
sleep while subject to interrogation.

ld.

225. Mrs. Ogrod concluded her Amnesty International submission with the following

- - statement: "After twenty (20) hours of grilling under the above conditions thementallyimpaired

suspect finally broke down and signed. Only after signing their confession was the suspect

permitted to receive medical treatment and to visit the restroom and allowed food, water and

sleep." ld.

226. Mrs. Ogrod's brother, John Terpeluk, helped her to prepare the Amnesty

International submission. See 1. Terpeluk Aff. at ~ 11. After Mrs. Ogrod completed and signed

the Amnesty International submission, she gave a copy to her brother John Terpeluk and her

sister-in-law Marie Terpeluk. See M. Terpeluk Aff. at ~ 13; J. Terpeluk Aff. at ~ 13. Mrs.

Ogrod also discussed her belief in her son's innocence with Philadelphia Daily News reporter

Jill Porter. See Porter Article.

227. Counsel is ineffective for failing to interview or call a witness when (a) the

witness was available; (b) counsel was aware of or had a duty to know of the witness; (c) the

witness was willing and able to cooperate and appear on behalf of the defendant; and (d) the

witness' testimony was necessary to avoid prejudice to the defendant. Commonwealth v. Hall,

701 A.2d 190,201 (Pa. 1997).

228. Trial Counsel failed to contact or interview John and Marie Terpeluk before Mr.

75
Ogrod's 1996 trial. Both Mr. and Mrs. Terpeluk were available to Mr. Greenberg. Theyboth

lived in Horsham, Pennsylvania and had telephone numbers and addresses that were publicly

available. M. Terpeluk Aff. at "if 14; J. Terpeluk Aff. at "if 14.

229. Mr. Greenberg had a duty to know about the existence of these witnesses. Mr.

Wolchansky's testimony about Mr. Ogrod's mother's purported beliefs was not a surprise that

was revealed for the first time at trial. Mr. Wolchansky's original letter to the Commonwealth

made reference to Mr. Ogrod's mother's purported belief that he was guilty. See Wolchansky's

Letter to DA Abraham, undated, Trial Ex. C-24 (Attached in Appendix). Counsel should have

investigated the content of Mr. Wolchansky's letter by speaking to family members to see if this

was accurate. In addition, given that this was a death penalty case and Mr. and Mrs. Terpeluk

were both close family members of Mr. Ogrod, at the very least, Mr. Greenberg or his

investigator should have spoken with them for purposes of mitigation. Records that Mr.

Greenberg collected indicate that Mr. Ogrod's mother suffered from pervasive mental illness.

Petitioner's family members could have provided details of Mrs. Ogrod's illness and its impact

on Mr. Ogrod's childhood development.

230. Both Mr. and Mrs. Terpeluk would have been willing to speak to Trial Counselor

his investigator and in speaking to them would have revealed that Mr. Ogrod's mother believed

he was innocent and had made an Amnesty International submission on his behalf.

231. Had Mr. Greenberg spoken to Mr. and Mrs. Terpeluk he would have learned

about the Amnesty International submission made by Mr. Ogrod's mother. They could, in fact,

have provided him with a copy of the Amnesty submission and authenticated Olga Ogrod's

signature on the submission. See M. Terpeluk Aff. at "if 12; J. Terpeluk Aff. at "if 12.

232. The Terpeluks would also have informed Trial Counsel that Mr. Ogrod's mother

76
had tried to obtain legal help for him and had tried to locate witnesses who could help with his

defense. Mrs. Ogrod posted signs in a church and in Barbara Jean Hom's neighborhood asking

anyone who had information about the crime to contact her. See J. Terpeluk Aff. at 'j[13.

233. The testimony of Mr. Wolchansky that even Mr. Ogrod's own mother believed he

was guilty, and the closing argument of Prosecutor Rubino which drove home this point, was

highly prejudicial to Mr. Ogrod. Had Mr. Ogrod's jury heard from the Terpeluks and Ms. Porter

that this was not true, the prejudicial impact of this evidence and argument would have been

greatly reduced.

ii. Trial Counsel Had No Reasonable Basis Not to Rebut Assertions

Made by the Jailhouse Snitch and the Prosecutor.

234. There was no reasonable basis for counsel's failure to investigate the content of

Wolchansky's proposed testimony as set forth in his letter to the Commonwealth, in an effort to

show it was sheer fabrication. As stated above, Mr. Wolchansky's testimony regarding Ogrod's

mother was not a surprise. Moreover, this was a death penalty case where counsel has an

obligation to speak to his client's family members in an effort to uncover potential mitigation.

235. Mr. and Mrs. Terpeluk were both family members of Mr. Ogrod, who were

related on his mother's side. They would have been more than willing to share this information

with Trial Counsel and to testify on Mr. Ogrod's behalf, had they simply been asked. Trial

Counsel never spoke to either one of them. See M. Terpeluk Aff. at 'j[15; J. Terpeluk Aff. at 'j[

16. Given these circumstances, and the blatantly prejudicial nature of the testimony at issue -

that Mr. Ogrod's own mother believed he was guilty, Mr. Greenberg could have no reasonable

basis for his failure to investigate, uncover, and present this vital rebuttal evidence.

77
 iii. Trial Counsel Prejudiced Mr. Ogrod's Case by Failing to Rebut
Assertions Made by the Jailhouse Snitch and the Prosecutor.

236. The Terpeluks' testimony, Olga Ogrod's Amnesty International submission, and

Mrs. Ogrod's documented statements to Philadelphia Daily News reporter Jill Porter would have

dramatically rebutted Wolchansky's testimony and undermined his credibility. Additionally, the

Terpeluks' testimony and the Amnesty International submission would have rebutted and

undermined the credibility of any confession that Ogrod purportedly made. Finally, their

testimony would have prevented or at least softened the impact of the prosecutor's closing

argument on this issue.

237. If presented as evidence, such testimony would have raised a doubt in the jury's

mind and provided them with proof that Mr. Ogrod had not confessed. A reasonable doubt in

the mind of the jury would have resulted in a different outcome to Mr. Ogrod's trial. The

reasonable probability that the outcome of the proceedings would have been different establishes

prejudice. Commonwealth v. Daniels, 963 A.2d 409,427 (Pa. 2009).

iv. The Issue of Trial Counsel's Ineffectiveness is Not Waived. To the

Extent that Post-Verdict/Appellate Counsel Was Responsible for
Raising Trial Counsel's Ineffectiveness regarding Olga Ogrod's
Efforts to Defend Petitioner, Post-Verdict/Appellate Counsel Was
Ineffective.

238. The issue of Trial Counsel's ineffectiveness for failing to present to the jury Olga

Ogrod's efforts to defend her son is not waived. Appellate and post-verdict motions attorney

Scott O'Keefe was limited by the Court to issues apparent from record. O'Keefe Aff. at ~ 3.

This particular issue is based in part on matters and investigation outside the record and Mr.

o 'Keefe was not permitted to raise it.

239. To the extent that Attorney O'Keefe was responsible for raising and litigating

78
Trial Counsel's ineffectiveness for failing to present Olga Ogrod's efforts to defend the

Petitioner, Attorney O'Keefe was ineffective for failing to raise an arguably meritorious claim.

240. As set forth above, the available rebuttal and impeachment evidence from the

Terpeluks and the Porter article is at least of arguable merit. Counsel could have no reasonable

basis for failing to raise in post-verdict motions and on appeal an issue that is arguably

meritorious.

241. Appellate Counsel's failure was ineffective under the 6th and 14th Amendments to

the United States Constitution. Evidence with the potential to impeach a jailhouse witness and

to torpedo the exceedingly prejudicial argument of the prosecution is so important that the

failure to pursue such a witness in possession of that evidence is "ineffective, arguably per se."

Commonwealth v. Perry, 644 A.2d 705, 709 (Pa. 1994).

242. Given the importance of the Terpeluks' evidence and the statements in the article,

Petitioner was prejudiced by the failure to raise this issue on post-verdict motions and on appeal.

Wolchansky's assertion that Mr. Ogrod's mother believed in his guilt was extremely prejudicial

to the defense. The damage was compounded by the prosecutor's closing arguments based on

the snitch's assertions. The testimony from Terpeluks and the evidence in the article would have

demonstrated to the jury the falsity of Jay Wolchansky's testimony, and it would have

undermined their confidence in the prosecutor's arguments.

243. Had Appellate Counsel raised this issue, there is a reasonable probability that it

would have altered the outcome of the appeal. Appellate Counsel's failure to raise Trial

Counsel's omissions with respect to the Terpeluks and the article is prejudicial. Commonwealth

v. Gibson, 951 A.2d 1110, 1120 (Pa. 2008). See also Mason v. Hanks, 97 F.3d 887,892 (7th Cir.

1996).

79
 G. Trial Counsel was Ineffective for Failing to Establish Mr. Ogrod's Height,
Weight, and Hair Color at the. Time of the Offense. Trial Counsel's
Ineffectiveness is this Respect is Not Waived. To the Extent Post-
Verdict!Appellate Counsel was Responsible for Raising the Issue, He was
Ineffective.

244. The description given by each and every eye witness did not fit Mr. Ogrod.

Proving this was important to Mr. Ogrod's defense.

245. There were numerous ways counsel could have established Mr. Ogrod's height,

weight, and hair color at the time of the crime. First, he could have called Mr. Ogrod's friends

and associates to testify as to his height, weight, and hair color at the time ofthe crime. Upon

information and belief, Hal Vahey, Heidi Guhl, and Greg Ogrod, amongst others, would have

verified that Walter was 6' l' tall, weighed over 200 pounds, and had black hair at the time of the

crime and that his weight, height and hair color remained relatively consistent up until the time

of his arrest. To reinforce this testimony, counsel could also have admitted into evidence a

biographical information sheet, known as a 75-229, prepared by Detective Worrell at the time of

Mr. Ogrod's arrest. See Biographical Information Sheet for Walter Ogrod (Attached in

Appendix). This form shows that Mr. Ogrod weighed 220 pounds, was 6'1" tall, and had black

hair and a fair complexion. This form, in combination with testimony from Walter's friends and

family members at the time could have established that Mr. Ogrod's height, weight, and hair

color had remained the same from the time of the crime to the time of his arrest.

246. Counsel had no reasonable basis for his failure to establish these key facts.

Reasonable counsel would have established Mr. Ogrod's height, weight, and hair color at the

time of the crime in as many ways as he possibly could.

247. As Mr. Greenberg conceded, "It was important to the defense that Mr. Ogrod not

fit the description given by the eye witnesses who saw a man carrying the box in which the

80
victim's body was discovered. I tried to do everything I could with the description." Greenberg

Aff. at "i[12.

248. Counsel's failure to affirmatively prove that Mr. Ogrod did not fit these

descriptions by establishing his height and weight at the time of the offense prejudiced Mr.

Ogrod and allowed the prosecution to argue that Mr. Ogrod fit the description as much as Ross

Felice did. NT 10/7/1996 at 45. The prejudice that occurred as a result of Trial Counsel's

failure is evident from the prosecutor's closing argument where she inappropriately capitalized

on counsel's failure, arguing:

[T]here has been no testimony in this courtroom as to how much

Walter Ogrod weighed in 1988. He's been in prison since 1992,
getting three square meals a day. We don't know how much
weight he might have gained since 1988. We know he's gotten
older, but we don't know that he weighed then, and we don't know
how tall he was then. We only know how tall he is now ... we
cannot assume from what he weighs today, today, how much he
weighed then.

NT 101711996 at 40.

249. Had counsel presented evidence of Mr. Ogrod's height, weight, and hair color at

the time ofthe crime, the jury would have had significant doubts that Mr. Ogrod was the

perpetrator of this crime and the prosecutor's arguments otherwise would have fallen on deaf

ears.

250. The issue of Trial Counsel's ineffectiveness is not waived. The Court limited

Post-Verdict/Appellate Counsel Scott O'Keefe to raising issues that were apparent from the

record. O'Keefe Aff. at "i[3.

251. To the extent that Post-Verdict/Appellate Counsel was responsible for arguing

Trial Counsel's ineffectiveness for failing to establish Petitioner's height and weight, then he,

81
too, was ineffective under the 6th and 14th Amendments. As set forth above, this claim has merit.

252. Given the importance of this issue, there could be no reasonable strategy for Mr.

O'Keefe's failure to raise this meritorious claim if he was responsible for raising the issue.

Indeed, Mr. O'Keefe wanted to raise all issues of arguable merit. O'Keefe Aff. at ~ 9.

253. Mr. Ogrod was prejudiced by counsel's failure. There is a reasonable probability

that had this claim been raised, the outcome ofMr. Ogrod's post-verdict and appellate

proceedings would have been different. The omitted evidence tends to prove Mr. Ogrod's

innocence.

H. Trial Counsel was Ineffective for Failing to Cross Examine Wolchansky

About His Use of Aliases and the Fact that He Was Testifying Under an
Alias. This Claim is Not Waived. To the Extent he was Responsible for
Raising the Issue, Post-Verdict/Appellate Counsel was Ineffective for Failing
to Properly Raise and Litigate this Claim.

254. Mr. Ogrod's jury never learned that key prosecution witness Jay Wolchansky

testified against Mr. Ogrod, using an alias - Jason Banachowski. Nor did Mr. Ogrod's jury learn

that Wolchansky had a number of additional aliases that he had used in the past when he

encountered law enforcement. The jury never learned these facts because counsel never asked

about them on cross examination ofWolchansky. Despite voluminous argument prior to trial

and explicit statements from the Court encouraging him to elicit this information on cross

examination, Trial Counsel failed to do so. Given the central role Wolchansky played in the

prosecution's case against Mr. Ogrod, Trial Counsel's failure prejudiced Mr. Ogrod.

255. Following voir dire, the prosecutor asked permission to have Mr. Wolchansky

testify under the alias Jason Banachowski. NT 9/3011996 at 36. The prosecutor based this

request on her purported concern for the safety ofWolchansky, who was housed in a state prison

close to Philadelphia where inmates had access to Philadelphia press, and the safety of his

82
daughter who bore his last name. ld. Defense counsel vehemently objected to this request and

argued extensively against it. !d. at 37-67. During this argument, counsel stated that he was

aware that Wolchansky had three or four other aliases in addition to the one the prosecutor

proposed to use at trial. ld. at 44. Counsel also mentioned that just a year prior, Wolchansky

had testified in another homicide case, before the same judge, using his real name. ld. at 46.

256. During the course of argument, the Court specifically ruled that counsel had the

right to let the jury know that Wolchansky was testifying under an alias, and to inform them of

the number of aliases - including this one - that he used in the past. ld. at 44, 56.

257. Counsel performed deficiently when he failed to cross examine Wolchansky

about his use of an alias while testifying in this case, his use of his real name when recently

testifying in another homicide case, and his use of various different aliases when he encountered

law enforcement in the past. As counsel's argument revealed, he believed that Wolchansky's

use of aliases and the fact that he was testifying under an alias greatly affected the witness's

credibility, yet he failed to question Wolchansky about this. Reasonably diligent counsel would

have elicited this vital impeachment material on cross examination and argued it extensively in

opening and closing arguments. Mr. Ogrod's counsel did not raise it in cross or in argument.

258. There is no reasonable strategic basis for counsel's failures. Mr. Greenberg

states, "1 don't recall why 1 did not cross-examine Jay Wolchansky, who testified under the alias

Jason Banachowski, about his history of using aliases." Greenberg Aff. at '\18. Having been

given the green light by the Court, there was absolutely no reason for counsel's failures.

259. Mr. Ogrod was prejudiced by counsel's failure. Other than Mr. Ogrod's

purported statement to police, Wolchansky's testimony was the only real evidence the

Commonwealth presented against Mr. Ogrod. There was no physical evidence connecting him

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to the murder and the eyewitness testimony was more exculpatory than inculpatory, describing

someone markedly smaller in stature and build than Mr. Ogrod. In addition, the prosecutor's

entire theory of the case mimicked Woichansky's testimony. The prosecutor relied upon

Wolchansky's version of events at every turn. In opening argument, she used his anticipated

statement as an outline for her entire case. Then in closing, Prosecutor Rubino repeated his

version of events and went on to argue that he was a principled man and a concerned parent who

testified against Mr. Ogrod simply to protect his daughter and other children like her from

having this done to them. NT 10/7/1996 at 54.

260. Had Mr. Ogrod's jury been told that Mr. Wolchansky was not even willing to

testify under his real name, yet had done so in another murder case in the recent past, the jury

may have had reason to question his veracity. Had the jury also learned that he used a number of

different aliases in the past, they would have had further reason to question Wolchansky's

honesty and reliability. Had this impeachment material been disclosed to Mr. Ogrod's jury,

there is a reasonable probability that they would have assessed his credibility differently and

reached a different verdict.

261. Post-Verdict/Appellate Counsel was ineffective under the 6th and 14th

Amendments for failing to rais~ this issue. Given Appellate Counsel's decision to raise some

claims of Trial Counsel's ineffectiveness, including issues related to Woichansky's use of an

alias, there could be no reasonable strategy for his decision not to raise this claim. See Post-

Verdict Motions at '1l'1l12-13. As set forth above, this claim is apparent from the extensive

argument that occurred on the record between Mr. Greenberg and Prosecutor Rubino, as well as

from the Court's suggestion that counsel cross-examine Woichansky with his use of aliases.

Post-Verdict/Appellate Counsel could have recognized and raised this meritorious claim. He

84
had no strategic reason for failing to present the claim, as he sought to file every claim of

arguable merit that he could identify from the record. O'Keefe Aff. at '1l 9.

262. Mr. Ogrod was prejudiced by Appellate Counsel's ineffectiveness. Had counsel

raised this claim on post-verdict motions and direct appeal, there is a reasonable probability that

the outcome of those proceedings would have been different.

I. Trial Counsel was Ineffective For Failing to Present Readily Available

Witnesses to Establish Mr. Ogrod's Sleep-Deprived Condition at the Time of
His Purported Confession to Police

263. Trial Counsel failed to present any ofMr. Ogrod's co-workers to establish the

long hours he worked the day before he went to speak with Detectives Devlin and Worrell.

These witnesses were vital to assist the jury in understanding why Mr. Ogrod might have been

particularly vulnerable to giving a false confession. As well-established research indicates and

Dr. Leo notes in his report, sleep deprivation is one of the risk factors commonly associated with

false confessions. See Leo Report.

264. At Mr. Ogrod's first trial, Mr. Greenberg presented the testimony of one of these

co-workers: Kenneth Elwood. Mr. Elwood testified that he was the transportation supervisor at

Bake-Rite Rolls where Mr. Ogrod was employed in April of 1992. NT 10/27/1993 at 700. He

testified that payroll records, which record the number of stops an employee made and the miles

he or she drove, are used to determine the pay that employee will receive. ld. at 701. He had the

payroll records for Mr. Ogrod for April 4 and April 5, 1992 and testified that they indicated that

Mr. Ogrod made 25 stops and drove 303 miles. ld. at 703. Mr. Elwood testified that Mr. Ogrod

left for his route on April 4, 1992 at 4 p.m., after a delay of three hours. ld. at 704. He returned

to the bakery on April 5, 1992. ld. at 706.

265. Another employee who could have testified to the long hours Mr. Ogrod worked

85
on the day before his purported confession to police was Joseph West. See Greenberg Notes re:

Joseph West (Attached in Appendix) ("[J]oe [W]est of bake rite rolls can testify about the route

· ")
t Imes.....

266. Other potential witnesses Greenberg could have called included Kenneth Zeiner,

another supervisor at Bake Rite Rolls, see NT 12/20/1999 at 31, mentioned explicitly by name in

the payroll records provided by Mr. Elwood. See Bake Rite Rolls Payroll Records (Attached in

Appendix). He would verify the route Mr. Ogrod took on the day in question and the long hours

that he worked.

267. Trial Counsel performed deficiently when he failed to call these witnesses at Mr.

Ogrod's retrial in 1996. It was in the best interest of Mr. Ogrod's defense to present evidence,

such as this, that would cause the jury to question the reliability of Mr. Ogrod's confession.

Reasonable counsel would have sought to establish Mr. Ogrod's sleep-deprived condition

through any available means, particularly ifMr. Ogrod himself was not going to testify to this

fact.

268. Mr. Greenberg's failure to present these witnesses was objectively unreasonable.

With regard to counsel's failure to call Mr. Elwood, counsel testified that he did not present him

because he did not want the prosecutor to use his prior inconsistent testimony at the first trial

against him. NT 12/20/1999 at 13. This purported rationale is completely unreasonable. It

presumed, without any basis, that Mr. Elwood's testimony would somehow contradict what he

said at the first trial. There was no basis for counsel to think this. His notes do not indicate that

he or his investigator ever contacted Mr. Elwood after he testified at the first trial.

269. With regard to Mr. Zeiner and Mr. West, Mr. Greenberg admitted that he had

these witnesses under subpoena, but testified that he did not call them because he felt that their

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testimony "went hand in glove with Ogrod's testimony" and, moreover, the dynamic had

changed from the first trial so that now he was playing the two confessions off against one

another. ld. at 31-33. This explanation is also objectively unreasonable. The fact that counsel

decided not to present Mr. Ogrod's testimony made it all the more vital that he find other ways

to establish Mr. Ogrod's sleep-deprived condition. Sleep deprivation is one of the key factors

associated with false confessions, and reasonable counsel would have done everything in his

power to establish this fact. Moreover, when this evidence was presented at the first trial,

through the testimony of Mr. Ogrod and Mr. Elwood, the Commonwealth presented no evidence

to rebut the fact that Mr. Ogrod worked long hours just prior to giving his statement to police.

For that reason, there could be absolutely no downside to presenting such evidence at Mr.

Ogrod's retrial.

270. Counsel's "decision" not to call Mr. Ogrod's co-workers to establish his sleep-

deprived condition meant that the jury never heard this vital piece of information. This

uncontested fact would have greatly informed the jury's decision-making process as to the

validity and reliability of Mr. Ogrod's purported confession to police. Counsel's failure to call

one or more of the witnesses mentioned above prejudiced Mr. Ogrod.

271. With respect to the claim that trial counsel was ineffective for failing to caU co-

workers to testify, Post-Verdict/AppeUate Counsel was ineffective under the 6th and 14th

Amendments because he did not present aU the arguments set forth on this issue in this Petition.

There would be no rational strategic reason for failing to do so as the issue had arguable merit,

see O'Keefe Aff. at ~ 9, and Mr. Ogrod was prejudiced because there is a reasonable likelihood

that the outcome of the post-verdict motions and appeal would have been different if counsel had

presented all of the information and evidence set forth in this Petition.

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 J. Cumulative effect

272. Individually and cumulatively, Petitioner was prejudiced by counsel's failure to

gather and present evidence casting serious doubt upon the prosecution's case during the

guilt/innocence stage ofthe 1996 trial. See Williams v. Taylor, 529 U.S. 362, 397-98 (2000)

(granting relief on claim of ineffective assistance of counsel based on cumulative prejudice);

Commonwealth v. Sattazahn, 952 A.2d 640, 670-71 (pa. 2008) (recognizing validity of claim of

cumulative prejudice). There is a reasonable probability of a different outcome in the

guilt/innocence phase of the trial if the jury had heard this evidence.

Claim III. TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT LAY

AND EXPERT TESTIMONY DEMONSTRATING THAT WALTER
OGROD'S PURPORTED STATEMENT TO POLICE WAS
INVOLUNTARY, UNRELIABLE AND FALSE AT A MOTION TO
SUPPRESS HEARING AND DURING TRIAL CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF MR.
OGROD'S 6TH, 8TH AND 14TH AMENDMENT RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 9
AND 13 OF THE PENNSYLVANIA CONSTITUTION. APPELLATE
COUNSEL COMPOUNDED THIS INEFFECTIVENESS BY FAILING TO
RAISE THIS MERITORIOUS CLAIM.

273. The matters set forth in all other sections of this Petition are repeated and

realleged as if set forth entirely herein.

A. Introduction

274. During trial, the Commonwealth introduced into evidence the purported

confession that Mr. Ogrod allegedly gave to Detectives Worrell and Devlin on April 5, 1992.

See Ogrod Statement 4/5/92. The Commonwealth also introduced the alleged jailhouse

confession that Mr. Ogrod supposedly gave to repeat felon Jay Wolchansky in December 1994.

NT 10/4/1996 at 3-23.

275. This confession evidence, obtained some four years after the death of Barbara

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Jean Hom, was the sole evidence the Commonwealth had against Mr. Ogrod. No forensic

evidence - DNA, hairs, or fingerprints - connected Mr. Ogrod to the crime. The description

given by eye-witnesses did not fit Mr. Ogrod; moreover, none of them identified him as the

person wit the TV box. The widely distributed police sketch did not look anything like Mr.

Ogrod or generate any information that pointed to Mr. Ogrod as the perpetrator. Finally, none of

the thousands of calls that came into the police tip line made any mention of Mr. Ogrod.

276. Clearly attacking the voluntariness and reliability ofthis purported confession and

showing that Mr. Ogrod was vulnerable to making a false confession was central to Mr. Ogrod's

defense. However, Mr. Greenberg's efforts in this regard were deficient, both at the motion to

suppress hearing and at trial.

B. Mr. Greenberg's Deficient Attempt to Attack the Confession

277. In September of 1992, just prior to the motion to suppress hearing, Mr. Greenberg

retained psychiatrist Dr. Alan Tepper to determine if Mr. Ogrod's psychological make-up made

him vulnerable to giving a false confession. See Letter from Greenberg to Dr. Tepper, Sept. 25,

1992 (Attached in Appendix). However, Mr. Greenberg did not have Dr. Tepper conduct

personality testing or suggestibility testing -- both of which would have been key to assessing

this issue. Although Dr. Tepper did issue a report based on the limited testing he did conduct,

this report did not directly address the issue ofMr. Ogrod's vulnerability to giving a false

confession. In the end, Mr. Greenberg did not present Dr. Tepper's testimony at either the

motion to suppress hearing or trial.

278. Documents in Mr. Greenberg's file mention a sleep-deprivation expert and

indicate that he sought referrals for a false confession expert. However, Mr. Greenberg never

requested funding for, consulted with, or presented such experts at the motion to suppress

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hearing or at trial.

279. At the motion to suppress hearing in September 1993, Trial Counsel admitted

portions of Mr. Ogrod's military records regarding his hospitalization and presented the

following witnesses: Howard Serotta, Peter Blust, Esq., and Dr. Peter D. Ganime. Mr. Serotta

testified that he was Mr. Ogrod's landlord in Glenside when detectives came around and asked

questions about Mr. Ogrod including whether or not he possessed a weight set. NT 9/8/1883 at

118. Mr. Blust testified that Mr. Ogrod called him the morning after his purported confession

and explained that he had been arrested for a murder of a little girl and that police told him

repeatedly that he did it but was blocking it out. Mr. Blust also testified that Mr. Ogrod told him

he did not recall killing anyone and that during his interrogation detectives would not let him call

his attorney. Id. at 130-31. Mr. Blust was cross examined extensively about the status of his

attorney license and his arrests and convictions for various charges. Dr. Ganime testified that he

treated Mr. Ogrod as a child and that during that time he diagnosed Mr. Ogrod with ADD. He

testified that Mr. Ogrod had anxiety and ego-deficits, meaning that he was less able to cope with

stress. He explained Mr. Ogrod's family history and described him as "a patsy" and someone

who was very easily used by other people. NT 9/22/1993 at 26-27. Although Mr. Greenberg

knew that Dr. Ganime only treated Mr. Ogrod for a period of time during his childhood, he did

not ask him to conduct a more current evaluation or testing of Mr. Ogrod before he testified.

280. At the motion to suppress hearing, Trial Counsel did not present a false

confessions expert, an expert in police interrogation techniques, the testimony of a psychologist

and/or psychiatrist who had recently evaluated Mr. Ogrod or given him suggestibility or

personality testing, or lay witnesses to attest to Mr. Ogrod's gullible nature.

281. After losing the motion to suppress, Trial Counsel knew that Mr. Ogrod's

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confession would be submitted to the jury, and he knew that the voluntariness and reliability of

the confession was a key issue for the jury to determine. Moreover, prior to Mr. Ogrod's retrial,

he also knew that in Mr. Ogrod's first trial in 1993, the balking 12th juror, Alfred Szewczak, had

entered deliberations with a "closed mind," and that he also did not believe that a person would

sign a false confession. According to Jury Foreman Charles T. Graham, Szewczak told other

jurors "Ogrod signed the confession - I have no doubt he's guilty. No amount of duress would

make me sign or agree to anything I didn't believe!" Letter from Graham to Daily News, Nov.

6, 1993. See also Letter from Greenberg to Graham, Nov. 22, 1993.

282. Armed with this information, Mr. Greenberg should have investigated, developed

and presented lay and expert testimony to the jury during Mr. Ogrod's retrial. Knowing that the

validity of the confessions would be an issue at trial, and knowing that expert analyses were

available to aid a jury's understanding of false confessions, Mr. Greenberg's failure to present

expert and lay testimony regarding false confessions and Mr. Ogrod's inherently gullible

personality presents an issue of arguable merit. See Commonwealth v. Williams, 899 A.2d 1060,

1064 (Pa. 2006).

C. Expert and Lay Witness Testimony That Mr. Greenberg Failed to Present

283. Mr. Greenberg could have retained an expert in false confessions to explain the

frequency of false confessions, the factors associated them, and which of those factors were at

play in Mr. Ogrod's case. Had counsel done this he could have presented the averments set forth

below to the judge at Mr. Ogrod's motion to suppress hearing and the jury at his trial.

284. Trial counsel should have retained an exert like Dr. Richard Leo to address the

issue of false confessions. Dr Leo reports that there is an established body of empirical social

science research on the psychology of influence and decision-making during police

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interrogations and confessions that dates back to 1908. The literature about false confessions

contains hundreds of peer-reviewed articles in social science journals, and the research has

produced findings that are generally accepted in the scientific community. Leo Report at 6.

285. As Dr. Leo states, a false confessions expert could have explained to Mr. Ogrod's

jury, how police interrogation practices developed in the twentieth century; how police

detectives are trained to psychologically interrogate custodial suspects; the various interrogation

techniques that police use in practice; how and why these techniques are designed to move the

guilty from denial to confession, how and why these techniques sometimes lead to false

confessions from the innocent; the risk factors for police-induced false confessions; the

characteristics, patterns and consequences of false confessions; and the indicia of reliable and

umeliable confessions. Leo Report at 6.

286. In his report, Dr. Leo sets forth how a false confessions expert would further

explain how extensive, peer-reviewed research demonstrates that interrogation-induced

confessions occur with troubling regularity and appear to be far more common than previously

imagined. DNA cases have demonstrated that 15-20 percent of innocent prisoners exonerated by

DNA testing had been wrongly convicted at their trials based on interrogation-induced false

confessions. See Brandon L. Garrett, "The Substance of False Confessions," 62 Stan. L. Rev.

1051 (2010). Additional innocent false confessors have had their confessions proven false by

other means. Since 1980, there have been approximately 300 documented "proven" false

confessions, and researchers believe that these cases represent the tip of a much larger iceberg.

Leo Report at 7.

287. A false confessions expert would have explained to the jury, as Dr. Leo

explained, what coerced-internalized false confessions are, and the psychological process

92
through which false confessions are elicited during interrogations. The expert would have

educated the jury about documented cases of coerced-internalized false confessions; the

situational and personal risk factors for eliciting coerced-internalized false confessions; and the

patterns, characteristics and indicia of such false confessions. See Leo Report at 11-15.

288. An expert would have told the jury, as set forth in Dr. Leo's report, that

situational and personal risk factors heighten the risk that the interrogation of an innocent

suspect may lead to a false confession. These risk factors include accusatorial interrogation

techniques that imply or make explicit promises of police or prosecutorialleniency in exchange

for a confession. Such techniques also threaten or imply harm in the absence of cooperation or

confession. Leo Report at 9. Risk factors for false confession also include the length ofthe

interrogation, the physical condition of the suspect, and personality traits such as: high

suggestibility, low tolerance for stress, and a tendency toward acquiescence. !d. at 10, 13.

289. Ultimately, an expert would have told the jury, as Dr. Leo states, that Mr. Ogrod's

inherent suggestibility and his personality traits - including his low tolerance for stress and his

tendency for acquiescence, the length of Mr. Ogrod's interrogation, the extent of his sleep

deprivation, and the detectives' presentation of false evidence and use of threats and promises of

leniency are all factors associated with false confessions. Leo Report at 9-11,13-14.

290. Trial counsel was also ineffective for failing to use an expert knowledgeable in

police procedures and interrogation techniques. James Trainum, a retired detective with over 27

years of experience in law enforcement, a decade of experience reviewing cases of alleged

wrongful convictions, and who himself took two confirmed false confessions during his law

enforcement career, has reviewed Mr. Ogrod's case and pointed out information that could have

been used at Mr. Ogrod's trial to demonstrate how Mr. Ogrod's purported confession is false.

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Trainum Report at 1-4.

291. An expert like Detective Trainum would have explained at trial that the

circumstances surrounding Mr. Ogrod's alleged confession to police are similar to the

circumstances in known false confession cases in several respects. First, there is evidence that

detectives considered Mr. Ogrod a suspect before his interview, despite a lack of evidence to

support that belief. Trainum Report at 8-9. Second, there is evidence that the detectives

interrogated Mr. Ogrod using elements of the highly-coercive Reid Technique, including

promises of leniency, threats, and presentation of false evidence. Id. at 9-11. Third, the

detectives may have contaminated the interview by providing Mr. Ogrod with details about the

murder. Id. at 11-12. Finally, the police made no effort to verif'y the information Mr. Ogrod

provided them and ignored "red flags" that should have caused the detectives to question the

reliability of the information Mr. Ogrod provided. Id. at 12-15.

292. As Detective Trainum explains, the failures listed above cast considerable doubt

upon the accuracy of Mr. Ogrod's statement to police. Trainum Report at 15. Given the lack of

other corroborating evidence in this case, it is Detective Trainum's opinion that an injustice may

have occurred with Mr. Ogrod's conviction. Id.

293. Mr. Greenberg could also have retained a psychologist familiar with the

Gudjonsson Suggestibility Scales (GSS) to determine Mr. Ogrod's interrogative suggestibility

and assess his other vulnerabilities to giving a false confession. Had counsel done that he would

have had the information set forth below to present at the motion to suppress hearing and at trial.

294. Clinical Psychologist Dr. Bruce Frumkin has reviewed Mr. Ogrod's mental health

records and the personality testing conducted by Dr. Frank Dattilio and administered the GSS.

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 295. The GSS is widely recognized as the best objective psychological test to help

assess an individual's vulnerability to giving in to leading or misleading information and to

changing responses under pressure. The GSS was available for use at the time ofMr. Ogrod's

trial. See Frumkin Report at 2, 4.

296. As Dr. Frumkin explains, interrogative suggestibility is the extent to which an

individual comes to accept messages or information communicated as true, generally by police

during formal questioning. Interrogative suggestibility is correlated with compliance and that

compliance manifests itself in the tendency of some individuals to comply with requests and to

obey instructions they would rather not do, for some short-term gain, such as terminating the

interrogation, being released from custody, and/or pleasing the officer. ld. at 2.

297. An expert such as Dr. Frumkin could have testified at trial as to the mechanics of

conducting the GSS and the method of calculating scores and the meaning of those scores. ld. at

2-3.

298. Based upon the GSS, an expert could have testified at trial that Mr. Ogrod is more

suggestible than the average person and has a strong tendency to yield to misleading or false

information. Indeed, Mr. Ogrod yields to misleading or false information more than 96 percent

of the population, is more likely to change his response under pressure than 80 percent of the

population, and is more suggestible than 95 percent of the population. ld. at 3.

299. As Dr. Frumkin states, and based upon his findings on the GSS, Mr. Ogrod would

be much more likely to be misled and to believe what law enforcement told him than the average

person. In addition to Mr. Ogrod's innate suggestibility as exhibited by the GSS, the following

factors make him more vulnerable to giving a false, inaccurate or unreliable statement than the

average person: a) chronic long-standing inability to cope with stressors; b) excessive social

95
anxiety which causes him to strive to please others even when it is not in his best interest to do

so; c) unusual and idiosyncratic thinking; d) the extreme length of the interrogation; e) his sleep

deprivation, and f) his lack of prior convictions. Id. at 4.

300. Mr. Greenberg could also have requested funding to hire a psychologist and/or

psychiatrist to assess Mr. Ogrod's personality construct by speaking with his friends, associates,

and family members, and conducting personality testing ofMr. Ogrod. Mr. Greenberg had

contact with two such individuals: Dr. Allan Tepper and Dr. Peter Ganime. Mr. Greenberg did

not instruct either of these doctors to conduct personality testing, and he gave neither doctor any

information from Mr. Ogrod's associates and family members relevant to Mr. Ogrod's

personality or vulnerability to giving a false confession. See Affidavit/Declaration ofDr. Allan

M Tepper ("Tepper Aff.") at ~~ 10, 13-14 (Attached in Appendix). Had counsel done that he

would have found that Mr. Ogrod has a personality disorder that is consistent with a person

likely to give a false confession.

301. Clinical and Forensic Psychologist Frank M. Dattilio, Ph.D. conducted

personality testing ofMr. Ogrod and reviewed Mr. Ogrod's social and mental health history as

set forth in various records (including school, military, mental health records), affidavits from

his family members and associates, and other materials. Dr. Dattilio conducted a clinical

interview of Mr. Ogrod and administered Millon Clinical Multiaxial Inventory-III (MCMI-III)

and the Personality Assessment Inventory (PAI). Dattilio Report at 1.

302. As Dr. Dattilio states, Mr. Ogrod suffers from Personality Disorder Not

Otherwise Specified (NOS) with Avoidant, Inadequate, Dependent, and Obsessive Compulsive

Features. Personality disorders, such as the personality disorder Mr. Ogrod suffers from, are

enduring patterns of iuner experiences and behavior that lead to distress or impairment in a

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person's life. These disorders have onset in adolescence and are pervasive, inflexible, and stable

over time. Id. at 10.

303. Dr. Dattilio explains that the avoidant, inadequate, dependent and obsessive

compulsive features exhibited by Mr. Ogrod describe a man who struggles with social inhibition,

feelings of inadequacy, hypersensitivity to negative evaluation, preoccupation with being

criticized or rejected in social situations, preoccupation with orderliness and control, and

difficulties in expressing disagreement with others because of fear ofloss of support or approval.

Id.

304. Dr. Dattilio's diagnosis is consistent with the results of the personality inventories

he administered, his clinical interview ofMr. Ogrod, the affidavits obtained from Mr. Ogrod's

family members and associates, ad Mr. Ogrod's psychiatric records.

305. Dr. Dattilio gave the following opinions to a reasonable degree of psychological

certainty:

Mr. Ogrod's clinical profile shows longstanding attributes that verifY that he has
always maintained a personality that is prone towards manipulation and
undue persuasion by others. Mr. Ogrod is basically a very weak and easily
intimidated type of individual .... In layman's terms, Mr. Ogrod was a "ripe
apple" who had been primed his entire life to be easily misled and
manipulated.

I see clearly how this man, with his mental health history and personality
traits could have given a false confession to authorities, particularly when
laboring under fatigue due to lack of sleep. It is very possible that Mr. Ogrod
would simply give in to pressure and such behavior would be totally consistent
with his character pathology.

[Mr. Ogrod's] ego defense mechanisms are still so weak that he is easily
intimidated, particularly by figures of authority. He was, unfortunately, groomed
for this during his tumultuous upbringing. This situation greatly cultivated an
atmosphere that facilitated a passive-compliant demeanor that allows Mr. Ogrod

97
 to fall prey to the influence and manipulation of others, particularly those who are
in positions of authority.

ld. at 12.

306. Dr. Neil Blumberg conducted a clinical interview of Mr. Ogrod, reviewed the test

results of Dr. Dattilio, Dr. Frumkin, Dr. Leo, and James Trainum, reviewed the records available

in this case, and reviewed the lay affidavits collected. See Blumberg Report.

307. Dr. Neil Blumberg has offered the following opinions and conclusions:

As a result of my forensic psychiatric evaluation, iUs my opinion, toa reasonable

degree of medical certainty, that at the time of the current offense, July 12,1988,
and at the time that he provided an incriminating statement to police on April 5,
1992, Walter Ogrod was suffering from the mental disorder, Personality Disorder
Not Otherwise Specified with Avoidant, Inadequate, Dependent and Obsessive
Compulsive Feature (DSM-lV-TR: 301.9). He has had longstanding clinically
significant impairment in his self-esteem and sense of identity that has led to
significant difficulties in his ability to form mutually satisfying interpersonal
relationships. He grew up in an extremely abusive and traumatic environment as a
result of being raised by a mentally ill mother and a significantly impaired
paternal grandmother. He was identified as having minimal brain dysfunction as a
child, attended a special school for individuals with learning and emotional
difficulties and has been described by family and many individuals who came to
know him as highly gullible and easily manipulated and taken advantage of. His
dysfunctional personality structure has led to him being viewed by others as odd
and as a patsy to be taken advantage of.

