COMMONWEALTH оf Pennsylvania, Appellant v. Edward BRACEY, Appellee
Supreme Court of Pennsylvania
Decided June 16, 2015
Submitted Oct. 27, 2014.
117 A.3d 270
Billy Horatio Nolas, Esq., Federal Community Defender Office, Eastern District of PA, for Edward Bracey.
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
OPINION
Justice EAKIN.
The Commonwealth appeals from the order of the Philadelphia Court of Common Pleas granting appellee‘s Post Conviction Relief Act (PCRA)1 petition; the PCRA court determined appellee suffered from intellectual disability2 as defined in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005),
and vacated his death sentence pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held the Eighth Amendment of the United States Constitution prohibits the execution of individuals with intellectual disability. Id., at 321, 122 S.Ct. 2242. We affirm that decision.
On February 4, 1991, Officer Daniel Boyle attempted to stop a stolen vehicle driven by appellee. When the car crashed, appellee got out, jumped onto the police car roof, and displayed a gun; when he came down from the roof, he aimed the gun at Officer Boyle, fired several shots toward the vehicle, and fled. Officer Boyle was shot and ultimately died. Two days later, appellee entered a home via the skylight and set himself on fire, leading to his arrest. He thereafter confessed to killing Officer Boyle.
On March 3, 1992, a jury convicted appellee of first degree murder, possessing an instrument of crime, criminal trespass, and theft by receiving stolen property. After a penalty-phase hearing, the jury found two aggravating circumstances: the killing of an officer in the line of duty, see
In May, 1996, appellee filed his first pro se PCRA petition, which was later amended by his PCRA counsel. Appellee argued his trial counsel was ineffective for failing to present
Appellee filed his second PCRA petition August 15, 2002, claiming he was intellectually disabled and thus ineligible for the death penalty pursuant to the then-recent Atkins decision. Days before the evidentiary hearing, appellee‘s attorneys requested the hearing be cancelled, as appellee decided not to present any testimony. Counsel also argued a jury, not the court, was the appropriate fact finder to determine intellectual disability. Because appellee believed presenting evidence of intellectual disability would belie the latter argument, he chose not to do so and relied on evidence concerning brain damage and mental illness already in the record from his first petition.
The PCRA court ordered both parties to appear at the hearing, where appellee declined to present evidence and reasserted his jury claim. Finding the brain-damage and mental-illness evidence did not directly address intellectual disability, the PCRA court held appellee‘s petition was meritless and thus found the jury issue moot. See PCRA Court Opinion, 8/17/07, at 13-14. On appeal, we held “there is no federal constitutional right to a jury trial for Atkins claims presented in collateral proceedings.” Commonwealth v. Bracey (Bracey III), 604 Pa. 459, 986 A.2d 128, 130 (2009). However, given the PCRA court‘s ambiguous stance on whether appellee waived his jury claim, we vacated the denial and remanded for the court to conduct an evidentiary hearing on intellectual disability, see id., at 139-40, colloquially referred to as an Atkins hearing.
Upon the conclusion of the Atkins hearing, the PCRA court3 determined appellee proved, by a preponderance of the
In an Atkins determination, our standard of review involves a mixed question of law and fact:
A question involving whether a petitioner fits the definition of [intellectual disability] is fact intensive as it will primarily be based upon the testimony of experts and involve multiple credibility determinations. Accordingly, our standard of review is whether the factual findings are supported by substantial evidence and whether the legal conclusion drawn therefrom is clearly erroneous. We choose this highly deferential standard because the court that finds the facts will know them better than the reviewing court will, and so its application of the law to the facts is likely to be more accurate.
Commonwealth v. Hackett, 626 Pa. 567, 99 A.3d 11, 26 (2014) (quoting Commonwealth v. Williams, 619 Pa. 219, 61 A.3d 979, 981 (2013)) (internal quotation marks omitted).
