Commonwealth, Aplt v. Bardo, M.
105 A.3d 678
| Pa. | 2014Background
- In 1992 Michael Bardo was arrested for the rape and strangulation killing of his 3‑year‑old niece; a jury convicted him of first‑degree murder and aggravated indecent assault and sentenced him to death. This Court affirmed on direct appeal in 1998.
- Bardo filed a PCRA petition; after a multi‑day hearing the PCRA court granted a new penalty‑phase hearing, finding trial counsel ineffective for failing to present and synthesize available mitigation (notably mental‑health expert testimony and records). The PCRA court denied other claims.
- On PCRA review the Commonwealth appealed the grant of a new penalty hearing (Docket No. 651 CAP); Bardo separately appealed denial of guilt‑phase relief (Docket No. 650 CAP).
- The Supreme Court was divided: it affirmed denial of guilt‑phase relief; because the Court was evenly split on the Commonwealth’s appeal, the PCRA court’s grant of penalty‑phase relief was affirmed by operation of law but Part I of the per curiam would have reversed the PCRA grant.
- The mitigation dispute focused on whether (a) trial counsel unreasonably failed to call retained experts (Dr. Berger and psychologist Ned Delaney) or use available records, and (b) the additional PCRA‑stage expert evidence (alcohol intoxication/dependence, PTSD, dysthymia, personality disorder, pedophilia) would have created a reasonable probability of a different penalty outcome when re‑weighed against the strong aggravators (sexual assault and prolonged strangulation of a child).
Issues
| Issue | Plaintiff's Argument (Bardo) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1) Validity of PCRA grant of new penalty hearing based on counsel’s failure to present mitigation experts/records | Trial counsel failed to investigate/synthesize available life‑history and mental‑health evidence (retained experts and records); that evidence had arguable merit and likely would have led at least one juror to vote for life | The PCRA evidence was largely cumulative of testimony at trial; experts’ opinions were inconsistent and retrospective; added mitigation would not have outweighed the egregious aggravators | Court evenly divided; result: grant of new penalty hearing affirmed by operation of law. The per curiam majority (Part I) would have reversed the PCRA grant on re‑weighing grounds (no Strickland prejudice) |
| 2) Change of venue: counsel ineffective for not pursuing venue after withdrawing earlier motion | Pretrial publicity was pervasive and inflammatory; counsel ineffectively withdrew the motion and did not renew it | Voir dire showed empaneled jurors could be impartial; publicity did not saturate community nor prevent seating impartial jury; counsel had tactical reasons and could refile if necessary | Denial of relief affirmed: PCRA court found no arguable merit or prejudice from counsel’s conduct |
| 3) Admission of testimony by victim’s mother (claimed victim‑impact) | Mother’s testimony was irrelevant and tantamount to victim‑impact evidence; counsel ineffective for not objecting | Testimony was part of the chronology of events (how mother learned victim was found) and not victim‑impact; admissible background/context | Denial of relief affirmed: PCRA court and this Court held the testimony was not impermissible victim‑impact evidence |
| 4) Voluntary intoxication defense: counsel ineffective for failing to present expert proof of intoxication | Counsel failed to investigate/present experts to show legal intoxication sufficient to negate specific intent | The record, including Bardo’s detailed statements and experts’ PCRA testimony, showed he was not overwhelmed to the point of losing faculties; intoxication evidence would not meet statutory standards for (e)(2) or (e)(3) or negate first‑degree mens rea | Denial of relief affirmed: PCRA court correctly found no arguable prejudice; trial counsel not ineffective on this theory |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes federal ineffective‑assistance standard) (performance and prejudice test)
- Commonwealth v. Gibson, 19 A.3d 512 (Pa. 2011) (defines PCRA re‑weighing for penalty‑phase prejudice and limited mitigation value of voluntary intoxication)
- Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008) (Gibson I: prejudice reweighing framework for mitigation evidence)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (standard of review for PCRA factual findings and legal conclusions)
- Commonwealth v. Martin, 5 A.3d 177 (Pa. 2010) (affirming grant of new penalty hearing where counsel failed to present available mental‑health mitigation)
- Rompilla v. Beard, 545 U.S. 374 (2005) (ineffectiveness for failing to investigate record‑based mitigation)
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel’s duty to investigate mitigating evidence)
- Williams v. Taylor, 529 U.S. 362 (2000) (capital counsel performance and mitigation investigation principles)
- Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011) (change‑of‑venue and pretrial publicity standard)
- Commonwealth v. Beasley, 967 A.2d 376 (Pa. 2009) (prejudice analysis when additional mitigation is presented on collateral review)