It is my further opinion, to a reasonable degree of medical certainty, based upon

my clinical interview, review of records and review of psychological testing, that
Mr. Ogrod's Personality Disorder Not Otherwise Specified with Avoidant,
Inadequate, Dependent and Obsessive Compulsive Feature made him vulnerable
to giving a false and unreliable statement to police on April 5, 1992. I am in
agreement with Doctor Frumkin and Doctor Leo in that Mr. Ogrod is much more
susceptible than the average person in yielding or accepting as true misleading or
false information due to his Personality Disorder Not Otherwise Specified which
directly contributes to his inability to cope with stressors, excessive social
anxiety, idiosyncratic thinking, low self-esteem, gullibility, excessive conformity
to the expectations of others, hypersensitivity to negative evaluation and passive
compliant demeanor.

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Id. at 13-14.

308. Mr. Greenberg also could have presented the testimony of a number of readily

available lay witnesses to attest to Mr. Ogrod's suggestible and dependent nature. Mr. Ogrod's

neighbors, associates, and family members could have also established or verified Mr. Ogrod's

immediate recantation of the confession, Guhl Aff. at ~ 2; G. Ogrod Aff. at ~ 23; the extreme

length of the interrogation and Mr. Ogrod's sleep deprived condition, Bonavitacola Aff. at ~ 6

(when Mr. Ogrod came to prison, he "looked like he was breaking down mentally. He was

incoherent and in shock. ... [He] appeared exhausted."); the threats he claimed the police made

to him to get him to sign the confession, G. Ogrod Aff. at ~ 23; and the questionable tactics used

by investigating detectives, Fritz Aff. at ~~ 6-7 ("Somehow the police learned that Walter called

me and I was visited at my job by two homicide detectives.... They said that they knew Walter

talked about the Hom murder with me.... [T]hey took me down to police headquarters and

scared me.... They told me what Walter must have said.").

309. Had counsel done a thorough investigation of Mr. Ogrod's background, he would

have identified that the following individuals were willing to testifY and could have related their

personal encounters with Mr. Ogrod during his childhood and adult life (both before and after

his arrest) that show him to be precisely the gullible, suggestible, easily intimidated person the

above-mentioned experts found him to be: Greg Ogrod, Heidi Guhl, Michael Smalley, Steven

Mulvey, Father John Bonavitacola, Alonzo Balthrope, William Daka, Joseph Newsham, Hal

Vahey, Stacey Meigs, John Trasser, Steven King, Robert Fritz, John Shinn, Jane Zacher, Kim

Ward, Edward Pettit, Melanie Ostash, and John and Marie Terpeluk. With few exceptions, Mr.

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Greenberg never even spoke to any of the above-mentioned individuals. 9 Balthrope Aff. at ~ 9;

Affidavit/Declaration ofMichael Smalley ("Smalley Aff.") at ~ 6 (Attached in Appendix); Daka

Aff. at ~ 4; Affidavit/Declaration ofJoseph Newsham ("Newsham Aff.") at ~ 8; Hal Vahey Aff.

at ~ 21; Fritz Aff. at ~ 8; Shinn Aff. at ~ 6; Ward Aff. at ~ 7; Pettit Aff. at ~ 10; Zacher Aff. at ~

8; Affidavit/Declaration ofStacey Meigs ("Meigs Aff.") at ~ 14; Trasser Aff. at ~ 8;

Affidavit/Declaration ofSteven King ("King Aff.") at ~ 7; Affidavit/Declaration ofHoward

Serotta ("Serotta Aff.") at ~~ 10-11; Second Mulvey Aff. at ~ 5, Ostash Aff. at ~ 8;

Affidavit/Declaration ofAnna Newsham ("A. Newsham Aff.") at ~ 10.

310. One witness Mr. Greenberg failed to present at the motion to suppress hearing

and at trial was Gregory Ogrod. As Greg would have testified,

Walter was always very different from me and other kids our age. He did not
have any real friends, just people who used him for different things. Walter
simply didn't seem to know how to interact with others. He was socially
awkward to say the least.

Walter came across as mentally retarded. He was like "Rain Man." Walter had a
great memory for dates and times, but he never had an ounce of common sense.
Walter went to a special school for people who were mentally slow - Ashboume
School. Kids in the neighborhood made fun of Walter mercilessly. They called
him "weirdo" and "retard." Walter was beat up by other kids more times than I
can count. He was a walking target for bullies.

When Walter got older, he remained a social outcast. Walter never had any real
friends. He was always the butt of the joke, whether he knew it or not. That was the
strange thing about Walter, he never seemed to understand that he was being belittled
or mistreated.

Walter wanted nothing more than to be liked and accepted by people. To get friends,
Walter would do almost anything people asked of him. Walter was a follower. My
friends and I bossed Walter around all the time.

9 Heidi Guhl attended the trial but was never called to testify. Greg Ogrod also was never called to testify. Father
Bonavitacola testified only at the penalty phase and only to the fact that Mr. Ogrod got along well with prison staff.
NT 10/9/1996 at 47. Howard Serotta testified at the first trial, but Mr. Greenberg did not ask him about infonnation
relevant to suggestibility and did not call him to testify at the 1996 trail.

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ld. at "j["j[7-8, 11-12.

311. Greg could have added,

[A]fter our father died, Walter inherited a large sum ofmoney as well as my father's
home on Rutland Street. This is when people really started to take advantage of
Walter. There was always someone living at Walter's house rent-free. My friends
and I used the house as a party house. When Walter complained I would tell him to
shut up or send him to his room. He never put up a fight, just put his head down and
went upstairs.

Walter used some of his inheritance money to buy a Trans Am. I would ask to
borrow his car to run an errand and then keep it for weeks at a time. One time, I
borrowed Walter's car telling him I was going around the comer to get cigarettes.
When I returned three days later and told Walt I had gotten lost, he responded, "Just
don't be taking it like that again." He never mentioned it again after that. This was
typical for Walter, he didn't process things like normal people. I also think he was
just so used to the abuse that he accepted it. Other people and I frequently
"borrowed" money from Walter. Each time I would tell him I would pay him back,
but I never did. Walter continued to lend me his car and money despite my history
of abusing his trust.

Some friends convinced Walter to use some ofhis money to buy a dilapidated house
in Wildwood. I promised to help fix up the house, but never got around to it. I
would tell Walter I was going to work on the house, but instead I would throw a
party.

ld. at"j["j[13, 15-16.

312. Greg could have told the jury that he was as guilty as the rest when it came to taking

advantage of his brother:

In the early 1990's, I had a horrible drug habit and I took advantage of Walter just
as bad as others did. Looking back, I'm not proud of the way I treated Walter. It
was just so easy to abuse him because Walter was so gullible. He would believe
anything he was told and do anything we asked of him. We all took advantage of
Walter in every way imaginable, yet Walter seemed oblivious to it all.

ld. at"j[17.

313. Greg could have testified that at the time of the murder the back door leading from

the basement to the alley behind the house (the only door that accessed the outdoors from the

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basement) was broken and barricaded by an old transmission and other items. !d. at ~ 18. Walter

Ogrod was in the house when Greg was attacked and his girlfriend Maureen Dunne was killed in

July 1986. As Greg explains, "Although Walt saw the killers as they ran from the house, Detective

RoUTS advised me that they decided not to have him testify because Walter was 'not competent.' "

Id. at~ 19.

314. Greg says that sometime after Mr. Ogrod's conviction, he met John Hall in prison

at CFCF. According to Greg, ''[Hall] told me that he used to get his girlfriend to write letters to

Walter, pretending they were from a go-go dancer. Hall found it hysterical how easy it was to fool

Walter. I laughed along with him, knowing exactly what he meant." Id. at ~ 22.

315. Finally, Greg could have testified that he spoke to his brother soon after his arrest and

that Walter said "the police railroaded him, threatening to lock him up with black guys and tell them

that he raped and murdered a little black girl ifhe didn't agree with what they were accusing him

of. They promised if he signed the statement they would let him go." Id. at ~ 23.

316. Another available witness who had important information to share but was not called

to testify at the motion to suppress hearing or at trial was Hal Vahey. Mr. Vahey became friends

with Mr. Ogrod when they both attended grade school at Ashboume School. He also lived with

Walter for several years. Hal Vahey Aff. at ~ 2. Mr. Vahey describes Walter as always having been

"slow and awkward, [and] a little goofy in the head." Id. at ~ 3. He explains that Mr. Ogrod "was

hassled a lot by other guys at school, so he mostly kept to himself. He was a good guy, but he didn't

have a lot of friends." Id.

317. Mr. Vahey could have told the jury that after Walt inherited his father's house and

his brother Greg moved in, a lot of people started hanging around the place:

People had always taken advantage ofWalt, but this bunch was much worse. They'd

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 talk him into giving them money, buying them beer, letting them stay at his house
for free, giving them rides and loaning them his car. They talked Walt into putting
up money for a run-down shack in Wildwood, so they could party at the shore.

Id. at~ 4.

318. Mr. Vahey also could have testified that after Greg left the house, Mr. and Mrs

Green, known as "Sarge" and "Turtle" moved in. Id. at ~ 6. According to Vahey, they "ran the

house":

Theyused to make Walt go and stay in his room.... Turtle and Sarge were supposed
. to pay rent and help with the bills, but they quit doing that after a couple months..
When Walt asked them to pay their share, they got mad and threatened him. He was
scared ofthem, and with good reason. Sarge and his friends beat Walt up so bad that
neighbors called the police and Sarge was arrested. Turtle and Sarge really had it in
for Walt after that.

Id. at~7.

319. Mr. Vahey could have informed the jury that the day Barbara Jean Hom's body was

discovered, he was staying at Mr. Ogrod's house. Hal Vahey Aff. at ~~ 2, 14. He could have

explained that the house was small and you could hear whatever was going on anywhere in the

house from every room, even if the window air-conditioner was running. Id. at ~ 10. Mr. Vahey

states that on the day of the murder, he left his Doberman, Angel, at Mr. Ogrod's house while he

went to work. He adds that the dog was protective and would have definitely barked loud and long

if she heard someone screaming in the basement. Id. at ~ 16. Finally, he and the other members of

the household were in the basement soon after Barbara Jean was found dead and saw no fresh blood

or signs of a struggle anywhere. Id. at ~ 18.

320. Yet another witness who Mr. Greenberg did not speak to is Alonzo Balthrope, who

met Mr. Ogrod in his junior year at Ashboume. Mr. Balthrope could have testified that he was

"pretty friendly with Walter but for the most part [Walter] was a loner. Walter seemed upset a lot

103
of time and he just didn't seem to fit in with the other kids." Id. at ~ 2. Balthrope recalls that

"Walter also seemed pretty slow and he never understood ajoke so you couldn't joke with him." Id.

at~ 4.

321. Balthrope remembers that Mr. Ogrod inherited some money when his father passed

away, but he squandered it all because "he was involved with some friends that manipulated him

into having parties at his house." Id. at ~~ 6-7. According to Balthrope:

Walt would pay for the alcohol because they told him to do it. They would also just
tell Walt to give them money-and he would. He was constantly just following and
doing what others told him to do. He had two girlfriends that I know ofbut they were
only dating him because he would buy them alcohol. That's just how it was for
Walter; people just used and abused him. They took advantage of him because he
was socially awkward and he really wanted to have friends.

Id. at~7.

322. Another available witness was Robert Fritz, another friend of Mr. Ogrod from

Ashboume School. Mr. Fritz would have testified that at Ashboume, a school for slower children,

Mr. Ogrod "was teased a lot in school because he was slow and not good at making friends. He was

awkward around people." Fritz Aff. at ~ 2.

323. Mr. Fritz will lived in Mr. Ogrod's house on Rutland Street until Greg moved out.

He explains that Mr. Ogrod was "pretty gullible and would do whatever someone told him to do."

Id. at ~ 4. Moreover, he "really only hung out with Walter because [Walter] was friends with [his]

friend." Id.

324. According to Mr. Fritz,

Walter was bossed around by all of our friends [and] would do anything we said
because he wanted to be liked and accepted. Walt was like this with everyone. There
were always people coming and going in the house because it was a party house and
everyone took advantage of Walter.

Id. at ~ 3. Mr. Fritz explains that even Mr. Ogrod's brother Greg controlled him. Fritz could have

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testified that, "Greg was not the nicest person and he was heavily into drugs so he would take

advantage of Walter any chance he had." Id. at ~ 5.

325. Finally, Mr. Fritz states that sometime before Mr. Ogrod was convicted of killing

Barbara Jean Hom, Mr. Ogrod called him on the phone. He explains,

I had not heard from him in a while and we talked about school and old friends.
Somehow the police learned that Walter called me and I was visited at my job
by two homicide detectives.... I cannot recall their names but they put words in
my mouth about what Walter may have said to me. They said that they knew
Walter talked about the Hom murder with me. I told them that did not happen and
then they took me down to police headquarters and-scared me and tried to get me to
say it did. They told me what Walter must have said. I kept telling them that he
didn't say anything about the murder. They didn't believe me, but finally I got so
upset that they let me go.

Id. at ~~ 6-7.

326. Trial Counsel also failed to contact Michael Smalley, who met Mr. Ogrod when

Smalley was eleven or twelve years old and Mr. Ogrod was seven or eight years old. They were

neighbors and went to the same elementary school. Smalley Aff. at ~ 2. Mr. Smalley could have

told the jury that, as a child,

Walter was very slow-witted and clumsy. He tripped over his own feet and had
speech problems. We neighborhood kids all thought he was mentally retarded, and
some of us called him, "Retard". He was always disheveled, wearing those raggedy
clothes. He behaved in weird ways sometimes, as a kid, making strange guttural
noises or lying on the ground and spinning around. I can't imagine Walter ever
being able to plan, commit and conceal any crime, let alone a murder.

Id. at~5.

327. William Daka also knew Mr. Ogrod and his family when Mr. Ogrod was just a

young boy- about seven or eight years old. Mr. Daka lived in the Northeast section ofPhiladelphia

in the Tomlinson Court Apartments, where Mr. Ogrod's family also lived. As Mr. Daka could have

testified:

105
 Everyone in the neighborhood picked on Walter and made fun of him. They used
to call him names and tease him. They would also beat him up pretty bad and throw
snowballs at him. They ganged up on him and he didn't really have a chance against
them.

ld. at,-r 2.

328. Mr. Daka adds that "everyone picked on Walter because he was so odd and he was

slow. He wasn't like the other kids and he just didn't really fit in with the crowd." !d. at,-r 3. Mr.

Daka asserts that he tried to protect Mr. Ogrod because he was such an "easy target." ld. Mr. Daka

recalls Mr. Ogrod's mother thanking him. He truly believes that if he didn't intervene-Mr. Ogrod"

would have been beaten up every day. ld. Mr. Greenberg failed to interview Mr. Daka. ld. at,-r 4.

329. Another witness Trial Counsel never contacted was Edward Pettit, who knew Mr.

Ogrod since their teenage years when they associated with the same group of friends. He describes

Mr. Ogrod as a "gullible," and "a big dumb kid" who "seemed like he might be retarded or

something." ld. at,-r,-r 6-7. Mr. Pettit could have testified as follows:

My friends and Ijust hung out with Walter because he had a house we could party
in and because he would buy things for us and do things for us. In our group of
friends everyone manipulated Walter to get what they wanted. He would do
anything we asked him to do. Some of the people in our group of friends treated
Walter like he was a personal servant. Walter was convinced to buy a car and house
in Wildwood NJ that was practically falling down. Walter gave out his money if
people asked him for it. Walt didn't really have any friends and I think he was just
happy someone spent time with him so he let people walk all over him, and we did.

ld. at,-r,-r 3-4.

330. Mr. Petit could have testified that Mr. Ogrod "couldn't relate to people well and

never fit in with the group." ld. at,-r 5. According to Pettit, "[i]t was clear [Walter] couldn't manage

his life so he just let other people manipulate him." ld. at,-r 7.

331. An important witness Trial Counsel failed to present to the jury was Heidi Guhl,

another friend ofMr. Ogrod who knew him since they were both 18 years of age. She describes Mr.

106
Ogrod as "very gullible," "easily manipulated," "socially awkward" and "slow." Gubl Aff. at ~~ 3,

8. Ms. Guhl states that she and her friends took advantage ofMr. Ogrod and constantly pushed him

around. fd. at ~ 3. She explains that he "really got walked over by everyone." fd. at~7. She recalls

that when Mr. Ogrod inherited a house from his father, she and her friends used it as a place to party

and often treated Mr. Ogrod like a stranger in his own home. For example, she recalls a number of

times when Mr. Ogrod wanted to watch television in the living room, she and her friends would

limit him to one program and then send him upstairs to his room so that they could listen to the

stereo. fd. at ~ 4.

332. Ms. Gubl and her friends used Mr. Ogrod for his money and his car. They got him

to buy them beer and would borrow or take his car and not bring it back for days. fd. at ~~ 6-7. One

time she convinced Mr. Ogrod to drive her sister back from the shore because she was not permitted

the stay the night. fd. at ~ 6. Ms. Gubl states that "Walter always did what people told him to do

because he just wanted friends." fd. at ~ 8. Ms. Guhl adds that when the Green family moved in

with Mr. Ogrod, they manipulated Mr. Ogrod just like she and her friends did. fd. at ~ 10.

333. Finally, Ms. Guhl spoke to Mr. Ogrod just after his arrest and he told her that "he

only signed [the confession] because the police detectives told him ifhe signed it he could wait

upstairs with them while his lawyer came" and "ifhe didn't sign it they would put him down in the

tank with other prisoners and tell them he was a child molester" ... [and said to him] "you know

what they do to child molesters down there." fd. at ~ 12.

334. Kim Ward also has information that Trial Counsel failed to elicit and present. Ms.

Ward met Mr. Ogrod through her friend Heidi Guh!. She describes Mr. Ogrod as "definitely slow,"

"very gullible," and "a follower." Ward Aff. at ~~ 3-5. She says that "it was very easy to convince

Walter to do things. fd. at ~ 6. He was someone who had ''problems socially" and let people walk

107
all over him just so that he could have some friends. ld. at ~~ 3-5. Ms. Ward recalls that people

used to party in Mr. Ogrod's house and that Mr. Ogrod was not pleased about these parties. When

Mr. Ogrod would complain, his brother Greg just told him to go upstairs, and he obeyed. ld. at ~

2. Ms. Ward also recalls that her friends convinced Mr. Ogrod to buy a dilapidated house at the

shore so they had a place to party there as well. ld. at ~ 6.

335. Yet another omitted witness is John Shinn. Mr. Shinn remembers most that Mr.

Ogrod "was very simple and seemed slightly retarded." Shinn Aff. at ~ 2. According to Shinn, Mr.

Ogrod didn't really have any friends ofhis own. Greg and Mr. Shinn's other friends "controlled him

and manipulated him into doing whatever they wanted him to do." ld.

336. As Mr. Shinn recalls,

People took advantage of Walter because he had a car and a house. One of our
friends took Walter's car and smashed it. Walter had to pay for the damages. That
was just the way it was with Walter. People walked all over him. Walter inherited
some money after his father died and he was completely scammed out of his
inheritance because everyone swindled money out of him.

ld. at ~ 3. Mr. Shinn also recalls that "Walter never really fit in with [him and his friends]. He was

an outsider. We were into having wild parties and Walter didn't even really drink much. [Walter]

was a lamb among sharks." ld. at ~ 4.

337. Jane Zacher, who trial counsel failed to call, was another person who hung out at

Mr. Ogrod's house with Greg and his friends. She remembers the party atmosphere at the house and

that everyone who came and went took advantage of Mr. Ogrod because he was slow. Zacher Aff.

at ~ 2. She adds that when the Greens moved in they were verbally abusive to Mr. Ogrod and when

Mr. Ogrod tried to stand up for himself they would yell at him and tell him to shut up. Mr.Ogrod

was afraid of the Greens and used to block his bedroom door with a dresser to keep them out ofhis

room. ld. at ~ 4.

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 338. Ms. Zacher describes Mr. Ogrod as follows:

Walter was like a child. He was helpless and he didn't know what to do to keep
people out ofhis house. He was awkward and he isolated himselfbecause he wanted
to get away from the people in his house. He didn't really have any friends. He was
kind of like a hermit because he stayed in his room so much.

Id. at '1] 6.

339. Yet another omitted witness was Stacy Meigs, who grew up three doors down from

Mr. Ogrod. Meigs Aff. at '1] 2. Ms. Meigs was friends with Ingrid Green, who lived in Mr. Ogrod's

house, and got to know him fairly well. Id. at '1]'1]3, 5. She describes Mr. Ogrodas "mentally slow,"

easily "outsmarted or just intimidated," and "weird, quiet, and withdrawn." She says he was "not

very sociable, but he did talk with a few of the neighbors." Id. at '1]'1]5,7.

340. As Ms. Meigs recalls,

Ingrid's parents were mean to Walter. They took over his house. It was easy for
them to take advantage ofWalter because he was mentally slow. . .. Ingrid's father
and some of his biker friends beat Walter up very badly right on my front steps. It
was so bad that my parents called the police. Walter was scared of Mr. Green and
his friends.

Id. at '1] 7.

341. Steve Mulvey was another witness Mr. Greenberg did not present as the 1996 trial.

Mr. Mulvey was Mr. Ogrod's employer for a number of years and became his close confident. He

describes Mr. Ogrod as "really gullible" and seeming "mentally retarded or something." Second

Mulvey Aff. at '1]4. Mr. Mulvey remembers that the other workers picked on Mr. Ogrod because

he was slow and would believe anything people said. He recounts that Mr. Ogrod "started bringing

the newspaper to work and when it was lunch time he would just hide behind it so people didn't

bother him." Id. He knows about Mr. Ogrod's relationship with the Greens. He verifies that the

Greens "leeched off of Walter" and "took advantage of him." Id. at '1] 3. Mr. Ogrod was afraid of

109
the Greens, particularly Mr. Green, and used to barricade his room to keep him away. ld.

342. Tara Doherty was yet another available witness Mr. Greenberg failed to present.

She lived with her sister Adele Boyle and Mr. Ogrod at the Rutland Street home for over a month

in 1987. Doherty Aff. at ~ 1. According to Ms. Doherty, Mr. Ogrod "seemed slow and everyone

manipulated him to get what they wanted from him. He was an easy person to push around and I

think people knew that and targeted him." ld. at ~ 3. She recalls Mr. Ogrod's house being a party

house. Mr. Ogrod didn't like that, but "people just took over the house because Walter was so

weak." ld. at ~ 2. She remembers that when the Greens moved in they took over and Mr. Ogrod

was afraid of them. ld. at ~ 4.

343. John Trasser was another available witness that Mr. Greenberg overlooked. Mr.

Trasser verifies that "Sarge and Turtle ran the place" and "Walt had absolutely no control over what

went on in his house. He couldn't even watch television in his own living room." Trasser Aff. at

~ 5. He describes Mr. Ogrod as "slow - mentally," "goofy," and as someone who "seemed much

younger than his age." ld. at ~ 7. Mr. Trasser states that Mr. Ogrod's house was "party central,"

and that this party crowd trashed the place. He adds,"Walt was upset by [this] but there wasn't a

thing he could do about it. ld. at ~~ 3-4.

344. Steven King was also overlooked by Mr. Greenberg. He was a friend of Adele

Boyle's who hung out at Mr. Ogrod's Rutland Street home. King Aff. at ~ 2. He described the

scene at the house as chaotic and recalls the Greens pushing Walt all over the place. ld. at ~~ 3-4.

He describes Walt as "very quiet and slow," to the point that he seemed "mentally retarded." ld. at

~ 5. He also says that Walt was "gullible" and "easily manipulated and bullied." ld.

345. Howard Serotta was also available to testify, but was never presented by Mr.

Greenberg at Mr. Ogrod's trial. Mr. Serotta was Mr. Ogrod's landlord and employer at the time of

110
his arrest. He describes Mr. Ogrod as a nice guy and a trustworthy tenant, but not someone who was

very bright. Mr. Serotta says that Walter did not seem able to "to pick up on verbal cues," although

he "wanted very much to please" others. Serotta Aff. at ~~ 4-6.

346. Melanie Ostash was yet another witness Mr. Greenberg could have presented but

did not. She describes Walter as a "pushover" who everyone took advantage of, walked all over,

and "manipulated to get what they wanted." Ostash Aff. at ~~ 5-6. She could have testified that Mr.

Ogrod's residence was chaotic and that he did not like it but had no control over it. ld. at ~~ 3-4.

347. Another important witness who Mr. Greenberg never presented at the motion to

suppress hearing or the guilt/innocence phase ofMr. Ogrod's trial was Father John Bonavitacola.

Father Bonavitacola served as prison chaplain for the Philadelphia County prison system in 1992

when Mr. Ogrod was arrested and incarcerated there and was able to provide a picture of Mr. Ogrod

immediately after his arrest and during his subsequent incarceration. Bonavitacola Aff. at ~ 2.

Father Bonavitacola went to see Mr. Ogrod immediately upon his arrival at the prison. ld. at ~ 3.

He recalls Mr. Ogrod appearing exhausted and being "incoherent and in shock." ld. at ~ 4. Father

Bonavitacola kept in close contact with Mr. Ogrod until his conviction in 1996. He explains why

he did so:

I was particularly concerned about Walter because he was an easy target for other
inmates. They walked allover him because he wasn't very smart and he was socially
awkward. It appeared to me that he had a low IQ.... It was easy for the other
inmates to prey on Walter because he was slow. They used to blame things on him
that they did. They also manipulated him into giving them extra food or
commISSary.

ld. at ~~ 6-7.

348. Anna and Joseph Newsham are two additional witnesses Mr. Greenberg could have

called to testify on Mr. Ogrod's behalf. They lived two doors down from the Ogrods on Rutland

111
Street from 1986 until Mr. Ogrod's arrest. They both would have testified at trial that when the

Greens lived with Walter, they would throw wild parties with their biker friends and push Walter

around. NewshamAff. at~7; A. Newsham Aff. at~ 6. According to Mrs. Newsham, Sarge ran the

house and "had Walter completely intimidated." ld. She and her neighbors did not feel safe with

the Greens and their biker friends only a few doors away and, for that reason, they would keep a

close eye out on their children when they played outside. ld. at ~ 7.

D. Trial Counsel Had No Reasonable Basis for his Failure to Present Expert and
Lay Witness Testimony-as Set FOl"thAbove

349. By the mid-1980's, academic social scientists and psychologists were testifying in

court cases across the United States involving disputed interrogations and confessions. By the

1990's, it was routine for defense attorneys to call social scientists, psychologists/psychiatrists, and

other expert witnesses to educate judges and juries about the psychology of police interrogation

techniques and false confessions in capital cases and about the personal risk factors possessed by

the particular defendant on trial. By the time of Mr. Ogrod's second trial in 1996, numerous

academic and other experts were available to testify on the subject of false confessions and to

analyze how a defendant's alleged confessions manifested the classic characteristics of false

confessions. See Leo Report at 6-8.

350. Notations in Mr. Greenberg's file indicate that he was aware that false-confession

expertise was available. He even recognized that such expertise "will be instrumental in

representing my client." See Letter from Greenberg to 0 'Connor, March 9, 1993. Mr. Greenberg

does not offer any tactical or strategic reason explaining why he did not present an expert on this

issue. Greenberg Aff. at ~ 9. Given his knowledge of the issue, there could be no reasonable basis

for his failure to retain or present a false confession expert or psychologist familiar with this issue.

112
 351. Thus, counsel ignored evidence that was available and would have assisted the jury

m assessing the reliability and validity of Mr. Ogrod's April 1992 confession. This is an

ineffectiveness claim with arguable merit. Commonwealth v. Martin, 5 A.3d 177, 199 (pa. 2010).

In light of Mr. Greenberg's own characterizations ofthe importance of expert testimony on false

confessions, it is "clear from the record" that there was no reasonable basis for failing to identifY

and present such an expert. Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).

352. In 1996, experts were also available to conduct the suggestibility testing, like the

testing done by Dr. Frumkin. See Frumkin Report at 4. However, as Mr. Greenberg admits, he was

not familiar with the Gudjonsson Suggestibility Scales. Greenberg Aff. at 'Il1O. Trial Counsel's

failure to investigate this issue and his overall ignorance on the topic precludes him from claiming

that he had a strategic rationale for his failure to obtain suggestibility testing.

353. There was no reasonable basis for Mr. Greenberg's failure to adequately investigate

Mr. Ogrod's inherent suggestibility and his vulnerabilities to giving a false confession. Although

Trial Counsel retained Dr. Tepper and Dr. Ganime to explore Mr. Ogrod's psychological make-up

to see ifit was consistent with someone who would give a false confession, neither of these experts

were experts in the realm of false confessions, nor were they provided adequate background

materials or requested to do adequate testing to properly make this determination.

354. Dr. Tepper admits that he is not an expert in false confessions, nor did he research

the issue when was retained to assess Mr. Ogrod in 1993. Tepper Aff. at 'Il8. He also clarifies that

he was not asked to conduct personality testing and that none of the tests he administered were

designed specifically to evaluate Mr. Ogrod's suggestibility. ld. at 'Il'll9-1 O. In Dr. Tepper's opinion,

the report that he submitted to Mr. Greenberg contained conclusions that related to Mr. Ogrod's

suggestibility (including that Mr. Ogrod had strong feelings of dependency, isolation, and

113
abandonment; that he lacked interpersonal and problem-solving skills; that he strived to be accepted

and appreciated by others; and that he could act in ways to obtain such acceptance). Yet trial

counsel never presented Dr. Tepper's testimony to the judge deciding Mr. Ogrod's motion to

suppress or the jury deciding Mr. Ogrod's guilt. See Tepper Aff. at ~ 15. Dr. Tepper adds that, had

he been given the additional information provided to him by undersigned counsel- specifically the

numerous lay witness affidavits from Mr. Ogrod's relatives and friends, he would have had stronger

support for his diagnostic findings about Mr. Ogrod and would have been able to diagnose Mr.

Ogrod with Personality Disorder NOS with avoidant, inadequate and dependent features. Id. at ~~

14, 16.

355. As for Dr. Ganime, when he was asked to testify on Mr. Ogrod's behalf he hadn't

treated Mr. Ogrod for a number ofyears, nor had he conducted any contemporaneous testing ofhim.

Although Mr. Greenberg was aware of this, he never requested that Dr. Ganime conduct a more

current evaluation of Mr. Ogrod. Nor did Mr. Greenberg provide Dr. Ganime with sufficient

background information about Mr. Ogrod during his adult life, as was provided in the affidavits

collected by undersigned counsel, in order to make this determination requested of him.

356. Mr. Greenberg could have had no reasonable basis for failing to ask Dr. Tepper or

any other qualified expert to conduct suggestibility testing or personality testing of Mr. Ogrod.

357. Setting the issue of expert witnesses aside, Mr. Greenberg never investigated or

identified lay witnesses who could have painted a pictnre of Mr. Ogrod as the gullible, people

pleasing person that he was, in order to show his inherent vulnerability to giving a false confession.

Mr. Greenberg's failure to properly investigate this issue and his resulting failure to discover

available and willing lay witnesses to explain what they knew about Mr. Ogrod's personality,

forecloses any argument that his decision not to present this evidence was somehow strategic.

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Wiggins v. Smith, 529 U.S. 510; Williams v. Taylor, 529 U.S 362.

E. Trial Counsel's Failure to Present Expert and Lay Witness Testimony to Cast
Doubt on the Reliability and Validity of Mr. Ogrod's Confession Prejudiced Mr.
Ogrod.

358. In light of counsel's failure to present the above-mentioned lay and expert witnesses,

Mr. Ogrod's purported confession to police, which the prosecution presented, remained essentially

unrebutted. Prosecutor Rubino repeatedly highlighted the uncontested nature of the confession in

her closing argument: "No one, as I told you in my opening witnesses this killing. Only the killer

knows what he did, and we can only tell what the killer did by his words, by what he told people he

did, and that person is Walter Ogrod and he described in detail, exactly what he did, and how he did

it, and how he killed little Barbara Jean Hom." NT 10/7/1996 at 36-37. She goes on to state: "I

submit to you that the evidence in this case is very clear and [ ] there has been no contradiction to

any of the testimony dealing with Walter's version of what happened." Id. at 66.

359. Had the jury received the guidance of experts on false confessions and police

interrogation techniques, and also heard expert and lay testimony about Mr. Ogrod's gullible nature,

there is a reasonable probability that they would have been willing to believe that people actually

do falsely confess and that Mr. Ogrod was one of those people. Had they heard this evidence, they

would have also been more likely to believe that jailhouse informant Jay Woichansky took

advantage of Mr. Ogrod as well. Trial Counsel's presentation of the above evidence would have

called into question the reliability ofMr. Ogrod's purported confession and blunted the prosecutor's

ability to argue otherwise. For all these reasons, had the above-cited evidence been presented to Mr.

Ogrod's judge at the motion to suppress hearing or at Mr. Ogrod's trial, there is "a reasonable

probability that the outcome of the proceedings would have been different." Commonwealth v.

Daniels, 963 A.2d 409,427 (Pa. 2009).

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 360. As experts in police procedures and false confessions knew, reliable confessions tend

to be corroborated by independent evidence; tend to contain non-public details that were not

previously known by the police and could not have been easily guessed by chance; tend to lead to

new, missing and/or derivative evidence; tend to explain case anomalies; and tend to fit with the

known facts and be corroborated by extrinsic evidence. In contrast, umeliable confessions tend to

be deficient in all of these categories. Expert testimony would have demonstrated that all of the

material facts of Mr. Ogrod's alleged confessions were previously known to the police and

Wolchansky. The testimony would have demonstrated how such facts were available from other

sources. Expert testimony would have given the jury a framework and a basis for finding Mr.

Ogrod's confession false and would likely have altered the outcome of the trial.

361. Lay witness testimony would have had a similar effect. By demonstrating that Mr.

Ogrod was the type of person who was inherently vulnerable to giving a false confession, lay

witness testimony, such as that provided in the affidavits set forth above, would also have had a

reasonable probability of changing the outcome ofMr. Ogrod's trial.

362. Consequently, the failure of Trial Counsel to prepare for and present such lay and

expert witnesses was highly prejudicial to Mr. Ogrod's case.

F. The Issue of Trial Counsel's Failure to Prepare and Present Lay and Expert
Testimony About False Confessions and Mr. Ogrod's Inherently Suggestible
Nature is Not Waived. To the Extent that Post-Verdict!Appellate Counsel was
Responsible for Raising the Issue, He was Ineffective.

363. The issue ofTrial Counsel's ineffectiveness for failing to present available testimony

about Mr. Ogrod's suggestible nature and susceptibility to false confessions is not waived. The

Court directed Post-Verdict!Appellate Counsel to limit the issues to those apparent from the record.

a 'Keefe Aff. at 'Il3. From that restriction, Mr. O'Keefe understood that he was not to retain experts.

116
Id. at ~ 8. This issue falls outside the issues the Court permitted Mr. O'Keefe to raise.

364. To the extent that Post-Verdict/Appellate Counsel was responsible for raising this

issue ofTrial Counsel's ineffectiveness, he was ineffective under the 6th and 14th Amendments. The

statement that Mr. Ogrod purportedly gave to the police on AprilS, 1992, was the only real evidence

that the prosecution could present to the jury. Lay and expert testimony about the fact that people

do, in fact, make false confessions, and presentation of a framework for evaluating the truthfulness

of Mr. Ogrod's confession would have weakened the entire foundation of the prosecution case.

Trial Counsel's failure to prepare and present the expert and lay witness evidence set forth above

is a claim of arguable merit.

365. Mr. O'Keefe never retained any experts, nor did he investigate and discover the lay

witnesses mentioned herein. Ifhe had investigated and presented the issue, there would have been

a reasonable likelihood of a different outcome on post-verdict motions or on appeal. Plus, Mr.

O'Keefe wanted to raise for Petitioner all issues of arguable merit. O'Keefe Aff. at ~ 9.

366. To the extent that Post-Verdict/Appellate Counsel was responsible for raising the

issue of Trial Counsel's ineffectiveness of presenting expert and lay testimony to combat the false

confession, Post-Verdict/Appellate Counsel's failure prejudiced Mr. Ogrod. The evidence from

expert and lay witnesses set forth above would have attacked the only incriminating evidence the

Commonwealth had against Mr. Ogrod: his confession. Given the paucity ofother evidence against

Mr. Ogrod, there is a reasonable probability that if Trial Counsel had presented this evidence the

outcome of the trial would have been different. Likewise, had Appellate Counsel raised this

meritorious issue, there is a reasonable probability that Mr. Ogrod would have been granted relief

on appeal. As a result, Mr. Ogrod suffered prejudice. Commonwealth v. Gibson, 951 A.2d 1110,

1120 (2008). See also Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996).

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Claim IV. THE COMMONWEALTH VIOLATED THE FIFTH, SIXTH, EIGHTH, AND
FOURTEENTH AMENDMENTS WHEN IT FAILED TO CORRECT FALSE
TESTIMONY AND DISCLOSE EXCULPATORY IMPEACHMENT
EVIDENCE REGARDING INFORMANTS JAYWOLCHANSKY AND JOHN
HALL; TO THE EXTENT THIS INFORMATION WAS AVAILABLE TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO UNCOVER AND
PRESENT THIS INFORMATION. THIS CLAIM IS NOT WAIVED. TO
THE EXTENT THAT POST-VERDICT/APPELLATE COUNSEL WAS
RESPONSIBLE FOR RAISING TRIAL COUNSEL'S INEFFECTIVENESS
FOR THIS CLAIM, POST-VERDICT/APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES.

367. The matters set forth in all other sections of this Petition are repeated and realleged

as if set forth entirely herein.

368. In prosecuting Mr. Ogrod the second time around, Prosecutor Rubino recruited and

utilized the "cooperation" of John Hall and Jay Wolchansky - two legendary criminals who had

track records for obtaining jailhouse confessions and testifying in high profile murder cases where,

prior to their involvement, the chance of conviction seemed slim. Only Wolchansky was called to

testify at trial.

369. John Hall and Jay Wolchansky were both career criminals, with long records of

arrests and convictions stretching back more than 20 years. See Pennsylvania State Police

Criminal History Recordfor John Hall, Compiled Oct. 20, 2005 ("Hall Criminal Record")

(Attached in Appendix); Pennsylvania State Police Criminal History Recordfor Jay

Wolchansky, Compiled Oct. 20, 2005 ("Wolchansky Criminal Record") (Attached in Appendix).

Both Hall and Wolchansky also had a history of cooperating with the Commonwealth in high

profile homicide cases. Hall, also known as "the Monsignor," was nothing short of a

professional cooperator, with a long track record of purportedly obtaining jailhouse confessions

and trading those confessions for leniency in his own criminal cases. See Bonavitacola Aff. at '\l

10; Lowenstein, Snitch Work. Similarly, JayWolchansky cooperated with the Commonwealth

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in at least one other homicide case that counsel is aware of. Interestingly, Hall was also a snitch

in the same case. See Dickson Aff.

370. In December of 1994, while incarcerated at the Philadelphia Detention Center

with Mr. Ogrod and Mr. Hall, Wolchansky purportedly befriended Mr. Ogrod. NT 10/4/1996 at

7-8. At that time, Wolchansky was in prison awaiting trial and sentencing for three attempted

burglaries. Similarly, Hall was awaiting sentencing of assaulting a police officer with a deadly

weapon, i.e., the car he had driven in a high speed chase. Hall and Wolchansky both knew that

their open cases, on top of their extensive existing records (which spanned over 20 years for each

man), exposed them each to a lengthy state sentence.I!!

371. On January 6, 1995, Hall concocted Mr. 0 grod' s supposed jailhouse confession and

offered it to two Philadelphia homicide detectives. Additionally, Hall also "gave" the concocted

confession to Wolchansky so that the latter could also bargain for leniency with respect to his

pending attempted burglaries case.

372. On January 23, 1995, Wolchanskywrote to ADA JosephP. Casey, the prosecutor at

Mr. Ogrod's first trial, claiming that Mr. Ogrod speaks constantly about the killing and won't shut

up about it. See Wolchansky Letter to ADA Casey, Jan. 23, 1995, Trial Ex. C-23 (Attached in

Appendix). Sometime in the next two months, having yet to get a response from Casey,

Wolchansky wrote a five-page, undated, single-spaced letter to District Attorney Lynne Abraham

purportedly detailing Mr. Ogrod' s jailhouse confession. See Wolchansky Letter to Abraham. Then,

on March 20, 1995 Wolchansky met with and gave a statement to Detective Michael Gross of the

lQ For these felony of the first degree aggravated assault charges, which were a secoud strike, Hall was
facing a mandatory sentence of25-50 years and, if convicted of the first degree felony charge, he would receive that
sentence. For the three attempted burglary charges, Wolchansky was facing a potential sentence 000-60 years (l0-
20 years for each charge) and under the Sentencing Guidelines he was considered a REFL and was likely to receive
close to that sentence.

