No 09-2185 JUDY ANN SHOWERS v. JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
No 09-2185
_________
JUDY ANN SHOWERS
v.
JEFFREY BEARD,
Commissioner, Pennsylvania Department of Corrections;
WARDEN MARTIN DRAGOVICH;
NORTHUMBERLAND DISTRICT ATTORNEY,
Appellants
________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-03-cv-02264)
District Judge: Honorable A. Richard Caputo
_______
Argued December 13, 2010
Before: SLOVITER, GREENAWAY, JR., and
STAPLETON, Circuit Judges
(Filed: March 28, 2011)
______
William C. Cole
Office of District Attorney
Sunbury, PA l7801
Amy Zapp (Argued)
Office of Attorney General of Pennsylvania

-- 1 of 16 --

2
Harrisburg, PA l7l20
Attorneys for Appellants
Caroline M. Roberto (Argued)
Pittsburgh, PA 15219
Attorney for Appellee
______
OPINION OF THE COURT
______
SLOVITER, Circuit Judge.
Appellants – Pennsylvania Department of Correction
Commissioner Jeffrey Beard, SCI-Muncy Warden Martin
Dragovich, and the Northumberland District Attorney
(hereinafter “Commonwealth”) – appeal the District Court’s
order granting the petition for a writ of habeas corpus sought
by Appellee Judy Ann Showers under 28 U.S.C. § 2254.
I.
On March 23, 1994, a jury convicted Showers of first
degree murder of her husband. Showers was represented by
Michael Rudinski at the trial where it was established that the
cause of her husband’s death was an orally consumed lethal
dose of liquid morphine, otherwise referred to by the brand
name Roxanol.
The Commonwealth argued that Showers
surreptitiously administered the lethal dose. It relied on
circumstantial evidence and the testimony of its expert
witness Dr. Isidore Mihalakis, M.D., a forensic pathologist,
that Roxanol is capable of being masked. The defense argued
that the deceased committed suicide. Showers was sentenced
to life imprisonment without parole.

-- 2 of 16 --

3
Showers retained William Costopoulos as her
appellate counsel who timely filed a direct appeal to the
Pennsylvania Superior Court. Costopoulos raised several
issues but did not argue that trial counsel was ineffective for
failing to call an expert witness in rebuttal. The Superior
Court affirmed. Commonwealth v. Showers, 681 A.2d 746,
757 (Pa. Super. Ct. 1996) (“Showers I”).1
Showers retained new counsel, Caroline Roberto, to
file a petition for collateral relief under Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541 et seq.
In the petition, Showers claimed for the first time ineffective
assistance of both her trial and appellate counsel. She
asserted that her trial counsel failed to present rebuttal expert
testimony regarding the properties of Roxanol, and that her
appellate counsel was ineffective for failing to raise the same
on direct appeal.
At the evidentiary hearing on the PCRA petition,
Showers presented the testimony of Dr. Cyril Wecht, M.D.,
J.D., then Coroner of Allegheny County, and a nationally
recognized and acclaimed forensic pathologist. Dr. Wecht
testified, to a reasonable degree of medical certainty, that the
lethal dose could not have been administered surreptitiously
or forcefully and that Showers’ husband likely committed
suicide. Dr. Wecht also testified that he would have testified
the same if he had been called as a witness during the jury
trial in 1994.
Showers also presented the testimony of Dr. Harry
Doyle, a psychiatrist retained by the defense at the time of the
trial to investigate the state of mind of Showers’ husband. Dr.
Doyle determined that the central question was whether the
morphine was taken voluntarily or surreptitiously, but did not
1 The Pennsylvania Supreme Court denied a petition for
allowance of appeal. Commonwealth v. Showers, 685 A.2d
544 (Pa. 1996). The United States Supreme Court denied a
petition for writ of certiorari. Showers v. Pennsylvania, 520
U.S. 1213 (1997).