Although Atkins held the Eighth Amendment prohibits the execution of persons with intellectual disability, Atkins, at 321, 122 S.Ct. 2242 it largely left defining intellectual disability to the states, see id., at 317, 122 S.Ct. 2242; Hall, at 1998 (“But Atkins did not give the States unfettered discretion[.]“). Faced with inaction from our General Assembly, this Court in Miller established a three-pronged standard for determining intellectual disability. Mindful of the hazards of comingling legal and medical concepts, we held an individual seeking Atkins relief must prove, by a preponderance of the evidence, he is intellectually disabled as defined by either (a) the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) or (b) the American Association of Mental Retardation
As to intellectual functioning, both the DSM-IV and AAIDD Manual define significantly subaverage intellectual functioning as approximately 30 points below a mean of 100. See DSM-IV-TR, at 39; AAIDD Manual at 31. Thus, accounting for two standard errors of measurement (SEM),6 which is estimated to be approximately plus or minus five points for reputable IQ tests, see
Adaptive behavior is the “collection of conceptual, social, and practical skills that have been lеarned and are performed by people in their everyday lives.” AAIDD Manual, at 15; see also DSM-IV-TR, at 42. Under the DSM-IV, significant impairments in adaptive functioning are present if a person has significant limitations in at least two of the following skill areas: communication, functional academics, social/interpersonal skills, self-direction, home living, work, leisure, use of community resources, self-care, safety, and health. DSM-IV-TR, at 41. The AAIDD Manual analyzes adaptive behavior under conceptual, social, and practical domains, which largely overlap the DSM-IV areas. See AAIDD Manual, at 15, 44. However, the AAIDD Manual would measure adaptive behavior via a standardized assessment that quantifies adaptive deficits, defining significant limitations as at least two SEM below the mean of either one domain individually or an overall score of all three domains.
The PCRA court held a four-day Atkins hearing in April, 2013. Appellee called two expert witnesses—Dr. Daniel Martell and Dr. Barry Crown—and three lay witnesses—Janet Whack, appellee‘s sister; Letitia Fletcher, a close friend of appellee‘s family; and Alan Grolnic, appellee‘s fifth-grade teacher. The Commonwealth presented the expert testimony of Dr. Paul Spangler.
Dr. Martell, a board-certified forensic psychologist, opined to a reasonable degree of medical certainty that appellee
On cross-examination, Dr. Martell admitted he was making an informed assumption the 1976 test was a full-scale WISC-R and it was possible the score could have been prorated.
As for the second prong, adaptive deficits, Dr. Martell determined appellee was significantly limited in eight areas under the DSM-IV,
Referencing a writing sample Dr. Armstrong administered for the 1997 test, Dr. Martell highlighted spelling errors such as “purson” instead of “person[,]”
Second, Dr. Martell addressed communication, remarking that appellee suffered from deficits in “both receptive and expressive language function[ing].” N.T. Hearing, 4/17/13, at 116. Studying statements by appellee‘s sisters and ex-girlfriend, he stated appellee‘s speech lacked meaningful content and recallеd appellee would use the phrase “like this and like that” as a crutch.
Appellee‘s second expert witness was Dr. Barry Crown. A board-certified neuropsychologist, Dr. Crown concluded appellee suffers from intellectual disability under both the DSM-IV and AAIDD Manual definitions. See N.T. Hearing, 4/18/13, at 189, 192, 206, 211. Although covering all three Miller prongs, Dr. Crown‘s testimony largely focused on the first prong since he administered appellee‘s 2011 test, a WAIS-IV. Because the WAIS-IV uses a factorial-design model and assesses “fluid” intelligence,7 Dr. Crown also labeled it as the “gold standard of [IQ] tests[.]”
As for the final two prongs, Dr. Crown considered appellee to be significantly limited in the same eight areas found by Dr. Martell. However, unlike Dr. Martell, Dr. Crown did not conduct interviews; instead, he based his findings on reviewing collateral information, such as affidavits and appellee‘s school, court, and medical records, a practice which Dr. Crown maintained is professionally acceptable. See
On cross-examination, the Commonwealth first focused on appellee‘s incentive to purposely fail the 2011 test. Although agreeing one can exhibit sufficient effort yet intentionally select incorrect answers, Dr. Crown noted his experience revealed only “very smart people” can accomplish such a task.
The Commonwealth concentrated its adaptive-deficits questioning on functional academics, stressing appellee was never placed in special-education classes and his behavior issues coincided with his decrease in academic performance.
Letitia Fletcher, a family friend, testified she lived with appellee on a sporadic basis when he was four to 11 years old.
Apрellee‘s last witness was his fifth-grade teacher, Alan Grolnic, who described appellee as a “memorable” student,
The Commonwealth quoted Grolnic‘s 2011 affidavit, taken by appellee‘s counsel, wherein he stated appellee “was a quiet kid ... and did[ not] stand out.”