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Philadelphia Police Department Homicide Division. Wolchansky affinned his letters to Casey and

Abraham and claimed that he expected to get nothing out of writing the letters. See Wolchansky

Statement to Police, March 20, 1995, Trial Ex. D-9 (Attached in Appendix). Two days later after

speaking to Detective Gross, Wolchansky was sentenced concurrently to 11 Y2 to 23 months for the

three attempted burglaries despite having a record of more than ten prior felony convictions. See

Wolchansky Plea Agreement, March 22, 1995, Trial Ex. D-I0 (Attached in Appendix).

373. Prior to Mr. Ogrod's trial, the prosecutor provided Trial Counsel with a copy of

statements that both men had given to police and prosecutors. These statements were strikingly and

incredibly identical in content as well as in the intense level of detail provided. The coordination

of their stories should not have been a surprise, at least to the prosecutor, given that the jailhouse

snitches "cooperated" together in the past - both testifYing in the high profile 1995 prosecution of

David Dickson for the killing of a Drexel student. Dickson Aff. at ~ 8.

374. Beyond these two statements, the Commonwealth should have turned over the

following additional impeachment materials to Mr. Greenberg, but failed to do. First, the

Commonwealth failed to disclose secret promises, benefits and deals given to Wolchansky and Hall

in exchange for their cooperation. It allowed Wolchansky's false testimony in this regard to stand

uncorrected. Second, the Commonwealth secreted the fact that both Wolchansky and Hall were

professional snitches utilized in a number ofcases by the Philadelphia District Attorney's Office and

one of those cases had the same prosecutor and was ongoing at the time of Mr. Ogrod's trial and

another ofthose cases involved both men jointly cooperating as they did in Mr. Ogrod's case. Third,

the Commonwealth failed to disclose Wolchansky's extensive mental health and substance abuse

history and his on-going treatment at the time of Mr. Ogrod's trial. Finally, the Commonwealth

failed to reveal the full extent ofWolchansky's criminal history and allowed him to testify falsely

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in this regard. The Commonwealth's suppression of this exculpatory evidence with regard to

Wolchansky and Hall violated Brady v. Maryland, 373 U.S. 83 (1963), Napue v. Illinois, 360 U.S.

264, 269 (1959), and Giglio v. United States, 405 U.S. 150 (1972).

A. The Commonwealth Failed to Correct Wolchansky's False Testimony or

Disclose the Leniency He and John Hall Received in Exchange for Their
Cooperation.

375. The Commonwealth built its retrial around the testimony of Jay Wolchansky - a

chronic drug addict, repeat burglar and forger, and frequent inmate in Pennsylvania prisons - who

testified under the alias "Jason Banachowski" and told the jury that Mr. Ogrod purportedly

confessed to him at the Philadelphia Detention Center in December 1994 and that he was getting

nothing from the government in exchange for his testimony. However, Wolchansky's testimony

was false in many respects. Wolchansky lied when he stated that he was friendly with Mr. Ogrod.

He also lied when he testified that Mr. Ogrod had confessed to him. And finally, he lied when he

testified that he expected nothing in return for agreeing to testify against Mr. Ogrod.

B. Wolchansky Did Not Receive Any Information From Walter Ogrod, Rather He
Conspired With John Hall to Manufacture Mr. Ogrod's Purported Jailhouse
Confession.

376. On August 10, 2005, John Hall signed an affidavit admitting that Hall, not Mr.

Ogrod, had been the source of the information in Wolchansky's testimony at Mr. Ogrod's second

trial. See Hall Aff. at ~~ 14-15.

377. Hall and Wolchansky were both incarcerated at the Philadelphia Detention Center

in December 1994. Hall Aff. at ~~ 6 & 11. Hall observed that Wolchansky was not friendly with

Mr. Ogrod. In fact, Wolchansky's interactions with Mr. Ogrod were "mean-spirited or teasing."

Wolchansky and Mr. Ogrod did not have "substantive conversations." Hall Aff. at ~ 13. Hall, in

his own conversations with Wolchansky, determined that the latter "knew virtually nothing of the

121
circumstances ofBarbara Jean Hom's murder or about Mr. Ogrod's background or interactions with

the police." Hall Aff. at ~ 15.

378. Hall further admitted in his affidavit that he provided Wolchansky with all the

information that Wolchansky subsequently offered to prosecutors to aid and abet the prosecution

of Mr. Ogrod. Wolchansky knew that Hall had met with the police about Mr. Ogrod on or about

January 6, 1995, and Wolchansky asked Hall "to provide him with the details ofthe January 6, 1995

statement that [Hall] made to the D.A. Office." Hall Aff. at ~14. Hall confirmed that he gave

Wolchansky "each and every detail of that statement." ld.

379. Hall knew that Wolchansky subsequently wrote a letter to the D.A. offering to help

prosecute Mr. Ogrod. Moreover, Wolchansky admitted to Hall that "he [had] obtained virtually all

ofthe information that he included in his letter to District Attorney Abraham solely from details that

I included in my [Hall's] January 6,1995 statement." Hall Aff. at ~17.

380. At trial, Jay Wolchansky lied about having heard the purported confession directly

from Mr. Ogrod. NT 10/4/1996 at 8. Compare Hall Aff. at ~ 17.

381. John Hall, the confession fabricator who was the source ofWolchansky' s purported

knowledge, did not testify at Mr. Ogrod's second trial. Hall had given the purported jailhouse

confession to the prosecution on January 6,1995 (more than two weeks before Wolchansky's first

letter), but "was advised by Assistant District Attorney Rubino that, because the District Attorney's

Office intended to have [Hall] testify for the prosecution in another high profile murder case, the

'Jogger Murder,' it had decided not to have [Hall] testify in the Ogrod case." Hall Aff. at ~10. John

Hall also admitted to his wife, Phyllis Hall, that "the government decided it could not use [Hall] as

a witness at Mr. Ogrod's trial." Phyllis Hall Aff. at ~ 10.

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 C. John Hall and Jay Wolchansky Fabricated Mr. Ogrod's Purported Jailhouse
Confession as Part of a Plea-Bargaining Gambit.

382. John Hall was married to Phyllis Hall. Mr. Hall was frequently imprisoned during

the marriage. According to Mrs. Hall, John Hall "spent maoy years in and out (mostly in) ofprison

until he died at the age of 54 in 2006." Phyllis Hall Aff. at ~2. Mr. Hall was a frequent

correspondent to his wife, aod he admitted to her that he frequently testified against other prisoners

in order to obtain leniency in sentencing for the crimes for which he himself had been arrested aod

convicted.ld.aL~3.

383. Mr. Hall admitted to his wife that his modus operandi was to secure from a variety

of sources detailed info=ation about the life aod convictions of other prisoners, the alleged crimes

for which they had been arrested, aod the details of their alleged crimes. Mr. Hall would then

fabricate ajailhouse confession aod offer it to police aod prosecutors in return for leniency. Phyllis

Hall Aff.~ 4.

384. John Hall admitted to Mrs. Hall that he used this modus operandi against Mr. Ogrod

in order to obtain leniency in sentencing. Mr. Hall further admitted to his wife that he fabricated

Ogrod's purported jailhouse confession:

With respect to Walter Ogrod, John told me that he gathered facts about Walter
Ogrod that he could present to the prosecution so that it could use John as a witness
at trial to testify against Mr. Ogrod. He told me that he put together a very detailed
account of a story that he told the prosecutors he received from Mr. Ogrod about Mr.
Ogrod's involvement in the murder of Barbara Jeao Hom. John told me that the
story was not true. John told me that Walter Ogrod never told John that Mr.
Ogrod killed Barbara Jean. As John told me was his pattern. he made !l/!. {! story
about Mr. Ogrod's involvement in the crime - aod colored the story with maoy
true aod verifiable details - so that his claim that Mr. Ogrod had confessed to the
murder would be deemed credible.

Phyllis Hall Aff. at ~ 5 (emphasis added).

385. John Hall also confi=ed to Mrs. Hall that he had supplied Jay Wolchaosky with the

123
fabricated confession that was used by Wolchansky at Ogrod's second trial:

John told me that he had decided to "give" the story he had compiled about Mr.
Ogrod to one of John's friends in prison, Jay Wolchansky, so that Jay could offer to
testify against Walter Ogrod in exchange for leniency in Jay's sentencing (or a
reduced sentence). John told me that Walter hated Jay Wolchansky and never spoke
to him. John, however, gave Wolchansky the details of the story that he had
gathered, including the false claim that Walter had confessed about killing
Barbara Jean, so that Jay could falsely claim to the government that Mr. Ogrod had
shared such details and confession with Jay.

Phyllis Hall Aff. at ~ 10 (emphasis added).

386. In aletter datedJune 11, 2004, John Hall further admitted that Wolchanskyhad lied

at Mr. Ogrod's trial and that Hall had supplied Wolchansky with his false testimony. Hall viewed

both himself and Wolchansky as protected from any prosecution for perjury because he believed a

statute of limitations had run:

This stuff about Ogrod is interesting, but it doesn't really affect me. I never
participated in the prosecution, so I have no liability. Even ifI had testified and the
allegation was that i1. was perjury. this would also be irrelevant as the trial
occurred in 1996 or 1997 and the statute gf limitations is i years. Obviously
outside the limit. even f!!1:.Jay. lfhe wants to come forward and sayhe lied he can
without legal liability. In fact he did lie because Ogrod didn't speak to him. Ogrod
hated Jay. He only liked me. I'm the one he spoke to.

Phyllis Hall Aff. at ~ 12, Ex. I, Letter from John Hall to Phillis Hall, June 11, 2004.

D. Both Hall and Wolchansky Bargained Successfully for Leniency in Exchange

for Their Cooperation and Testimony Against Mr. Ogrod.

387. Phyllis Hall authenticates a series ofletters that her husband wrote to her from prison.

See Phyllis Hall Aff. These letters confirm that both Hall and Wolchansky used the purported

Ogrod confession to bargain for leniency and that they in fact were promised and given leniency by

the Commonwealth.

388. In a letter dated October 20,2003 that John Hall wrote to his wife from the Lehigh

County Prison, he admitted that he provided the fabricated Ogrod confession to Wolchansky and

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also used it to obtain leniency. Hall wrote: "I have no liability with Ogrod. I didn't testify. Jay did.

But I didn't just give it to him. I used it first." Phyllis Hall Aff., Ex. H, Letter from John Hall to

Phyllis Hall, October 20,2003 ("Hall Letter 10/20/2003"). Mr. Hall further admitted that both he

and Wolchansky received leniency in return for supplying a purported Ogrod confession to the

prosecution:

I had aggravated assault on police which is a felony of the first degree. Because it
would have been my third or fourth conviction I could've been sentenced to 25-50
years mandatory minimum. I had to get it off me, and I did. In exchange (or !!!.J1
Ogrod cooperation IT was-reduced to 9-18monthsUand other stuf(,too.i Javgot-
11'h =23 months. Evervbodv made out.

Hall Letter 10/20/2003.

E. The Commonwealth Failed to Reveal That It Provided Lenient Sentences to

Both Hall and Wolchansky in Consideration for Their Cooperation in the
Prosecution of Mr. Ogrod.

389. By a letter dated August 9, 1996, Assistant District Attorney Judith Rubino provided

Mr. Greenberg with a copy of John Hall's January 6, 1995 statement to the Police. Letter from

Rubino to Greenberg, Aug. 9, 1996. The very next day, ADA Rubino ordered Mr. Hall transported

to Philadelphia and informed him that he would not testify in Mr. Ogrod's trial, but instead would

be used in another capital case in which he had also supplied a jailhouse confession to prosecutors.

See Letterfrom Mark H Shaffer to Greenberg, Aug. 28, 1996 ("Shaffer letter 8/28/96") (Attached

in Appendix).

390. DA Rubino did not disclose this information to Trial Counsel, who was attempting

to learn information about both Hall and Wolchansky. See, e.g., Letterfrom Greenberg to Defender

Association ofPhiladelphia, Aug. 14, 1996 (Attached in Appendix); Shaffer Aff. at ~ 5. See also

Letter from Greenberg to Harry Seay, Esq., Aug. 14, 1996 (Attached in Appendix) ("I have been

told by the Commonwealth that it intends to call two witnesses, John Hall and Jay Wolchansky to

125
testify against Mr. Ogrod.").

391. On August 16, 1996, Trial Counsel demanded to know in writing if the

Commonwealth had "supplied either Mr. Hall or Mr. Wolchansky with any consideration in

connection with their testimony in this or any other case." See Letter from Greenberg to Judith

Rubino, Aug. 16, 1996 (Attached in Appendix). The Commonwealth never provided counsel with

any information about the leniency in sentencing that it had negotiated with both John Hall and Jay

Wolchansky. In fact, during Mr. Ogrod's second trial in 1996, Prosecutor Rubino insisted there was

no deal. She vigorously objected to a perfectly allowable cross-examination ofWolchansky which

attempted to point out the fact that Wolchansky's pleading to a concurrent sentence for three

different crimes took place only two days after his giving a statement to Police Detective Michael

Gross:

Q. Now you've talked about the difference between concurrent time and
consecutive time. Can you tell us, Mr. Banachowski, could you see what has been
written in hand on the top of this plea agreement that was signed by you, the judge
and the district attorney?

A. It says, "This plea is made pursuant to agreement to allow defendant to

consolidate per PA's ..." something"... 1402 his open cases for concurrent time."

Q. For concurrent time?

A. Correct.

Q. Okay. So. the agreement that yOU entered into with the District Attornev
two days after the interview with Detective Gross --

MS. RUBINO: Objection to the reference to Detective Gross every time. Your
Honor.

MR. GREENBERG: Well--

MS. RUBINO: The two things had nothing to do with each other.

NT 10/4/1996 at 73.

126
 392. The prosecutor used the inappropriate objection as a disingenuous tactic to argue "no

deal" to the jury during Trial Counsel's cross examination. The prosecutor then proceeded to insist

there was no deal by eliciting the following additional testimony from Wolchansky on redirect:

"Did anybody ask you [at the time of sentencing] if you would testify against Mr. Ogrod? No." ld.

at 80. The prosecutor even went so far as to have Wolchansky waive the attorney-client privilege

by stating that his attorney -- Mark Frumer (who also represented John Hall) -- did not know that

he had talked to a homicide detective. ld.

393. On or about August 28, 1996, John Hall a<irnitted to investigator Mark H. Shaffer that

he [Hall] would not be testifying at Mr. Ogrod's trial. Hall stated that "the District Attorney's office

did not want him to also testify in the Walter Ogrod case." See Shaffer Letter 8/28/96. Hall lied to

the investigator about "being promised anything by the police in return for his testimony." ld. Hall

"specifically denied any leniency or sentence consideration influence or letters being written." ld.

This is the exact opposite of what Hall admitted to his wife in writing on more than one occasion.

394. Wolchansky repeatedly lied during Mr. Ogrod's trial when asked whether he had

traded his story about Mr. Ogrod for leniency. He denied it on direct. NT 10/4/1996 at 18. He

denied it on cross examination, id. at 66, 69 and 70, and he denied it again on redirect, id. at 80.

395. Although he would not admit to a deal during trial, Wolchansky admitted his own

motivations to his sidekick and co-conspirator John Hall in a letter written to Hall on August 7,

1996. In a letter that he mailed to Phyllis Hall to be sent to John Hall, Wolchansky wrote: "1 will

not do anything for the Ogrod trial unless I am free first. And then I will only think about doing it,

since I don't enjoy the publicity. I guess this will be allover the news. And I want to avoid this

aspect of it all." Letter from Wolchansky to John Hall, Aug. 7, 1997 (Attached in Appendix).

396. Although still incarcerated on a parole violation at the time he testified against Mr.

Ogrod on October 4, 1996, Wolchansky was released soon thereafter.

127
 F. The Commonwealth Violated Brady and Napue by Withholding Evidence ofthe
Agreements Made With Both Hall and Wolchansky and by Failing to Correct
the False Testimony ofWolchansky.

397. "Any implication, promise or understanding that the govemment would extend

leniency in exchange for a witness' testimony is relevant to the witness' credibility." United States

v. Giglio, 405 U.S. at 154.

398. "Exculpatory evidence favorable to the accused is not confined to evidence that

reflects upon the culpability of the defendant. Exculpatory evidence also includes evidence of an

impeachment nature that is material to the case against the accused." Napue v. Illinois, 360 U.S .
. - - -

264,269 (1959); Commonwealth v. Strong, 761 A.2d 1167,1171 (Pa. 2000) (quoting Napue). The

Pennsylvania Supreme Court characterized as a "sage observation" the insight that the "jury's

estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or

innocence, and it is upon such subtle factors as the possible interest of the witness in testifying that

a defendant's life or liberty may depend." 360 U.S. at 269, quoted at 761 A.2d at 1171.

399. Strong declares that a definitive agreement is notrequired to implicate the credibility

of a witness. Nor is a definitive agreement needed to compel disclosure of plea bargaining by the

prosecution. "[T]he absence of an ironclad contract in exchange for [the witness's] testimony is not

dispositive." Id. at 467, citing Giglio, 405 U.S. at 154. As characterized by Strong, Giglio holds

that "[a]ny implication, promise or understanding that the govemment would extend leniency in

exchange for a witness' testimony is relevant to the witness' credibility." 761 A.2d at 1171.

400. The evidence collected by undersigned counsel shows an undisclosed deal in Mr.

Ogrod's case. Although the Commonwealth has never disclosed the existence of a deal with any

witnesses, and in fact vehemently denied the existence of any agreement at trial, one of the

recipients ofleniency, John Hall, admitted that he and Wolchansky implicated Mr. Ogrod in return

for avoiding severe punishment in open criminal matters. Moreover, Hall admitted that he and

Wolchansky fabricated the jailhouse confession in order to trade the information for leniency.

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Further, Wo1chansky admitted that he would not testifY unless rewarded, and Hall confirmed that

"everybody made out." "Everybody" includes the prosecution and the snitches but does not include

Mr.Ogrod.

401. Considered cumulatively and individually, the following undisclosed facts violated

Mr. Ogrod's rights under Brady and Strong: John Hall's admission that he invented Mr. Ogrod's

supposed jailhouse confession; Hall's admission that he invented the confession in order to bargain

for leniency; and the lenient sentence for Hall to which the Commonwealth agreed in exchange for

his cooperation.

402. In addition, Petitioner avers that the prosecution knowinglypresented false testimony,

as set forth above, regarding whether Wo1chansky had any expectation ofleniency, violatingNapue.

G. The Commonwealth Never Disclosed The Full Extent ofWolchansky's Criminal

History to Trial Counsel and Thereby Deprived the Jury of Important
Information to Assess Wolchansky's Credibility.

i. Wolchansky's Real Criminal Record

403. Jay Wo1chansky was no stranger to the Philadelphia District Attorney's Office

that prosecuted him at least 20 times over a ten year period and sought substance abuse and

mental health evaluations and treatment for him on at least 10 different occasions. See

Wolchansky Criminal Record.

404. In May 1985, Wo1chansky burglarized a store located at 2052 Fairmont Avenue.

He was convicted of burglary and criminal conspiracy and was sentenced to 7 liz to 23 months

incarceration, following a court ordered psychiatric and substance abuse evaluation. See Court

Records, Commonwealth v. Wolchansky, M.C. No. 89/05-3344 (Attached in Appendix).

405. Two months later, in July 1985, he was caught attempting to steal a Ford Mustang

hatchback with out-of-state plates belonging to Kelly Harmon. He was convicted of felony

attempted theft and was sentenced, following yet another psychiatric and substance abuse

evaluation, to I liz months to 12 months incarceration with immediate parole to an inpatient drug

129
and alcohol treatment program. See Court Records, Commonwealth v. Wolchansky, M.C. No.

85/07-1965 (Attached in Appendix).

406. Five months later, in December 1985, Wolchansky was arrested yet again, this

time for running down the back stairs and then slipping out of handcuffs after being placed under

arrest for violations of his parole. He had violated parole because he missed 20 appointments

with his parole officer and tested positive for drugs. He was found guilty of felony escape and

sentenced to 3 to 23 months incarceration and once again was sentenced to complete inpatient

drug treatment followed by outpatient drug treatment. See Court Records, Commonwealth v.
-

Wolchansky, M.C. No. 85/11-2640 (Attached in Appendix).

407. In June 1986, Wolchansky was arrested for burglary, criminal trespass, theft, and

receiving stolen property for breaking a window and stealing property (the cash register and

several bottles ofliquor) from inside Adrian's Bar. Wolchansky pled guilty and was sentenced

to 3 to 23 Yz months incarceration. See Court Records, Commonwealth v. Wolchansky, M.C. No.

86/06-3581 (Attached in Appendix).

408. In January 1988, Wolchansky was arrested for forgery, receiving stolen property,

theft by deception and four counts of bad checks for being in possession of and signing four

duplicate payroll checks in the name of Taylor & Fenn Co. Wolchansky was convicted and

sentenced to 3 Y2 to 7 years incarceration. See Court Records, Commonwealth v. Wolchansky,

M.C. No. 89/03-3376 (Attached in Appendix).

409. In June 1989, Wolchansky was arrested for burglary, theft, conspiracy, criminal

trespass, and receiving stolen property for breaking into the residence of Elizabeth Thompson

and stealing two leather coats, jewelry, stereos, three bicycles, and an answering machine - all

valued in excess of $1,000. He was found guilty of all counts and sentenced to 4 Yz to 10 years.

See Court Records, Commonwealth v. Wolchansky, M.C. No. 89/05-4847 (Attached in

Appendix).

130
 410. In June 1989, Wolchansky was charged with burglary, theft, and receiving stolen

property for breaking into the residence of Trudy Johnson by breaking a window and eventually

kicking in the front door and stealing a TV, VCR, vacuum cleaner and some jewelry. He was

convicted and sentenced to 4 Yz to 10 years to run concurrent with the 4 Yz to 10 years he

received for the burglary of Ms. Thompson's home and the 3 Yz to 7 years he received for the

forgery conviction involving the payroll checks. See Court Records, Commonwealth v.

Wolchansky, M.C. No. 89/05-4848 (Attached in Appendix).

411. In July 1994, Wolchansky was arrested for attempted burglary, criminal mischief,
-

PIC, attempted criminal trespass, and attempted theft by breaking a window, throwing a brick at

the front door, and attempting to enter Shelly's Cold Beer Restaurant. He was ultimately

sentenced to 11 Yz to 23 months incarceration followed by 3 years reporting probation under the

supervision of the Drug and Alcohol Unit. See Court Records, Commonwealth v. Wolchansky,

M.C. No. 94/07-2457 (Attached in Appendix).

412. In November 1994, Wolchansky was arrested for burglary, criminal mischief,

attempted theft, criminal trespass, and possessing an instrument of crime ("PIC") for attempting

to enter the residence of Herbert Weiman by using a brick to break a window and hitting the lock

of the door. He was convicted and sentenced to 11 Yz to 23 months plus three years reporting

probation. See Court Records, Commonwealth v. Wolchansky, M.C. No. 94/11-0917 (Attached

in Appendix).

413. In December 1994, Wolchansky was caught breaking into (through a basement

window) the residence ofKyung Chang and charged with attempted robbery. He was sentenced

to 11 Yz to 23 months in prison plus three years probation. See Court Records, Commonwealth v.

Wolchansky, M.C. No. 94/12-1913 (Attached in Appendix).

414. In addition to the above-mentioned felony charges, Wolchansky had a number of

arrests for misdemeanor charges (disorderly conduct, attempted theft, criminal mischief, and

131
PIC), most of which were consolidated with felony cases that were then awaiting disposition.

See Wolchansky Criminal Record.

ii. The Commonwealth Only Disclosed A Portion of Wolchansky's

Criminal Record.

415. The full extent ofWolchansky's criminal history and the details of the crimes for

which he was prosecuted and convicted, as set forth above, were not elicited on direct or cross

examination during Mr. Ogrod's trial.

416. During direct examination by the prosecutor, Wolchansky admitted to having

pled guilty in March 1995 to three attempted burglaries. NT 10/4/1996at 4. He 111so aclmitt{ld

(without supplying any detail) to prior convictions for "theft, burglary and forgery." ld. at 5. He

further admitted that, when he pled guilty to the three attempted burglaries in March 1995, he

was sentenced to imprisonment of 11 y" to 23 months and three years of probation. He received

this sentence for each of the three convictions, but all three were to run concurrently.

Additionally, by the time he testified in October 1996, he was deemed by the Commonwealth to

have completed that sentence in 15 months. ld. at 6. Finally, Wolchansky testified that he had

never been convicted of a crime of violence. ld. at 7.

417. On cross examination, Wolchansky admitted he had been convicted about ten

times for burglary before the crimes to which he admitted on direct. ld. at 25. He further

admitted that he had been convicted four times for theft from automobiles and four times for

forging checks, for a total of what he described as "about 15 or so" convictions. ld. at 26.

418. Wolchansky's testimony as to his criminal record was incomplete and inaccurate.

He understated the extent of this record and failed to discuss the details of even one of his

convictions, let alone his persistent violations of parole and probation.

419. Moreover, Wolchansky's assertion that he was never convicted of a crime of

violence was untrue. Under Pennsylvania law burglary is considered a crime of violence.

Commonwealth v. Pruitt, 951 A.2d 307,321 (pa. 2008) ("[B]urglary is always classified as a

132
violent crime in Pennsylvania"); Commonwealth v. Rios, 920 A.2d 790,814 (Pa. 2007) (same);

Commonwealth v. Rolan, 549 A.2d 553, 559 (Pa. 1988) ("[T]he crime of burglary has always

been and continues to be viewed as a crime involving the use or threat of violence to the

person."). In fact, if the property is occupied it qualifies as a strike under Pennsylvania's three

strike legislation.

420. The prosecutor not only elicited Wolchansky's false testimony, she allowed it to

stand uncorrected, in violation ofMr. Ogrod's Fourteenth Amendment rights and her obligations

as an officer of the Court and a representative of the Commonwealth. See Napue, 360 U.S. 264.

iii. The Full Extent of RaIl's And Wolchansky's Prior Cooperation -

Including Their Joint Cooperation in the Prosecution of David
Dickson - Was Not Disclosed to Trial Counsel, Nor Was It Revealed to
the Jury That Decided Petitioner's Fate.

421. The Philadelphia District Attorney's Office was more than familiar with John

Hall and Jay Wolchansky. The Philadelphia DA's Office and District Attorney's Offices in

surrounding counties used John Hall as a "cooperator" in numerous se.parate homicide cases

spanning from 1991 to 1997: including prosecutions of defendants Walter Ogrod, Raymond

Martorano,ll David Dickson,g Herbert Haak and Richard Wise,11 Ernest Priovolos,l1 Michael

!l See Letter from Hall to Mark J. Frumer, Esq., July 29, 1994 (providing his attorney with information
about numerous criminal activities of"RM" or "Raymond"); Letter from ADA Joseph Casey to Frurner, Aug. I,
1994 (stating that the Philadelphia District Attorney's office is interested in hearing Hall's proffer); John Hall Police
Interview Record, Aug. 3, 1994 (providing information about multiple open homicide cases involving the Martorano
family); John Hall Police Interview Record, Aug. 4, 1994 (same); John Hall Aff., Aug. 19, 1994 at ~ 9 ("That the
reason I had used other names was to protect myself from intimidation and/or retaliation ... because of my
cooperation prosecutoriallaw enforcement attorneys and police that utilized my services as an investigative agent
and/or a trial witness in multiple murder cases, and other usually violent major felonies, in Bucks County,
Montgomery County, Northampton County, Philadelphia County (pennsylvania).... All trials resulted in
convictions...."); John Hall Aff., Oct. 9, 1994 (providing information about the criminal activities of Raymond
Martorano); John Hall Verification of Aff, Oct. 12, 1994 (authorizing his attorney to discuss the contents of his
10/9/1994 affidavit with county, state, and federal law enforcement). Documents re: Hall's Cooperation against
Raymond Martorano (Collectively Attached in Appendix)
II See Letter from Hall to ADA Roger King, Oct. 12, 1995 (relating David Dickson's jailhouse confession
to murder); John Hall Police Interview Record, Oct. 19, 1995 (authenticating his 10/12/95 letter to ADA Roger King
and relating David Dickson's jailhouse confession to murder); See Commonwealth v. Hall, Bucks County Court of
Common Pleas, NT 3/27/1996 (guilty plea and sentencing) (hereafter "Hall 3/27/1996 Sentencing") at 17-18
(philadelphia police officer testifying that Hall testified against Dickson in a trial that resulted in a murder
conviction). Documents re: Hall's Cooperation Against David Dickson (Collectively Attached in Appendix)
11 See John Hall Police Interview Record, Nov. 28, 1995 (conveying a jailhouse confession to homicide by
Herbert Haak and involving Richard Wise); Letter from Hall to Attorneys Siegal and McMahon, Dec. 2, 1996
(stating that he did not wish to be interviewed by the defendants' attorneys or investigators prior to the defendants'

133
(Richard) Dirago,J-'- Thomas DeBlase,lQ Tremayne Smith,ll and Jean Claude Pierre Hill.!! In two

of those cases (the prosecution of Herbert Haak and Richard Wise for the Center City jogger

killing and the murder of a video store clerk in Warminster), Hall was not called to testifY

because he was found to have fabricated information and planted evidence to support his

fictitious version of events. In one of these cases, both Hall and Jay Wolchansky served as joint

"cooperators," with Wolchansky testifying at the first trial that ended with a hung jury and Hall

testifying at the retrial and obtaining a conviction.ll As Hall stated in a letter to his wife,

Wolchansky couldn't do anything right and in this instance he had to clean up his mess and

successfuliydid so - obtaIning a win for the Commonwealth. See Phyllis Hall Aff. None of this

information was provided to Trial Counsel or presented to the jury that convicted and sentenced

trial and that his attorney had advised that he could be crossed examined by the attorneys during trial; cc to ADA
Judith Rubino); John Hall Petition for Immunity from Prosecution, Jan. 22, 1996 (stating that he did not lmow the
vehicle he arranged to dispose of in November 1995 and the necklace that he possessed in prison belonged to
Kimberly Ernest, who was raped and murdered by Herbert Haak and Richard Wise). Documents re: Hall's
Cooperation against Herbert Haak and Richard Wise (Collectively Attached in Appendix). See Hall 3/27/1996
Sentencing at 18-19 (Philadelphia police officer testifying that, "based on infonnation John Hall supplied, we locked
up two males" for the murder ofK.imberly Earnst).
li See Letter from Montgomery County ADA David Keightley to Bucks County ChiefDA C. Theodore
Fritsch, Jan. 2, 1990 ("John Hall ... has cooperated fully with the authorities in a number ofvery important murder
prosecutions" that are not a matter of public record and testified in Commonwealth v. Priovolos); Letter from
Montgomery County ADA David Keightley to Philadelphia County DA Lynn Abraham, Aug. 28, 1991 ("Hall has
been a Commonwealth witness in many different prosecutions, including, most recently, Commonwealth v.
Priovolos" and "respectfully suggest[ing] that a State sentence is not appropriate for Hall" because state inmates
"would be familiar with Hall's frequent testimony"). Documents re: Hall's Cooperation against Ernest Privolos
(Collectively Attached in Appendix)
!2 See Letter from Bucks County ChiefDeputy DA C. Theodore Fritsch to Philadelphia County DA Lynn
Abraham, Aug. 15, 1991 (stating that in 1988 Hall conveyed a jailhouse confession from Richard Dirago a few days
before Dirago's murder trial and changed the DA's "rather slim" chances of a conviction into a conviction, with Hall
as a key prosecution witness; Hall also cooperated in other Bucks County cases); Tom Bell, Witness for the
Prosecution, BURLINGTON COUNTY TIMES, April 10, 1991, at A3 (stating that Hall infonned prosecutors about
Dirago's jailhouse confession to murder). Documents re: Hall's Cooperation against Michael (Richard) Dirago
(Collectively Attached in Appendix)
1-' See Hall 3/27/1996 Sentencing, at 15 (describing a letter from the Montgomery County District
Attorney's Office detailing Hall's cooperation in the murder conviction ofThomas DeBIase). See also Letter from
ADA Bruce Castor Jr. To Dean P. Arthur, Esq, May 24, 1993; Letter from ADA Bruce Castor Jr. to Hall, December
14, 1994. Documents re: Hall's Cooperation against Thomas DeBiase (Collectively Attached at Appendix) .
11 See Hall3/27/1996 Sentencing at 19-20 (Philadelphia police officer testifying that Hall contacted him
with Smith's jailhouse confession to the murder of a one-year-old child).
!.! See Jim MacMillon, The Snitch, PHIlADELPHIA DAILY NEWS, Feb. 27, 1997, at 4; William Bunch, The
Snitch: Career Thiefa Master at Dropping the Dime, PHIlADELPHIA DAILY NEWS, Feb. 27, 1997, at 5,22.
Documents re: Hall's Cooperation against Jean Claude Pierre Hill (Collectively Attached in Appendix)
12 See Footnote 7, supra (Hall's cooperation in the prosecution ofDavid Dickson).

134
·Mr. Ogrod to death.

422. The first known case that Hall was involved in was a shooting that occurred in

1991 outside of a restaurant on Philadelphia's Benjamin Franklin Parkway. One person was

killed and two were injured.~ The second case was the 1993 murder oftwo 20 year old clerks in

a video store in Warminster. The prosecutor handling that case decided not to use Hall, finding

that his story was incredible and fabricated.£.! This history of cooperation and providing false

statements to police and prosecutor's was never revealed to Mr. Ogrod's trial attorney.

423. The third case Hall was involved in is particularly relevant because that case was

prosecuted by ADA Joe Casey, who prosecuted Mr. Ogrod's first trial which ended in a hung

jury (with the verdict slip showing a unanimous not guilty verdict). That case involved mob-

related murders that occurred in 1994, just after Mr. Ogrod's first trial, but before his second

trial.

424. Hall signed his proffer of cooperation with ADA. Casey on August 2, 1994.ll The

Commonwealth never disclosed Hall's cooperation in this case to Mr. Ogrod's attorney and the

jury that convicted Mr. Ogrod and sentenced him to death never learned about Hall's

cooperation in Mr. Ogrod's case or in the 1994 mob murder case.

425. The fourth case was the highly publicized 1984 murder of Drexel student

Deborah Wilson where the perpetrator's foot fetish led to extensive media coverage of the

incident. Some eleven years after the crime occurred, Hall and his cohort Wolchansky both came

forward claiming that David Dickson had separately confessed to each of them. Wolchansky

testified at Dickson's first trial which ended in a mistrial because the jury was deadlocked. See

Dickson Aff. 8. Hall testified at the retrial, resulting in Dickson's conviction and sentence to life

li! See MacMillan, The Snitch; Bunch, The Snitch.

'!l Id.

1.1 Letter from ADA Joseph Casey to Fromer, Aug. I, 1994 (stating that the Philadelphia District Attorney's
office is interested in hearing Hall's proffer) (signed by Hall and Fromer on Aug. 2, 1994) (Attached in Appendix).

135
imprisonment. Do This joint cooperation effort was never revealed to Mr. Ogrod's attorney prior

to trial.

426. The fifth case involving Hall was the prosecution of Richard Wise and Herbert

Haak, Hall's own stepson, for the November 1995 killing ofK.imberly Ernest - which came to

be known as the "Center City jogger" case. The ADA prosecuting that case, which did not go to

trial until March 14, 1997, was none other than Judith Rubino - the same prosecutor who

prosecuted Mr. Ogrod's case. In fact, Hall was cooperating for Prosecutor Rubino on both cases

at the same time.M Knowing this did not look good, Rubino decided to reserve Hall for the

Center City jogger case. See Hall Aff. However, that plan was foiled. When speaking with

Philadelphia homicide detectives, Hall slipped up and admitted that he fabricated evidence and

planned to plant a necklace inscribed to the victim in Haak's cell.~ Presumably as a result of

this, Prosecutor Rubino decided not to use Hall in the Center City jogger case, and when Haak's

defense attorney called him to the stand he invoked his Fifth Amendment rights.~ Both

defendants were ultimately acquitted and to this day, that homicide remains unsolved. None of

this information was disclosed to Mr. Ogrod's attorney prior to his trial.

427. Hall cooperated in a number of homicide and sexual assault prosecutions in

surrounding Montgomery and Bucks Counties as well. He was the star witness in the

prosecution of Ernest Priovolos for the 1986 murder of Cherly Succa in Lower Moreland

Township. Prior to Hall's involvement, Ms. Succa's death had been classified as an accident and

following his involvement the case was labeled a homicide. Based in large part on Hall's

11 See John Hall Sentencing Hall at 17-18 (philadelphia police officer testifying that Hall testified against
Dickson in a 1995 trial that resulted in a murder conviction) (Attached in Appendix).
~ See Footnote 8, supra (documenting Hall's cooperation in the prosecution ofHaak and Wise in 1995 and
1996).
1l See Linda Loyd, Infonnant in Jogger Case Decides to Invoke Fifth Amendment, PHIlADELPHIA INQUIRER,
at B03 (Attached in Appendix).
1§. Id.

136
testimony, Mr. Priovolos was convicted and sentenced to life imprisonment.ll In 1990, ADA

David Keightly, who prosecuted that case, wrote a letter to Hall expressing his gratitude. The

letter explained that, "Hall cooperated fully with authorities in a number of very important

murder prosecutions" and described Hall aptly as "a man of astonishing brilliance, of keen

intellect. and of tragic sickness." See Letter from ADA David Keightly to Hall, Jan. 23, 1990

(Attached in Appendix).

428. In Bucks County, Hall was the key Commonwealth witness in the 1991

prosecution of Michael Dirago for the murder of Yvonne Davi, whose body was found near the

Delaware River. Hall told a riveting account of a murder on the bridge, which actually put the

killing on the New Jersey side of the river thus leading to dramatic change of venue and

ultimately a New Jersey conviction.!!. Chief District Attorney Theodore Fritsch wrote a letter to

Philadelphia District Attorney Lynn Abraham explaining the circumstances of Hall's

involvement in Dirago's prosecution, stating that Hall had contacted him unexpectedly, a few

days before Dirago' s murder trial was to begin, and changed a case with a "rather slim" chance

of a conviction into an actual conviction.~ While in Bucks County prison in 1994, Hall lived up

to his nickname "Monsignor," getting two inmates to sign a twenty-two page affidavit and

accompanying Miranda waiver forms, whereby they confessed to sexually assaulting a young

girl. JQ None of this information was provided to Mr. Ogrod's counsel prior to trial.

429. A witness' history of cooperation is extremely persuasive material for cross

examination, capable of showing not only the witness' bias, but also his allegiance to the

Commonwealth and his utter lack of credibility. This is clear Brady material, subject to

mandatory pretrial disclosure by the Commonwealth. See Commonwealth v. Wallace, 455 A.2d

II See n.9, supra.

?1 See Tom Bell, Witness for the Prosecution, BURLINGTON COUNTY TIMES, April 10, 1991, at A3
(Attached in Appendix).
'!J. See Letter from Fritsch to Abraham, Aug. 15, 1991(Attached in Appendix).
l'! Affidavit/Declaration ofGary Williams and Raymond Lamoureaux, Nov. 9, 1994 (Attached in
Appendix).

137
1187, 1192-93 (Pa. 1983) (key witness' prior cooperation with law enforcement is Brady

material). Finally, all ofthe cases in which Wo1chansky and Hall had previously cooperated

were high profile cases that got extensive media coverage raises broader questions and even

more fodder for cross examination. Given this history of cooperating only in cases that got

pervasive media attention, counsel could have effectively driven home the point that the

"source" of the information contained in Mr. Ogrod's purported jailhouse confession was

extracted almost entirely from media accounts.

H. The Full Extent ofWolchansky's Mental Health and Substance Abuse

-Hist~ry WasNotDis«,:los.ed to Tl"iaLCoullsel, Nor Was ItRevealeli to the Jury
That Decided Petitioner's Fate.

i. The Commonwealth's Failure to Disclose this Evidence Violated

Brady v. Maryland

430. The Commonwealth also failed to disclose Wo1chansky's psychiatric

impairments and disabilities and drug and alcohol use and abuse that affected his ability to

perceive, recollect and relate events. In fact, the prosecutor actively tried to prevent Trial

Counsel from delving into this line of questioning on cross examination, as shown by the

following exchange:

Q: Well, let me ask you this question, Sir: Take a look at that plea agreement.
Is there a line in there ... "I have never seen a doctor or been in a hospital
for any mental problems - I understand what is going on." And in writing
it says, "Not correct. I am currently receiving mental health treatment, but
I know what is going on today." Is that what that says there, Sir?

A. Yes.

Q. So, in point of fact, you did have mental problems when Mr. Ogrod is
confessing to you, right?

A. No, that was drug and alcohol related.

Q. Well, Sir, what's written there is mental health treatment, right?

A. I was going to the clinic for a1cohol-

Q• ·?
SIT.

138
 A. - treatment.

Q. There's a difference between alcohol treatment and mental health

treatment?

Ms. Rubino: Objection

The Court: All right, sustained.

By Mr. Greenberg:

Q. But you would agree, Mr. Banachowski, that as I read that, I'm reading
correctly when the question was ... "I have never been to a doctor or been
in a mental hospital for any mental problems - I can understand what is
going on," and in writing it says, "Not correct. I am currently receiving
mental health treatment, but Lknow what is going on today."

NT 10/4/1996 at 76-77.