-- 3 of 16 --

4
have the necessary scientific background to testify regarding
the properties of Roxanol. He therefore advised Rudinski to
secure a qualified expert to address the impossibility of
disguising Roxanol, and provided him with contact
information for three potential witnesses. Rudinski did not
contact any of those experts.
At the PCRA hearing, Rudinski testified that he
believed that Helen Wolfe, a lay witness friend, would be the
most reliable witness regarding whether Roxanol can be
disguised.2 Rudinski testified that he did not cross-examine
Dr. Mihalakis about the absence of a masking substance
because he “recall[ed]” that there was some other type of
fluid found in the deceased’s stomach. App. at 250.
Rudinski explained that he did not ask Dr. Mihalakis
additional questions regarding the lack of any evidence of
force because it “can be very dangerous” to ask questions for
which “you don’t know all of the answers.” App. at 251.
Costopoulos, Showers’ appellate counsel, testified that
he relied solely on the record, and did not conduct an
independent investigation to determine whether to pursue the
issue of the failure of trial counsel to call a contrary expert.
App. at 273. Significantly, he stated that “if [he] had to do it
over again, having lost on direct appeal with the issues [he]
2 Wolfe, who was a friend of the deceased as well as a
cancer patient, had been prescribed Roxanol. She testified
that there is no way to mask the taste of Roxanol. She also
testified that the deceased had administered Roxanol to her
and had asked pharmacists about how to administer it
properly. Wolfe testified that the deceased knew “more about
liquid Roxanol” than she did even though she was a nurse.
App. at 22. The dissenting Superior Court judge suggested
that Wolfe was biased and unknowledgeable. Commonwealth
v. Showers, 782 A.2d 1010, 1024 (Pa. Super. Ct. 2001)
(Tamilia, J., dissenting). There was evidence that Wolfe
previously had an affair with the deceased and Wolfe’s sister
was having an affair with him at the time of his death.
Showers v. Beard, 586 F. Supp. 2d 310, 313 (M.D. Pa. 2008).

-- 4 of 16 --

5
had raised, [he] absolutely would have raised [trial counsel’s
failure to call an expert on rebuttal].” App. at 274.
The court denied the PCRA petition, finding that
Rudinski had made diligent efforts to locate an expert witness
and that he vigorously cross-examined Dr. Mihalakis.
Showers appealed to the Pennsylvania Superior Court. A
two-judge majority of the Superior Court affirmed the PCRA
judgment. With respect to Showers’ argument regarding the
failure to call an expert witness, the Superior Court found that
Rudinski adequately addressed the issue in his cross-
examination of Dr. Mihalakis and in his closing argument.
Commonwealth v. Showers, 782 A.2d 1010, 1021 (Pa. Super.
Ct. 2001) (“Showers II”). With respect to appellate counsel,
the Superior Court found that “[b]ased upon [] Costopoulos’
articulation of reasons for not raising certain issues [on
appeal],” Showers did not meet her burden of proof “to show
that his course of action did not have a rational, strategic, or
tactical basis.” Id. at 1019 (quotation omitted). One member
of the Superior Court panel filed a vigorous dissent. Id. at
1023-24 (Tamilia, J., dissenting).3
Showers timely filed the instant petition for writ of
habeas corpus under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) seeking a new trial. Showers alleges
that her trial counsel failed to present rebuttal expert
testimony from an available forensic pathologist, and
appellate counsel failed to preserve the issue. The District
Court granted Showers’ petition on this ground. Showers v.
Beard, 586 F. Supp. 2d 310 (M.D. Pa. 2008) (“Showers III”).
The Commonwealth’s appeal followed.
II.
The District Court exercised jurisdiction pursuant to 28
U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. §§
1291 and 2253. Our review of the District Court’s decision is
3 The Pennsylvania Supreme Court denied Showers’
petition for allowance of appeal. Commonwealth v. Showers,
814 A.2d 677 (Pa. 2002).

-- 5 of 16 --

6
plenary. See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.
2010). Under AEDPA, where, as here, a habeas petitioner’s
claims were adjudicated on the merits in state court, our
review is limited to determining whether the state court
decision was contrary to or involved an unreasonable
application of Supreme Court precedent or an unreasonable
determination of the facts in light of the evidence presented in
the state court. See 28 U.S.C. § 2254(d). Our review is
“doubly deferential:” the state court was obligated to conduct
deferential review of counsel’s performance and we must
give deference to the state court rulings under AEDPA.
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).
As a preliminary matter, we reject the
Commonwealth’s objections to our consideration of this
appeal. We conclude that Showers preserved the instant
claims and the Commonwealth has waived its procedural
default argument, raising this issue for the first time after over
a decade of post conviction litigation.4 See Trest v. Cain, 522
U.S. 87, 89 (1997) (in habeas context, procedural default is
normally a defense the Commonwealth is obligated to raise).
Showers properly layered her claims in the collateral
proceedings.5
4 The PCRA court and the Superior Court addressed the
ineffectiveness claims against both trial and appellate counsel
on the merits.
Under Pennsylvania law, where ineffectiveness
claims are properly layered, there is no waiver and no
procedural default. Siehl v. Grace, 561 F.3d 189, 193-94 n.3
(3d Cir. 2009) (If the claims as to trial counsel have merit, a
5 Prior to Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002), which held ineffectiveness claims should be raised
collaterally, “defendants were required to raise all claims
alleging ineffective assistance at the first stage at which they
were represented by new counsel.” Commonwealth v.
Fletcher, 986 A.2d 759, 773 n.16 (Pa. 2009). The change in
law effected by Grant does not apply retroactively to
Showers. See Commonwealth v. Bethea, 828 A.2d 1066,
1070 n.2 (Pa. 2003).

-- 6 of 16 --

7
similar determination will likely be made regarding claims as
to appellate counsel, “in which event there would be no
waiver under Pennsylvania’s layering of ineffective
assistance line of cases,” and “no procedural default by virtue
of the doctrine of cause and prejudice.”) (quotation omitted).
As a result, in reviewing the Superior Court’s decision, the
District Court properly evaluated trial counsel’s performance
on the merits as a necessary predicate for evaluating appellate
counsel’s performance. See Commonwealth v. Rush, 838
A.2d 651, 656 (Pa. 2003) (“[W]hen a court is faced with a
‘layered’ claim of ineffective assistance of counsel, the only
viable ineffectiveness claim is that related to the most recent
counsel, appellate counsel.”). We thus turn to the merits.
Coincidentally, shortly after this case was argued
before this court, the Supreme Court issued an opinion in a
case where a petitioner convicted of murder in a state court
sought a writ of habeas corpus on the ground of ineffective
assistance. Because of what may appear to be facial
similarity between that decision, Harrington v. Richter, 131
S. Ct. 770 (2011), and the one before us, we asked the parties
to file supplemental memoranda regarding the effect of that
decision on the issues in this case.
Richter was convicted of the murder of Klein largely
on the testimony of Johnson, a drug dealer with whom
Richter and Klein had been smoking marijuana on the day at
issue. Johnson testified that he and Klein were shot by
Richter and Branscombe in Johnson’s apartment. Richter,
131 S. Ct. at 781-82. Richter’s defense attorney sought to
show that Klein was shot in the bedroom doorway but the
prosecution introduced expert testimony based on Klein’s
blood pattern that Klein was shot near the living room couch.
Although Richter’s attorney called seven witnesses, the jury
found Richter guilty. Id. at 782. The California Supreme
Court rejected Richter’s Strickland claims by summary
denial, and the District Court agreed. Id. at 783. The Ninth
Circuit reversed by a divided en banc vote, holding the
California decision was unreasonable because Richter’s trial
counsel was deficient for failing to consult experts on blood
evidence. The Supreme Court granted certiorari and reversed

-- 7 of 16 --

8
the decision of the Ninth Circuit, holding the Court of
Appeals erred in finding that Richter’s attorney was deficient
under the standard established in Strickland v. Washington,
466 U.S. 668 (1984), for evaluating ineffective assistance of
counsel claims.6
In the response of Showers’ attorney to this court’s
request for comment, she stated that habeas review “remains
robust [as] evidenced by the many cases in which the
Supreme Court has granted relief because a state court
adjudication of a meritorious constitutional claim was
‘unreasonable’ or ‘contrary to’ Supreme Court precedent, or
was based upon an unreasonable factual determination.”7
In Richter, the Supreme Court stated “[t]he pivotal
question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below
6 First, a petitioner “must show that counsel’s performance
was deficient” in that it fell below an objective standard of
reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 687. Second, a petitioner must show
that the deficiency prejudiced the defense. Id. at 694
(prejudice, if reasonable probability that, but for counsel’s
errors, result “would have been different”). See also Werts v.
Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (Pennsylvania
standard judging ineffectiveness claims is identical to the
Strickland standard).
7 She noted the recent decisions in Sears v. Upton, 130 S.
Ct. 3259, 3261 (2010) (granting relief because state court
misapplied Strickland prejudice standard); Porter v.
McCollum, 130 S. Ct. 447, 448 (2009) (awarding habeas
relief because state court’s determination that petitioner did
not suffer Strickland prejudice “unreasonable”); Miller-El v.
Dretke, 545 U.S. 231, 235 (2005) (granting habeas relief
under AEDPA); Rompilla v. Beard, 545 U.S. 374, 393 (2005)
(same); Wiggins v. Smith, 539 U.S. 510, 538 (2003) (same);
Williams v. Taylor, 529 U.S. 362, 367 (2000) (same).