431. As the prosecution well knew, Wolchansky, during the course of his criminal

career, had numerous mental health and substance abuse evaluations. He was sentenced on a

number of occasions to inpatient and outpatient drug rehabilitation and mental health facilities

and for most of his life outside of prison was under the supervision of the drug and alcohol abuse

unit of the Probation Department. His records from the Department of Corrections reveal a man

being treated for severe mental illness before, during and after Mr. Ogrod's trial. See

Wolchansky Prison Medical Records at SHAF0000260; Wolchansky Jefferson Medical Records.

While in prison, Wolchansky was prescribed the following medications: Benzotropine,

Thioridazine, Tegitol, Melrol, Cogentin, and Navane - for treatment of hallucinations and

paranoid schizophrenia. Id.

432. Wolchansky had been given a number of mental health diagnoses over the years,

including: Mixed Personality Disorder with tendencies toward drug and alcohol abuse with

underlying depression and Paranoid Schizophrenia. Wolchansky PSI, 7/12/1989; Wolchansky's

Jefferson Medical Records (Attached in Appendix).

433. The Commonwealth cannot claim ignorance ofWolchansky's drug and alcohol

use and abuse. A July 1989 Pre-sentence Investigation Report (PSI) shows that Wolchanskyhad

139
a lengthy history of alcohol and drug abuse beginning at the age of 14. He admitted to abusing

cocaine and alcohol on a daily basis for over five years. Wolchansky reports that he began using

alcohol and marijuana at age 14, first on weekends, but quickly moved to daily use and began

including Valium. At age 17 (1978) he was spending $60 per week on his habit. He soon began

the heavy use of'meth' coke by injection at $150 to $200 per week. Wolchansky PSI,

7/12/1989. Moreover, when Wolchansky was arrested for burglarizing the home of Elizabeth

Thompson, Detective Egenlaugh testified that Wolchansky was a drug addict who shoots

cocaine and commits burglaries to get money to sustain his high. See Court Records,

Commonwealth v. Wolchansky, M.C. No. 89/05-4847 (Attached in Appendix).

434. None of this history of drug abuse or mental health diagnoses and treatment was

disclosed to Trial Counsel prior to trial, nor was the extent of these infirmities revealed to the

jury that convicted and sentenced Mr. Ogrod to death.

ii. The Court Erred in Denying Mr. Ogrod Access to Wolchansky's Pre-
Sentence Investigation Report

435. Mr. Greenberg, through his investigator Mr. Shaffer, attempted to obtain access to

Jay Wolchansky's PSI, first by subpoena and then by order of the Court. Judge Keough, to

whom this request was sent, denied Mr. Ogrod's request for such a court order. See Letter from

Shaffer to Greenberg, Sept. 19, 1996 (Attached in Appendix).

436. The court's failure to tum over this vital impeachment evidence upon request was

erroneous. The evidence Mr. Greenberg sought to obtain was highly probative ofWolchansky's

credibility. "Evidence of mental illness or a disability which impairs a witness' ability to

perceive, remember and narrate perceptions accurately is invariably admissible to impeach

credibility." Cohen v. Albert Einstein Medical Center, 592 A.2d 720, 726 (Pa. Super. 1991).

Accord Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996) (affirming Superior Court

finding that diagnosis of "pathological liar" would have "impacted upon the victim's ability to

perceive events and to truthfully relate the facts to which he testified at trial"); Commonwealth v.

140
Yost, 386 A.2d 956, 961 (Pa. 1978) ("If ... mental condition at that time had been impaired so as

to affect [witness's] ability to remember what he saw or heard, evidence as to his condition

would be relevant"); Commonwealth v. Butler, 331 A.2d 678, 680 (pa. 1974) (it was error to

exclude psychological reports of witness where information "shows that his mental

disorganization in some way impaired his capacity to observe the event at the time of its

occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a

clear recollection in the meantime").

437. Petitioner was prejudiced by the court's refusal to provide Trial Counsel with this

clear impeachment evidence. As mentioned throughout this Petition, Wolchansky's testimony

was central to the Commonwealth's case and without it they were unlikely to obtain a conviction

- as shown by the outcome of the first trial. Had the jury learned that the prosecution's star

witness had a history of schizophrenia and extensive and pervasive drug abuse the jury's

assessment of his reliability, his motives for testifYing, and the credibility of what he had to say

would have been significantly different. Had this evidence been heard by the jury there is a

reasonable probability that the outcome of Mr. Ogrod's trial would have been different. The

Court's refusal to provide this evidence to Trial Counsel for use at Mr. Ogrod's trial was not

harmless.

iii. Mr. Ogrod was Prejudiced by The Commonwealth's Failure to

Reveal This Vital Impeachment Evidence and the Court's Failure to
Provide it Upon Request

438. The testimony of Jay Wolchansky was central to the prosecution's case as evident

from the prosecution's reliance on his testimony in both opening and closing argument. The

presentation of evidence showing that this vital prosecution witness was a long time cocaine-

shooting drug addict who suffered from schizophrenia would have gone a long way in

discrediting anything he had to say. As a result of the Court's decision not to disclose this

information to defense counsel, Mr. Ogrod suffered significant prejudice, which surely could

141
have affected the outcome of his case.

I. The Commonwealth's Failure to Disclose the Above-Referenced Evidence

Concerning Hall and Wolchansky Violated Brady and its Progeny.

439. The Due Process Clause of the Fourteenth Amendment to the United States

Constitution and Article I, Section 9 of the Pennsylvania Constitution require a prosecutor to

disclose favorable evidence to the accused. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio

v. United States, 405 U.S. 150, 153-55 (1972); United States v. Bagley, 473 U.S. 667, 676

(1985); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Commonwealth v. Strong, 761 A.2d 1167

(Pa. 2_000); Commonwealthv.$mith, 615 A2d 321 (Pa. 1992). III P<;JnI1sylvania, the IJro~(J()utor's

constitutional duty is codified in the Pennsylvania Rules of Criminal Procedure. Pa. R. Crim. P.

573(B)(1)(a) (mandatory discovery information includes but is not limited to "[a]ny evidence

favorable to the accused").

440. Favorable evidence includes impeachment evidence as well as exculpatory

evidence. Bagley, 473 U.S. at 676 ("Exculpatory evidence favorable to the accused is not

confined to evidence that reflects upon the culpability of the defendant. Exculpatory evidence

also includes evidence of an impeachment nature that is material to the case against the

accused."); Wilson v. Beard, 589 F.3d 651, 662 (3rd Cir. 2009) ("there can be no dispute" that

impeachment evidence regarding the Commonwealth's witnesses, including evidence of memory

problems and mental health problems, would have "undercut the case against" defendant and

suppression of such evidence warrants a new trial); Simmons v. Beard, 590 F.3d 223, 235 (3d

Cir. 2009) (suppressed evidence offered a "competing explanation" for the witness' testimony,

that "would have [ ]much better positioned [the defense] to cast doubt on [the witness']

credibility"); Lambert v. Beard, 2011 WL 353209, *7 (3d Cir. 2011) (new trial granted where

"undisclosed [evidence] would have opened an entirely new line of impeachment").

441. Impeachment evidence includes evidence that can be used to challenge the

credibility of a prosecution witness or that can be used to challenge the prosecution's case.

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Wilson, 589 F.3d. at 676 (noting that, for Brady purposes, there is no distinction between

evidence that is exculpatory in nature and evidence that can be used to impeach a prosecution

witness); Silva v. Brown, 416 F.3d 980, 991 (9th Cir. 2005) (reliability of the jury's verdict

compromised by the "District Attorney's unscrupulous decision to keep secret the deal he made

to prevent an evaluation of the competence of the State's star witness").

442. Due Process also imposes on the prosecution a duty to correct harmful testimony

that is false or materially misleading. Commonwealth v. Wallace, 455 A.2d 1187 (Pa. 1983).

See also Mooney v. Holohan, 294 U.S. 103 (1935) (holding that a prosecutor's knowing use of

perjured testimony to obtain conviction violates due process); Pyle v. Kansas, 317 U.S. 213

(1942); Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio, 405 U.S. at 153-55; Carter v.

Rafferty, 826 F.2d 1299 (3d Cir. 1987). Our Supreme Court has held that "[i]t is of course an

established principle that a conviction obtained through the knowing use of materially false

testimony may not stand; a prosecuting attorney has an affirmative duty to correct the testimony

ofa witness which he knows to be false." Commonwealth v. Carpenter, 372 A.2d 806, 810 (Pa.

1977).

443. The prosecution's long-established and indisputable duties are especially

important in a capital case where heightened safeguards, greater protection for the defendant and

a heightened scope ofjudicial review are required by the Eighth Amendment and Article 1,

Section 13 of the Pennsylvania Constitution. See, e.g., Beck v. Alabama, 447 U.S. 625 (1980);

Ake v. Oklahoma, 470 U.S. 68 (1985); Caldwell v. Mississippi, 472 U.S. 320 (1985); Ford v.

Wainwright, 477 U.S. 399, 414 (1986). See also Kyles v. Whitley, 514 U.S. 419, 422 (1995) (in

assessing a Brady claim the court acknowledged that its "duty to search for constitutional error

with painstaking care is never more exacting that it is in a capital case.") (emphasis added).

444. Relief must be granted when there is Brady error whether or not there has been a

request for the evidence by the defense. Bagley, 473 U.S. at 682; Kyles, 514 U.S. at 433. In

143
fact, defense counsel is entitled to rely on the presumption that prosecutors will fairly

"discharge[] their official duties." United States v. Mezzanatto, 513 U.S. 196,210 (1995). The

prosecutor has the additional duty to function as the "representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation [is] to govern impartially ... and whose

interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be

done." Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added); Banks v. Dretke, 540

U.S. 668, 696 (2004) (granting Brady relief; "A rule thus declaring 'prosecutor may hide,

defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due

process.").

J. The Evidence that the Prosecutor Failed to Disclose Was Material and
Requires a New Trial.

445. A prosecutor's failure to disclose Brady information requires a new trial when the

evidence was material to the trial. Kyles, 514 U.S. at 432 (quoting Brady v. Maryland, 373 U.S.

83, 87 (1963». Evidence is "material" under Brady and its progeny, mandating relief as a matter

of constitutional law, when "the favorable evidence could reasonably be taken" to put the case

"in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435.

The materiality inquiry is not just a matter of determining whether, after discounting evidence

tainted by non-disclosure, the remaining evidence is sufficient to support a verdict of guilt. Id. at

434-35. In other words, if there is "any reasonable likelihood" that the non-disclosure could

have "affected the judgment of the jury," relief must be granted. Napue, 360 U.S. at 271; Giglio,

405 U.S. at 154.

446. This is especially so where, because of the non-disclosure, the jury is left with an

inaccurate understanding of a witness's motivation to testify or the wrong assessment of the

strength of the prosecution's case because of the non-disclosure. Napue, 360 U.S. at 269-70;

Giglio, 405 U.S. at 154-55; Pyle, 317 U.S. at 216; Mooney, 294 U.S. at 112. The Court in Napue

recognized that,

144
 The jury's estimate of the truthfulness and reliability of a given witness may well
be dete=inative of guilt or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying that a defendant's life or liberty may
depend.

360 U.S. at 269.

447. The suppressed evidence was highly material, when considered either

individually and cumulatively. The only evidence against Petitioner was his purported

confession four years after the crime and his supposed statement to Wolchansky three years after

Petitioner's arrest and conveniently shortly before his second trial. None of the info=ation

contilined in theJle stiltementsw~s cOrroborated by police in anY way. There is nota ~hre<j of

evidence showing that the murder occurred in the marmer or even at the location suggested in

Mr. Ogrod's purported statements. In fact, the physical evidence shows that Mr. Ogrod's

purported version of events as recounted by police and Wolchansky could not be true - the

alleged murder weapon could not in fact be the actual murder weapon. Moreover, every witness

who saw the man with the TV box described a person of a different height, build, skin tone, hair

color and hair style than Mr. Ogrod. In the second trial, the Commonwealth relied on the most

unsavory of witnesses - a professional jailhouse cooperator - to convict Petitioner, yet deprived

the jury of the key tools to assess this professional witness's credibility. As Mr. Greenberg

states, "Had I been given impeachment material regarding Mr. Wolchansky, I would have

reevaluated my retrial investigation and my trial strategy." ld. at ~ 7.

448. The Commonwealth made undisclosed offers for consideration in exchange for

cooperation. It hid evidence of bias and evidence of deep seated mental health problems on the

part of its key witness. The Commonwealth also failed to ensure that the full extent of its

cooperator's criminal history was accurately portrayed when he testified before the jury. The

info=ation suppressed by the Commonwealth is classic impeachment evidence that the

Commonwealth is constitutionally obligated to disclose. See Brady v. Maryland, 373 U.S. at 87;

Banks v. Dretke, 540 U.S. at 693; Kyles v. Whitley, 514 U.S. at 437; Commonwealth v. Strong,

145
 761 A.2d at 1171.

K. To the Extent That The Above-Referenced Information was Available to

Trial Counsel, He was Ineffective for Failing to Use it to Cross Examine
Wolchansky. The Issue of Trial Counsel's Ineffectiveness is Not Waived. To
the Extent Post-Verdict/Appellate Counsel was Responsible for Raising Trial
Counsel's Ineffectiveness in this Aspect of the Case, Post-Verdict/Appellate
Counsel was Likewise Ineffective.

449. Although the Commonwealth had a duty to disclose the above-mentioned Brady

material, Trial Counsel could have discovered some, if not all of this information on his own,

particularly Wolchansky's correct criminal record, his history of mental health treatment, and his

.. prior coo.peraticm with theCotnrnonwealth.

450. Reasonable counsel would have personally obtained Wolchansky's full criminal

record before Wolchansky ever took the stand and would have analyzed the record and noticed

when Wolchansky's testimony about his record was false, misleading, and incomplete. Had

counsel done this, he could have challenged Wolchansky's false testimony through cross

examination, rather than allowing it to stand uncorrected. Mr. Greenberg had a duty to

investigate the Commonwealth's star witness and show where the witness was not telling the

truth. Counsel's failure to do this was objectively unreasonable. There could be no conceivable

advantage to the defense to allow the Commonwealth's star witness to understate and/or misstate

the extent or nature of his criminal record.

451. In addition, counsel was alerted to Wolchansky's mental health problems as

evident from the face of his plea agreement and the numerous references to mental health

treatment throughout his criminal case files. Reasonable counsel would have investigated this

issue and cross examined Wolchansky more extensively on this topic. Mr. Greenberg obtained

copies ofWolchansky's prison medical records which make reference to psychiatric treatments

and list the various medications he received while in prison. See Letter from Shaffer to

Greenberg, Sept. 16, 1996 (Attached in Appendix); Wolchansky Prison Medical Records.

However, counsel never used these records to challenge Wolchansky's assertion that he was

146
receiving drug and alcohol treatment, not mental health treatment. See NT 10/4/1996 at 78-77.

Mr. Greenberg also had his investigator look up the medications that Wolchansky admitted that

he was taking (on his plea agreement), but failed to alert the jury to the fact that one of those

drugs, Mellaril, was used to treat psychosis. See Letterfrom Shaffer to Greenberg, Sept. 11,

1996 (Attached in Appendix). There could be no possible downside to eliciting this information.

As Mr. Greenberg admitted in his affidavit, "[e]vidence of mental health problems maybe

relevant to show a witness' inability to accurately perceive and recall the events about which he

testified." Greenberg Aff. at ~ 5

-

452. Reasonable counsel, aware ofWolchansky's prior cooperation with the

government in the case of David Dickson would have cross examined him with this fact in order

to show that he was a serial cooperator who would say anything to get beneficial treatment.

Earlier, Mr. Greenberg testified in general that he did not want to present this information. He

believed it would have validated Wolchansky' s testimony by suggesting that if "other judges and

prosecutors userd] his testimony, then he must be a credible witness in this case," NT

12/20/1999 at 24. When made aware of specific information, though, Mr. Greenberg admitted

that he "did not know [ ] that Wolchansky actually received a benefit in exchange for his

testimony" in Dickson's case and that "this information certainly could have been used to cross-

examine Wolchansky" at Petitioner's trial. Greenberg Aff. at ~ 6.

453. Mr. Ogrod was prejudiced by counsel's above-mentioned failures. Had

Petitioner's jury leamed about Wolchansky's full criminal record, his serious mental health

diagnosis, and his prior cooperation in which he received benefits, there is a reasonable

probability that the jury's assessment ofWolchansky's credibility and result of Mr. Ogrod's trial

would have been different. Given that the jury did not hear this vital impeachment evidence

regarding the prosecution's star witness, confidence in the jury's verdict is undermined.

Petitioner is entitled to a new trial on this claim of ineffectiveness alone.

147
 454. Petitioner has not waived the issue of Trial Counsel's ineffectiveness for failing

to use at trial Wolchansky's correct criminal record, his history of mental health treatment, and

his prior cooperation with the Commonwealth. This aspect of Trial Counsel's ineffectiveness

relies on numerous pieces of evidence outside the record. Because Judge Savitt limited Post-

Verdict/Appellate Counsel's motion to matters apparent from the record, O'Keefe Aff. at ~ 3,

this is an issue that Post-Verdict/Appellate Counsel was not permitted to raise and Petitioner has

not waived it. To raise issues like this, Mr. O'Keefe relied on current post-conviction counsel to

conduct an investigation. [d.

455. To the extent that Post-Verdict/Appellate Counsel was responsible for raising this

aspect of Trial Counsel's ineffectiveness, Post-Verdict/Appellate Counsel was ineffective under

the 6th and l4'h Amendments. Mr. O'Keefe states that he wanted to raise all issues of arguable

merit arising from his investigation, id. at 9, and so he would have had no rational reason for not

litigating these issues.

456. Petitioner was prejudiced. Had Post-Verdict/Appellate Counsel informed the

courts that Trial Counsel failed to present available information about Wolchansky's full

criminal record, his serious mental health diagnosis, and his prior cooperation in exchange for

benefits, there is a reasonable probability that the result of Mr. Ogrod's post-verdict motions and

appeal would have been different.

Claim V. THE COMMONWEALTH WITHHELD MATERIAL EXCULPATORY

AND IMPEACHMENT EVIDENCE IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 9 OF THE
PENNSYLVANIA CONSTITUTION

457. The claims and factual allegations set forth in all other sections of this petition are

realleged as if set forth entirely herein.

458. The Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), and its

progeny by withholding material exculpatory evidence that it had an obligation to disclose to the

148
defense.

459. Undersigned counsel has learned that the police interviewed at least one witness

after Mr. Ogrod' s arrest and did not disclose the fact of that interview to defense counsel.

460. Dawn Vahey has signed a sworn statement that, after Mr. Ogrod's arrest, two

detectives contacted her, asked if she would meet with them, and met her at a restaurant in Blue

Bell, Pennsylvania. During that meeting, the detectives asked Ms. Vahey questions about Mr.

Ogrod. She informed the detectives that Mr. Ogrod did not resemble the police sketch of the

suspect in the Barbara Jean Hom murder. Affidavit/Declaration ofDawn Vahey (Attached in

Appendix).

461. The Commonwealth never informed defense counsel that police had interviewed

Ms. Vahey. The Commonwealth was obligated to disclose this interview because Ms. Vahey's

statement to the detectives that Mr. Ogrod did not resemble the police sketch is exculpatory.

The prosecutor must disclose "any favorable evidence known to the others acting on the

government's behalf, including the police." Kyles v. Whitley, 514 U.S. 419, 438 (1995). The

Commonwealth's suppression of the Dawn Vahey information constitutes a violation of Brady v.

Maryland.

462. There are three elements of a Brady claim: "The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued." Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler v. Greene, 527

U.S. 263, 281-82 (1999». Applying this three-part test, Mr. Ogrod is entitled to relief.

463. As described above, the prosecution and its agents possessed Brady material that

they never disclosed to the defense. This includes, at the very least, police records of the

interview of Ms. Vahey. Moreover, the prosecution's failure to disclose these records raises

questions about what other materials the prosecution may have withheld.

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 464. The suppressed oral statement by Ms. Vahey was exculpatory, showing that a key

piece of the prosecution's case - the police sketch of the perpetrator, which was based upon

descriptions given by eye witnesses Mr. and Mrs. Schectman - did not bear a resemblance to Mr.

Ogrod.

465. This suppressed evidence was material. Had it been disclosed, defense counsel

could have called Ms. Vahey to testify that she knew Walter Ogrod in 1986 and that he looked

nothing like the composite drawing. This would have cast doubt on the Commonwealth's

assertion that Mr. Ogrod resembled the composite sketch. As Mr. Rubino argued in closing,

"that photograph [of Ross Felice] looks no more like that composite or sketch than Walter

Ogrod's picture would if you took that sketch and darkened the layer and you changed the lips a

little." NT 10/7/96 at 45. Had the jury heard otherwise from Ms. Vahey, the impact of the

prosecutor's argument would have been blunted.

466. Trial counsel was ineffective under the 6th and 14th Amendments for failing to

investigate Ms. Vahey and obtain her testimony that Mr. Ogrod did not resemble the police

sketch. Ms. Vahey was available to testify at trial and was a friend of Hal Vahey, who lived with

Petitioner. Dawn Vahey Aff. at ~ 6. Trial counsel could have had no reasonable basis for failing

to obtain Ms. Vahey's testimony. Had the jury heard from Ms. Vahey, there is a reasonable

probability that it would have discounted the prosecutor's argument. Petitioner was prejudiced.

467. The issue of trial counsel's ineffectiveness with respect to Ms. Vahey is not

waived as it is not apparent from the record and rather relies on investigation. See O'Keefe Aff.

at ~ 3 (Judge Savitt limited Mr. O'Keefe to claims apparent from the record). To the extent that

Post-Verdict/Appellate counsel was responsible for raising trial counsel's ineffectiveness with

regard to Ms. Vahey, Post-Verdict/Appellate counsel was ineffective under the 6th and 14th

Amendments. This claim has arguable merit, as set forth above. Mr. O'Keefe had no tactical or

strategic reason for failing to raise this claim, as he wanted to raise all claims of arguable merit.

150
Id. at"i[9.

468. Mr. Ogrod was prejudiced by counsel's failure to raise this claim on post-verdict

motions and direct appeal. Had this claim been raised, there is a reasonable probability that the

outcome of those proceedings would have been different.

Claim VI. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO

THE ADMISSIBILITY OF, OR TO ADEQUATELY REBUT, THE
TESTIMONY OF DR. HARESH MIRCHANDANI AND HIS
CONCLUSIONS REGARDING THE MURDER WEAPON, VIOLATING
WALTER OGROD'S RIGHTS UNDER THE 5TH, 6TH AND 14TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTIONS 1, 9 AND 13 TO THE PENNSYLVANIA
CONSTITUTIONS.
_. THIS CLAIM IS NOT WAIVED. TO THE
- EXTENT - -- - -

THAT POST-VERDICT/APPELLATE COUNSEL WAS RESPONSIBLE

FOR CHALLENGING THIS ASPECT OF TRIAL COUNSEL'S
INEFFECTIVENESS, POST-VERDICT/APPELLATE COUNSEL WAS
INEFFECTIVE FOR FAlLING TO RAISE THIS MERITORIOUS CLAIM.

469. The matters set forth in all other sections of this Petition are repeated and

realleged as if set forth entirely herein.

470. Barbara Jean Hom died on the afternoon of July 12, 1988, and Assistant Medical

Examiner Paul J. Hoyer, M.D. performed a postmortem examination of the victim's body on

July 13, 1988 at 8:40 a.m. See Postmortem Report.

471. Dr. Hoyer examined and measured the head wounds. He reported four lacerations

to the left parietal region of the scalp and in the occipital region. Postmortem Report at "i["i[2-4.

In addition to these four lacerations, Dr. Hoyer also observed and measured a bump on the

victim's head evidenced by "swelling associated with red skin discoloration of the left posterior

parietal region of the scalp ...." Id. at"i[3.

472. Dr. Hoyer's written report is dated July 29, 1988. Postmortem Report at 6. His

autopsy file also contains a typewritten summary dated July 13, 1988 at 1:15 p.m. (the day of the

autopsy and two weeks before the formal report) which states: "Autopsy disclosed five (5) blunt

injuries to the head causing four (4) lacerations....Cause of death Cerebral Injuries...Manner of

Death Homicide.. .No Sexual Abuse... Weapon: Probably a 2x2 or 2x4. Something lighter than

151
a baseball bat or tire iron." Hoyer Notes 7/13/88. Dr. Hoyer confinned with Trial Counsel on

September 27, 1993 that the one-page summary of July 13, 1988 was consistent with his autopsy

observations. See Greenberg Memo 9/28/93.

473. Based on his observations and external and internal examination of the victim's

body, Dr. Hoyer fonned several opinions:

I. The cause of death was "cerebral injuries."

2. The manner of death was "homicide."
3. The weapon used was "probably a 2x2 or 2 x 4."
4. There was no evidence of sexual abuse.

Dr. Hoyer was never called to testifyatMr. O,wod's triaL.

474. Instead of Dr. Hoyer, the Commonwealth called Dr. Haresh Mirchandani as a

witness. NT 10/1/1996 at 107. Dr. Mirchandani was the City of Philadelphia' s Chief Medical

Examiner. Id. He assumed that position in May 1988, less than two months before the murder

of Barbara Jean Hom. Id. at 108. Dr. Mirchandani admitted that he did not perfonn the autopsy

on Barbara Jean Hom, and he confinned that Dr. Hoyer perfonned the autopsy. NT 10/1/1996 at

110.

475. There was no evidence that Dr. Mirchandani ever personally examined the body

of the victim or even any intact organs from the victim's body. He "reviewed the slides and all

of the records including the autopsy report." Id. at lID-II. The autopsy report and autopsy file

is devoid of any reference to Dr. Mirchandani. See Postmortem Report. There is no evidence

whatsoever that Dr. Mirchandani had any contact with the medical examiner who perfonned the

autopsy, played any role in composing the autopsy report, or participated in the formation of any

medical opinions evidenced by the autopsy report.

476. Despite Dr. Mirchandani's complete lack of personal knowledge of the victim and

the victim's wounds, he and the prosecutor acted as if the evidence set forth in the autopsy report

consisted of his personal observations. See, e.g., NT 10/1/1996 at Ill: "[T]ell us what the

external view of her body revealed...." On the next page (112) the prosecutor asked: "On what

152
area of her body did you observe lacerations?" (Emphasis added.) Hesitantly, Dr. Mirchandani

responded, "Lacerations were on the - there were two on the top of her head and two on the back

of the head, lacerations on the head." Dr. Mirchandani was obviously just reading the autopsy

report to the jury. On page 113, the prosecutor misleadingly suggested that Dr. Mirchandani had

prepared slides "to make it easier to describe those injuries," and Dr. Mirchandani agreed that he

had.

477. Dr. Mirchandani offered opinions that the cause of death was ''blows to the head"

and that the manner of death was "homicide." NT 10/1/1996 at 116-117. He was also asked to

examine the weight bar from the weight machine "and compare it with the injuries you saw on

Barbara Jean Hom's body and head." [d. When asked by the prosecutor if the weight bar

"[w]ould... have been consistent or inconsistent with having inflicted the injuries that you saw on

the child's body that you measured," Dr. Mirchandani opined that "an object such as this would

be consistent." [d. at 118 He further opined that the injuries sustained were inflicted while the

victim was alive. !d. at 119.

478. Dr. Mirchandani also opined that while he could not say definitively if the weight

bar was the murder weapon, it was his opinion that the weapon was "an object of similar

dimensions is consistent, equally consistent, with what struck the child...the same dimensions,

the same heaviness and the same dimensions." NT 10/1/1996 at 126. Moreover, Dr.

Mirchandani stated that the basis for his opinion about the round shape of the murder weapon

was the dimension of the wounds on the victim:

Q. Well, when you say similar, Doctor, you're only basing your opinion on
the dimensions of the wounds; is that right?

A. Dimensions of the contusions, yes.

Q. That has nothing to do with the weight of the object; is that right?

A. It has more to do with the dimensions than anything else."

[d. at 127.

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 479. Dr. Mirchandani conceded that a flat, hard wooden object would result in a

different kind of wound than would a round bar or similar object: "[Y]ou're right, if it were a

flat, hard object like this wooden area here, that's not the same as on the skin, there would be

some rolling effect, there would be some compressing of the skin...." NT 10/2/1996 at 123.

Despite this admission, Dr. Mirchandani did not opine on Dr. Hoyer's opinion that the murder

weapon was probably a 2x2 or 2x4.

480. Trial Counsel was ineffective for failing to (1) object to Dr. Mirchandani's

testimony on confrontation grounds, (2) cross examine Dr. Mirchandani with Dr. Hoyer's

contrary conclusions, and (3) call Dr. Hoyer as a rebuttal witness to testify to his conclusions.

A. Trial Counsel's Failure to Object to the Testimony of Dr. Mirchandani as

Violating Petitioner's Rights Under the Confrontation Clause and
Pennsylvania Law and Constituted Deficient Performance and This Claim
Has Arguable Merit.

481. Trial Counsel failed to object to the Commonwealth's calling Dr. Mirchandani to

opine on the cause of death, the manner of death, and the characteristics of the murder weapon.

The Commonwealth failed to establish that the witness had any personal knowledge of the

victim's wounds, the victim's body, or the information set forth in the autopsy report. Trial

Counsel also failed to object to the admissibility of the autopsy report in the absence of the

medical examiner who had actually performed the postmortem examination, Dr. Paul Hoyer.

482. In the Commonwealth of Pennsylvania, it has been long established that the

accused be "afforded the opportunity to confront and cross-examine the medical examiner who

performed the autopsy, absent a compelling necessity." Commonwealth v. McCloud, 322 A.2d

653, 656-67 (Pa. 1974).

483. The Commonwealth offered no information explaining why it failed to call Dr.

Hoyer as a witness. Despite its complete failure to demonstrate any compelling necessity, the

Commonwealth used a witness who lacked any personal knowledge of the victim's body or

organs; who selectively read only portions of the autopsy report to the jury; who ignored a

154
completely conflicting opinion about the weapon on the part of the medical examiner who

actually did perform the autopsy; and who instead offered an opinion unsupported by the

evidence that the murder weapon was similar or possibly the same as the weapon described in

the false confessions.

484. Nothing in the trial transcript reveals any personal knowledge on the part of Dr.

Mirchandani about the victim's wounds or the victim's body. Additionally, nothing in the trial

transcript reveals that the Commonwealth was unable to call Dr. Hoyer as a witness or that it

needed to substitute Dr. Mirchandani.

485. If Trial Counsel had objected on Confrontation Clause grounds, the trial court

would have had no choice but to sustain the objection in accordance with McCloud, 322 A.2d

653. In McCloud, as in this case, "Had the medical examiner been called to testifY, the opinions,

conclusions, and interpretation contained in the autopsy report would have been subject to cross-

examination. The defense would have been able to submit the reliability of the examiner's

opinion to the jury's scrutiny. Any weakness could have been unearthed." McCloud, 322 A.2d

at 655.

486. If counsel had objected, the Commonwealth would have been unable to call Dr.

Mirchandani because of his lack of personal knowledge and would have been forced to call Dr.

Hoyer to testifY about the exam and to provide a basis for the admissibility of the autopsy report.

In addition, Dr. Hoyer would have testified that the weight bar was not consistent with the

victim's injuries, thereby rebutting the facts in Mr. Ogrod's purported confessions. Moreover,

Trial Counsel would have been able to question Dr. Hoyer about:

• The dimensions of the lacerations on the victim's head as the basis for an opinion
about the size and shape of the murder weapon.
• His measurements and observations of the lacerations.
• His opinion that the murder weapon was "probably a 2x2 or 2x4," a flat wooden
object and not a round object like the weight bar.
• His opinion that there was no evidence of sexual abuse.

487. Absent expert testimony from Mirchandani, the Commonwealth would have been

155
without any expert evidence to corroborate a link between the weight bar mentioned in the

confessions and the lacerations on the victim's body. This missing link, in addition to Hoyer's

conclusions that the weight bar was not consistent with the murder weapon, would have raised

reasonable doubts about the guilt ofMr. Ogrod in the minds of the jurors. For these reasons,

Trial Counsel's failure to object to Mirchandani's testimony was deficient performance.

B. Trial Counsel's Failure to Cross-Examine Dr. Mirchandani Regarding the

Contrary Conclusions of Dr. Hoyer Was Deficient Performance.

488. Trial Counsel failed to cross examine Dr. Mirchandani with Dr. Hoyer's contrary

conclusions. or to. call Dr. Hoyer in rebuttal. Dr. Mirchandani' s opinion that the murder weapon
-- - -- --_._--- - -- - - - ._. ---_. - .- -- --_. - - --- - . --

was the weight bar or an object similar to it was contrary to the opinion of Dr. Hoyer, who wrote

on July 13, 1988 at 1:15 p.m. that the murder weapon was "[p]robably a 2x2 or 2x4." Compare

NT 10/1/1996 at 117-118, 126 with Hoyer Notes 7/13/88. Counsel could have cross-examined

Dr. Mirchandani with Dr. Hoyer's opinion that the murder weapon was probably a flat-surfaced

rather than a round-surfaced object. That testimony would have gone to the heart of the

prosecution's case and demonstrated the falsity ofMr. Ogrod's confession referencing the

weight bar and the falsity ofWolchansky's jailhouse confession referencing the weight bar.

489. Dr. Mirchandani also testified that the basis for his opinion that a round object

like a weight lifting bar was the murder weapon was the dimensions of the wounds on Barbara

Jean Horn's head. NT 10/1/1996 at 127. Had Trial Counsel called Dr. Hoyer in rebuttal, Trial

Counsel could examined Dr. Hoyer about the accuracy of his measurements and descriptions of

the wounds.

490. Dr. Hoyer's conclusions were available to Trial Counsel. In fact, Trial Counsel

even went so far as to confirm these findings with Dr. Hoyer prior to Mr. Ogrod's first trial.

Clearly this evidence was of great import to the defense - showing that the purported murder

weapon was actually inconsistent with the wounds on the victim. In fact, it appears that Trial

Counsel made an effort to contact Dr. Hoyer to show that the wounds were inconsistent with the

156
alleged weapon. Any reasonable counsel would have taken the next step and made sure that this

exculpatory information made its way before the jury, either through cross examination of Dr.

Mirchandani or by presenting Dr. Hoyer in rebuttal. Trial Counsel's failure to do either or both

of these things was deficient performance.

C. There Was No Reasonable Basis For Trial Counsel's Failure to Object to the
Testimony of Dr. Mirchandani or For His Failure to Present Dr. Hoyer's
Contrary Conclusions to the Jury Either Through Rebuttal or Cross
Examination.

491. Trial Counsel had no reasonable basis for failing to object to the

Commonwealth'spresentation.ofDr. Mirchandaniin.place of Dr. Hoyer. Further, Trial Counsel

did not point out Dr. Mirchandani's lack of personal knowledge to the jury aside from one

objection about testing for sperm. NT 10/1/1996 at 120. Inexplicably, Trial Counsel promptly

jettisoned any advantage that he might have gained from the witness's lack of personal

knowledge by interrogating Dr. Mirchandani about the examination of the bodily cavities and

asking: "And you found no sperm or seminal fluid in any of the three orifices; is that correct?

That is correct." NT 10/1/1996 at 121. In doing so, Trial Counsel actually helped corroborate

the misimpression created by the prosecutor that Dr. Mirchandani had performed the autopsy.

492. Trial Counsel also had no reasonable basis for failing to cross examine Dr.

Mirchandani with Dr. Hoyer's conclusions or to call Dr. Hoyer in rebuttal. Although Trial

Counsel elicited a concession from Dr. Mirchandani that a "flat, hard object" would leave a

different kind of wound, he failed to cross-examine Mirchandani about the possibility of a 2x2 or

2x4 being the murder weapon. He did not even use Dr. Hoyer's July 13, 1988 notes at any point

in the proceeding to contradict Dr. Mirchandani's opinion that the murder weapon was a round

object similar to the weight bar. Nor did he call Dr. Hoyer in rebuttal. Reasonably effective

counsel would have done either or both of those things. In fact, there is no conceivable reason

for counsel's failure to do so, nor could there be, given the exculpatory nature of this evidence.

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 D. Mr. Ogrod Suffered Prejudice as a Result of Trial Counsel's Failure to
Object to Mirchandani's Testimony and/or His Failure to Present Dr.
Hoyer's Contrary Conclusions to the Jury Through Cross Examination or
Rebuttal

493. The weight bar was the center of the prosecution's case, as the prosecutor made

clear in her closing argument:

Do you remember Dr. Mirchandani's testimony that the width of the contusions
on her shoulders matched the exact width of the lap bar? And we know that this
lap bar matches what was in Walter Ogrod's basement, from Mr. Baldwin, the
expert in this kind of equipment. .. But the Medical Examiner not Dr. Greenberg
on forensic pathology, but Dr. Mirchandani, said that this bar, and hitting her with
this bar, are consistent with the injuries he saw.

I submit to you that he knows better than Dr. Greenberg whether or not this bar
could inflict the injuries on this child's head.... He told you that this bar was
completely consistent with having inflicted the injuries on the top of Barbara
Jean's head, and the injuries on the back of her head, and that the width matched
the contusions on her shoulders.

NT 10/7/1996 at 58.

494. Trial Counsel's failure to object to Dr. Mirchandani's testimony and failure to

object to Dr. Hoyer's absence severely prejudiced Mr. Ogrod because it gave the jury

unchallenged scientific evidence that the weight bar or a similar round object was the murder

weapon.

495. Trial Counsel's failure to object to the testimony of Dr. Mirchandani and the

absence of Dr. Hoyer violated Petitioner's right to effective assistance of counsel.

496. To the extent that this issue relies on matters outside the trial record, Trial

Counsel's ineffectiveness for failing to object to the testimony of Dr. Mirchandani is not waived

because the Court permitted Post-Verdict/Appellate Counsel to only raise matters apparent from

the record. O'Keefe Aff. at '\[3.

497. To the extent that Mr. O'Keefe was responsible for litigating Trial Counsel's

ineffectiveness for failing to object to Dr. Mirchandani's testimony and for failing to cross-

examine Dr. Mirchandani with Dr. Hoyer's notes, he was ineffective. To the extent that Post-

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Verdict/Appellate Counsel was responsible for litigating Trial Counsel's ineffectiveness on these

issues, Petitioner's rights under the 6th and 14th Amendments were violated.

498. The issue is of arguable merit, as described above. Trial Counsel could have no

reasonable basis for failing to obj ect to Dr. Mirchandani' s testimony, failing to cross-examine

him about the object used to strike the victim, or failing to rebut Dr. Mirchandani's testimony.

499. Mr. 0 'Keefe would have no tactical or strategic reason for not raising these

issues, as he intended to raise every issue of arguable merit from his review of the record and his

investigation. O'Keefe Aff. at ~ 9.

500. Petitioner was prejudiced because Mr. O'Keefe did not raise the issue. Mr.

Ogrod's confrontation clause rights were violated because Dr. Hoyer was not called as a witness.

Petitioner's Trial Counsel was ineffective for failing to challenge to Commonwealth's

substitution of Dr. Mirchandani for Dr. Hoyer and for failing to use Dr. Hoyer's notes to

effectively cross-examine Dr. Mirchandani. If the issues had been raised on direct appeal there

would have been a reasonable probability of a different outcome on appeal because the issues

would have created a substantial question about Trial Counsel's stewardship where Trial

Counsel failed to present persuasive evidence that would have challenged the Commonwealth's

presentation of the case and would have attacked the false confession the Commonwealth

presented.

Claim VII. THE PROSECUTOR'S PERVASIVE MISCONDUCT THROUGHOUT

PETITIONER'S TRIAL - DURING OPENING STATEMENT,
EXAMINATION OF WITNESSES AND CLOSING ARGUMENT-
VIOLATED PETITIONER'S RIGHT TO DUE PROCESS AND A FAIR
TRIAL IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 1,6,9, AND 14 OF THE PENNSYLVANIA
CONSTITUTION; ALL PRIOR COUNSEL WERE INEFFECTIVE FOR
FAILING TO PROPERLY LITIGATE THIS CLAIM.

501. The matters set forth in all other sections of this Petition are repeated and

realleged as if set forth entirely herein.

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 A. Introduction

502. The prosecutor's conduct throughout Mr, Ogrod's trial was highly inappropriate

and legally improper - all to the prejudice of Petitioner. The prosecutor made inflammatory

arguments - at times directly flouting the Court's pretrial rulings; misstated and

mischaracterized the evidence that was presented; speculated well beyond the bounds ofthe

record and at times argued on expert topics on which she presented no expert testimony.

503. During her case-in-chief, the prosecutor presented the testimony of Jay

Wolchansky (who testified under the alias "Jason Banachowski") despite having ample reason to

know that he was unreliable and that his version of events was completely fabricated. As pled
above, the prosecutor failed to disclose significant impeachment material- including benefits

provided to Wolchansky in exchange for his testimony, his history of major mental illness, his

active and ongoing mental health treatment, his history of cooperation on behalf of the

Commonwealth in other homicide cases, and the extent of his relationship with another regular

Commonwealth informant involved in this case - John Hall. To top it all off, the prosecutor

improperly and repeatedly vouched for Wolchansky, by: 1) arguing - in direct contradiction to

her pretrial promise to the Court and counsel - that Wolchansky should be believed because he

put himself at personal risk of retaliation simply by testifying for the government and 2)

suggesting that Wolchansky was credible because he was not the only inmate Mr. Ogrod

purportedly confessed to.