-- 8 of 16 --

9
Strickland’s standard.” 131 S. Ct. at 785. The Court then
proceeded to explain “that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Id.
at 786 (quotation omitted). The Court noted that even under
de novo review the standard for judging counsel’s
representation is a most deferential one; the question is
whether an attorney’s representation amounted to
incompetence under “prevailing professional norms.” Id. at
788 (quoting Strickland, 466 U.S. at 690).
The Richter Court held that in a habeas proceeding
whether a state court is “within the bounds of a reasonable
judicial determination . . . to conclude that defense counsel
follow a strategy that did not require the use of experts”
depends on the specific circumstances of the case. Id. at 789.
Based on the facts in Richter, the Supreme Court concluded
that it was reasonable for the state court to find that Richter’s
defense counsel was not ineffective for failing to consult
forensic blood experts or introduce expert evidence. Id. at
789-90. In discussing the circumstances, the Supreme Court
stated that the potentially exculpatory forensic evidence was
not apparent at the time of the trial. Id. at 789 (Strickland and
AEDPA prevent “[r]eliance on the harsh light of hindsight to
cast doubt on a trial that took place now more than 15 years
ago.”) (quotation omitted). Further, the Supreme Court
reasoned that even if expert testimony had been available,
defense counsel was entitled not to use it because there was a
“serious risk” that it could have “destroy[ed]” the defendant’s
case and distracted the jury from assessing the credibility of
the defendant’s testimony. Id. at 790. The Court concluded
that counsel in Richter put on a thorough defense, vigorously
cross-examined the prosecution’s expert, and called seven
witnesses, including the defendant himself. Id. at 782, 791.
The facts in Richter were radically different from the
facts and circumstances here. The dissenting judge in the
Pennsylvania Superior Court stated that “[t]he defining issue
in this matter is whether the victim, who according to the
Commonwealth’s theory unknowingly ingested a toxic
substance, Roxanol (liquid morphine), would have or could

-- 9 of 16 --

10
have done so without any evidence that the drug’s acute
bitterness was masked so as to conceal its presence.”
Showers II, 782 A.2d at 1023 (Tamilia, J., dissenting). The
properties of Roxanol and the autopsy results were known
well before the trial. If Roxanol could not be masked by
another substance, the only plausible explanation for the
manner of death would have been willing, self-administration.
The Commonwealth’s evidence in the case against Showers,
other than expert testimony regarding the properties of liquid
morphine, was wholly circumstantial, making scientific
evidence all the more important. See Duncan v. Ornoski, 528
F.3d 1222, 1235 (9th Cir. 2008) (“It is especially important
for counsel to seek the advice of an expert when he has no
knowledge or expertise about the field.”). Dr. Doyle
provided Showers’ counsel with the names of three experts
but counsel failed to consult even one of the three experts that
Dr. Doyle had already suggested would have supported the
defense’s suicide theory.
The Superior Court rejected Showers’ claim that
Rudinski, Showers’ defense counsel, was deficient because
his cross-examination of the Commonwealth’s expert
effectively elicited testimony helpful to the defense. Showers
II, 782 A.2d at 1021. The District Court concluded that the
Superior Court’s decision was unreasonable. After Dr. Doyle
told Rudinski that he was not qualified to testify to the crucial
properties of Roxanol, “it was incumbent upon Attorney
Rudinski to produce” an expert who could so testify.
Showers III, 586 F. Supp. 2d at 329. The record reflects
“little meaningful effort” on Rudinski’s part to do so. Id.
Although Rudinski elicited testimony from Dr.
Mihalakis, the prosecutor’s expert, that he had only tasted two
drops of Roxanol for the purpose of the litigation and never
tried the substance in a masking agent, this testimony was not
nearly as strong as that which could have been provided by an
expert, such as Dr. Wecht.8
8 Questions posed by counsel themselves do not constitute
evidence that can be considered by the jury and the trial court
instructed the jury in this regard. See Pa. SSJI (Crim), §2.07
Rudinski relied on the testimony