504. In addition to these improprieties, the prosecutor presented irrelevant and

prejudicial testimony and argument about physical evidence - blood stained clothing and rugs -

knowing that she could never prove this evidence had any connection to the case whatsoever.

Despite the lack of any record support, her argument to the jury suggested this physical evidence

was not only relevant, but also indicative of Mr. Ogrod's guilt.

505. The prosecutor's statements to the jury were replete with inflammatory and

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unsupported comments. She repeatedly violated Mr. Ogrod's constitutional rights - asking the

jury to presume Mr. Ogrod's guilt from his failure to testify, equating Mr. Ogrod's arrest and

prosecution with evidence of guilt, and shifting the burden of proof by repeatedly emphasizing

Mr. Ogrod's failure to affirmatively prove that he did not meet the description of the perpetrator.

506. On top of all this, the prosecutor made numerous prejudicial and unsupported

assertions that: 1) Mr. Ogrod was a pervert who possessed child pornography; 2) Mr. Ogrod

confessed to a number of other inmates in addition to Wolchansky; 3) Mr. Ogrod moved to avoid

police investigation; 4) Mr. Ogrod cried during his interrogation so that he could buy time to

concoct a story; and 5) no witnesses saw Barbara Jean Hom enter Mr. Ogrod's home because

nobody was outside on that hot summer day.

507. Finally, at every tum the prosecutor made comments solely in an effort to arouse

sympathy for the victim, repeatedly referring to her as a "sweet, innocent child" and at times, "a

baby." This sympathy arousing effort culminated in the prosecutor's invocation ofthe golden

rule - suggesting that the jury put themselves in Barbara Jean Hom's shoes and imagine the fear

and pain she felt.

B. Legal Standard for Prosecutorial Misconduct

508. The duty of the prosecution in a criminal case is not to win the case, but to seek

justice. Berger v. United States, 295 U.S. 78, 88 (1935). As part of this duty to see that justice is

done, the prosecutor has a special duty to avoid the presentation of irrelevant evidence and

improper argument to the jury. Because of the prosecutor's prominent courtroom role as

representative of the Commonwealth - and the mantle of respect and authority this role creates

in the eyes of the jury - jurors are predisposed to give great deference to the prosecutor's words,

and improper prosecutorial arguments "are apt to carry much weight against the accused when

they should properly carry none." Id.

509. Pennsylvania courts, acknowledging Berger, likewise place limits on a

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prosecutor's argument both as a matter of state and federal constitutional law. See

Commonwealth v. Johnson, 533 A.2d 994 (Pa. 1987); Commonwealth v. Cherry, 378 A.2d 800

(Pa. 1977). A prosecutor is prohibited from using inflammatory language, expressing personal

opinion, relying on matters outside the record, or otherwise distracting the jury from its task of

deciding the case upon the evidence. Johnson, 533 A.2d at 996. Prosecutors must only argue

matters in evidence or draw legitimate inferences from the evidence, unless responding to Trial

Counsel's own improper argument. Commonwealth v. Smith, 995 A.2d 1143 (Pa. 2010). The

prosecutor has a "responsibility not to be vindictive." Commonwealth v. Gilman, 368 A.2d 253,

257 (Pa. 1977). Deliberate efforts to destroy the objectivity and impartiality of the fact-finder

will not be tolerated. Commonwealth v. Chester, 587 A.2d 1367,1377-78 (Pa. 1992).

510. Moreover, prosecutors are specifically prohibited from commenting upon

defendants' decisions to exercise their Fifth Amendment right to remain silent through trial.

Griffin v. California, 380 U.S. 609 (1965); Commonwealth v. Davis, 305 A.2d 715 (Pa. 1973).

Pennsylvania has enforced constitutional and statutory prohibitions on such commentary since

1887. Pa. Const. Art. I, Section 9; Act of1887, 42 Pa.C.S. § 5941(a).

511. A criminal defendant also has a due process right to be tried solely on the basis of

admissible evidence and a Sixth and Fourteenth Amendment right not to be convicted except

upon a jury determination based upon proof of every element of the offense proven by record

evidence beyond a reasonable doubt. Chandler v. Florida, 449 U.S. 560, 574 (1981); United

States v. Gaudin, 515 U.S. 506, 514 (1995). This right is violated when the prosecutor

impermissibly shifts the burden of proof during argument.

512. When the prosecutor's argument infects the trial with unfairness, due process is

violated. Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Even where individual remarks by

themselves do not create a due process violation, their cumulative effect may. Lesko v. Lehman,

925 F.2d 1527, 1546 (3d. Cir. 1991).

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 C. Repeated References to Mr. Ogrod's Failure to Testify

513. Mr. Ogrod did not testify at the guilt phase of his trial, but statements he

purportedly made to Wolchansky and to police were admitted into evidence. The prosecutor

repeatedly emphasized Mr. Ogrod's failure to testify and to counter these statements. In

violation of his Fifth Amendment right to silence, these arguments directly suggested that the

jury infer guilt from Mr. Ogrod's failure to testify.

514. Some of the prosecutor's first words in closing argument set the stage for this

improper argument: "only the killer knows what he did, and we can only tell what the killer did

by his words, by what he told people he did, and that person is Walter Ogrod." NT I0/7/1996 at

36. The prosecutor went on to argue,

[t]he Defendant said that he was beaten up by [Charles Green] because Chuck
suspected [him], there has been no denial ofthat. The Defendant admitted to his
mother that he killed Barbara Jean and threatened his own mother, there has been
no denial ofthat.

rd. at 64-65 (emphasis added). As the prosecutor well understood, there could be "no denial" of

these allegations unless Petitioner testified. Trial Counsel objected to these comments and that

objection was sustained. However, Trial Counsel never requested a mistrial or a specific

curative instruction.

515. Moments later, the prosecutor again crossed the boundaries of propriety, arguing

"[t]here has been no contradiction to any of the testimony dealing with Walter's version of what

happened." ld. at 66. Once again, she asked the jury to draw a negative inference from Mr.

Ogrod's decision not to testify, for the only contradiction as to his purported confession could

have come from him. This comment, although right on the heels of the previous ones, did not

draw an objection from Trial Counselor a request for curative instructions or a mistrial.

516. The prosecutor's repeated reference to Petitioner's failure to testify was

constitutionally indefensible. As the United States Supreme Court held in Griffin v. California,

the prosecution may not use a defendant's silence for purposes of suggesting guilt. As the

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Griffin Court stated,

[C]omment on the refusal to testify is a remnant of the 'inquisitorial system of

criminal justice,' Murphy v. Waterfront Comm., 378 U.S. 52, 55 (1964), which
the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a
constitutional privilege. It cuts down on the privilege by making its assertion
costly.

380 U.S. at 614. See also Commonwealth v. Rizzuto, 777 A.2d 1069, 1086 (Pa. 2001) ("No

inference of guilt may be drawn from the exercise of the right to remain silent.").

517. The prosecutor's argument that Mr. Ogrod failed to respond to the evidence the

Commonwealth presented against him violated Petitioner's Fifth and Fourteenth Amendment

rights as well as his rights under Article 1, Section 9 of the Pennsylvania Constitution.

518. As set forth above, this issue has arguable merit. Trial Counsel's failure to object

to each and every one of these improper comments and his failure to request immediate

cautionary instructions and a mistrial in response to these blatant constitutional violations was

objectively unreasonable. Reasonable counsel would have wanted to draw this misconduct to

the jury's attention by any and all means possible. Petitioner suffered prejudice as a result.

519. After the prosecutor's closing argument, Trial Counsel stated that he

unquestionably believed that the prosecutor made a number of statements that were an "improper

comment on [Mr. Ogrod's assertion of his] Fifth Amendment [rights]." 10/7/1996 at 69-70.

Despite this acknowledgment, counsel claimed to have made a "tactical decision" after

conferring with Mr. Ogrod not to request a mistrial because he knew the court would instruct the

jury that Mr. Ogrod had no obligation to present testimony. Id. at 71. Neither counsel nor the

Court colloquied Mr. Ogrod as to the nature of his conversation with his attorney, nor did Trial

Counsel offer a basis justifying this so-called "tactical decision."

520. In assessing the reasonableness inquiry, the test is not whether the course chosen

was successful, but whether a logical reason supported counsel's action in making that choice.

Commonwealth v. Smith, 995 A.2d 1143, 1159 (Pa. 2010). In order to demonstrate that a chosen

164
strategy lacked a reasonable basis, a petitioner must prove that "an alternative not chosen offered

a potential for success substantially greater than the course actually pursued." Commonwealth v.

Williams, 889 A.2d 1060, 1064 (Pa. 2006).

521. In the face of such clear constitutional error, Trial Counsel's decision was

objectively unreasonable and, at it's core, strategically flawed. Trial Counsel was fully aware

that the prosecutor's comments were constitutionally improper. Yet, despite this knowledge, he

sought no corrective action. Seeking a corrective instruction and/or a mistrial had more potential

for success - at least in the sense that the jury would be aware of the prosecutor's

underhandedness - than doing absolutely nothing.

522. Moreover, there was absolutely no down-side to requesting a specific curative

instruction highlighting the prosecutor's misconduct, in addition to the standard Fifth

Amendment instruction the court gives in every criminal case. As the Pennsylvania Supreme

Court has recognized, generic instructions differ from specific curative instructions, the very

purpose of which is to alert the jury to the fact that improper argument occurred and should be

disregarded. See Commonwealth v. Mikesell, 381 A.2d 430, 434 (Pa. 1977) (holding general

jury charge does not qualify as "cautionary instructions" and thus is insufficient to cure

prejudice). Moreover, requesting a mistrial would have highlighted the serious nature of the

prosecutor's misconduct, which ultimately would have inured to the benefit ofMr. Ogrod.

523. Trial Counsel's inadequate response to these improper comments left the jury

believing that Mr. Ogrod's failure to deny making admissions to his mother and his failure to

deny being suspected and thus beaten up by his house-mate Charles Green was evidence of his

guilt. Given the overall weakness of the Commonwealth's case, these comments were not

harmless. In fact, they were nothing less than a blatant attempt to improperly bolster a weak

Commonwealth case.

524. There was no forensic evidence or eye witness testimony connecting Petitioner to

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this murder. In fact, the Commonwealth's entire case was based upon Mr. Ogrod's purported

confessions. Every other piece of information the police collected over the four-year period

during which they investigated this homicide showed Mr. Ogrod's innocence. None of the eye-

witnesses presented at trial identified Petitioner as the perpetrator. In addition, Mr. Ogrod did

not fit the description of the perpetrator provided by these eye witnesses. Given the reasonable

doubt inherent in the Commonwealth's own case, there is a reasonable probability that had the

prosecutor's improper arguments been immediately and sternly corrected by the Court, the

outcome of Mr. Ogrod' s trial would have been different.

D. Improper Statements Shifting the Burden of Proof

525. The prosecutor repeatedly stated that Mr. Ogrod's failure to prove that he did not

fit the description provided by eye witnesses was evidence of guilt. These statements improperly

shifted the burden of proof from the prosecution and onto the defense.

526. The prosecutor first stated:

[T] here has been no testimony in this courtroom as to how much Walter Ogrod
weighed in 1988. He's been in prison since 1992, getting three square meals a
day. We don't know how much weight he might have gained since 1988....

We know he's gotten older, but we don't know what he weighed then, and we
don't know how tall he was then. We only know how tall he is now, and he
doesn't look, I submit to you, that he's the height he gave the detectives. And he
may very well have been medium build back then, we don't have any evidence as
to that, and you cannot assume, from what he weights today, how much he
weighed then.

NT 10/7/1996 at 40. Later the prosecutor again emphasized, "we don't know for sure how tall

Walter Ogrod was back then." ld. at 45.

527. These comments were improper and objectionable on a number of different

grounds. First, they shifted the burden of proof. The defendant need not put on any evidence

whatsoever; it was improper for the prosecution to imply otherwise. Second, they were

disingenuous and misleading at best. The prosecution knew exactly how much weight Petitioner

gained between 1992 and 1996, as the government has access to Mr. Ogrod's prison records.

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Petitioner either gained significant weight while in custody, a fact the prosecution could have

admitted into evidence, or, more likely, he gained little to no weight, which refutes the

prosecutor's argument to the contrary. Finally, the prosecutor inserted her own personal opinion

that Mr. Ogrod did not seem to be the height he gave to detectives. This improper personal

opinion was totally lacking in record support and inferred that Mr. Ogrod affirmatively lied to

police.

528. Despite these numerous possible grounds upon which Trial Counsel could have

objected, he sat mute. The jury heard this improper argument and likely shifted the burden of

proof as the prosecutor suggested. As a result, Mr. Ogrod suffered prejudice.

E. Improper Argument Equating Arrest and Prosecution with Guilt.

529. In closing argument, the prosecutor stated: "Ross Felice was not arrested, he was

not put on trial, based on that weak identification [by Schectman]." NT 10/07/1996 at 43.

Implicit in this argument is the suggestion that being arrested and prosecuted, as Mr. Ogrod was,

constitutes actual evidence of guilt. This argument undermined Petitioner's presumption of

innocence.

530. At best, the prosecutor's statement was extremely misleading. In truth, the police

had significant evidence pointing to Ross Felice. A number of people identified Felice as

looking like the composite sketch. In addition, Lorraine and David Schectman both made

independent in-person identifications of Felice as the man they saw carrying the box. Moreover,

the police were so suspicious of Felice that they assigned a detective to tail him for six months

and he was a target of the Commonwealth's grand jury investigation. Falsely asserting that the

police investigation of Felice rose and set on Mr. Schectman's identification, and that he was not

arrested or tried because Mr. Schectman's identification was "weak," ignores the other evidence

police accumulated against Felice and the Commonwealth's reliance on Mr. Schectman's

identification in seeking a grand jury indictment against Felice.

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 F. Improper Speculation and Extra-Record Comments

531. Throughout opening and closing argument, the prosecutor repeatedly made

prejudicial statements that were not supported by the record, had been specifically prohibited by

pretrial orders ofthe Court, and served no legitimate purpose except to inflame and mislead the

jury.

i. The Prosecutor Improperly Argued that Mr. Ogrod Was a Pervert

Who Possessed Child Pornography and Visited Sex Shops.

532. In her opening statement the prosecutor told the jury that Mr. Ogrod planned the

murder "because he had problems meeting women - he didn't _date women of his own age or

even older." NT 9/30/1996 at 126. Later, in her closing argument, she made similarly

unsupported and highly prejudicial comments:

If your mother suspected you, why was that? Was it because you're that kind of
person? Did she [Mr. Ogrod's mother] know he was a pervert? Did she know
that he had never dated? Did she know he liked going to sex shops and porn
shops and had child pornography around?

NT 10/07/1996 at 60-61. Trial Counsel objected to this commentary and the court sustained his

objection, but Trial Counsel did not request a cautionary instruction or a mistrial. In total

disregard of the court's ruling, the prosecutor continued to argue in this vein: "Did she

[Petitioner's mother] know he liked only young girls like four years old?" ld. at 61. Trial

Counsel did not even object to this comment, let alone seek a curative instruction or a mistrial.

533. Trial Counsel's failure to object to the latter comment or request a mistrial or

curative instruction in response to these highly prejudicial comments was inexcusably deficient

performance. These comments were objectionable on a number of different grounds. First,

suggesting that Petitioner must be guilty of this crime because even his mother knew that he was

"that kind of person" was improper "propensity" argument. Second, these comments were

completely unsupported by the record. Although Wolchansky testified that Petitioner

supposedly told him about his mother's suspicion that he and his brother could have been

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involved in this murder, NT 10/4/1996 at 22-23, Wolchansky never mentioned anything at all

about child pornography or that Petitioner's mother had any opinions about her son's supposed

sexual proclivities. Although Wolchansky responded "no" when asked if Mr. Ogrod ever told

him "about dating adult women," id. at 22-23, one can only infer from this testimony that Mr.

Ogrod did not speak to Wolchansky about dating, not that Mr. Ogrod never dated. Finally, these

comments were made in direct contravention ofthe Court's pretrial order prohibiting such

references. Prior to trial, the Court specifically ordered the Commonwealth not to make any

references to Petitioner's alleged, but tmproven, prior bad acts regarding children or his

purported interest in pornography. NT 9/30/1996 at 108,110.

534. There could be nothing more inflammatory and prejudicial than to assert that a

defendant who was on trial for the rape and murder of a four year old girl was a pervert who

sexually preferred young children and possessed child porn -- nothing except to assert that the

defendant's own mother believed this to be the case. The prosecutor in this case made both of

these false and baseless assertions. There could be no rational basis for Trial Counsel's passive

response to these intentional attempts to inflame the passions of the jury and arouse animosity

towards his client. Had these egregiously offensive and improper comments been stricken from

the record and had the jury been instructed by the court that these comments were totally

unsupported, there is a reasonable probability that the jury's verdict would have been different.

ii. The Prosecutor Improperly Argued that Mr. Ogrod Confessed to

Other Inmates in Addition to Wolchansky.

535. The prosecutor repeatedly stated, without any record support whatsoever, that

Petitioner "confessed" to other inmates while in custody. In her opening statement, the

prosecutor argued that the evidence would show that Mr. Ogrod "told other inmates about what

he had done." NT 9/30/1996 at 126. In closing, the prosecutor stated: "[o]ther inmates may

have known about it, but they may not have been as sickened by it." NT 10/07/1996 at 51.

536. These comments were unsupported by any evidence presented at trial. Moreover,

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they served to improperly bolster the credibility of the inmate who did testify. See United States

v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir. 1996) (prosecutor's representation that statement

of non-testifying government agent would have corroborated that of testifying witness and

assurance that testifying witness did not lie was improper vouching); Commonwealth v. Tann,

459 A.2d 322 (Pa. 1983) (granting new trial based upon ineffective assistance of counsel for

failing to object to improper vouching). These improper comments suggested to jurors that the

prosecutor had additional facts to which the jury was not privy and which proved Wolchansky

was telling the truth. This perceived personal reinforcement violated Petitioner's right to be tried

solely on the basis of evidence presented at trial. See United States v. Young, 470 U.S. 1, 18-19

(1985) (prosecutorial vouching carries with it the imprimatur of the Government and induces the

trust of the Government's judgment rather than its own view ofthe evidence).

537. In another attempt to improperly bolster Wolchansky's credibility, the prosecutor

suggested that his testimony was given despite grave personal risk:

[T]he one thing that you can't be in jail, Ladies and Gentlemen, is a snitch.
Even if people didn't like Walter Ogrod, ifthey found out that Jason had written
those letters or had testified, that would not serve him well in prison.

10/7/1996 at 51-52. She went on to argue,

What could [Wolchansky] possibly gain from this? Nobody is doing a thing for
him and he's got to go back to prison and maybe be called a snitch and get
beaten up by other inmates, but he was willing to do this.

!d. at 54-55. Once again, there was no evidence to support this contention. Moreover, this

argument was particularly offensive because it was contrary to the prosecutor's firm pre-trial

representation to the Court and Trial Counsel that she ''would never" make such an argument.

As the following exchange shows, the Court relied on this representation when denying Trial

Counsel's request that Wolchansky not be allowed to testify under an alias:

MR. GREENBERG: Ms. Rubino's argument is as follows, Judge: If the man uses
his real name, then he's going to be threatened and beat up in prison, because they
will know that he testified in a case in Philadelphia.... by using [an] alias, the
people who read the Philadelphia newspapers at the prison where Mr.

170
 Wolchansky is incarcerated won't know that Mr. Wolchansky testified. That was
what Ms. Rubino has proffered to you.

THE COURT: Yes.

MR. GREENBERG: My response to that is: One, I want him to use his real name,
but if you're not going to allow it, then Ms. Rubino won't be able to make the
argument: Well, members of the jury, this statement ofMr. Wolchansky in his
testimony has a -- his alias name, the statement of Mr. Alias has a ring of truth
because he's risking his life and limb by coming in here and giving it.

THE COURT: I don't think she's going to argue that.

MR. GREENBERG: Well then, if she is -

THE COURT: Are you going to argue that?

MS. RUBINO: I would never have argued that.

NT 9/30/1996 at 59-60. Contrary to her promise, the prosecutor argued just that. The

prosecutor's misconduct was nothing short of intentional.

538. Having anticipated and objected to this argument well before trial, Trial

Counsel's failure to object to this same argument at trial was inexplicable. In light of this

pretrial exchange between the prosecutor, Trial Counsel and the Court, Trial Counsel had ample

ground to request a mistrial or at the very least curative instructions.

539. Wolchansky's testimony and credibility were central to the Commonwealth's

case. The prosecutor's bolstering comments invaded the province of the jury when it came to

making this credibility assessment. Had these improper comments been corrected by the Court,

there is a reasonable probability that the jury's verdict would have been different.

iii. The Prosecutor Improperly Argued that Eyewitness Identifications

are Unreliable.

540. From the outset, the prosecutor had an uphill battle with regard to the

identification evidence in this case - which supported Mr. Ogrod's innocence, rather than his

guilt. At trial, the Commonwealth presented three eye-witnesses who saw and in some cases

interacted with the man carrying the TV box. However, none of these witnesses identified Mr.

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Ogrod as that man. Moreover, all of them gave descriptions on the day of the incident that were

markedly different from Mr. Ogrod.ll See David Schectman Statement to Police, July 12, 1988

at 5ll (Attached in Appendix); Christian Kochan Statement to Police, July 12, j 988 at 2&

(Attached in Appendix); Michael Massi Statement to Police, July 12, 1988 at 2~ (Attached in

Appendix).

541. To make matters worse for the Commonwealth, two of these witnesses-

Christian Kochan and David Schechtman - identified individuals other than Mr. Ogrod when

shown photo arrays. Mr. Kochan looked at 16 photos and identified photo number 11 as looking
- -

"most like the way I remember him." Christian Kochan Statement to Police, Aug. 18, 1988

(Attached in Appendix). Mr. Schectman identified a man by the name of Raymond Sheehan.

David Schectman Statement to Police, Aug. 1, 1988 (Attached in Appendix). To make matters

worse yet, Mr. Schectman made an in-person identification of yet another man, Ross Felice.

Statement ofDetective David Ridgway, Jan. 13, 1989 at 2 (After Schectman made the

identification he said "there was no doubt in his mind because on the day in question he had a

lengthy conversation with Ross Felice and that he recognized [Felice's] face.") (Attached in

Appendix).

542. The prosecutor did everything in her power to divert the jury's attention from this

pro-defense evidence, including making numerous inaccurate and extra-record comments in an

effort to undermine the reliability of eye witness identifications in general and the particular

descriptions and identifications made by her own witnesses.

543. The prosecutor's first tactic was to argue the general unreliability of all eye

II Walter Ogrod was 6' 1",220 Ibs. See Ogrod Biographical Information Sheet.
:£ Schectman described the perpetrator as "white male, about 25-30 years of age, dark blonde hair or dirty
blonde hair, it was short 5'8" to 5'9", 160-165 lbs, white crew neck tee shirt with some printing on the front ...
khaki colored [?] shorts medium build."
II Kochan described the perpetrator as "white, brown hair, SIS", in his low thirties."
11 Massi described the perpetrator as a "white male between 5'6 11 and SIS", medium build, his hair on the
darker side, age-thirty-ish ... he was no kid ... darker complexion like someone in the sun.

172
witness identifications. Although she did not present any expert testimony on the topic and

nothing in the record supported her comments, the prosecutor argued as follows:

If someone were to walk in this courtroom today, right now, and yell, fire, and
then run out, psychologists tell us that the 14 of you would have different
descriptions of what that person looked like.

***
When people view something fast, and when there's no reason for them to
particularly remember the details of what a person looks like, they're not going to
come up with an exact description of that person, it's very unusual for them to do
so. Many tests have been done, and that's the results that people get.

NT 10/711996 at}7-38. Trial Counsel_objectedto theyrosecutor's first statement,but the court.

overruled Trial Counsel's objection and the prosecutor continued with this improper argument.

544. The prosecutor's next tactic was to attack the reliability of specific descriptions

provided by each of the eye witnesses she presented at trial. She did this by misstating and mis-

characterizing their testimony. The first eye witness the prosecutor commented on was Michael

Massi, an employee of Kutner Buick located at the comer of St. Vincent Street and Castor

Avenue. The description Mr. Massi gave of the man he saw carrying the television box did not

fit Mr. Ogrod at all. In an attempt to cast doubt on Mr. Massi's ability to describe the perpetrator

accurately, the prosecutor argued in closing that Mr. Massi viewed the person carrying the box

for "a couple seconds." NT 10/7/1996 at 38. Mr. Massi actually testified that he saw the person

with the box for "a couple minutes." NT 9/30/1996 at 166. The prosecutor went on to argue that

Mr. Massi first told police that he was unable to describe the clothing the perpetrator was

wearing and that he "doubt[ed] very much" that he would be able to recognize the man carrying

the box ifhe saw him again. NT 10/7/1996 at 39. There is absolutely no record support for

these statements. Mr. Massi never testified as to what he told police. Moreover, in contrast to

the prosecutor's assertion that he could not recall the man's clothing, Mr. Massi actually testified

that the man dragging the box wore "cut down jeans and a T-shirt," NT 9/30/1996 at 168, which

is exactly what he told police the second time he spoke with them, Michael Massi Statement to

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Police, July 27, 1988 at 2 (Attached in Appendix). Counsel never objected to these inaccurate

statements, nor did he clarif'y Mr. Massi's actual testimony in his own closing argument.

545. The prosecutor made similar misrepresentations when commenting on the

testimony of Christian Kochan, a second eye witness. Once again, she was invested in

discrediting Kochan's testimony because he gave police a description that was inconsistent with

Mr. Ogrod and actually identified a photograph of someone other than Mr. Ogrod. Christian

Kochan Police Statement, Aug. 18, 1988 (Attached in Appendix); NT 10/1/1996 at 71. When

Mr. Kochan testified, he was asked directly ifhe was able to get an impression of the man's

height and, without qualification, he responded "yes." NT 10/1/1996 at 57. He went on to state

that he believed the man to be 5'9" or 5' 10", id., although he agreed on cross examination that

he originally told police the man was 5'8", id. at 65. Contrary to this very straight-forward

testimony, the prosecutor argued to the jury: "Chris was only 14 then; he's now 22, and to Chris,

5'8",5'9" looked pretty tall. Remember, Chris was seated on a bicycle, he was never standing

next to the man." NT 10/7/1996 at 41. Mr. Kochan's testimony was unequivocal- he was able

to tell the man's height. Contrary to the prosecutor's suggestion otherwise, Mr. Kochan never

mentioned that his age or the fact that he was riding his bicycle affected his estimation of the

man's height. Trial Counsel did not object to this misstatement.

546. The prosecutor's final tactic was to make bold and blatant generalized

misstatements applicable to all three eye witnesses. In closing argument the prosecutor stated

that "the sketch had nothing to do with Mr. Schectrnan, it had nothing to do with Mr. Massi, it

had nothing to do with Chris Kochan, and not one of those individuals ever identified that sketch

as being the sketch of the person they saw. NT 10/7/1996 at 44. She went on to state: "[the eye

witnesses] never identified anybody else as being the person that did this killing." ld. at 44.

Finally, she stated, "Walter Ogrod fit the description of the person carrying the box as well as

anybody else did." ld. at 64. As the evidence presented at trial indicated, these statements were

174
contrived falsehoods. Two ofthese witnesses adopted the sketch at issue, Schectman and

Kochan made identification of individuals other than Mr. Ogrod, and Mr. Ogrod did not fit the

description given by eye witnesses.

547. The prosecutor's overall argument regarding the identification testimony in this

case was improper - referencing studies that were well beyond the bounds of the record and

containing significant misstatement of fact. The remainder of the prosecutor's comments were

simply inaccurate.

548. Despite the importance of this identification evidence to Petitioner's defense,

Trial Counsel failed to object to the prosecutor's misstatements or correct them in his own

closing argument. The jury was left to believe that the prosecutor's misrepresentations were

accurate. Mr. Ogrod's defense was compromised and the jury's verdict rendered unreliable.

iv. The Prosecution Argued that Mr. Ogrod's Change of Address

Showed Consciousness of Guilt.

549. The prosecutor asked the jury to infer that Petitioner's move from the Rutland

Street house to an apartment constituted flight and awareness of guilt:

So what did he do, he moved out of the house. He moved from Rutland in 1989,
the house that belonged to his father, he moved into an apartment when he owned
the house. Why was that? Or was it because he was afraid the police were
going to be getting closer to him, and because Chuck knew he had done this and
now his mother was starting to blame him?

NT 10/7/1996 at 60. The prosecutor went on to state: "He moved out of the house in 1989.

Why? Was not that because he did not want to be around there while the investigation was

going on." ld. at 64. There is no evidence to support this commentary. Wolchansky's testimony

was simply that Petitioner believed Charles Green and his mother had suspicions about him and

his brother being involved in the murder. There was no testimony about when these suspicions

may have arisen, or that they were in anyway linked to Petitioner's decision to move out of his

home.

175
 v. Speculation as to Why Nobody Saw Barbara Jean Enter Mr. Ogrod's
Home

550. The prosecution also argued outside the evidence and inserted her own personal

opinion when she hypothesized about why there were no witnesses to prove that the victim

entered Petitioner's house:

Why didn't any neighbors on the block see Barbara Jean going in that
house? The neighbors on the block had their air conditioners on, they were in
their houses, they were at work, there were no little kids outside. Barbara Jean
didn't even have anybody to play with that day, everybody was somewhere else..
There was nobody out, that's why nobody saw Barbara Jean go with anybody ..

NT 10/7/1996 at 61-62. There is no evidence of any of this in the record. Even if such

information could have been assembled and offered by the Commonwealth, it was not. The

prosecution is not permitted, even in closing argument, to state as facts the collected assumptions

upon which its case may be based.

vi. Speculation as to Why Mr. Ogrod Supposedly Cried During the Police
Interrogation

551. The prosecutor stated in closing argument that Mr. Ogrod cried "just to give

himself a little time, ... to try to get some sympathy from the detectives." NT 10/7/1996 at 47.

She speculated further, stating, "[H]e needed some time to think about what he was going to say

... that's why he started to cry, not because he really felt any remorse, but because it gave him

time to think." ld. at 48.

552. The prosecutor's improper comments asked the jury to make inferences that were

totally unsupported by the evidence presented. These unfounded comments, in combination with

the other baseless and inaccurate statements set forth above, prejudiced Mr. Ogrod's ability to

obtain a fair trial.

vii. Suggestion that Jury Put Themselves in the Victim's Shoes

553. Prosecutors are not permitted to appeal to jurors' sympathy by requesting that

they put themselves in the shoes of the victim. Commonwealth v. Cherry, 378 A.2d 800, 804

176
(1977). However, one of the last things Mr. Ogrod's jury heard from the prosecutor was an

extended request to see the crime through Barbara Jean Hom's eyes:

When you go in that jury room, close your eyes for a minute, put yourself back
inside that basement on July 12th of '88, imagine just for a minute that you're
Barbara Jean, imagine the fright and the fear that that child must have felt.
Imagine the horror she went through, and then when you look, think to yourself
what face appears to you? 1 submit to you that the face you will see of the killer is
the face of Walter Ogrod....

NT 10/719/1996 at 66. The prosecutor's very last words were, "Let Barbara Jean rest in peace

knowing her killer has been convicted." Id. at 68. This argument was a blatant appeal to the

juryto convict out of sympathy, not evidence. It was improper, unobjected to, and uncured by

the Court, fixing its prejudicial effect in the jury's mind.

viii. The Prosecutor's Improper Comments Were Harmful and Prejudiced

Petitioner, Denying Him Due Process and a Fair Trial.

554. When determining if a prosecutor's improper comments denied a defendant a fair

trial, courts should consider whether: 1) the prosecutor's argument manipulated or misstated the

evidence; 2) the improper argument implicated specific constitutional rights; 3) the improper

comments were "invited response" to the defense's closing; 4) the court issued appropriate,

timely curative instructions; and 5) the extent of the remaining evidence of guilt. Darden v.

Wainwright, 477 U.S. 168,181-182 (1986); Moore v. Morton, 255 F.3d 95,107 (3d Cir. 2001).

In Petitioner's case, every point considered indicates that Petitioner was prejudiced by the

improper comments, and denied due process and a fair trial. The prosecutor made numerous

gross misstatement of key pieces of evidence. She used Petitioner's constitutional right to

remain silent against him. The Court gave no specific instructions to disregard the prosecutor's

improper language.

G. Trial Counsel's Failure to Object to Each and Every One of These Improper
Comments and His Failure to Request Specific Curative Instructions and a
Mistrial Constitutes Ineffective Assistance of Counsel.

555. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme

177
Court established the "performance and prejudice" standard: a successful argument of ineffective

assistance of counsel is established where counsel's performance was deficient, and fell below

reasonable, expected professional norms, and where this deficient performance prejudiced

petitioner.ld. at 687.

556. Pennsylvania uses a three-part version of the Strickland test. Commonwealth v.

Bomar, 826 A.2d 831, 855 (Pa. 2003) (noting that, "[a]1though the test for ineffectiveness in

Pennsylvania is the same as Strickland's two-part performance and prejudice standard, in

application this Court has come to characterize the test as a tripartite one, by dividing the
- -

performance element into two distinct parts"). A successful claim of ineffective assistance of

counsel in Pennsylvania proves 1) that the underlying claim is of arguable merit; 2) that were

was no reasonable basis for counsel's course of conduct and; 3) that, but for counsel's

ineffectiveness, there is a reasonable probability that the proceeding's outcome would have been

different. See, e.g., Commonwealth v. Moore, 860 A.2d 88, 94 (Pa. 2004); Commonwealth v.

Perry, 644 A.2d 705, 708-09 (Pa. 1994).

i. Petitioner's Claim of Prosecutorial Misconduct Has Arguable Merit.

557. As explained above, Petitioner's underlying claim is of arguable merit. The

prosecutor's improper comments impinged on a number ofMr. Ogrod's rights under both the

United States and Pennsylvania Constitutions, including: his right against self-incrimination, his

right to be presumed innocent, and his right not to bear the burden of proving his innocence.

Moreover, many of the prosecutor's comments were in direct violation of pre-existing orders

from the court issued at the behest of Trial Counsel. Finally, the substance of many of the

prosecutor's extra-record comments was highly inflammatory, arousing undue animosity

towards Petitioner. Trial Counsel's utter indifference to the prosecutor's objectionable

statements and intentional violation of direct court orders was objectively unreasonable. This

more than satisfies the first prong of the ineffectiveness test.

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 ii. Trial Counsel Had No Reasonable Basis for His Inaction in Response
to Each of These Instances of Misconduct.

558. There was no reasonable basis for Trial Counsel's course of inaction. As shown

above, the prosecutor's comments were improper, pervasive and prejudicial. Moreover, Mr.

Greenberg admitted that he did not have a rationale basis for failing to object to any meritorious

objections. In his own words: "1 raised with the court all objections 1 thought were meritorious

during the presentation of the evidence and during opening statement and closing argument of

the prosecutor. 1 did not intentionally waive any meritorious objections or motions during trial."

.. Greenberg Aff. at ~4.

559. By failing to object at every instance or misconduct, the prosecutor became

increasingly emboldened to further exceed the acceptable bounds of advocacy. Moreover, by

failing to object, Trial Counsel lost the opportunity to obtain immediate curative instructions

from the court. The presence or absence of curative instructions features prominently in the

detennination of whether a defendant's rights were irretrievably violated by a prosecutor's

improper conduct. See United States v. Abuzike, 504 F.3d 30, 39. 42 (1st Cir. 2007) (case

"would have been quite different" if specific curative instructions, rather than general ones, had

issued); United States v. Forlorma, 94 F.3d 91,95 (2d Cir. 1996) Gudge's sustaining of

objections not enough to cure jury of potential prejudice where ruling was not explained at the

time or later injury charge); United States v. Carter, 236 F.3d 777,787 (6th Cir. 2001) (holding

routine instructions given after closing argument and 15-minute recess too attenuated from

misconduct to alleviate prejudice); United States v. Cruz-Padilla, 227 F. 3d 1064, 1069 (8th Cir.

2000) (trial counsel failed to object to improper comments, and thus court failed to issue

cautionary instructions, so prejudice remained uncured); United States v. Kerr, 981 F. 2d 1050

(9th Cir. 1992) (general instructions that "did not mention the specific statements ofthe

prosecutor and were not given immediately after the damage was done" insufficient to cure

prejudice ofirnproper remarks).

179
 iii. Trial Counsel's Inaction Prejudiced Mr. Ogrod Such that He Was
Denied a Fair Trial.

560. Mr. Ogrod suffered prejudice as a result of Trial Counsel's failures. The

prosecutor's comments were extensive, infecting the jury's deliberation with infonnation and

innuendo not in evidence, shifting the burden of proof onto the Petitioner, asking the jury to

make impennissible inferences from his testimonial silence, and inflaming the passions and

prejudices of the jurors.

561. These repeated errors were never directly addressed by the court because Trial

COunsel never asked for curative instructions. Withouj cur!!tivejnstructions the jury W!lS l~ft

with a closing argument that ran thirty-two pages and included repeated, uncorrected, prejudicial

comments and Petitioner's trial was rendered fundamentally unfair and unreliable. There is a

reasonable likelihood that the jury's detennination would have been different had they not been

exposed to the numerous uncorrected improper comments of the prosecutor.

iv. Ineffective Assistance of Post-Verdict/Appellate Counsel

562. To the extent that Post-Verdict/Appellate Counsel, Scott O'Keefe Esq., raised a

prosecutorial misconduct claim on direct appeal, he did so incompletely and inadequately. He

did not cite to all the instances of misconduct alleged herein, nor did he cite to appropriate case

law or make appropriate arguments based upon federal and state constitutional provisions.

563. As argued above, the claims of prosecutorial misconduct set forth above have

merit under controlling precedent, as does the claim that Trial Counsel was ineffective.

Accordingly, Appellate Counsel did not have a "reasonable basis designed to effectuate

[Petitioner's] interest" for not raising all of these claims. Commonwealth v. Perry, 644 A.2d 705

(Pa. 1994). Mr. O'Keefe had no reason for failing to raise in post-verdict motions and on appeal

a number of the incendiary, improper statements and arguments made by the prosecutor.

O'Keefe Aff. at "if 11.

564. Post-Verdict/Appellate Counsel's failure to raise or litigate meritorious claims on

180
appeal constitutes prejudicially deficient performance under federal constitutional law. See

Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996); Mayo v. Henderson, 13 F.3d 528 (2d Cir.

1994); Matire v. Wainwright, 811 F.3d 1430 (11th Cir. 1987). Mr. O'Keefe did not provide the

reviewing courts with the full picture ofthe misconduct of the prosecutor.

565. Had these issues been raised fully and adequately on direct appeal, there is a

reasonable probability that this Court or the Pennsylvania Supreme Court would have followed

the state and federal authority cited above, and granted Petitioner guilt and penalty phase relief.

Post-Verdict/Appellate Counsel's failure to do so constitutes ineffective assistance of counsel in

violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution and Article 1, Sections 1, 9, 13 and 25 of the Pennsylvania Constitution.

Claim VIII. MR. OGROD'S CONVICTION AND SENTENCE WERE PRODUCTS OF

IMPROPER RACIAL DISCRIMINATION AND VIOLATE THE
PENNSYLVANIA CAPITAL SENTENCING STATUTE, THE
PENNSYLVANIA CONSTITUTION, AND THE UNITED STATES
CONSTITUTION; AND TRIAL AND POST-VERDICT/APPELLATE
COUNSEL WERE INEFFECTIVE FOR FAILING TO PROPERLY RAISE
AND LITIGATE THIS CLAIM.

566. All factual allegations in this Petition and its accompanying exhibits are

incorporated as if fully set forth herein.

A. Introduction

567. The Equal Protection Clause prohibits the prosecutor from striking potential

jurors on the basis of their race, ethnicity or gender. Batson v. Kentucky, 476 U.S. 79, 89 (1986);

U.S. Const. amend. XIV, § 1, cl. 3. See also Georgia v. McCollum, 505 U.S. 42, 44 (1992)

("racial discrimination by the State in jury selection offends the Equal Protection Clause");

Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (extending Batson to ethnicity-based

claims); JE.B. v. Alabama, 511 U.S. 127, 145-46 (1994) (extending Batson to gender-based

claims).

568. The exercise of peremptory challenges on the basis of a prospective juror's race

181
or ethnicity not only violates a defendant's Fourteenth Amendment right to equal protection, but

also the equal protection rights of a prospective juror. Batson, 476 U.S. at 87 ("denying a person

participation injury service on account of his race ... unconstitutionally discriminate[s] against

the excluded juror."). Moreover, "the very integrity of the courts is jeopardized when a

prosecutor's discrimination invites cynicism respecting the jury's neutrality and undermines

public confidence in adjudication." Miller-EI v. Dretke, 545 U.S. 231, 238 (2005) ("Miller-EI-

2") (internal citations omitted).

569. Batson requires a court to engage in a three-part inquiry. The defendant has the

initial production burden of establishing a prima facie case of "discrimination by showing that

the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson,

476 U.S. at 94. After the defendant makes a prima facie showing of racial discrimination, the

burden shifts to the prosecutor to come forward with a neutral explanation for the exclusions. Id.

at 97. At step three, the court must decide whether a preponderance of the evidence supports

that discrimination was present. Id. at 98. A defendant wins a Batson claim if only one of the

prosecutor's peremptory strikes was racially motivated. Wilson v. Beard, 426 F.3d 653, 670 n.17

(3d Cir. 2005).

570. At Mr. Ogrod's trial, the prosecution exercised its peremptory strikes to exclude

at least three African-Americans from serving on the jury on the basis of their race. See NT

9/17/1996 at 94-96. 35 There were no race-neutral reasons for striking these prospective African-

American jurors. In addition to her conduct in this case, Prosecutor Rubino had a pattern and

practice of excluding black jurors that provides additional evidence of the constitutional

violation in this case. Moreover, a training videotape that documents the voir dire practices of

the Philadelphia District Attorney's Office indicates a pattern of systematic discrimination on the

basis of prospective jurors' race, ethnicity and gender. Post-Verdict/Appellate Counsel failed in

35 Petitioner does not currently have available to him data concerning the entire racial make-up ofthe

venire. Petitioner expects to get additional data through discovery and investigation, as directed by this Court.

182
post-sentencing proceedings and on direct appeal to raise a Batson claim. Thus, Mr. Ogrod's

trial was tainted with unconstitutional discrimination, and Mr. Ogrod was denied his right to

equal protection and the effective assistance of counsel and is entitled to a new trial.

B. Mr. Ogrod's Jury Was Selected in a Discriminatory Manner.

i. Mr. Ogrod can establish a prima facie case that the prosecution used
its peremptory strikes to exclude African-Americans from
participating on his jury.

571. Establishing a prima facie case is not an onerous task. As the United States

Supreme Court stated, a prima facie case of discrimination in jury selection is established if there
- -

is a "suspicion" of discrimination. Johnson v. California, 545 U.S. 162, 170 (2005) (rejecting

preponderance of the evidence standard and holding that a prima facie case is established by

"producing evidence sufficient to permit the trial judge to draw an inference that discrimination

occurred"). A petition only needs to show that there is "some reason to believe that

discrimination might be at work." Johnson v. Love, 40 F.3d 658,663 (3d Cir. 1994).

572. The Third Circuit has cited five factors that are often relevant to assessing a prima

facie case: "1) the number of racial group members in the panel; 2) the nature of the crime; 3)

the race of the defendant; 4) a pattern of strikes against racial group members; and 5) the

questions and statements during the voir dire." Holloway v. Horn, 355 F.3d 707, 722 (3d Cir.

2004) (quoting United States v. Clemons, 843 F.2d 741, 748 (3d Cir. 1988)). A defendant need

not make a showing of each factor. See, e.g., id. at 722 (granting relief upon considering the

"most striking factor in this case"). For Mr. Ogrod's prima facie case of discrimination, the

"most striking factor" is the pattern of strikes against African-American venire members by the

Philadelphia District Attorney's Office's and Prosecutor Rubino in particular, and the fact that

Prosecutor Rubino struck at least three black venire members through the use of peremptory

challenges. Trial Counsel objected to the exclusion of these venire members on the basis of their

race but his objection was overruled. NT 9/17/1996 at 94-96.

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 573. Furthennore, a review of the voir dire transcripts, juror questionnaires, and self-

reported voter registration data, confinns that the prosecutor in this case struck jurors on the

basis of their race. Of the 19 peremptory strikes used, 16 were against blacks and one was

against whites. 36 Overall, of the 29 black jurors that the prosecutor had an opportunity to accept

or reject, the prosecutor struck 16 and accepted 13. By stark contrast, the prosecutor struck only

I of the II non-black jurors she had a chance to accept or reject. Accordingly, the prosecutor's

black strike rate was 55.2%, while her non-black strike rate was 9.1 %. The likelihood the

prosecution would peremptorily strike a black venire person was six (6) times greater than the

ii. Inferences of Discrimination Based Upon the Trial Prosecutor's

Historical Pattern and Practice of Discrimination in Capital Cases.

574. "[A] defendant may rely on 'all relevant circumstances' to raise an inference of

purposeful discrimination." Miller-EI-2, 545 U.S. 240 (citing Batson, 476 U.S. at 96). Mr.

Ogrod has strong evidence that the District Attorney's Office, Prosecutor Rubino in particular,

followed a pattern of race-based discrimination in selecting jurors. This is a "relevant

circumstance" in assessing Mr. Ogrod's prima facie case. This evidence includes: (I) statistical

evidence from Prosecutor Rubino's cases; (2) a D.A. Training Tape made by the District

36 The race of two other venire persons is unknown at this time.

37 As seated, the original jurors were six non-blacks and six blacks: Jose Vigara (HM); William Peterson (BM);
Ditymus Archie (BM); Barbara Affannato (WF); Edna Cole (BF); Heather Pricket (WF); Linwood Miller (BM);
Verlene Jenkins (BF); Juan Mendez, III (HM); Thomas James (BM); Anthony Vaccone (WM); and Christina Lee
(WF). See Juror Questionnaires (Attached in Appendix). Prickett was excused for family reasons and replaced by
Ronald Joseph (BM), who had been Juror No. 13. NT 10/1/96 at 51-52. Later, Jenkins was excused for family
reasons and, assuming that the Court replaced the her with next alternate in numerical order as it had done with
Prickett, then Wanda Trottie (BF) replaced Jenkins. NT 10/7/96 at 96-97. The final jury was comprised of seven
blacks and five non-blacks. The remaining alternates were David Miller (WM) and Pearl McMillan (BF).
The nineteen venirepersons struck by the Commonwealth were Florine Brown (BF), Lillie Carr (BF),
Jaqueline Huggins (BF), Latanya Long (BF), Tamika Landers (BF), Carolyn Odessa Lenon (BF), Troy Vincent
Jones (BF), Carrie White (BF), Peter Bennett (BM), Colville Gordon (BM), Richard Floyd (BM), Tina Ferguson
(BF), Terence Bey (BM), Deborah Elizabeth Miller (BF), Paul Dixon (BM), David L. Chisohn (BM), Joshua
Chapps (WM), Mario DiMartino (unk), and William Douglas Hogg (unk). NT 9/16/96 at 41,65,75; NT 9/17/96 at
39, 62, 85, 94; NT 9/18/96 at 47; NT 9/19/96 at 36, 42; NT 9/20/96 at 83; NT 9/24/96at 60,77; NT 9/25/96 at 42,
51, 60, 121-22; NT 9/27/96 at 59; NT 9/30/96 at 27.
Venirepersons accepted by the Commonwealth but struck by the defense were: Lillie Carr (BF), Loretta
Santilli (WF), Paul Frisby (BM), Denise K. Smith (BF), Ursula Cooper (BF), Geraldine Thierry (WF) and Robert
Hughes (WM). NT 9/16/96 at 104; NT 9/18/96 at 31; NT 9/19/96 at 49; NT 9/20/96 at 38; NT 9/24/96 at 84; NT
9/25/96 at 150; NT 9/27/96 at 42.

184
Attorney's Office; and (3) observations of a judge and experienced lawyers indicating a historic

pattern ofrace, ethnicity and gender-based strikes against non-whites.

575. In addition to her conduct in this case, Prosecutor Rubino has exhibited an

historic pattern and practice of excluding black jurors that provides additional evidence of the

constitutional violation in this case.

576. First, Ms. Rubino has been found to have discriminated in capital case jury

selection. See Hardcastle v. Horn, 332 Fed. Appx. 764 (3d Cir. 2009) (affirming a finding that

Prosecutor Rubino exercised peremptory challenges to intentionally discriminate against six

African-American jurors). In Commonwealth v. Hardcastle, No. 3288, June Teim, 1982 (Phila.

C.P.), Ms. Rubino not only struck jurors on the basis ofrace but also objected to defense efforts

to excuse jurors who exhibited racial bias against blacks.

577. During the voir dire in Hardcastle, prospective juror Gisela J. Broughton

informed the court that she twice had been the victim of crime, and then stated that her

experiences as a victim would affect her ability to fairly deliberate: "I think I am a little

prejudiced right at this point because both times that this has happened, it has been a black

person, and I just feel a little bit uneasy about that. .. I was always open minded and all, but

since two things happened to me, both times it was black people, I feel a little bit on the

prejudiced side." Prosecutor Rubino objected when the defense challenged Ms. Broughton for

cause. The court granted the motion to excuse for cause. Hardcastle NT 11/16/1982 at 2.65-

2.72. Later, a court reviewing Mr. Hardcastle's Batson claim found that Ms. Rubino's "support

for the retention of a juror who admitted to being racially-biased against African-Americans is

probative of the prosecutor's state of mind during voir dire." Hardcastle v. Horn, No. 98-cv-

3028,2001 WL 722781, at *16 (E.D. Pa. June 27, 2001).

578. Similarly, during Mr. Hardcastle's voir dire Ms. Rubino objected to the defense

challenge for cause of another white juror, Mary J. Fonder, who had twice been the victim of

185
interracial crime and who admitted to fears that her neighborhood was "changing" from "white

to negro." Hardcastle NT 11/16/1982 at 1.73-1.83.

579. During the course of arguing that she had not discriminatorily exercised

peremptory challenges, Ms. Rubino also employed a startling mixture of racially and religiously

insensitive stereotypes:

I don't know if the people I think are black are black. ... IfI may finish, your
Honor, some people may think Mr. Fitzpatrick's white, Jewish partner is black
because she happens to have curly hair.... I said I would agree, and I did agree
on the record, that 12 of the 14 [jurors she peremptorily struck] from my view
were black.

Hardcastle NT 4/27/1983 at 44-46.

580. Second, the Commonwealth has admitted that District Attorney's Office files in

at least two capital cases prosecuted by Ms. Rubino contain notes evidencing a consciousness of

race. See Commonwealth v. Tilley, Dec. Term, 1985, Nos. 1078-82, Commonwealth's Motion to

Reconsider Discovery Order of July 21, 1999, "il2 (files include "personal hand-written notes of

the prosecutor that contain information pertaining to the racial composition of the jury panel")

(Attached in Appendix); Hardcastle v. Horn, 98-CV-3028 (B.D. Pa.), Response to Petitioner's

Reply Brief(filed January 2001) (admitting that prosecutor's notes contain information on race

ofjurors struck) (Attached in Appendix).

581. Third, statistical evidence demonstrates that Ms. Rubino has systematically

excluded prospective African-American venire persons from jury service in capital cases at a

rate more than triple that of other jurors.

582. Twenty-three cases prosecuted by Ms. Rubino were identified from the database

of first-degree murder cases maintained by the Administrative Office of the Pennsylvania

CourtS. 38 Ms. Rubino's strike rates are based upon data compiled during the course of a

38 The cases are: Commonwealth v. Jacqueline Massey, No. 1967, Dec. Term, 1981; Commonwealth v.
Donald Hardcastle, No. 3288, June Term, 1982; Commonwealth v. Anthony Joyner, No. 1760, Sept. Term, 1983;
Commonwealth v. Tyrone Richardson, No. 1214, Apr. Term, 1984; Commonwealth v. Clifford Williams, No. 3649,
July Term, 1985; Commonwealth v. Dennis Baxter, No. 3637, Apr. Term, 1987; Commonwealth v. William Welch,
No. 614, Nov. Term, 1987; Commonwealth v. Nathaniel McNair, No. 2459, Dec. Term, 1987; Commonwealth v.

186
comprehensive study by Professors David Baldus and George Woodworth of the University of

Iowa covering a period of more than ten years of Philadelphia death penalty cases.

583. The researchers determined the race ofjurors by reviewing juror summons and

affidavits and Quarter Sessions jury summaries where available, and then cross-referencing the

name of the juror, and other identifYing information in the Notes of Testimony, against voter

registration data and census information. 39

James Green, No. 1513, Oct. Tenn, 1988; Commonwealth v. Michael Pierce, No. 1312, Aug. Tenn, 1989;
Commonwealth v. Leonard Christopher, No. 3551, June Tenn, 1990; Commonwealth v. Lawrence Rhoads, No. 477,
Sept. Tenn, 1990; Commonwealth v. Warren Henderson, No. 3361, Nov. Tenn, 1990; Commonwealth v. Gilbert
Jones, No. 3523, Feb. Tenn-1991; Commonwealth v. EdwardBracey, No. 3282, June Tenn, 1991; Commonwealthv.
Carlos Matos, No. 1105, Jan. Tenn, 1992; Commonwealth v. Joseph Dallasta, No. 2228, Mar. Tenn, 1992;
Commonwealth v. Lawrence Jones, No. 4378, June Tenn, 1992; Commonwealth v. Alexander Keaton, No. 1925,
Mar. Tenn, 1993; Commonwealth v. Jamal Allen, No. 3508, Mar. Tenn, 1993; Commonwealth v. Steven Scott (trial
date 6/17/1993); Commonwealth v. Kenneth Brown (trial date 817/1995); and Commonwealth v. Larry B. Cooper
(trial date 4/27/1981). There is a 24th case, Commonwealth v. William Tilley, Dec. Tenn, 1985, Nos. 1078-82, in
which Respondent has admitted that Ms. Rubino took notes concerning the race of the jurors. See Commonwealth's
Motion to Reconsider Discovery Order ofJuly 21, 1999, Commonwealth v. Tilley, 1]2 (files include "personal hand-
written notes of the prosecutor that contain infonnation pertaining to the racial composition of the jury panel").
However, infonnation to determine the composition of that capital venire has not been obtained by Petitioner.
39
The researchers used two types of procedures to determine a juror's race when it was otherwise not known.
The first set of racial designations, which they consider 98+% valid, are based on direct evidence in court records,
self-reported designations in voter registration rolls, and census-based evidence that the venire member's
neighborhood was either less than 2% or greater than 98% black. The other individual race estimates, which are at
less than the 98% level of validity, are based on an imputation procedure that uses census data, voter registration
data, and infonnation on the other venire members in the original study onl7 venires. The researchers combined
these two sets of estimates to produce probabilistic composite estimates of the race composition of each venire and
jury in its entirety.
As a result of routine purges of the voter rolls by the City of Philadelphia, voter registration infonnation
was not available to detennine the race of a number of the jurors in Ms. Rubino's homicide cases. However,
Professors David Baldus and George Woodworth have been able to identify to a 98+% degree of certainty the race
of 81.0% (727/897) of the jurors accepted or peremptorily strnck by Ms. Rubino in 23 homicide cases spanning three
prosecutorial administrations. They have, through statistical means, imputed the race of the remaining jurors.
Professors Baldus and Woodworth were able to reach conclusions to a reasonable degree of statistical
certainty that the disproportionate exercise of peremptory challenges against black jurors is a prodnct of
discrimination, rather than of chance or accident, based upon their analysis of strikes involving jurors whose race is
known, as well as those involving jurors whose race is known and/or reliably imputed. Nonetheless, they are
entitled to base their opinions on as much and as accurate infonnation as possible about the race of individual jurors.
Even though Petitioner was able to identify the race of more than 120 of the jurors in Ms. Rubino's cases for which
voter registration infonnation was not available, Petitioner still does not know the race of 170 jurors (19.0%) in
those venires. However, some substantial portion of this infonnation should be available from Respondents because
of the documented policy and practice that city prosecutors -- including Ms. Rubino - kept notes of the race of
potential jurors in homicide cases. E.g., D.A. Training Tape, at 66; Diggs v. Vaughn, 1991 WL 46319, *1-2 (B.D.
Pa. Mar. 27, 1991) (''The record demonstrates conclusively that, at each trial, the prosecutor [the Chief of the
Homicide Unit] kept careful records of the race of each prospective juror, and a rurrning tally ofhow many persons
of each race remained on the venire for possible selection."); Sistrunk v. Vaughn, No. 90-CV-1415, Magistrate's
Report & Recommendation (B.D. Pa. Aug. 10, 1995) (powers, ChiefM.J.); Hardcastle v. Horn, 98-CV-3028 (E.D.
Pa.), Response to Petitioner's Reply Briej(filed January 2001) (admitting that prosecutor Judith Rubino's notes from
1982 prosecution contain infonnation on race ofjurors strnck); Commonwealth's Motion to Reconsider Discovery
Order ofJuly 21, 1999, Commonwealth v. Tilley, 1]2 (files include ''personal hand-written notes of the prosecutor
that contain infonnation pertaining to the racial composition of the jury panel").

187
 584. Throughout the entire period covered by the study, Assistant District Attorney

Judith Rubino peremptorily struck venirepersons known to be African American 61.6 % ofthe

time she had an opportunity to do SO.40 By contrast, she exercised peremptory strikes against

venirepersons who are known to be non-African American in only 17.7% of opportunities to do

so. Consequently, the data cited by Bracey reveal that Ms. Rubino was nearly three-and-one-

third times more likely (3.4) to peremptorily strike an African-American venireperson called for

jury duty in a homicide prosecution than a venireperson who was not black.

585. Indeed, throughout the period of the study, Prosecutor Rubino more likely to

strike blackjurors than the Philadelphia District Attorney's office as a whole"! and less likely to

strike non-black jurors than the Philadelphia District Attorney's office as a whole. 42

586. Those strikes ofjurors whose race is known are listed in the chart below:

40 The strike rate is calculated by dividing the number of peremptory challenges actually exercised by the
number of prosecutorial opportunities to exercise peremptory strikes.
41 Ms. Rubino's 61.6 % rate of peremptorily striking African-Arnericanjurors exceeded the office's rate of
54.89%.
42 Ms. Rubino's 17.9 % rate of striking non-black jurors was lower than the office's rate of22.86%.

188
 ,
pef. Race Victim Black Non-Black pifference
pefendant Race Yo Str ·nRates Admin.
Str Irot Tot Yo •

iAIlen ~Iack White 13 17 0.76 19 p.ll

~5 pts. Abraham
Baxter Black White ~ 0.56 P 19 p.26 •
bo pts. rastille
~ 14 0.57 0 0.18 ·
Bracey Black White ~O pts. Abraham
11 17 0.65 0 14 0.14
Brown Black White ~I pts. Abraham
rhristopher Black White ~ 11 0.73 ~ 01
0.19 p4 pts. Castille
f7 12 I )
rooper White White 0.58 b.20 ~8 pts. Rendell
~ 16 2 p.36
Ioallasta White Black .50 14 pts. !Abraham
breene Black Black !l 14
.64 19
b.16 fl8 pts. bastille
12 14 .86 07 0.11
Hardcastle Black Black "5 pts. lRendell
11 16 1 19 p.05
Henderson Black Black .69 b4 pts. I!nterim
ones-G ~lack ~lack !l p.78 I
0.19 9 pts. !Abraham
~ 18 0.5 11 U
ones - L Black Iwhite Opts. lAbraham
Black Iwhite
9 0. 78 19 .16 pts.
oyner ~2 lRendell
I<eaton Illack 6 13 P.46 0 0.25
Black · I pts. !Abraham
12 0.5 P 14
Massey (F) Black Iwhite P.36 14 pts. ~endell
Matos Hispanic Black 11 ~O b.55 j'f 17 0. 24 I pts. !Abraham
McNair Black Black b.75 0 15 P 5 pts. f'astille
14 17 t/2 0. 18
Pierce White White 0.82 "4 pts. ~astille
17 13 P.54 ~ 15 0. 13
Rhoads Black Iwhite 141 pts. V\braham
~ 13 p.62 14 0. 29
Richardson Black Black · b3 pts. !Rendell
I t/ 17 0. 12
Scott Islack ~Iack 0.25 13 pts. V\.braham
!welsh Iwhite Iwhite 15 11 PA5 ~O 004 15 Pts. Castille
Iwilliams-C Black Black 15 11 PA5 P 13 P 5 pts. f'astille
181 94 0.616 9 33 p.177
IrOTALS ~3.s pts.

189
 C. The Pattern of Racially Discriminatory Prosecutorial Strikes in Mr. Ogrod's
Trial Is Consistent with the District Attorney's Office's History of Striking
Non-White Venire Members.

587. A training videotape prepared by the District Attorney's Office explicitly

advocates discriminatory peremptory challenges and supports Mr. Ogrod's claim that race

affected his jury selection. See DATV Productions, Jury Selection with Jack McMahon

(Transcription) ("McMahon Tape") at 45.

588. In the 1987 training videotape prepared and presented by and on behalf of the

District Attorney's office and released to the public for the first time in April of 1997, then-

Assistant District Attorney Jack McMahon explicitly advocated peremptorily striking African-

American venirepersons and empaneling White jurors who are racially biased and who are from

racially-segregated neighborhoods. See McMahon Tape. Mr. McMahon also noted the practice

of other assistant district attorneys in the office to attempt to exclude all African-Americans from

juries. 43 Former assistant district attorneys have implicitly acknowledged that it was office

policy to strike Blacks, and, indeed, one assistant district attorney confronted with a challenge to

his systematical striking of Black jurors responded sarcastically, "Oh, How Awful." See

Commonwealth v. Lark, Nos. 2012-13, 2015, 2021-22, Jan. Term, 1980 (C.P. Phila.), NT

6/6/1985 at 176-77.

589. This practice has long been an open secret in Philadelphia. As early as 1982,

Judge Juanita Kidd Stout, the judge at Mr. Ogrod's trial, noted that it was "the practice" of the

District Attorney's office to strike Blacks from juries. Commonwealth v. Hardcastle, Nos. 3288-

3291, June Term, 1982 (phila. C.P.) (Stout, J.), NT 4/27/83 at 83-84.

590. As evidenced by the McMahon tape, the practice did not end with the United

States Supreme Court's 1986 reaffirmation of the prohibition against racial discrimination in

Batson.

43"And I've seen DAs who strike [older Black male jurors] because they're black, and that's kind oflike a rule,
'Well, they're black, I've got to get rid of them.' " McMahon Tape at 56.

190
 591. Further evidence of the District Attorney's Office's pattern and practice of

discrimination in jury selection came to light during a 2005 hearing in the Federal District Court

for the Eastern District of Pennsylvania. Notes of a 1990 lecture given by Assistant District

Attorney Bruce Sagel demonstrated that he openly advocated the use of racial and ethnic

stereotypes in jury selection. The notes taken from this lecture by Gavin Lentz confirm that it

was the policy and practice of the District Attorney's Office to discriminate on the basis of race,

gender and ethnicity, and to "avoid Batson" by developing pretextual reasons for the strikes. See

Gavin Lentz Notes of Bruce Sagel's August 14, 1990 Jury Selection Training Lecture ("Lentz

Notes").

592. The Sagel1ecture is replete with unconstitutional advice. Mr. Sagel's notion of

an "[i]deal jury" was "12 [A]rchie Bunkers [who] will convict on little evidence." Lentz Notes

at 1. Lurking beneath Mr. Sage1's advice to strive for a jury of twelve "Archie Bunkers" is a far

more insidious goal than just an all white jury; he advocated seating a white racist jury, and one

that would be willing to disregard the reasonable doubt instruction.

593. Mr. Sagel advocated getting a count of race and gender at the beginning of jury

selection, and to "[c]ontinually check who is left on your panel and who is coming in next."

Lentz Notes at 3. In his example of a hypothetical panel of "30 Whites and 10 Blacks," he

noted, "if you wanted you could strike almost all Blacks [00'] this gives you an advantage." Lentz

Notes at 1. He warned however of being overconfident of getting a white jury, noting, "whites

get off for hardship more often." Lentz Notes at 1.

594. Mr. Sagel declared the average Commonwealth juror to be "white" from

Philadelphia's Northeast section ("AVG CMWLTH JURUR N. EAST, white"). Lentz Notes at

[page]. His enumerated list of "Commonwealth" jurors included, in addition to those hailing

from the Northeast section of the city, those from the predominately white neighborhoods of

"Roxborough," "Fishtown" and "S. Phila[delphia]." Id. at 2. His favored ethnicities were

191
Italian, Irish, Polish, and German, also predominately white. He warned, "Never put Quakers on

the jury [as] they demand too much evidence." Id. at 2. Mr. Sagel viewed as unfavorable, or

"defense" jurors, those from the minority or integrated neighborhoods of North Philadelphia,

West Philadelphia and East and West Mt. Airy. Id. at 2.

595. Mr. Sagel acknowledged that the rule in Batson impeded the use of strikes on the

sole basis of race. But, while noting that "[s]ome Blacks are helpful, they know what's up [...]

he will bring the whites along," Lentz Notes at 2, he followed with the advice that would

necessarily limit the number of blacks on the jury. "If there are any acceptable Blacks, take

them - in the first round." Id. at 2. Plainly, this tactic was intended to prevent a challenge under

Batson based on later peremptory strikes. Within the group of "acceptable" blacks, he

recommended "older blacks," "property owners," and "men," who he viewed as ''better'' because

they "feel it is whimpy [sic] not to convict." Id. at 2.

596. Finally, Mr. Sagel gave his advice on how to "avoid Batson," instructing his

students to "find an independent reason to strike them and keep a written record of it." Lentz

notes at 3.

597. Such biased jury selection violates the Supreme Court's admonition that the

State's "interest ... in a criminal prosecution [should not be] that it shall win a case, but that

justice shall be done," Berger v. United States, 295 U.S. 78, 88 (1935), and that "the only

legitimate interest [the State] could possibly have in the exercise of its peremptory challenges is

securing a fair and impartial jury," J.E.B. v. Alabama, 511 U.S. 127, 137 n.8 (1994).

598. Furthermore, this improper and unconstitutional training of Assistant District

Attorneys amounts to a pattern and practice of peremptorily denying African-Americans the

right to participate as jurors, in violation of the Sixth Amendment and the Equal Protection

Clause of the United States Constitution. See Swain v. Alabama, 380 U.S. 202, 203-04 (1965);

Batson, 476 U.S. 79.

192
 599. This historical evidence reinforces Mr. Ogrod's claim. See Miller-El v. Cockrell,

537 U.S. 322, 346-47 (2003) (discussing Miller-El's proffer of historical evidence of racial

discrimination by the District Attorney's Office, albeit not by the specific prosecutor in Mr.

Ogrod's trial).46 The historical evidence before this Court illustrates the "culture of

discrimination" that existed at the District Attorney's Office.

600. The McMahon Tape and the Lentz Notes need not prove jury discrimination nor

official policy to be relevant and significant to Mr. Ogrod's Batson claim. To be relevant to Mr.

Ogrod's prima facie claim, they need only provide, in conjunction with other relevant factors,

"some reason to believe that discrimination might [have been] at work" in Mr. Ogrod' s case.

Johnson v. Love, 40 F.3d 648,663 (3d Cir. 1994). They do so because they show, inter alia, that

the atmosphere in the District Attorney's Office was such that experienced prosecutors -

speaking before audiences of their colleagues and on an Office-prepared videotape - were

comfortable discussing their own race-based jury selection techniques and even suggested that

prosecutors who did not use discriminatory jury selection techniques would lose their jobs.

D. Mr. Ogrod Can Establish That The Prosecution's Use of Peremptory Strikes
to Exclude African-Americans From Participating on His Jury Was the
Product of Purposeful Discrimination.

601. In Commonwealth v. Uderra, 862 A.2d 74 (Pa. 2004), the Pennsylvania Supreme

Court held that, for a Batson claim first raised in state post-conviction proceedings, a petitioner

must show that the prosecution's peremptory strikes were the product of "actual purposeful

discrimination." Id. at 85-86. See also Commonwealth v. Jones, 951 A.2d 294, 300 (Pa. 2008).

" See also id. at 347 ("Irrespective of whether the evidence could prove sufficient to support a charge of
systematic exclusion of African-Americans, it reveals that the culture ofthe District Attomey's Office in the past
was suffused with bias against African-Americans in jury selection. This evidence, of course, is relevant to the
extent it casts doubt on the legitimacy of the motives underlying the State's actions in petitioner's case. Even if we
presume at this stage that the prosecutors in Miller-El's case were not part of this culture of discrimination, the
evidence suggests they were likely not ignorant of it. Both prosecutors joined the District Attorney's Office when
assistant district attorneys received formal training in excluding minorities fromjuries.").
The evidence included a circular issued by the District Attorney's Office in 1963 and a manual, titled "Jury
Selection in Criminal Cases," that was authored by a prosecutor and in use uoti11976. Both of those documents
urged prosecutors to strike minorities when selecting ajury. Id. at 334-35 ('''Do not take Jews, Negroes, Dagos,
Mexicans or a member of any minority race on a jury"') (quoting a 1963 circular by the DA's office).

193
 602. Although Prosecutor Rubino gave seemingly race-neutral reasons for her strikes

on the record at trial, Mr. Ogrod will be prepared to rebut those reasons with the "totality of the

relevant facts" once he receives discovery about the racial composition of the venire.

603. Assuming Uderra - decided after Mr. Ogrod's trial- governs here:7 the evidence

cited above establishes that Prosecutor Rubino's strikes of African-Americans from Mr. Ogrod's

venire were motivated by actual, purposeful discrimination. It is not necessary to show total

exclusion of African-American juries to demonstrate actual purposeful discrimination. Rather,

systematic discrimination that substantially reduces the number of African-Americans serving on

a jury is sufficient. See Commonwealth v. Futch, 424 A.2d 1231, 1234 n.? (Pa. 1981).

E. Post-Verdict/Appellate Counsel was Ineffective for Failing to Raise this

Issue.

604. Post-Verdict/Appellate Counsel violated Petitioners rights under the 6th and 14th

Amendments by failing to raise a Batson claim on post-verdict motions or on direct appeal.

During voir dire, Trial Counsel objected to the prosecution's discriminatory use of peremptory

strikes to exclude African-Americans from Mr. Ogrod's jury, so this claim was preserved for

appellate review. However, Mr. O'Keefe failed to raise a Batson claim in post-sentencing

proceedings and on direct appeal. Mr. O'Keefe had no tactical or strategic reason for not

litigating a Batson claim. O'Keefe Aff. at ~ 10 ("I cannot remember reason why I did not raise

on post-verdict motions or on direct appeal ... [a] Batson . .. claim[]"). As discussed above,

this claim is meritorious and Post-Verdict/Appellate Counsel had no reasonable basis for failing

to raise this meritorious claim. The McMahon tape was available to Appellate Counsel who

could have used it during post-sentencing proceedings or on appeal to ask for a hearing and/or a

remand. Also, the District Court opinion in Hardcastle was issued while Mr. Ogrod's appeal

was pending, so Appellate Counsel could have referenced that opinion as well.

605. Mr. Ogrod was prejudiced by Appellate Counsel's failure to raise a Batson claim

47 Petitioner does not concede that Uderra is applicable to his case.

194
in post-sentencing proceedings and on direct appeal. But for counsel's error, there is a

reasonable probability that the outcome of the appeal would have been different.

F. Conclusion

606. Here, as in Miller-EI-2, when "viewed cumulatively" Ogrod's evidence, once

discovery is complete, may be "too powerful to conclude anything but discrimination." Miller-

EI-2, 545 U.S. at 265. This evidence easily clears the prima facie threshold for a Batson claim,

and also satisfies the requirement for showing actual purposeful discrimination. In addition,

Appellate Counsel rendered ineffective assistance by failing to raise a Batson claim.

Accordingly, Mr. Ogrod was denied his rights to equal protection and the effective assistance of

counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Mr. Ogrod is entitled to a new trial.

Claim IX. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST

DNA OR SEROLOGICAL TESTING OF AVAILABLE BIOLOGICAL
MATERIAL WHEN SUCH EVIDENCE COULD HAVE
DEMONSTRATED PETITIONER'S INNOCENCE AND HAD A
REASONABLE PROBABILITY OF CHANGING THE OUTCOME OF
HIS 1996 TRIAL. APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO RAISE THIS CLAIM.

607. The claims and factual allegations set forth elsewhere in this Petition and in all

exhibits hereto are realleged as if set forth entirely herein.

608. At the time of the 1996 trial, DNA testing was available in the form ofRFLP.

While not as discriminating as those tests available today, such testing, if performed, could have

provided a DNA profile for the true murderer. Biological material was available on the box in

which the victim was found, on the bag which covered her body, from evidence collected from

the victim's body at the autopsy, and in blood collected from the homes of alternate suspects

Ross Felice and Wesley Ward.

609. Trial Counsel failed to have any of the available material tested for DNA.

610. With respect to the box in which the victim was found, this item is still in the

195
possession ofthe Commonwealth under Property Receipt 170158. It has been observed to

contain biological material, including blood and vomit. See Crim. Lab Report, D. C. No. 2-24439

(Attached in Appendix). Moreover, at the time ofMr. Ogrod's trial, the Commonwealth

asserted that spermatozoa was present in the box. Despite all of this, neither the box nor the bag

that was found inside the box has ever been subject to DNA testing. DNA testing was available

at the time of the 1996 trial and, to the extent that DNA from someone other than Mr. Ogrod was

located on the box or the bag, this evidence would have been extremely probative in proving Mr.

Ogrod's innocence.

611. Similarly, there is biological evidence from the body of the victim that has never

been DNA tested. Property receipt 170121 contains fingernail scrapings from the left and right

hand of the victim. See Property Receipt 170121 (Attached in Appendix). Additionally, the

Medical Examiner's files contain at least the following five slides: two vaginal swabs of the

victim, one oral swab and two anal swabs. See Postmortem Report at 6; Fierro Aff. at ~ 11.

There are allegations of a struggle and a sexual assault in this case, yet none of this evidence has

been subject to DNA testing. If any of these items contain DNA that does not match either the

victim or Mr. Ogrod, this evidence would have been extremely probative in proving Mr. Ogrod's

innocence.

612. There is also biological evidence taken from the homes of initial murder suspects

Wesley Ward and Ross Felice that has never been tested. See Property Receipt 170167

(Attached in Appendix); Property Receipt 188075 (Attached in Appendix). Should this material

contain any DNA from the victim, this evidence would have been extremely probative in

proving Mr. Ogrod's innocence.

613. Property Receipt 170167 contains multiple items removed from suspect Wesley

Ward's home at 7208 Rutland Street. These include three pieces of paneling with red stains on

them that were removed from the walls of the home. While these items initially tested negative

196
for blood, examination of these items under Ultralite ALS shows that these items appear to

contain human biological material that was not visible to the naked eye. Affidavit/Declaration of

Dr. Albert B. Harper ("Dr. Harper Aff.") at ~ 7 (Attached in Appendix). Also recovered from

7208 Rutland were hairs from a bathtub trap (relevant because the victim is believed to have

been washed before being placed in the box) and other hair samples taken from throughout the

house.

614. Property Receipt 188075 contains multiple items recovered from suspect Ross

Felice's home at 7601 Castor Avenue. These items include samples of two red stains taken from

the wall and a radiator at the home (Item Nos. 2 & 6). Each of these items has tested positive for

human blood. See Crim. Lab Report D. C. No. 2-24439 (Attached in Appendix). Item I on the

property receipt consists of human hairs that were located near the blood stain that makes up

Item 2, and item 10 consists of a sample of brown carpet with light and dark brown human hairs

embedded in tar.

615. Trial Counsel failed to request that any of the evidence mentioned above be tested

for DNA.

616. The claim of ineffectiveness has arguable merit because testing ofthe material

would have yielded the identity of the true perpetrator and/or shown that the victim had been in

the home of one of the initial murder suspects. As has been repeatedly discussed in appellate

courts of the Commonwealth, where identity is at issue, the failure to pursue evidence which

would have questioned the defendant's identity as the perpetrator of the crime "presents an issue

of arguable merit." Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (remanding

PCRA to trial court to determine why counsel failed to request DNA testing in post-1995 case).

617. Trial Counsel's decision not to test the items lacked a reasonable basis because

Petitioner has always maintained his innocence of this crime, and the evidence would have

established his innocence conclusively. Moreover, counsel failed to investigate this issue and

197
therefore could not have made a reasonable decision to forego DNA testing.

618. Petitioner was prejudiced by the failure to request testing because it left him with

no defense against the evidence presented by the Commonwealth. The issue of measuring the

prejudicial effect of Trial Counsel's failure to request DNA or other biological testing presents

"a conundrum" as one "cannot prove prejudice without the test, and without showing prejudice

cannot get the test." Williams, 899 A.2d at 1065. Petitioner therefore asserts that under

precedent established by the Pennsylvania Supreme Court, assuming this Court finds

ineffectiveness on the other two prongs of the Strickland test, testing should be ordered so that
-

the prejudicial impact of the failure to request testing can be determined after the test results are

known. fd. at 1065-66 ("If appellant demonstrates counsel lacked a reasonable strategy, DNA

testing can then be conducted; the results would allow the PCRA court to address the prejudice

prong comprehensively.").

619. The issue is not waived because Judge Savitt limited Post-Verdict/Appellate

Counsel to claims apparent from the record. O'Keefe Aff. at ~ 3. Indeed, Mr. O'Keefe did not

inspect the box that contained the victim that was a potential source of DNA.

620. To the extent that Mr. O'Keefe was responsible for litigating Trial Counsel's

ineffectiveness, he also rendered ineffective assistance of counsel under the 6th and 14th

Amendments by failing to raise this meritorious issue of DNA testing on appeal.

621. To the extent that Mr. O'Keefe was responsible for litigating Trial Counsel's

ineffectiveness, there was no reasonable strategic basis for Appellate Counsel's failure to raise -

during post-sentencing proceedings and on direct appeal- Trial Counsel's failure to obtain DNA

testing, as Mr. Ogrod has consistently maintained his innocence. There was no tactical or

strategic reason not to litigate this claim because, before Mr. O'Keefe received Judge Savitt's

order limiting the claims Petitioner could pursue, Mr. O'Keefe intended to raise every claim of

arguable merit identified from his investigation. Moreover, as stated, Mr. O'Keefe did not

198
investigate this issue and thus could not have made a reasonable decision not to raise this claim

on appeal.

622. Appellate Counsel's failure to investigate this issue, which could have established

concrete prejudice to Mr. Ogrod, may have caused him to suffer prejudice. As mentioned

earlier, this prejudice can only be established after testing is conducted.

623. In the alternative, Petitioner asserts that DNA testing should be ordered as part of

discovery in this matter, as he has established "good cause" to have the testing done.

Claim X. PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY

COUNSEL'S
-- -
-
FAILURE
--- TO PROPERLY
. -- -
INVESTIGATE
.. -
-
AND PRESENT
- --_ ---- ---- -----

MITIGATING EVIDENCE AT THE SENTENCING PHASE OF HIS

CAPITAL TRIAL, AND APPELLATE COUNSEL WAS INEFFECTIVE
FOR FAILING TO RAISE THIS CLAIM.

624. The claims and factual allegations set forth elsewhere in this Petition and in all

exhibits hereto are realleged as if set forth entirely herein.

625. The importance of full consideration of mitigating evidence in capital sentencing

proceedings is a fundamental tenet of the United States Supreme Court's capital jurisprudence.

Perry v. Lynaugh, 492 U.S. 302, 307 (1989); Eddings v. Oklahoma, 455 U.S. 104, 110-12

(1982). It is critical to the reliability of the capital sentencing proceeding that the jury render an

individualized decision. Gregg v. Georgia, 428 U.S. 153,206 (1976). A jury cannot make that

decision in a reliable, individualized and constitutional way without mitigating evidence about

the defendant. Reasonable investigation of the mitigation in a capital case is therefore an

absolute prerequisite to constitutionally adequate representation. Porter v. McCollum, 130 S.Ct.

447,453 (2009) ("decision not to investigate did not reflect reasonable professional judgment").

626. In the context of capital sentencing representation, counsel has a duty "to conduct

a thorough investigation of the defendant's background." Porter, 130 S.Ct at 454; Williams, 529

U.S. at 396 (citation omitted). See also Wiggins, 539 U.S. 510, 522-24 (2003); Rompilla, 545

U.S. at 380-381. This includes interviewing lay witnesses, collecting available institutional

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records, and obtaining available expert mental health assistance. ld. The Pennsylvania Supreme

Court has applied similar standards. Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006);

Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004).

627. It 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 and the

penalty in the event of conviction. Rompilla v. Beard, 545 U.S. 374 (2005). Accord Sneed, 899

A.2d 1067; Commonwealth v. Malloy, 856 A.2d 767 (Pa. 2004). This duty to investigate is

particularly weighty and broad in a capital case, where counsel must "conduct a thorough
_._- -- -

investigation" for "all reasonably available mitigating evidence." Wiggins, 539 U.S. at 522-24

(quoting Williams, 529 U.S. at 396); Commonwealth v. Gorby, 900 A.2d 346, 362 (Pa. 2006)

("the record amply demonstrates both that trial counsel inappropriately limited his investigation

to the acquisition of rudimentary information from a narrow set of sources, and that the

information that counsel did acquire through his limited efforts should have prompted additional

investigation in any event, which should have yielded additional mitigation.").