-- 10 of 16 --

11
of Wolfe, who was hardly an expert on Roxanol. Indeed,
Rudinski stated in his closing that Wolfe had only tried the
drug once in a masking agent.9 Her lack of expertise was
further undermined by her suspect credibility. See supra note
2.
Rudinski failed to establish key facts that could have
led a jury to find that Showers’ husband voluntarily
consumed the morphine. Most importantly, the defense failed
to establish that a large dose of Roxanol cannot be masked
without a large amount of liquid or food, if at all, and that no
such substance was found in the deceased’s stomach.
Rudinski’s failure to adequately question Dr. Mihalakis was
based on Rudinski’s flawed understanding of the facts. At the
PCRA hearing, Rudinski testified that he did not ask follow-
up questions regarding the masking agent because he believed
that the autopsy revealed some other type of fluid in the
deceased’s stomach. There was no such evidence. See App.
at 204-05. He likewise did not follow up on the lack of
evidence of force because he feared asking questions for
which he did not know the answers. This court agrees that it
may be risky for an attorney to ask questions for which he
believes the answer may be harmful. However, it is no
excuse for failing to elicit significant evidence when the risk
of an adverse response has been created by counsel’s failure
to conduct a thorough investigation or understand key,
undisputed facts in the record. See Couch v. Booker, 632
F.3d 241, 246 (6th Cir. 2011) (“To make a reasoned judgment
(2005) (“The questions that counsel put to the witnesses are
not evidence.”). To the extent the Superior Court reviewing
the PCRA petition relied on the questions themselves in
making this determination, such reliance is unreasonable.
9 At the PCRA hearing, Rudinski testified that Wolfe took
the drug on a daily basis to bolster his decision to rely on her
testimony in lieu of an expert. However, this contradicts
Rudinski’s minimization of Wolfe’s exposure to Roxanol in
his closing statement to the jury.

-- 11 of 16 --

12
about whether evidence is worth presenting, one must know
what it says.”).
Although Rudinski did prepare and present some
evidence favorable to Showers at her trial, it was not
outweighed by his serious omissions. Rudinski failed to
investigate readily available key evidence in support of the
defense’s chosen theory, i.e., that Showers’ husband
committed suicide, or make a reasonable decision that
investigation was unnecessary. See Strickland, 466 U.S. at
691 (“counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary”). See also Porter v. McCollum,
130 S. Ct. 447, 449 (2009) (penalty phase representation
found deficient where counsel “told the jury that [defendant] .
. . was not mentally healthy” but failed to investigate or
present readily available evidence which would have proven
this very fact) (quotation omitted); Rompilla v. Beard, 545
U.S. 374, 387 (2005) (attorney has duty to investigate all
avenues leading to facts relevant to the merits); Couch, 632
F.3d at 246 (state court unreasonably rejected habeas
petitioner’s argument that counsel should have investigated
causation defense where counsel ignored readily available
evidence); Dugas v. Coplan, 428 F.3d 317, 329 (1st Cir.
2005) (representation found deficient where counsel failed to
investigate “not arson” defense and seek expert assistance or
educate himself on techniques of defending arson).
Although “[e]ven the best criminal defense attorneys
would not defend a particular client in the same way,”
Strickland, 466 U.S. at 689, even the most minimally
competent attorney here would have consulted at least one of
the experts suggested to him by Dr. Doyle. Testimony by any
of the available experts would have injected significant doubt
regarding Showers’ guilt. Reliance on Wolfe was not
objectively reasonable.
This court and others have overturned a state court on
habeas review based on deficient performance even where
experts had been consulted but defense counsel failed to seek
a second opinion when the facts so warranted. See, e.g.,

-- 12 of 16 --

13
Hummel v. Rosemeyer, 564 F.3d 290, 302 (3d Cir. 2009)
(defense counsel’s failure to obtain additional psychiatric
evaluation of defendant’s mental capacity to stand trial
deficient because previous evaluations were equivocal and
client’s behavior would have put competent counsel on
notice); Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir.
2007) (“[T]he mere hiring of an expert is meaningless if
counsel does not consult with that expert to make an informed
decision about whether a particular defense is viable.”).
We do not hold that defense attorneys must always
enlist expert testimony but it depends on the specific
circumstances of the case. The 1989 American Bar
Association (“ABA”) Guideline for Appointment and
Performance of Counsel in Death Penalty Cases, which is
informative, albeit not dispositive, calls for retention of expert
witnesses when necessary or appropriate for preparation of
the defense, adequate understanding of the prosecution’s case
and rebuttal of any portion of the prosecution’s case at the
guilt/innocence phase. § 11.4.1(D)(7). The District Court
held that the 1989 Guideline is relevant for evaluating
prevailing norms and provides added support for its
conclusion that Rudinski provided deficient performance and
that the Superior Court’s contrary conclusion was
unreasonable.10 See Hummel, 564 F.3d at 297 (“The [ABA]
standards are guides, but only guides, to what is
reasonable.”). We agree.
In the words of Judge Tamilia, the dissenting member
of the Pennsylvania Superior Court: “[R]ebuttal testimony by
10 The Supreme Court case cited by the Commonwealth for
the proposition that ABA standards “do not have any special
relevance for assessing attorney performance” is inapposite.
Appellant’s Br. at 30 (citing Bobby v. Van Hook, 130 S. Ct.
13, 20 (2009) (Alito, J., concurring)). In that case, the court
of appeals used the wrong ABA standards, those from
eighteen years after the defendant’s trial, so the Court merely
found that those standards did not speak to the current
prevailing norms, not that the then effective standards would
not be relevant.