628. As part of the thorough investigation that the Sixth Amendment requires, counsel

should, inter alia, seek out and fully interview family members and others who are familiar with

the client's life and background. Williams, 529 U.S. at 416 (ineffectiveness where counsel

presented testimony from defendant's mother and two friends but failed to fully interview and

present evidence from other "friends, neighbors and family"); Porter, 130 S.Ct. at 453 (counsel

ineffective where he failed to interview family members); Jermyn v. Horn, 266 F.3d 257, 306-07

(3d Cir. 2001) (counsel ineffective for failing to seek, interview and present testimony from

family members); Commonwealth v. Moore, 860 A.2d 88 (Pa. 2004) (counsel ineffective for

failing to seek, interview and present testimony from family members); Malloy, 856 A.2d 767

(counsel ineffective for failing to seek, interview and present testimony from family members);

Commonwealth v. Ford, 809 A.2d 325 (Pa. 2002) (counsel ineffective for failing to seek,

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interview and present testimony from family members).

629. Counsel also has a duty to obtain records pertaining to the client and to prepare a

social history of the client. Wiggins, 539 U.S. at 516 (counsel ineffective for failing to develop

social history from "social services, medical, and school records, as well as interviews with

petitioner and numerous family members"); Williams, 529 U.S. at 395-96 (counsel ineffective

for failing to obtain defendant's juvenile records); Jermyn, 266 F.3d at 307 (same for school

records); Sneed, 899 A.2d 1067 (counsel ineffective for failing to develop social history from

prison records and prior mental health evaluations).

630. Counsel also has a duty to obtain careful, thorough evaluations by mental health

experts. Porter, 130 S.Ct. at 454 (counsel ineffective, in part, for failing to present expert

testimony of defendant's organic brain damage); Commonwealth v. Zook, 887 A.2d 1218 (Pa.

2005) (counsel ineffective for failing to present expert testimony concerning defendant's organic

brain damage). Reasonable professional standards require defense counsel to expand their

investigation beyond such records as pre-sentence reports and social service records. Wiggins,

539 U.S. at 524. The obligation to investigate a capital defendant's case exists even if the

defendant is uncooperative. Porter, 130 S.Ct. at 455. Rompilla, 545 U.S. at 381-2.

631. Absent the constitutionally-required investigation, all strategic choices made at

trial are unreasonable. The United States Supreme Court has "roundly rejected" the possibility

that trial counsel's decision to focus on one potentially reasonable trial strategy can be justified

by a tactical decision when counsel failed to investigate the alternatives. Sears v. Upton, 130

S.Ct. 3259, 3265 (2010) (citing Williams, 529 U.S. at 396); Wiggins, 539 U.S. at 536; Porter,

130 S.Ct. at 454.

632. Here, Trial Counsel's failures constitute ineffective assistance of counsel and

violate the Sixth, Eighth and Fourteenth Amendments to the United States Constitution as well

as Article 1, Sections 9 and 13 of the Pennsylvania Constitution. Pennsylvania applies a three-

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part test to claims of ineffective assistance. As mentioned previously, in Moore, 805 A.2d 1212,

the Supreme Court held,

In order to establish a claim of ineffective assistance of counsel under the PCRA,

an appellant must show that: (1) the claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for the
errors and omissions of counsel, there is a reasonable probability that the outcome
of the proceedings would have been different. Commonwealth v. Kimball, 724
A.2d 326, 333 (Pa.1999).

Id. at 1215.

633. Petitioner alleges that the ineffectiveness in this case meets the Pennsylvania

.three-Jlart test as well as the federal tw07pronged standard. See Strickland, 466 U.S. 668.

634. At the sentencing, Trial Counsel asked that the jury find several mitigating

factors: (1) that Mr. Ogrod had no significant history of prior criminal convictions; (2) that he

was under the influence of extreme mental or emotional disturbance; and (3) under the catch-all

mitigator, that he was emotionally disturbed at the time of the killing, suffered from childhood

abuse that affected his emotional and psychological development, and had attempted to better

himself in life either by seeing a psychiatrist to deal with his emotional problems or by

attempting to join the Army Reserves or working at various jobs to support himself. NT

10/9/1996 at 99-100.

635. The jury found none of these mitigating factors.

A. The Mitigation Presented at Trial.

636. During the sentencing phase, Trial Counsel presented testimony from only three

witnesses: Dr. Peter Ganime, Father Bonavitacola, and Petitioner himself.

637. Dr. Ganime testified about his interactions with Petitioner as a treating

psychotherapist for approximately 10-14 years. He offered testimony concerning the paranoid

nature of Petitioner's mother and explained that he had provided psychotherapy for Petitioner.

He explained that Petitioner was better off when he went to live with his father after his mother

had him brought to a hospital in 1976. NT 10/6/1996 at 11-44.

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 638. Father Bonavitacola, a prison chaplain, testified that he interacted with Petitioner

in prison and that Petitioner was charged with the worst crime he could be charged with in the

eyes of a prisoner and that Petitioner was a gentleman when he interacted with the chaplain. NT

10/6/1996 at 45-49.

639. Petitioner testified about his life growing up including his problems with his

mother. NT 10/6/1996 at 50-76.

640. The direct testimony of these three witnesses spanned only 37 pages in the notes

of testimony, even including several pages of argument about the admissibility of Petitioner's

Army records.

641. Trial Counsel presented no family members, no mental health expert with a

current diagnosis of Petitioner, none of Petitioner's peers, and no records from the Army. He did

not present all the mitigating testimony and detail that was available from Dr. Ganime's notes,

nor did he present available testimony from Fr. Bonavitacola about Petitioner's susceptibility to

manipulation. See, e.g., Bonavitacola Aff. at ~ 7 ("I was particularly concerned about Walter

because he was an easy target for the other inmates. They walked all over him because he

wasn't very smart and he was socially awkward.")

B. Arguable Merit and Prejudice: The Unpresented Mitigation.

642. In the context of a claim of ineffective assistance of counsel at capital sentencing,

"the demonstrated availability of undiscovered mitigating evidence clearly melets] the prejudice

requirement." Blanco v. Singletary, 943 F.2d 1477, 1505 (11th Cir. 1991); Commonwealth v.

Smith, 675 A.2d 1221, 1234 (Pa. 1996) (prejudice established by counsel's failure to pursue and

present a witness with knowledge of "some mental problems" that the defendant had).

643. In this case, substantial mitigating evidence was not presented at trial and

Petitioner is entitled to sentencing phase relief. See, e.g., Commonwealth v. Gorby, 900 A.2d

346,362 (Pa. 2006) (reversing denial ofPCRA relief where trial counsel unreasonably limited

203
his mitigation investigation to a narrow set of sources and "the information counsel did acquire .

. . should have prompted additional investigation in any event"); Commonwealth v. Sneed, 899

A.2d at 1079-80 (affirming finding of deficient performance where trial counsel "conducted little

investigation to prepare for the penalty phase").

i. Counsel Failed to Interview and Call Family and Neighbor Witnesses.

644. Trial Counsel unreasonably failed to present mitigating testimony from Mr.

Ogrod's family members.

645. Affidavits of family members reveal that they were not interviewed or called as

trial witnesses. As a result, the sentencing jury missed many important aspects of Mr. Ogrod' s

life.

646. Mr. Ogrod's brother Greg details that he and Walter suffered neglect and

deprivation and were raised in a hostile environment with a mother who was mentally ill and had

been abused by their father. He explains this dysfunctional and deprived family environment

and his mother's bizarre and disturbing behavior:

I am Walter Ogrod's younger brother. We were both adopted by Olga and Walter
Ogrod Sr. soon after we were born. I did not learn that I was adopted until the
early 1990's.

As young children, Walter and I lived with our mother. My mom took us and left
our dad when we were very young. When my parents were together, I recall my
father being an angry, and sometimes violent, man. He would keep a long slat of
wood from a hardwood floor nearby and when Walter and I acted up, he would
hit us with it. My father and mother fought constantly. My father did not like
that my mother was an artist. I recall one time when I was about three or four
years old and Mom was trying to teach us to paint. When Dad saw this, he yelled
something about not teaching us kids that art garbage, then he stomped on the
table and put his foot through the center of it, breaking it in two. My earliest
memories involve sleep walking and being struck by a stick by my Dad.

Once my mother was on her own, times were tough. There was little money to go
around and not enough food. We got most of our food from the church and there
were many nights when Walter and I went to bed hungry. I remember my mother
selling her wedding ring to buy us winter jackets. My mom never had any money
for a babysitter, so when we came home from school we had to wait outside,
sometimes for a few hours, until she got home from work. She instructed us to
just stay on the stoop.

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 My mother was severely mentally ill. I know that she was hospitalized a few
times, but I don't recall where. Although I'm not sure of her diagnosis, she was
very paranoid. She was convinced people from the school, the neighborhood, and
the court system were out to get her. She was absolutely obsessed with the legal
system - suing people left and right. Mom's artwork was bizarre to say the least.
She made paintings and drawings of people with tortured faces. She would affix
items to the canvass, including human hair, finger nails, and eyelashes. One time
she put a glove on the canvas to make it look like a human hand was emerging
from it.

When Walter was about 10 years old, he was sent by the court to live with our
dad. My dad's mother also lived with them. Although my dad and grandmother
were very controlling, at least there was enough food to eat at their house. 1
visited Walter frequently when he lived with our father.

G. Ogrod Aff.

Greg describes his brother as follows:

Walter was always very different from me and other kids our age. He did not
have any real friends, just people who used him for different things. Walter
simply didn't seem to know how to interact with others. He was socially
awkward to say the least. He was not comfortable expressing his emotions or
showing affection for others. Whenever I tried to hug him, he would pull away.

Walter came across as mentally retarded. He was like "Rain Man." Walter had a
great memory for dates and times, but he never had an ounce of common sense.
Walter went to a special school for people who were mentally slow - Ashbome
School. Kids in the neighborhood made fun of Walter mercilessly. They called
him "weirdo" and "retard." Walter was beat up by other kids more times than 1
can count. He was a walking target for bullies.

Walter was very hyperactive as a child. When he focused in on something, he

couldn't let it go. When we were young kids and the ice-cream truck came by,
Walter would get all worked up when mom would tell us we couldn't get ice
cream because she didn't have any money. Walter would repeatedly scream "I
want ice cream! I want ice cream! I want ice cream!" Even though I was
younger than Walter, I understood and accepted that Mom simply didn't have the
money to buy us ice cream. Walter was different - he never could see the forest
for the trees. He would scream and cry and go all to pieces. Nothing would
console Walter when he got focused on something like this.

G. Ogrod Aff.

Greg also details the abuse Walter was subjected to by both his family and purported

friends:

Mom used to sedate Walter in order to calm him down. I have vivid memories of

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Mom taking the eye dropper out of the cupboard and putting something into
Walter's orange juice. After drinking the juice, Walter would calm down
significantly. Watching Mom do this to Walter, I learned to refuse orange juice
any time my mother offered it.

My Mom would often call her brother, John Terpelnk, to come over and
reprimand me and Walter. Jolm couldn't calm Walter down either, but he
frequently pushed him to the ground and sat on him and/or hit him in an attempt
to do so.

When Walter got older, he remained a social outcast. Walter never had any real
friends. He was always the butt of the joke, whether he knew it or not. That was
the strange thing about Walter, he never seemed to understand that he was being
belittled or mistreated.

Walter wanted nothing more than to be liked and accepted by people. To get
friends, Walter would do almost an)'thingpeople asked ofhlrri: Walter was a
follower. My friends and I bossed Walter around all the time. Although Walter
rarely drank, when he turned 21 we made him buy beer for us. My friends and I
used to have wild parties at Walter's house. I never saw Walter use drugs. He
didn't really drink either, but would walk around carrying a beer simply to fit in.

After our father died, Walter inherited a large sum of money as well as my
father's home on Rutland Street. This is when people really started to take
advantage of Walter. There was always someone living at Walter's house rent-
free. My friends and I used the house as a party house. When Walter complained
I would tell him to shut up or send him to his room. He never put up a fight, just
put his head down and went upstairs.

The last people I recall living with Walter were Charles and Linda Green and
their kids. The Greens were bikers who lived a wild life. They completely took
over the house. When I stopped by to drop off groceries, I was shocked to see the
condition of the house. It was a complete mess, there was writing on the walls
and drugs sitting out right on the table. Charles Green made it clear he did not
want me coming around the house. He was so hostile and the place was such a
mess, I was afraid to leave the food I brought for fear that they would take it for
themselves.

Walter used some of his inheritance money to buy a Trans Am. I would ask to
borrow his car to run an errand and then keep it for weeks at a time. One time, I
borrowed Walter's car telling him I was going around the comer to get cigarettes.
When I returned three days later and told Walt I had gotten lost, he responded,
"Just don't be taking it like that again." He never mentioned it again after that.
This was typical for Walter, he didn't process things like normal people. I also
think he was just so used to the abuse that he accepted it. Other people and I
frequently "borrowed" money from Walter. Each time I would tell him I would
pay him back, but I never did. Walter continued to lend me his car and money
despite my history of abusing his trust.

Some friends convinced Walter to use some of his money to buy a dilapidated

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 house in Wildwood. I promised to help fix up the house, but never got around to
it. I would tell Walter I was going to work on the house, but instead I would
throw a party. During one of these parties, my friend Randy Parsons hit some
guy with a brick, putting him into a coma.

In the early 1990's, I had a horrible drug habit and I took advantage of Walter just
as bad as others did. Looking back, I'm not proud of the way I treated Walter. It
was just so easy to abuse him because Walter was so gullible. He would believe
anything he was told and do anything we asked of him. We all took advantage of
Walter in every way imaginable, yet Walter seemed oblivious to it all.

I was the ''bad apple" and the "black sheep" of the family. Drugs and violence
were a part of my everyday life. Walter on the other hand, was the complete
opposite. Walter rarely even drank. I'm convinced that when he did drink it was
only so he could fit in with everyone else. When I learned about Walter's arrest
for the murder of that little girl, I knewsomethingwas terribly wrpng. Walter
was not violent like that. When Walter was living on Rutland Street whenever
anyone tried to provoke him into a fight, he would back off. Walter was a
passive, pushover kind of guy.

Sometime after Walter's conviction, I met John Hall in prison at CFCF. He told
me that he used to get his girlfriend to write letters to Walter, pretending they
were from a go-go dancer. Hall found it hysterical how easy it was to fool
Walter. I laughed along with him, knowing exactly what he meant.

G. Ogrod Aff.

647. Trial Counsel did not interview Petitioner's aunt and uncle. While Trial Counsel

focused on Petitioner's mother's bizarre behavior, he did not address the way Petitioner's father

mistreated his wife (perhaps in reaction to her mental illness). Along with Greg Ogrod,

Petitioner's maternal uncle John Terpeluk was available to address this issue that went

unmentioned at trial:

I am Walter Ogrod's maternal uncle. His adoptive mother, Olga, was my sister.
She died in December of 1993. Including Olga, I had five brothers and sisters.
From oldest to youngest the six of us are: Mary, Peter, Walter, John, Olga and
Paul. I was closest in age to Olga and was more attached to her than to my other
brothers and sisters.

Olga and her husband, Walter Sr, adopted Walter Jr. when he was a baby so I
have known Walter his whole life. They later adopted Greg Ogrod as well.

Olga left Walter Sr. because he pulled a gun on her and threatened to kill her.
Olga somehow managed to get the gun and she gave it to me. Walter Sr. was
extremely abusive to my sister. He verbally abused Olga by constantly insulting
her and degrading her. He did it in front of the family, and Walter Jr. and Greg.

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 One time Olga accidentally backed her car out of the garage and smashed the
trash cans and Walter Sr. became enraged. Little things like that really set him
off and he took all his anger out on Olga.

The abuse was bad even before they adopted Walter Jr. and Greg. I recall that
Olga had a nervous breakdown and I think it was because of the way her husband
abused her. I remember her behavior became more bizarre during and after their
divorce. She developed an obsession with the courts. While they were married,
Walter Sr. constantly told Olga she was ugly and had a big nose so she got
surgery to "correct" it. I never thought there was anything wrong with her nose at
all. Walter Sr. constantly harassed her about money. He also used to compare
her to other women and say "why can't you be more like them?"

Walter Jr. had behavioral problems as a child. It seemed like he was fine prior to
the separation of his parents, but afterwards he changed. I tried to help Olga with
discipline but it wasn't the same as having a father constantly there. When
Walter Jr. got out of hand Olga called me and I came over to help her. I
sometimes used a fraternity paddle to punish him. We only lived about ten
minutes away in Northeast Philadelphia. I attended to Olga and Walter Jr. so
much that I neglected my job.

1. Terpeluk Aff. Mr. Terpeluk could also have described Mr. Ogrod for the jury. He explains:

[a]s a child Walter Jr. had a speech impediment an,d the other children mocked
him. He was also very hyper.

I recall Olga and I took him to the hospital because she called me and said he was
acting out. I don't remember what happened at the hospital but I think he went to
live with his father afterward. I also remember that he had to go to a special
school because he was slow.

Before Walter Jr. went to live with his father, Walter Jr. and Greg visited their
father on the weekends. Walter Sr. did very strange things like dress them in
really nice clothes while he had them and send them home in really old clothes.
He also gave Olga very little money for child support and she struggled to make
ends meet. She had to get a job in the mall doing surveys with people and she
wasn't around much because she had to work.

After Walter Jr. went to live with his father it seemed like he got better. Walter
Jr. always needed guidance and I think he got that when he was with his father. I
know he struggled after his father died. Walter was always the kind of person
that people took advantage of and it helped that his father could watch over him.
Once his father died he was lost.

1. Terpeluk Aff.

648. Similarly, counsel did not interview Mr. Ogrod's aunt, Marie Terpeluk, John

Terpeluk's wife. She also witnessed Walter Sr.'s abuse of Petitioner's mother. Marie Terpeluk

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has signed an affidavit stating the following:

I am Walter Ogrod Jr.'s aunt. My husband, John, is the brother of the late Olga
(Terpeluk) Ogrod, Walter's adoptive mother. I have known Walter Jr. all his life.

My husband was very close to Olga. She was a paranoid woman and she wasn't
close to her other siblings but she trusted my husband and he helped her with her
affairs, especially after she and her husband separated. Olga didn't trust the
lawyers she had working on her divorce. She felt they were working for her
husband, Walter Ogrod Sr. One of the lawyers called my husband John and said
he just wanted to let him know that he couldn't work for Olga anymore because
she was so paranoid.

Olga was a very talented artist. Her work was very beautiful but the older she got
the more her artwork became bizarre. It seemed like she was losing her mind. It
was very sad.

Walter Sr. verbally abused Olga. She was a meek and mild person and he
constantly insulted and degraded her. He used to correct every little thing she
said and embarrass her. He used to mock Olga. She was very talented at
designing clothing and hats and even won prizes for it but he would make fun of
her for it. Walter Sr, did this in front of our family and little Walter Jr. and his
brother, Greg.

Walter Sr. was very strange. He was hyper religious and would light candles all
over the house and pray on his knees for hours. Before Walter and Olga adopted
the boys Olga spent time at Friends Hospital because she had a nervous
breakdown. I think she had the breakdown because she just couldn't stand the
abuse. I remember Walter Sr. comparing her to other women and telling her she
should be more like them. She even had plastic surgery done on her nose to
please him but nothing ever pleased him and the abuse continued.

It was a struggle for Olga to raise two boys with very little support from their
father. I remember one Christmas she did not have any money to buy the boys
presents so John and I bought presents for the boys.

At some point Walter went to live with his father, and I think his behavior
improved when he was there because he was in therapy. We were not in touch
with him very much after he moved in with his father.

M. Terpeluk Aff.

Mrs. Terpeluk describes Walter as follows:

Before Walter Sr. and Olga separated Walter Jr. was a sweet and loving boy.
After his parents separated it seemed like his behavior got really bad because he
was angry about the divorce. He was hyper, fidgety, and difficult to control. He
couldn't sit still like the other children. Olga had a hard time trying to control
him so she used to call my husband John to come over and help her.

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 Walter Jr. always seemed slower than the other children. He went to a special
school. I remember when he came into money after his father died that people
manipulated him out of his money. Walter was always pretty gullible like that.

M. Terpeluk Aff.

649. Neighbors who knew Walter as he grew up could have provided convincing

testimony to support a plea for a life sentence. Michael Smalley could have testified at trial

about Walter's difficult upbringing:

I knew Walter Ogrod and Greg Ogrod when we were boys. I met Walter when I
was about eleven or twelve years old and he was about seven or eight. We were
neighbors and went to the same elementary school.
- - -- -

Walter and Greg were always dressed in dirty, worn out clothes, and they were
the only kids in the neighborhood who didn't have bikes. They were treated like
outcasts by the rest of the kids in the neighborhood and were never invited to join
in any of our games or activities. As I remember Walter and Greg, they were
always standing off to the side, watching the rest of us play. My family has
photographs of the kids in our neighborhood playing together, and the Ogrod
boys don't appear in a single one.

There was never a man around the Ogrod household. It was just the brothers and
their mother. She was a very strange woman. She was always dressed all in
black, and she never spoke with anyone in the neighborhood. She was a loner, a
ghost. The only times we saw her was when she went walking quickly by,
making a beeline to and from the bus stop. She had a job taking shopper surveys
at the Neshaminy Mall, and she rode the bus to work. She just turned her boys
loose and let them fend for themselves while she was gone. They were always
together and they had no adult supervision at all.

Smalley Aff. Mr. Smalley also could have described Walter for the jury. As he stated:

[ ] I remember Walter clearly. He was very slow-witted and clumsy. He tripped

over his own feet and had speech problems. We neighborhood kids all thought he
was mentally retarded, and some of us called him, "Retard". He was always
disheveled, wearing those raggedy clothes. He behaved in weird ways
sometimes, as a kid, making strange guttural noises or lying on the ground and
spinning around.

Smalley Aff.

650. William Daka could have testified about the insults Walter suffered growing up:

I knew Walter, Greg and Olga Ogrod when I was a young boy. Walter's family
lived in the North East section of Philadelphia in the Tomlinson Court
Apartments, and my family lived in the same neighborhood.

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 I am about five years older than Walter. I think Walter was about seven or eight
years old when he began living in the apartments with his brother and mother.
Everyone in the neighborhood picked on Walter and made fun of him. They used
to call him names and tease him. They would also beat him up pretty bad and
throw snowballs at him. They ganged up on him and he didn't really have a
chance against them.

I think everyone picked on Walter because he was so odd and he was slow. He
wasn't like the other kids and he just didn't really fit in with the crowd. I tried to
protect Walter because he was such an easy target. I think Walter would have
been beaten up everyday if I didn't intervene. His mother used to thank me for
trying to help her son.

DakaAff.

651. Other neighbors could have testified about how helpful Walter was and how hard

a worker he was. Anna Newsham lived, and still lives, on Rutland Street, where Walter grew up

and lives. She could have testified about the contrast between Walter and his brother Greg:

Living just two doors from the Ogrod boys, I got to know them. Greg was always
getting into trouble, but his brother Walter was different. Greg stole from nearby
stores and bragged about it. Walter was quiet and hard-working. He never
bothered anybody.... As long as I knew Walter, ... he kept ajob.

A. Newsham Aff. at "i["i[3, 5. Her husband lived there, too, and was available to testify about the

Ogrod family. He could have explained that the Ogrods broke up when Walter and his brother

"were still quite young" and how Mrs. Ogrod took the boys and moved away. J. Newsham Aff.

at "i[4.

652. Walter's landlord in Glenside, Howard Serotta, concurred with Mrs. Newsham.

He had already testified at the suppression hearing before the first trial describing when the

detective came looking for Walter. He could have testified at the sentencing phase of the second

trial:

Walt worked full-time as a truck driver, working the midnight shift, delivering
rolls. He paid his rent on time, took care of my property and was always
respectful and polite. I never had complaints from the neighbors after the
brothers [who were former tenants] left.

Walt worked some for me in my business repairing and cleaning chandeliers. His
mental handicap made him suitable for that sort of work, which calls for a slow
and careful approach. He wanted very much to please, and he followed

211
 directions. Walt worked well and hard, and I found him to be a trustworthy
employee, just as he was a trustworthy tenant.

Walt was a nice guy, and he got along well with my family and my other workers,
but he was socially awkward and didn't appear to have many friends.

Serotta Aff. ~~ 3,5,6.

653. Petitioner was prejudiced because Trial Counsel did not elicit this testimony

about Mr. Ogrod's emotional history, history of neglect from family members and objective

neighbors. Penry v. Lynaugh, 492 U.S. 302, 324 (1989) (mitigating evidence of childhood

abuse); Skipper v. South Carolina, 476 U.S. 1, 13 14 (1986) (Powell, J., concurring) (evidence

concerning a defendant's "emotional history ... bear[s] directly on the fundamental justice of

imposing capital punishment"); Eddings v. Oklahoma, 455 U.S. 104, 113 (1982) (history of

neglect is mitigating).

654. In addition, Trial Counsel failed to present testimony about how nice, respectful

and hard-working a young man Walter was. This, too, is mitigating. 42 Pa. C.S. § 971l(e)(8)

("Any ... evidence ... concerning the character ... of the defendant" can be presented as

mitigation); Lockett v. Ohio, 438 U.S. 586, 605 (1978) (8th Amendment guarantees right to

individualized determination of sentence).

ii. Evidence that Petitioner Was Slow, Gullible Follower Who Was Often
Teased.

655. Trial Counsel failed to present evidence from many available peer witnesses who

would have been available and willing to testify that Petitioner was a gullible follower. Robert

Fritz states that Petitioner was "teased a lot in school because he was slow and not good at

making friends." He relates the following story about how Petitioner was bullied and bossed

around even in his own home:

I really only hung out with Walter because he was friends with my friend. There
was a color television in the living room and Walt was only allowed to watch one
show on it a night because everybody else wanted to play the stereo. The rest of
the time he had to watch in his room on a little black and white television. He
was pretty gullible and would do whatever someone told him to do.

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Fritz Aff. at 'If 4. Other friends confirm this. Guhl Aff. at 'If 4; Ward Aff. at 'If 2; King Aff.'If 4

("Even though it was Walt's family home, it was Turtle and Sarge who ran the show there. They

pushed Walt all over the place. They did whatever they wanted to do and Walt had to just put up

with it.").

656. Petitioner was easily manipulated. Heidi Guhl recalls:

Walter was very gullible and easily manipulated. Walter paid for some of the
equipment for a friend's business. He was never compensated in any way for
doing this and was treated like an employee rather than a partner. Walter was
convinced to buy a house in Wildwood, NJ that looked like it should be
condemned. Walter could be convinced to do anything. We used the Wildwood
!louse as a party house.

Guhl Aff. at 'If 5.

657. An acquaintance from the Ashboume School, Alonzo Balthrope, could have

testified that Walter was a follower at school:

Walter tried to get people's attention and he would do things to get attention. For
example if one kid threw a piece of paper and the other kids laughed then Walter
would .throw ten pieces of paper. He would just imitate and follow what other
kids did. If someone yelled he would yell.

Balthrope Aff. at 'If 3.

658. Petitioner was frequently convinced to give people rides or do people favors,

which he did because he wanted to be accepted. Guhl Aff. at 'If 6. "Walter always did what

people told him to do because he just wanted friends." ld. at 'If 8; Ward Aff. at 'If 4 "(I think

Walter was happy to just have some friends so he let people walk allover him.").

659. Petitioner gave away money to people who asked for it. Pettit Aff. at 'If 4. He was

the butt of his peers' jokes.

Walt never seemed very together mentally. He couldn't relate to people well and
never fit in with the group. We all used to make fun of him constantly. He was
the butt of all of our jokes and he just took all the abuse. We didn't treat Walt
well at all. We just wanted to use his house to drink in because we couldn't do it
at our own houses.

ld. at 'If 5. In the word of one person who hung around Walter's house, Walter was "a lamb

213
among sharks." Shinn Aff. at ~ 4. See also Zacher Aff. at ~ 6. He was not able to assert

himself. Trasser Aff. at ~ 7 (Walter seemed slow and goofY); Ostash Aff. at ~ 4 ("We

disrespected [Walter] just like everyone else in the house disrespected him."); Doherty Aff. at ~

2 ("people just took over the house because Walter was so weak").

660. Petitioner received a substantial inheritance from his father which was

squandered by other people. Guhl Aff. at ~ 2; Pettit Aff. at ~ 4. John Shinn states, "Walter

inherited some money after his father died and he was completely scammed out of his

inheritance because everyone swindled money out of him. Shinn Aff. at ~ 3.

661. Tnal Counsel failed to call witnesses in the courtroom who could have offered

mitigating testimony. For example, Steve Mulvey knew Petitioner for 13 years before Petitioner

was arrested and also employed him. Counsel even observed Mr. Mulvey in the courtroom

during the sentencing phase and called him to Petitioner's attention. NT 10/1/1996 at 59.

Counsel failed, however, to put Mr. Mulvey on the stand. Mr. Mulvey, Petitioner's employer,

would have confirmed that "Walter was a follower, not a leader, who could be easily swayed by

authority." Affidavit of Steven Mulvey dated Oct. 14,2009 ("First Mulvey Aff.") at ~ 2.

Another example is Heidi Guhl, who was also present in the courtroom during the penalty phase

of Mr. Ogrod's trial and had lots of helpful things to say but was never called to the stand. Guhl

Aff. at~13.

662. Petitioner was prejudiced because these witnesses were not put before the jury

with the consistent story they had to tell that explained him. Lockett v. Ohio, 438 U.S. 586, 605

(1978) (8th Amendment guarantees right to individualized determination of sentence).

iii. Failure to Get Petitioner's Army Records Admitted as Evidence.

663. Even though Trial Counsel wanted to, he failed to get Petitioner's Army records

admitted. NT 10/6/1996 at 31; Department of the Army Records. These records are mitigating

as they demonstrate Petitioner's difficulty in dealing with stress and gave a helpful diagnosis of

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dependent personality disorder.

664. Trial Counsel was not able to get the army records admitted into evidence

because the treating psychiatrist, Dr. Peter Ganime, who testified said he did not really rely on

the records. Id.

665. However, counsel had in his hand a report from Dr. Allan M. Tepper who did rely

on the army records. Dr. Tepper wrote:

At age 17, Mr. Ogrod joined the United States Army. Within his first month of
basic training, Mr. Ogrod was admitted to the Psychiatric Division of the Walson
Army Community Hospital at Fort Dix, New Jersey. Admitting complaints
included confusion, an inabiliry to concentrate, are-experiencing of suicidal _
ideation, and a feeling that other individuals in his unit wanted to physically harm
him. At that time, Mr. Ogrod was diagnosed as Mixed Personality Disorder
manifested by extreme dependency, immaturity, tendencies for confused thinking,
fugue like states, mild paranoia, belief that others wished to do him harm,
intrinsic belief that he is odd or different from other people. Poor history of
socialization, and a poor ability to handle stress. Mr. Ogrod was hospitalized for
approximately one month, and subsequently received a medical separation from
the United States Army.

4/30/1993 Report of Dr. Allan M. Tepper ("Tepper Report") at 3 (Attached at Appendix).

666. Dr. Tepper fully relied on the Army Records. He specifically tied his opinion into

the psychiatric opinion from those records:

Emotionally, Mr. Ogrod presents a psychological picture which is similar to the

diagnostic impression outlined during his Army psychiatric hospitalization. That
is, Mr. Ogrod possesses strong underlying feelings of dependency, isolation, and
abandonment. He strives to be accepted and appreciated by others, and may act
in such ways or manners to attempt to obtain this longed for status and
recognition. Although he possesses Average Intelligence, he is deficit in more
interpersonal skills and problem-solving techniques.

Tepper Report at 4.

667. Other mental health professionals who perfo=ed an evaluation for the purposes

of trial would have relied on the Army Records. Dr. Frank Dattilio notes that while Walter was

in the army he was hospitalized and diagnosed with Mixed Personality Disorder manifested by

extreme dependency, immaturity, tendencies for confused thinking, and fugue-like states. Dr.

Dattilio adds, "It is apparent from Mr. Ogrod's history how he was easily affected by the

215
opinions of others and crumbled under pressure. This occurred throughout his academic years

and during his experience in the Anny." Dattilio Report at 12. Accord Blumberg Report at 6

(the army records "indicated that Mr. Ogrod was extremely dependent [and] had tendencies for

confused thinking . . . .").

668. In addition to seeking to admit the records through Dr. Tepper, counsel could and

should have sought a certified set of the records, called a record custodian for the records, or

sought the agreement of the Commonwealth before the penalty phase that they could be admitted

because of their mitigating value.

669. Trial Counsel prejudiced Mr. Ogrod by his failure to get the Anny records

admitted as evidence in the sentencing phase and his failure to get the opinion of Dr. Tepper

regarding those records before the jury. See Commonwealth v. Zook, 887 A.2d 1218 (Pa. 2005)

(counsel ineffective, inter alia, for failing to provide mental health expert with available hospital

and prison records).

iv. Trial Counsel Failed to Obtain Available Mitigation from the

Witnesses He Called.

670. While Trial Counsel presented Dr. Peter Ganime as a witness, he failed to

properly prepare Dr. Ganime and obtain all the mitigating testimony that was available from Dr.

Ganime. If asked, Dr. Ganime would have testified that, in the course of treating Walter, he

learned that Walter's mother had twenty-one (21) electric-shock treatments at the Philadelphia

Psychiatric Center. Dr. Ganime thought Mrs. Ogrod exhibited signs of Munchausen syndrome

by proxy where she projected her own illness onto her child. Dr. Ganime Aff. at ~ 5.

671. Dr. Ganime could also have explained soft neurological signs that Walter

exhibited. While Trial Counsel had Dr. Ganime read the names of the tests and the outcomes, he

never asked Dr. Ganime to describe and explain the procedures so that the jury could understand

them. NT 10/9/96, 19. If asked, Dr. Ganime would have told the jury that, at age II, Walter

could not stand still with his eyes closed and his feet together; he could not walk in a straight line

216
with his eyes closed; if Walter's eyes were closed, he could not say where he was touched ifhe

was touched by two cotton balls on different parts of his face; and he could not point out another

person's right hand, if that person were standing facing him. Ganime Aff. at ~~ 11-13.

672. During the course of his treatment, Dr. Ganime learned that Walter arrived at

school with signs of abuse, because he arrived with bruises on him. Id. at ~ 15.

673. He also learned that Mrs. Ogrod dressed her children in dirty clothes and grey

underwear. She was so paranoid that, after she and her husband separated, she insisted on

exchanging custody of the boys at a police station. Id. at ~ 7.

674. While Trial Counsel called prison chaplain, Fr. Bonavitacola to testifY, he did not

eliCit all the available mitigation from Fr. Bonavitacola. If asked, Fr. Bonavitacola would have

testified that he was particularly concerned about Walter because "he was an easy target for the

other inmates. The other inmates "walked all over him because he wasn't very smart and he was

soCially awkward." Bonavitacola Aff. at ~ 7

675. If a jury had heard all that these witnesses had to offer, it would have better

understood Walter, better understood his neglect and his physical and neurological limitations.

v. Trial Counsel Failed to Call an Expert or Experts who had Performed

Recent Evaluations of Walter and Could present a Present Diagnosis
for Walter Ogrod, Including a Statutory Mitigator.

676. While counsel presented testimony from Dr. Peter Ganime, Dr. Ganime could not

give a present diagnosis for Petitioner. On cross-examination, the Commonwealth elicited

testimony that Dr. Ganime had not seen Mr. Ogrod on a regular basis since 1985. NT 10/6/1996

at 41-42.

677. Trial Counsel did have available to him Dr. Allan Tepper who was able to

provide a diagnosis from his 1992 evaluation of Petitioner. However, Trial Counsel failed to call

Dr. Tepper.

678. Dr. Tepper could have testified to the following information, which was conveyed

217
in his April 30, 1993, report:

Emotionally, Mr. Ogrod presents a psychological picture which is similar to the

diagnostic impression outlined during his Army psychiatric hospitalization. That
is, Mr. Ogrod possesses strong underlying feelings of dependency, isolation, and
abandonment. He strives to be accepted and appreciated by others, and may act
in such ways or manners to attempt to obtain this longed for status and
recognition. Although he possesses Average Intelligence, he is deficit (sic) in
more interpersonal skills and problem-solving techniques.

Dr. Tepper Report at 4.

679. Additional mitigation was available to be presented at the sentencing phase. A

mental health professional could have testified that Walter has "avoidant inadequate, dependent

and obsessive compulsive traits." He "struggles with social inhibition, feelings of inadequacy,

hypersensitivity to negative evaluation, preoccupation with being criticized or rejected in social

situations, preoccupation with orderliness and control, and difficulties in expressing

disagreement with others, because of fear of loss of support or approval." These personality

traits "are enduring, showing the persistence and depth of his character pathology." Moreover,

Walter was unfortunately "groomed for this [pathology] by his tumultuous upbringing." Dattilio

Report at 10 and 12.

680. In addition, if a neuropsychological assessment had been conducted, as

recommended by Dr. Tepper, Tepper Report at 4, additional mitigation would have been

developed. Attorney Mark Greenberg acknowledges he did not follow through on Dr. Tepper's

recommendation. Greenberg Aff. at 'If 14. Specifically, Walter Ogrod's neuropsycholgoical test

scores show "that he has mild to moderate impairment in the areas of verbal processing and

motor skills." Report ofHarry Krop, Ph.D. at 4 (Attached in Appendix). In addition, his

Halstead-Reitan impairment index is in the low average range and is significantly lower than his

LQ. This helps explain how, despite his intelligence, Walter remains immature. ld.

681. Additionally, Walter's longstanding significant impairment in his self-esteem and

sense of identity and his gullible and dysfunctional personality are symptoms of a Personality

218
Disorder Not Otherwise Specified with Avoidant, Inadequate, Dependent and Obsessive

Compulsive Features which constitutes an extreme mental or emotional disturbance. Report of

Dr. Neil Blumberg at 13. This represents the diagnosis ofthe statutory mitigator not presented at

trial. 42 Pa. C.S. § 9711(e)(2) ("The defendant was under the influence of extreme mental or

emotional disturbance."). This finding is coupled with Dr. Frumkin's finding that Petitioner is

more suggestible than 95% of the population. Trial Counsel failed to present this testimony and

thus prejudiced Mr. Ogrod at his sentencing. See Commonwealth v. Perry, 537 Pa. 385, 393, 644

A.2d 705, 709 (Pa. 1994) (prejudice is demonstrated and reversal required when the sentencer is
. .

not given the opportunity to weigh mitigating evidence and the "result of the trial might have

been different were it not for [the] errors"). See also Eddings, 455 U.S. at 115-16 (valid

mitigation includes difficult family history and emotional disturbance preceding offense).

682. Accordingly, Mr. Ogrod was prejudiced because Trial Counsel failed to

adequately investigate Walter Ogrod's mental health and failed to present to the jury all of the

mitigation available including but not limited to an evaluation conducted for the sentencing

phase ofthe trial and all available mitigation. See Commonwealth v. Sattazahn, 952 A.2d 640,

648, 654 (Pa. 2008) (counsel ineffective for failing to present testimony of mental health

experts). See also Commonwealth v. Gorby, 909 A.2d 775, 790-91 (Pa. 2006); Commonwealth

v. Malloy, 856 A.2d 767, 787-88 (Pa. 2004); Commonwealth v. Smith, 675 A.2d 1221, 1234 (pa.

1996).

683. Pennsylvania law is clear that "it is exclusively a jury question and within its sole

province to determine how much weight should be accorded to any mitigating factor when

balanced with other mitigating and aggravating circumstances in the case." Commonwealth v.

DeHart, 539 Pa. 5, 27, 650 A.2d 38, 49 (1994) (quoting Commonwealth v. McCullum, 529 Pa.

117, 131,602 A.2d 313,320 (1992)). Only one juror would need to find this mitigating to spare

Petitioner's life. Commonwealth v. Blount, 538 Pa. 156, 176,647 A.2d 199, 210 (1994) (noting

219
that anyone juror finding a mitigating circumstance can compel a sentence of life imprisonment

by finding that the mitigating circumstance outweighs the aggravating circumstances). See also

Williams v. Taylor, 529 U.S. 362, 396-98 (2000) (defendant prejudiced under Strickland where

counsel failed to seek and present records indicating that, among other things, defendant did well

in structured environment); Commonwealth v. Smith, 675 A.2d 1221, 1234 (Pa. 1996) (prejudice

established where if "admissible evidence existed ... [and] the jury [had] heard about it, the jury

might have come to a different conclusion, i.e., life in prison instead of death"); Commonwealth

v. Mabie, 359 A.2d 369 (Pa. 1976) (counsel ineffective for failing to obtain hospital records

potentially mitigating the offense and supporting claim of self defense); Claibourne v. Lewis, 64

F.3d 1373, 1385 (9th Cir. 1995) (failure to obtain institutional records from mental hospital and

prison treatment facility).