-- 13 of 16 --

14
an independent, credible expert witness was necessary to
present to the jury the sharp, crucial contrast between
voluntary and involuntary ingestion of a bitter toxic
substance, the single most critical element in this case, as well
as evidence or lack thereof relating to refluxation,” such
testimony was indisputably available, and it “would have
been far more convincing to the jury than that of a lay witness
friend.” Showers II, 782 A.2d at 1023-24 (Tamilia, J.,
dissenting). Judge Tamilia continued, “Such inaction by
counsel caused appellant irreparable harm, exemplifies
ineffectiveness and cannot be excused.” Id. at 1024.
With respect to the second prong of the Strickland
ineffectiveness inquiry, the Superior Court found that
Rudinski’s closing argument sufficiently exploited gaps in the
Commonwealth’s evidence to overcome a finding of
prejudice. Id. at 1021. The Court rested its conclusion on the
belief that because the autopsy showed no masking agents in
the deceased’s stomach (even if Roxanol could be masked), a
second expert would not have added anything and Rudinski
could have made the same closing arguments. This
conclusion is unreasonable and misreads the record.
It is established that closing arguments are not to be
considered evidence and the jury in this case was repeatedly
so instructed. See Pa. SSJI (Crim), §7.03 (2005) (“The
speeches of counsel are not part of the evidence, and you
should not consider them as such.”). Moreover, as the
District Court found, Rudinski’s closing “simply posed a
number of questions to the jury” failing to establish crucial
links. Showers III, 586 F. Supp. 2d at 329. An expert such as
Dr. Wecht would have testified to the amount of the masking
agent necessary to disguise such a large dose of morphine,
time of absorption, and analyzed the autopsy results
accordingly. As found by the District Court and the
dissenting member of the Superior Court, rebuttal testimony
from a credible, objective expert witness such as Dr. Wecht
would have cast serious doubt on the prosecution’s case and
there is a reasonable probability the outcome would have
been different. It was unreasonable for the Superior Court
majority to hold otherwise.

-- 14 of 16 --

15
We also agree with the District Court that because the
underlying claim of trial counsel’s ineffectiveness has merit,
“there is a reasonable probability that Showers’ direct appeal
would have been successful had appellate counsel adequately
raised the issue.” Id. at 331. As the District Court concluded,
Rudinski’s failure to raise the issue was “unreasonable and
did prejudice the defense.” Id.
The Superior Court determined that counsel made a
tactical decision not to include all of the arguments on appeal.
This court agrees that counsel need not, and should not, raise
every non-frivolous claim but rather may select among them
in order to maximize the likelihood of success on appeal.
Smith v. Robbins, 528 U.S. 259, 288 (2000). Here, however,
without conducting an independent investigation of the need
to consult an expert rebuttal witness, counsel ignored an
argument going directly to the issue of guilt that is “clearly
stronger than those presented.” Id. (quotation omitted). For
example, appellate counsel included an argument challenging
the sufficiency of the evidence, which rarely prevails. See,
e.g., United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.
2008). The fact that counsel had a reason for exclusion, the
desire not to “shotgun” the appellate court, does not excuse
his performance. App. at 273.
The Commonwealth provides no argument that
appellate counsel was not ineffective except insofar as it
rejects the claim that trial counsel was ineffective. We agree
with Showers that the Commonwealth has all but conceded
the point. Thus, we conclude that the Superior Court’s
decision here is contrary to and an unreasonable application
of clearly established federal law.
III.

-- 15 of 16 --

16
Accordingly, we will affirm the judgment of the
District Court granting habeas relief in the form of a new
trial.11
11 In light of our judgment, we will deny as moot Showers’
alternative request that we remand to the District Court for
the determination of her remaining habeas claims.

-- 16 of 16 --