684. To demonstrate prejudice, Petitioner need only prove that there is a reasonable

probability that one juror would have voted for a life sentence if this evidence had been

presented. Wiggins, 539 U.S. at 537 (to assess prejudice from deficient stewardship in the

presentation of mitigation court determines whether "there is a reasonable probability that at

least one juror would have struck a different balance"); Sattazahn, 952 A.2d at 657 (same).

Petitioner has done that as there was much available mitigation that Trial Counsel failed to

present.

C. Trial Counsel's Performance Was Deficient and He Had No Reasonable

Strategic Basis for Not Eliciting the Foregoing Testimony.

685. As part of capital counsel's constitutional duty "to conduct a thorough

investigation" for mitigation, counsel must obtain documentary records pertaining to the client.

See, e.g., Williams (Terry) v. Taylor, 529 US 362,396 (2000) (capital counsel "did not fulfill

their obligation to conduct a thorough investigation of the defendant's background" and their

performance "fell short of professional standards" when they failed to seek and obtain

documentary records about the client); Williams (Michael Wayne) v. Taylor, 529 U.S. 420

220
(2000) ("a diligent attorney" would have sought out mental health reports that were of "potential

importance"); Commonwealth v. Smith, 675 A.2d 1221, 1234 (Pa. 1996) (Newman, J.,

concurring) ("We have specifically held that a failure to investigate witnesses and/or records,

that may have established a defense or mitigating circumstance, constitutes ineffective assistance

of counsel").

686. Trial Counsel must also fully interview and present helpful testimony from family

members and others who are familiar with the client's background. Williams (Terry), 529 U.S.

at 369-70 (counsel must carefully interview the defendant's family members and others familiar

with his background); Id. at 415-16 (O'Connor, J., concurring); Commonwealth v. Perry, 644

A.2d 705, 709 (Pa. 1994) (failure to prepare thoroughly for sentencing in a capital case is

deficient performance); Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 ( 1976) (failure to

fully investigate constitutes deficient performance).

687. Trial Counsel did not conduct a thorough investigation of his client's background.

He did not interview Petitioner's aunt or uncle and a number of peers. He did not contact

neighbors of Petitioner who could have presented compelling testimony about Petitioner's

childhood and upbringing. He did not present mitigating testimony that was available to him.

He did not contact an Army records custodian and did not present the mitigating records he had

in his possession. Trial Counsel's investigator at the time oftrial, Mark Shaffer, was able to

conduct a full mitigation investigation. Trial Counsel never asked him to do that. Shaffer Aff."i[

14.

688. Trial Counsel did not present testimony from mental health professionals who had

evaluated Petitioner since he was arrested in 1992. This, too, was deficient performance.

Commonwealth v. Williams, 732 A.2d 1167, 1189 (Pa. 1997) (trial counsel has a duty to explore

defendant's history of mental illness), cert. denied, 519 U.S. 1153 (1997); Commonwealth v.

Smith, 675 A.2d 1221 (Pa. 1996) (finding counsel ineffective for failing to investigate, prepare,

221
and present mitigating evidence of defendant's impaired mental health); Magill v. Dugger, 824

F.2d 879, 889 (11 th Cir. 1987) (counsel ineffective at capital sentencing when he fails to call

mental health expert at the sentencing hearing, when expert testimony "would have provided the

jury with a more long term view of [the defendant's] emotional problems").

689. Trial Counsel was ineffective and failed to locate and present significant

mitigation. A new sentencing is required.

D. Appellate Counsel Was Ineffective.

690. Appellate/Post-Verdict counsel states that he did not conduct a mitigation

investigation because he was under the Court's Order limiting him to claims apparent from the

record. O'Keefe Aff. at 'Il'll3, 6 ("Because of Judge Savitt's specific order ... I did not:

undertake to complete a mitigation investigation related to the sentencing phase;"). He also

thought that Mr. Ogrod's current counsel would conduct such an investigation. O'Keefe Aff. at

'Il3. Because of Judge Savitt's Order limiting Mr. O'Keefe's investigation, Petitioner has not

waived the issue of Trial Counsel's ineffectiveness related to sentencing phase issues is not

waived.

691. To the extent that Post-Verdict/Appellate Counsel was responsible for raising

Trial Counsel's ineffectiveness for failing to present available mitigation, he was ineffective for

failing to raise a claim that Trial Counsel was ineffective for failing to investigate and present

mitigating evidence at sentencing.

692. The claim of ineffective assistance of Trial Counsel at sentencing has merit, as set

forth above.

693. Petitioner was prejudiced because Post-Verdict/Appellate Counsel failed to raise

on post-verdict motions and direct appeal a meritorious claim. Commonwealth v. Townsell,379

A.2d 98,101 (pa. 1977) ("[A] substantial matter of arguable merit is not to be abandoned on the

ground that it might de-emphasize another issue ... at the least, appellate counsel should brief

222
each significant arguable issue... complete disregard of an important issue cannot be ignored as

a matter of strategy."); Commonwealth v. Yocham, 397 A. 2d 766,768 (Pa. 1979) (appellate

counsel's failure to raise an important and meritorious issue, based on his personal view of the

facts, was unreasonable and deprived defendant of effective assistance of appellate counsel);

Commonwealth v. Pfaff, 384 A.2d 1179 (Pa. 1978) (plurality); 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"). Petitioner requests a new

sentencing hearing.

Claim XI. PETITIONER IS ENTITLED TO A NEW SENTENCING HEARING

BECAUSE THE COURT IMPROPERLY EXCLUDED A JUROR FOR
CAUSE IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE 1, SECTIONS 9 AND 13 OF THE PENNSYLVANIA
CONSTITUTION; TRIAL AND APPELLATE COUNSEL WERE
INEFFECTIVE FOR FAILING TO OBJECT TO AND RAISE THIS
ISSUE.

694. The claims and factual allegations set forth in all other sections ofthis petition are

realleged as if set forth entirely herein.

695. It is well settled that the Sixth and Fourteenth Amendments of the United States

Constitution, and Article I, Section 9 of the Pennsylvania Constitution "guarantee a defendant on

trial for his life the right to an impartial jury." Ross v. Oklahoma, 487 U.S. 81,85 (1988); Irvin

v. Dowd, 366 U.S. 717, 722 (1961). See also Commonwealth v. Ingber, 531 A.2d 1101, 1102

(pa. 1987). The Supreme Court has consistently held that under Witherspoon v. Illinois, 391 US

510 (1968), when a trial court "excludes from a capital jury a prospective juror who in fact is

qualified to serve, a death sentence imposed by the jury cannot stand." Gray v. Mississippi, 481

U.S. 648, 651 (1987); Davis v. Georgia, 429 U.S. 122 (1976).

696. The "improper exclusion of even one veniremen in violation of Witherspoon

223
warrants relief." Szuchon v. Lehman, 273 F.3d 299, 329 (3d Cir. 2001) (citing Gray v.

Mississippi, 481 U.S. 648,657-68 (1987) (holding that erroneous exclusion of one potential juror

based on her views on the death penalty was reversible constitutional error). See also United

States v. Chanthadara, 230 F.3d 1237, 1268 (10th Cir. 2000) ("Because the erroneous exclusion

of even one potential juror mandates reversal of a death sentence, our analysis takes us no further

than potential juror Joy Phillips."); Fuller v. Johnson, 114 F.3d 491,500 (5th Cir. 1997) ("Where

the court finds that even one juror was improperly excluded, the defendant is entitled to a new

sentencing, because the right to an impartial adjudication is 'so basic to a fair trial that [its]

infraction can never be treated as harilliess error.' ") (quoting Gray; 481 U.S. at 668).

697. The jury selection process employed in this case deprived Mr. Ogrod of his right

to an impartial capital sentencing jury because the Court improperly struck a death qualified

juror for cause. Trial Counsel was ineffective because he failed to ensure an impartial jury for

Mr. Ogrod by objecting to the Court's improper exclusion of the juror and failing to request or

conduct any voir dire concerning the juror's ability to follow the law. Appellate Counsel was

additionally ineffective for failing to raise the ineffectiveness of Trial Counsel on appeal.

A. The Trial Court Improperly Excluded a Death-Qualified Juror on the Basis

of Religion.

698. Under the Sixth Amendment, a juror is unqualified if the juror's views would

"prevent or substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath." Adams v. Texas, 448 U.S. 38, 45 (1980). Under Article I, Section 9,

the inquiry is essentially the same: "whether the venire person is competent and capable of

rendering a fair, impartial and unbiased verdict." Commonwealth v. Ingber, 531 A.2d 1101,

1103 (Pa. 1987).

699. In determining a juror's fitness to serve on a capital jury, the Supreme Court has

ruled "the State may bar from jury service those whose beliefs about capital punishment would

lead them to ignore the law or violate their oaths." Adams, 448 U.S. at 51. See also Wainwright,

224
469 U.S. at 424; Gray v. Mississippi, 481 U.S. 648, 657 (1987); Morgan v. Illinois, 504 U.S.

719,728 (1992). The process of identifying and excluding such jurors is called "death-

qualification."

700. Commonwealth v. Peterkin, 513 A.2d 373, 384 (1986) ("The death qualification

process ... [excludes those] jurors who candidly express [...] their inability to abide by their

oath should they, as they might, be put to the task of applying" the death penalty).

701. As the Supreme Court explained in Witherspoon,

A man who opposes the death penalty, no less than one who favors it, can make
the discretionary judgment entru~ted to him by the State and can thus obey the
oath he takes as a juror: Buta jury from which all such men have been excluded·
cannot perform the task demanded of it. [...] [A] jury that must choose between
life imprisonment and capital punishment can do little more - and must do
nothing less - than express the consciences of the community on the ultimate
issue of life or death. Yet, in a nation less than half of whose people believe in
the death penalty, a jury composed exclusively of such people cannot speak for
the community. Culled of all who harbor doubts about the wisdom of capital
punishment - of all who would be reluctant to pronounce the extreme penalty-
such a jury can speak only for a distinct and dwindling minority.

Witherspoon, 391 U.S. at 519-20 (footnotes omitted).

702. To exclude a juror because of his or her beliefs about the death penalty, the

Commonwealth must prove that "the juror's views would 'prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his oath.'" Adams,

448 U.S. at 45; Peterkin, 513 A.2d at 379. Yet in this case, the Court excluded a prospective

juror, Mr. Knight, who stated only that he was unsure ifhe had "a problem" with the death

penalty. The court failed to prove Knight's views would "prevent or substantially impair the

performance of his duties as a juror in accordance with his instruction and his oath." fd.

703. During voir dire, the Court asked the jury panel the following question:

"Is there anyone who, for religious, ethical, moral reasons couId not impose the death penalty in

an appropriate case? Now, if so, please raise your cards." NT 9/16/1996 at 7. According to the

record, Knight did not hold up his card, nor did he inform the Court in any way that he would be

225
unable to obey the law and impose the death penalty in the appropriate case. Id.

704. During the individual voir dire, the Commonwealth asked Knight: "Do you have

any moral, religious, ethical or conscientious beliefs which would prevent you from returning a

verdict that the defendant is guilty of murder in the first degree in a proper case?" Knight did

not state whether he would be unable to obey the law regarding the death penalty, but answered

"so far as if a person is guilty without doubt.. .1 wouldn't have a problem with whatever side, if

they were innocent or guilty." NT 9/16/1996 at 94.

705. The Commonwealth then asked, "Would you have a problem with the death

penalty as a Jehovah's Witness?" Knight answered, "I'm not sure because I didn't research

that..J really did not research that like I should have." NT 9/16/1996 at 94-95. Here, the

Commonwealth failed to determine whether Knight's religious beliefs would "prevent or

substantially impair the performance of his duties as a juror in accordance with his instructions

and his oath." Adams, 448 U.S. at 45. The correct inquiry is whether the prospective juror can

obey the law and apply the death penalty in the appropriate circumstance, not whether the juror

has "a problem" with the death penalty. See Witherspoon, 391 U.S. at 519-20 ("A man who

opposes the death penalty, no less than one who favors it, can make the discretionary judgment

entrusted to him by the State and can thus obey the oath he takes as a juror").

706. The Court then inteIjected and asked the Commonwealth whether "you think we

should excuse the gentleman?" Commonwealth responded, "Just in case." The Court then

stated, "Yes, I think so." NT 9/16/1996 at 95. Without any further attempt to determine whether

Knight could obey the law, the Court dismissed the juror for cause. Trial Counsel did not object

to the improper dismissal of Knight, nor did he attempt to voir dire Knight to determine whether

he could follow the Court's instructions regarding the death penalty. Id.

B. Counsel Were Ineffective

707. Here, Trial Counsel was ineffective because he allowed a potential juror to be

226
improperly struck for cause. Trial Counsel failed to object to the improper dismissal for cause,

and failed to attempt to properly voir dire the potential juror to determine ifhe could obey the

law. There were no strategic or tactical reasons for counsel's failings. Trial Counsel's

ineffectiveness prejudiced the defendant by denying him an impartial jury selection process and

reliable capital sentencing determination guaranteed by the Sixth and Fourteenth Amendments of

the United States Constitution and Article I, Sections 9 and 13 of the Pennsylvania Constitution.

708. Post-Verdict/Appellate Counsel was additionally ineffective for failing to

properly raise and/or litigate this claim on post-verdict motions or on appeal. The claims that

Mr. Ogrod's rights under Witherspoon were violated and that his Trial Counsel was inefflictive

have merit as set forth above. There could be no reasonable tactical or strategic reason for

failing to raise this meritorious claim. Indeed, Mr. O'Keefe provides no strategic reason for not

raising this claim. O'Keefe Aff. at"ill 0 ("I cannot remember reasons why I did not raise in post-

verdict motions or on direct appeal ... [aj Witherspoon claim[]"). Mr. Ogrod was prejudiced

because, if Post-Verdict/Appellate Counsel had raised this meritorious claim, there is a

reasonable probability that Mr. Ogrod would have been granted a new sentencing.

709. These errors violated Petitioner's right to Due Process, effective assistance of

counsel under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution

and under Article I, Sections 9 and 13 of the Pennsylvania Constitution.

Claim XII. PETITIONER'S RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO

BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT UNDER THE
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND UNDER ARTICLE I,
SECTIONS 9 AND 13 OF THE PENNSYLVANIA CONSTITUTION WERE
VIOLATED BY THE JURY'S ARBITRARY REJECTION OF
STIPULATED MITIGATING EVIDENCE, AND COUNSEL WERE
INEFFECTIVE.

710. The claims and factual allegations set forth elsewhere in this Petition and in all

exhibits hereto are realleged as if set forth entirely herein.

711. At Petitioner's trial, both parties stipulated to the fact that Petitioner had no

227
significant history of prior criminal convictions, 42 Pa. C.S. § 9711(e)(1), and the Court

instructed the jury that this stipulation could be taken as a fact. NT 10/09/1996 at 77. By

operation oflaw, a stipulation is an agreement that the fact agreed upon is proven.

Commonwealth v. McMurray, 47 A. 952, 953 (pa. 1901). Despite this, the jury found no

mitigating circumstances. NT 10/6/1996 at 104.

712. The jury's failure to find Petitioner's lack of prior criminal convictions as a

mitigating factor when weighing the imposition of the death sentence, despite both parties

having stipulated to its existence, made Petitioner's death sentence arbitrary in violation of the

Eighth Amendment and Pennsylvania law.

713. First, the jury's failure to find the (e)(1) mitigator rendered its sentencing verdict

"arbitrary" in violation of the Eighth Amendment. Parker v. Dugger, 498 U.S. 308, 322 (1991),

holds that it is arbitrary and capricious, in violation of the Eighth Amendment, for state courts to

affirm death sentences "without considering the [uncontroverted evidence] of mitigating

circumstances." Accord Eddings v. Oklahoma, 455 U.S. 104 (1982) (requiring the sentencer to

weigh relevant uncontroverted mitigating evidence); Penry v. Lynaugh, 492 U.S. 302, 319

(1989) (it is not enough "to simply allow the defendant to present mitigating evidence"; the

sentencer must "consider and give effect to that evidence"). See also Kennedy v. Louisiana 554

U.S. 407, 439 (2008); Ring v. Arizona, 536 U.S. 584, 606 (2002) (citing Maynard v. Cartwright,

486 U.S. 356, 362 (1998». Furthermore, to be constitutionally sound, a sentencing body must

consider all mitigating evidence before a final sentence is issued. Eddings, 455 U.S. at 115 n.10

(citing Lockett v. Ohio, 438 U.S. 586 (1978».

714. Thus, the jury's failure to find an established, mitigating fact violated the

Supreme Court's direction that all mitigating evidence be considered before a final sentence is

issued. Hitchcock v. Dugger, 481 U.S. 393,394 (1987) ("We have held that in capital cases the

sentencer may not refuse to consider or be precluded from considering any relevant mitigating

228
evidence.") (internal quotations and citations omitted). See also Abdul-Kabir v. Quarterman,

550 U.S. 233, 250 (2007) (reaffinningHitchcock); Eddings, 455 U.S. at 155 (citing Lockett v.

Ohio, 438 U.S. 586 (1978».

715. The jury's refusal to consider and find the established, statutory mitigating factor

renders Petitioner's death sentence unconstitutional and requires, at minimum, re-sentencing.

716. Additionally and separately, the jury's refusal rendered Petitioner's death

sentence invalid under Pennsylvania law. In Commonwealth v. Rizzuto, the Court held that:

42 Pa.C.S. § 971l(e)(1) specifically states that "mitigating circumstances shall

include the following: (1 )ItJlledefendanthas no significant history ofprior
criminal convictions." Consequently, where the absence of a prior record is not in
dispute, as in this case, the sentencing jury has no discretion whether or not to
find the existence of this fact as a mitigating factor. If we would grant the jury
discretion to ignore stipulations of fact, we would be granting the right to arrive at
a sentencing verdict in an arbitrary and capricious fashion. Such a conclusion
would undercut the very purpose of the death penalty sentencing scheme as
developed by our General Assembly.

777 A.2d 1068, 1089 (Pa. 2001) (abrogating Commonwealth v. Copenhefer, 587 A.2d 1353 (pa.

1991». Under Pennsylvania law, any announcement of a new principle or overruling of prior

law is applied to all similarly situated defendants, up to and including those on direct appeal.

Commonwealth v. Ardestani, 736 A.2d 552, 555 (Pa. 1999).

717. While Petitioner's trial occurred in 1996, Petitioner's direct appeal was not

argued and submitted for decision until 2002. The Rizzuto rule applied to Petitioner at the time

of his appeal. The Court has a duty to review all death sentences and vacate them should the

sentences be the result of "passion, prejudice, or any other arbitrary factor." 49 Pa.C.S. §

9711(h)(3)(i). This duty is independent of its duty to correct errors at trial, and as such is not

subject to waiver. See 42 Pa.C.S. § 9711(h)(2) ("In addition to its authority to correct errors at

trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death

and remand for further proceedings as provided...."). See also Commonwealth v. VanDivner,

983 A.2d 1199, 1205 (Pa. 2009) (discussing the Court's "independent statutory review").

229
 718. The Court was fully entitled to address this jury error sua sponte on appeal,

despite Appellate Counsel's failure to raise the issue. Subsequently acknowledging the manifest

injustice of Petitioner's position, three out of six justices present voted in favor of hearing

reargument on the issue. Commonwealth v. Ogrod, 850 A.2d 614,615-16 (Pa. 2004) (Saylor, J.,

dissenting from the denial of reargument). The Court could have properly awarded re-

sentencing on appeal; the denial of reargument was an unfortunate "operation oflaw, as the

Court was divided 3-3." VanDivner, 983 A.2d at 1205 n.2 (distinguishing VanDivner's denial

from that of Petitioner).

1f9~ The jury's aroitrilry deCision to exclude stipulated mitigating evidence from its

sentencing decision rendered Petitioner's sentencing fundamentally unfair, in violation of Article

I, Sections 9 and 13 ofthe Pennsylvania Constitution. Petitioner is entitled to post-conviction

relief under to remedy this error. 42 Pa.C.S. § 9543(a)(2)(i). Petitioner's death sentence should

be vacated.

A. Trial Counsel Was Ineffective

720. The failures of both Trial Counsel and Appellate Counsel to appropriately

challenge and litigate the jury's decision to ignore a stipulated, statutory mitigating factor

deprived Petitioner of his right to effective assistance of counsel in violation of the Sixth and

Fourteenth Amendments to the United States Constitution and Pennsylvania law. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Moore, 580 Pa. 279, 289 (2004);

Commonwealth v. Perry, 537 Pa. 385, 391-92 (1994).

721. Trial Counsel was ineffective for failing to seek a proper instruction under

Pennsylvania law, for not challenging the jury's failure to find Petitioner's lack of a prior

criminal history as a mitigating factor against the death penalty, and for failing to seek a mistrial.

722. Trial Counsel did not insure that the jury was instructed as to the legal meaning of

the Commonwealth's stipulation. The standard criminal jury instruction on stipulations is as

230
follows: "When the district attorney and counsel for the defendant stipulate, that is when they

agree, that a certain fact is true their stipulation is evidence of that fact. You should regard the

stipulated or agreed fact as proven." Pennsylvania Criminal Suggested Standard Jury

Instructions 3.17 (1979).

723. Instead, the Court instructed the jury as follows: "Okay. And, Ladies and

Gentlemen, whenever counsel stipulates, that means that they agree and you may take what they

say as a fact." NT 10/6/1996 at 77. That is, the Court gave an instruction that permitted the jury

to find the stipulated mitigator instead of directing the jury to find it.

724. Trial Counsel was also ineffective for failing to seek a mistrial. This Claim is of

arguable merit; as noted above, the arbitrary nature of the jury's rejection of stipulated evidence

violated the Eighth Amendment's prohibition on cruel and unusual punishment. Hitchcock,481

U.S. at 394. Copenhefer and its progeny were in direct conflict with well-established federal

law, and should have been challenged as unconstitutional by counsel.

725. Furthermore, Petitioner's trial was distinguishable from Copenhefer's. While

there was evidence that the Copenhefer jury had at least considered that defendant's lack of

record, and thus gone through the mandatory weighing process before rejecting the proffered

mitigation evidence, no such evidence was present at Petitioner's trial. See Copenhefer, 587

A.2d at 1361 (verdict slips showed mitigation evidence listed and then crossed out). Copenhefer

presented a challenge to the propriety of the judge's instructions around stipulated mitigation

evidence. Id. at 1358. Here, Trial Counsel could and should have directly challenged the

propriety of the jury's failure to find the (e)(l) mitigator as contrary to the evidence and contrary

to the United States Supreme Court's direction that "the sentencer must listen," to all mitigating

evidence when evaluating the weight of competing factors during penalty stage deliberations.

Eddings v. Ohio, 455 U.S. 104, 115 n.10 (1982) (citing Lockett v. Ohio, 438 U.S. 586 (1978)).

726. There was no reasonable basis for Trial Counsel's failure to raise and litigate this

231
issue upon hearing the jury's verdict. Trial Counsel's failure to pursue an available, meritorious

challenge to an arbitrary jury finding, unsupported by the stipulated evidence, falls beneath the

level of zealousness and diligence expected of counsel, and has no reasonable basis. Here, there

was no reason not to challenge the jury's finding and seek a mistrial. Part of any analysis of

counsel's "reasonableness" in failing to pursue a claim is whether alternatives not chosen would

offer a greater chance of success than those pursued. See Commonwealth v. Balodis, 747 A.2d

341,343-44 (Pa. 2000); Commonwealth v. Collins, 545 A.2d 882 (pa. 1988). A successful

motion for mistrial would have meant the reversal of Petitioner's death sentence, with no

potential adverse consequences. There was no reasonable basis for Trial Counsel's failure to

challenge the jury's arbitrary finding and ask for a mistrial.

727. Petitioner was prejudiced. There is a reasonable probability, that, but for this

ineffectiveness, the outcome of sentencing would have been different. Petitioner was sentenced

to death because the jury found no mitigating factors and one aggravating factor. The finding of

a mitigating factor and subsequent proper weighing of aggravators versus mitigators by an

impartial jury would have likely changed the outcome of the penalty phase, as only one juror

needed to vote for life for Petitioner to be sentenced to life without parole. Wiggins v. Smith,

539 U.S. 510, 537 (2003) (resentencing required when "there is a reasonable probability that at

least one juror would have struck a different balance"); Commonwealth v. Sattazahn, 952 A.2d

640, 657 (Pa. 2008) (same).

B. Post-Verdict/Appellate Counsel Was Ineffective.

728. Post-Verdict!Appellate Counsel was similarly ineffective for failing to litigate this

issue on direct appeal. The claim was, at a bare minimum, a claim of arguable merit, as

demonstrated by the fact that three justices voted to grant the petition seeking reargument on the

issue. Mr. O'Keefe "intended to file on Mr. Ogrod's behalf every claim of arguable merit that

'he] could identifY from the record." O'Keefe Aff. at ~ 9.

232
 729. Petitioner's federal constitutional claims should have been raised on appeal. The

Rizzuto opinion was issued three months before Petitioner's appellate brief was filed and almost

a year before the Court heard oral arguments. Thus, Appellate Counsel had adequate notice of

opinion. Given that the facts of Rizzuto's penalty phase were so similar to Petitioner's - Rizzuto

also was sentenced to death on one aggravating factor and no mitigators, despite a stipulation -

this case presented a meritorious argument that, if pursued, would have resulted in the vacation

of Petitioner's death sentence. See Ogrod, 839 A.2d 294,412 (Pa. 2003) (Nigro, J., concurring)

("had Appellant properly raised an issue regarding the jury's failure to find the existence of this

mitigator, he would be entitled to relief').

730. There was no reasonable basis to not pursue this claim. Appellate Counsel, Mr.

O'Keefe, "cannot remember reasons why [he] did not raise in post-verdict motions or on direct

appeal ... the jury's failure to find that Walter had no significant history of prior criminal

convictions." O'Keefe Aff. at ~ 10. Indeed, Mr. O'Keefe pursued reargument of the appeal on

the very grounds Justice Nigro pointed out. See Ogrod, 850 A.2d at 614-15. "Strategy of

defense counsel may warrant deliberate choice as to the manner, emphasis, and length of

argument but complete disregard of an important issue cannot be ignored as a matter of

strategy." Commonwealth v. Townsell, 379 A.2d 98, 101 (Pa. 1977) (holding appellate counsel

ineffective for failing to litigate prosecutor's improper closing statement).

731. Petitioner was prejudiced by Post-Verdict/Appellate Counsel's ineffectiveness.

Given both Justice Nigro's assertion on appeal and the fact that three justices out of the six

participating voted in favor of granting reargument, there is a reasonable probability that the

outcome of the appeal would have been different had Post-Verdict/Appellate Counsel been

effective.

732. Accordingly, Petitioner is entitled to post-conviction relief. 42 Pa.C.S.

§ 9543(2)(I)-(ii). His death sentence should be vacated and the case remanded for re-sentencing.

233
Claim XIII. PETITIONER IS ENTITLED TO A NEW SENTENCING PHASE
BECAUSE THE PROSECUTOR REPEATEDLY ENGAGED IN
PREJUDICIAL PROSECUTORIAL MISCONDUCT IN VIOLATION OF
THE 6TH, 8TH AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND PENNSYLVANIA LAW, AND TRIAL AND
APPELLATE COUNSEL WERE INEFFECTIVE.

733. The matters set forth in all other sections of this Petition are repeated and

realleged as if set forth entirely herein.

734. The prosecution's duty in a criminal prosecution "is not that it shall win a case,

but that justice shall be done." Berger v. Us., 295 U.S. 78, 88 (1935). In many prejudicial

ways, the prosecutor in this case violated this longstanding_commandmentof due process.

735. A prosecutor commits misconduct, inter alia, when she uses inflammatory

language, expresses a personal opinion, relies on matters outside the record, or otherwise

distracts the jury from its task of deciding the case upon the evidence. Commonwealth v.

Johnson, 533 A.2d 994, 996 (Pa. 1987). Comments that destroy the objectivity and impartiality

of the factfinder, infecting the trial with unfairness and causing the verdict to be the product of

emotion rather than reflective judgment violate Pennsylvania law and the federal constitution.

Commonwealth v. Cherry, 378 A.2d 800, 804 (Pa. 1977).

736. The prosecutor in this case committed numerous acts of prosecutorial misconduct

during the sentencing phase of Petitioner's trial.

737. During closing, the prosecutor argued, improperly, that the finding of first degree

murder was in and of itself an aggravating circumstance:

The Commonwealth submits to you that this is, most definitely, a proper case that
calls for a death penalty. What we have here is the Commonwealth pointing out
to you, under the statute affected by our legislature, one aggravating
circumstance, and that circumstance is that, as you found, this was an
intentional, premeditated, willful and deliberate killing, that amounted to
fIrst degree murder.

The aggravating circumstance is what you have also already found, that this
occurred during the commission of the attempted involuntary deviate sexual
intercourse of a four-year-old child.

234
NT 10/9/1996 at 79. The prosecutor misled the jury by arguing that it had already found an

aggravating circumstance before it began its deliberations in the sentencing phase.

738. This is wrong as a matter of Pennsylvania law and federal constitutional law.

Pursuant to 42 Pa. C.S. § 9711 (d), first degree murder is not an aggravating circumstance.

Pursuant to federal constitutional law, an aggravator in addition to first degree murder must be

found before the jury can sentence the defendant to death. Ring v. Arizona, 536 U.S. 584, 609

(2002); Greggv. Georgia, 428 U.S. 153 (1976).

739. The prosecutor's improper argument infected the trial with unfairness and

improperly made-it more likely that the jury would sentence Petitioner to death.

740. Next, the prosecutor improperly disparaged the jury's consideration of mitigation.

The prosecutor argued, "[B]ut the legislature in its wisdom has set out that almost anything can

be mitigating." NT 10/9/1996 at 79. The sarcastic tone of the comment that the legislature "in

its wisdom" has said "almost anything" can be mitigating is meant to lead the jury to believe that

the legislature had been too lenient in setting out mitigating circumstances. Thus, the prosecutor

is improperly discouraging the jury from making an individualized determination with respect to

the mitigation presented. See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (8th Amendment

guarantees right to individualized determination of sentence).

741. After that, the prosecutor again disparaged mitigation, arguing, improperly, that

any mitigation should relate to the offense to be given weight: "[Mr. Ogrod] never went to the

doctors and said, I'm having serious problems, I can't deal with children, or I love children, or I

have a sexual fantasy about kids or anything of that nature." NT 10/9/1996 at 80-81. The

prosecutor continued with a similar argument. "[T]here has been no such diagnosis that [the

Petitioner] suffered from childhood abuse that affected his emotional and psychological

development." ld. at 82. These arguments are contrary to the law. In a capital case, the

sentencer is permitted to consider and give full effect to any mitigating aspect of the defendant's

235
character or record, or the circumstances ofthe offense. Mills v. Maryland, 486 U.S. 367, 374-

75 (1988) (citing Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586

(1978); Skipper v. South Carolina, 476 U.S. 1 (1986)). The mitigation does not have to be tied

to the offense, and the prosecutor acted improperly by arguing otherwise to the jury.

742. The prosecutor also improperly argued facts outside the record. She argued,

"Maybe the mother saw in him the kind of person that could kill a four-year-old child, but the

doctor thought it was the mother who was whackey, not the defendant." NT 10/9/1996 at 83.

This was prejudicial speculation and not supported by evidence in the record.

743. The prosecutor made improper comments inviolationofPetitiorier's 5th

Amendment right to be silent. Petitioner took the stand to testif'y about his childhood. In

response, the prosecutor argued improperly that Petitioner should have said something about the

victim. "Did you hear one word of I'm sorry for what I did? Did you hear one word of- to the

parents, I'm sorry about Barbara Jean? All you heard was what Walter Ogrod is interested in;

himself." NT 10/9/1996 at 85. Petitioner is entitled to a new sentencing. The Third Circuit

Court of Appeals granted habeas relief because of a similar violation in Lesko v. Lehman, 925

F.2d 1527, 1544-45 (3d Cir. 1992).

744. The prosecutor improperly asserted her own opinion and argued non-statutory

aggravators: that someone should be put to death if they do not like life in prison and that child

molesters and child killers should be put to death. She argued,

Ifhe doesn't like the life in prison, well, we can take care of that and he won't
have to do it.

We submit to you that if there is anybody living on this earth who deserves to die
for the kind of crime he committed, it's Walter Ogrod, a child molester, a child
killer.

Should we think any more of him than what other inmates think of him? It's the
worst possible crime you can commit, [Father Bonavitacola] said.

NT 10/9/1996 at 86.

236
 745. She also argued that Petitioner should be put to death because of the impact on

her surviving relatives and on the community: "[H]e did kill, and he killed, and he killed not just

Barbara Jean, but her entire family and the entire community." !d. at 87. This was improper

victim impact argument. The offense in this case occurred in 1988, before the 1995 amendments

to the Pennsylvania capital sentencing statute permitted the admission of victim impact evidence

for offenses that took place on or after the amendments took effect. Commonwealth v. McNeil,

679 A.2d 1253, 1259-60 (1996). Therefore, the prosecutor in this case was precluded from

admitting or arguing victim impact evidence and the jury was precluded from considering victim

impact evidence in reaching its sentencing determination.

746. The prosecutor continued to tell the jury that it should sentence Petitioner to death

"because of the kind of person he is." She concluded with further inflammatory language,

asking for a sentence of death because "he tortured this child with that killing and with the kind

of sexual assault he made on her." Id. at 87.

747. Pennsylvania's capital sentencing statute explicitly outlines the factors that the

Commonwealth can present to the fact-finder as aggravating factors in support of a death

sentence. See 42 Pa. C.S. § 9711(a)(2). Accordingly, evidence presented in aggravation must

narrowly fit within the bounds of the statutory aggravating factor relied upon by the

Commonwealth. Due process affords a criminal defendant the "right to a verdict based solely

upon the evidence and the relevant law." Chandler v. Florida, 449 U.S. 560, 574 (1981).

748. Pennsylvania's capital sentencing statute - and the constitution - specifically

limit the jury's consideration to aggravating and mitigating circumstances about a Petitioner with

respect to which some evidence has been presented and "limit[s] the admission of evidence at

the penalty stage to only that which is specifically relevant to an enumerated aggravating or

mitigating factor." Commonwealth v. Fisher, 681 A.2d 130, 146 (1996). Indeed, Pennsylvania's

statute reads: "[e]vidence of aggravating circumstances shall be limited to those circumstances

237
specified in subsection (d)." 42 Pa. C.S. § 9711(a)(2).

749. Pennsylvania capital sentencing juries are not permitted to consider non-statutory

aggravating circumstances. See Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998) (biblical

arguments for death); Commonwealth v. Chambers, 599 A.2d 630,644 (Pa. 1991) (same);

Commonwealth v. Morales, 701 A.2d 516, 528-29 (Pa. 1997) (argument for death based upon

fear that "liberal judges" will release defendant on parole in response to "perceived failing[s] of

the criminal justice system"); Commonwealth v. Hall, 565 A.2d 144, 152 (Pa. 1989) (arguments

based upon fear of future killing if defendant paroled); Commonwealth v. Floyd, 484 A.2d 365,

370 (Pa. 1984) (argument as to "chance that a defendant might receive parole"); Commonwealth .

v. Marrero, 687 A.2d 1102, 1108 n.19 (Pa. 1996) (future dangerousness); Commonwealth v.

LaCava, 666 A.2d 221, 237 (Pa. 1995) (argument on "society's victimization at the hands of

drug dealers"); Commonwealth v. Jasper, 737 A.2d 196, 198-99 (pa. 1999) (Zappala, J.,

concurring) (argument on supposed amenities and perks oflife without parole sentence). By

definition, therefore, anything that "expand[s] the jury's focus from the punishment of [the

defendant] on the basis of ... aggravating circumstance[s]" is improper. LaCava, 666 A.2d at

237; Jasper, 737 A.2d at 199 (Zappala, J., concurring) (improper for prosecutor to "attempt [ ] to

expand the jury's focus from the punishment of appellant on the basis of aggravating

circumstances").

750. The prosecutor's arguments and the resulting death sentence violated the Eighth

Amendment. Sochor v. Florida, 504 U.S. 527, 532 (1992) ("there is Eighth Amendment error

when the sentencer weighs an 'invalid' aggravating circumstance in reaching the ultimate

decision to impose a death sentence").

751. Mr. Ogrod is entitled to relief based upon these improper remarks whether

considered individually or cumulatively. Commonwealth v. Sattazahn, 952 A.2d 640, 670-71

(Pa. 2008) (recognizing 'the viability of a claim of error based upon the cumulative prejudicial

238
effect of errors that were not sufficiently prejudicial to warrant relief individually").

A. Trial Counsel Was Ineffective.

752. Trial Counsel failed to object to these numerous improper arguments and was

ineffective under the Sixth Amendment. The impropriety of the prosecutor's arguments is at

least of arguable merit as outlined above. There could be no reasonable strategic or tactical

reason for not objecting to these arguments. Obtaining an instruction by the Court admonishing

the prosecutor and correcting the prosecutor's misstatements would have furthered the defense

objective of obtaining a life sentence. Finally, Petitioner was severely prejudiced because, in the

wake ofthese improper arguments, the jury found no mitigating factors, even though the

Commonwealth agreed to one in a stipulation on the record. Commonwealth v. Billa, 555 A.2d

835,843 (Pa. 1989) (counsel "constitutionally ineffective in failing to request an appropriate

limiting instruction"); Commonwealth v. Brady, 741 A.2d 758,766 (Pa. Super. 1999) (counsel

ineffective for failing to request cautionary instruction concerning admission of co-defendant's

statement).

B. Post-Verdict/Appellate Counsel Was Ineffective.

753. Post-Verdict/Appellate Counsel was ineffective because he failed to raise all of

these improprieties and the legal bases before the trial and Supreme courts. The claims have

arguable merit, as set forth above. Mr. O'Keefe could have no reasonable tactical or strategic

reason for failing to litigate the prosecutor's remarks set forth above, all the legal bases

demonstrating the improprieties; and Trial Counsel's related ineffectiveness. Indeed, Mr.

O'Keefe acknowledges he can think of no tactical or strategic reason for not raising a number of

this comments as violations of Mr. Ogrod's rights. O'Keefe Aff. at ~ 12. Mr. Ogrod was

prejudiced because if Mr. O'Keefe had raised this claim there is a reasonable probability that he

would have been granted relief. Mr. Ogrod is entitled to a new sentencing hearing. Townsell,

379 A.2d at 101; Yocham, 397 A. 2d at 768; Pfaff, 384 A.2d 1179 (1978) (plurality); Jones, 815

239
A.2d at 619 (Newman, J., concurring).

Claim XIV. PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTION

AND SENTENCES BECAUSE OF THE CUMULATIVE EFFECT OF THE
ERRORS DESCRIBED IN THIS BRIEF.

754. The claims and factual allegations set forth elsewhere in this Petition and in all

exhibits hereto are realleged as if set forth entirely herein.

755. Each claim presented herein individually entitles Petitioner to relief from his

conviction and sentence. Even if this Court finds that Petitioner is not entitled to re1iefbased on

any particular claim, Petitioner is nevertheless entitled to relief because the cumulative effect of

these errors was to deny Petitioner a fair trial and the heightened procedural safeguards

constitutionally required in capital cases. Kyles v. Whitley, 514 U.S. 419, 436-37 (1995)

(assessing cumulative prejudice from state's multiple Brady violations); Williams v. Taylor, 529

U.S. 362,397-98 (2000) (granting relief on ineffective assistance of counsel claim by

considering cumulative prejudicial effect of unpresented evidence with evidence presented at

trial); Commonwealthv. Sattazahn, 952 A.2d 640,670-71 (Pa. 2008) (recognizing "the viability

of a claim of error based upon the cumulative prejudicial effect of errors that were not

sufficiently prejudicial to warrant relief individually").

240
 PRAYER FOR RELIEF

For all of the above-stated reasons, and those presented in the submissions accompanying

this Petition, Petitioner prays:

1. That the Commonwealth be ordered to Answer this Petition;

2. That leave to amend the Petition be granted;

3. That summary relief be granted on those claims of error which are clear from the
facts set forth in this pleading and on the record;

4. That an evidentiary hearing on the claims and any and all disputed issues offact be
granted;

5. That discovery as may be necessary to a full and fair resolution herein be allowed;

6. That Petitioner's convictions and sentences be vacated; and

7. That the Court grant such other and further relief as may be just and proper.

Respectfully submitted,

TRAC L. UL
Pa. Bar No.8 7
SAMUEL J.B. ANGELL
Pa. Bar No. 61239
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut St., Suite 545W
Philadelphia, PA 19106
(215) 928-0520

-and-

ROBERT E. McDONNELL
ANDREW J. GALLO
BINGHAM McCUTCHEN LLP
One Federal Street
Boston, MA 02110
(617) 951-8000

COUNSEL FOR PETITIONER

WALTERJ.OGROD

241
 CERTIFICATE OF SERVICE

I, Tracy Ulstad, hereby certify that on this date I served this Amended Petition for Habeas

Corpus Relief upon the following by hand delivery:

A.D.A. Laurie Williamson, Esq., PCRA Unit

Philadelphia County Office of the District Attorney
3 South Penn Square
Philadelphia, PA 19107-3499

June 24, 2011