The Commonwealth‘s only witness was Dr. Paul Spangler. A licensed psychologist and former director of Philadelphia‘s Clinical and Forensic Services for Mental Retardation Services, Dr. Spangler averred appellee did not suffer from intellectual disability. See N.T. Hearing, 4/23/13, at 27. He calculated appellee‘s IQ score at 78, utilizing the 1977 test individually because he thought it was the most reliable since
Covering the six tests in turn, Dr. Spangler considered the 1976 test invalid, given its single reference in Dr. Andrews’ report and uncertainty as to its type.
Moreover, Dr. Spangler did not believe appellee suffered from significant limitations in adaptive functioning. See
Appellee‘s counsel initially questioned Dr. Spangler about appellee‘s DOC records, emphasizing the absence of formal assessments or references to learning disabilities.
On January 10, 2014, the PCRA court issued an order vacating appellee‘s death sentence, finding appellee‘s IQ score was 74, he suffered from “major” deficiencies in adaptive functioning, and his impairments began before he turned 18. PCRA Court Order, 1/10/14. In calculating appellee‘s IQ score, the court averaged the 1977, 1996, and 2011 test scores, but disregarded the 1992 and 1997 test scores as all three experts agreed proration was generally unacceptable for Atkins purposes. See PCRA Court Opinion, 4/7/14, at 33. The court also rejected the 1976 test, determining appellee failed to prove the score arose from a full-scale test.
Presently, the Commonwealth appeals the PCRA court‘s decision, asserting appellee‘s “own evidence [is] mutually contradicting and cannot support the ruling[.]” Commonwealth‘s Brief, at 28 (citing Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876, 878 (1975) (“[T]estimony in conflict with incontrovertible physical facts and contrary to human experience and the laws of nature must be rejected.” (citation omitted))). In support, the Commonwealth references testimony by appellee‘s expert witnesses from the 1998 PCRA hearing who denied appellee was intellectually disabled. In particular, the Commonwealth quotes Dr. Krop‘s statement that appellee‘s 1996 test score was outside the range of intellectual disability and he was “‘not saying [appellee] is [intellectually disabled.]‘”
The Commonwealth also claims appellee presented contradictory testimony concerning adaptive functioning, citing a discussion appellee had with Judge Sarmina,
(citing N.T. Hearing, 4/22/13, at 108), Dr. Crown‘s observations of appellee during his administration of the 2011 test, id., at 33 (citing N.T. Hearing, 4/23/13, at 239-46), and Dr. Camiel‘s aforementioned statements, id. (citing N.T. Hearing, 4/27/98, at 49). Accordingly, the Commonwealth reasons the PCRA court disregarded the record as a whole and its conclusion is unsupported as a matter of law.
As an analog to its contradictory-evidence claim, the Commonwealth proclaims “badges of fraud” taint this case. Id., at 35. It reiterates the contradictory testimony of appellee‘s own experts, notes his lowest IQ score were post-Atkins, states appellee initially refused to рresent intellectual-disability evidence, and suggests academic literature encourages medical professionals to broadly define intellectual disability to prevent the imposition of the death penalty. Continuing its fraud jeremiad, the Commonwealth levies an accusation of “judge shopping” and alludes to concerns with the integrity of appellee‘s counsel, the Federal Community Defender Office, id., at 39-40, a consideration that has not escaped the notice of this Court. See, e.g., Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 329-30 (2011) (Castille, C.J., concurring). As with appellee‘s intellectual-disability testimony, the Commonwealth proffers these peculiar circumstances “reinforce the conclusion that, under Santana ... the PCRA court[‘s ruling] should be set aside.” Commonwealth‘s Brief, at 42.
In response, appellee maintains the PCRA court‘s decision complies with the standard of review because the record supports its findings and its conclusions are free from error. He submits the court‘s intellectual-functioning determination satisfied Miller because it calculated an IQ score of 74, which is acceptable under Miller. Specifically, appellee claims the court was warranted in discarding the 1992 and 1997 test scores because all three experts agreed proration was generally unacceptable. Although inclusion of the 2011 test was contested, he suggests the court‘s rationale for inclusion was supported by the record, noting the court‘s critiсism of Dr. Spangler‘s failure to meet with appellee, appellee‘s performance on the perceptual-reasoning factor and digit-span sub
Further, appellee contends the Commonwealth‘s Santana claim is meritless because intellectual disability was not at issue during the 1998 PCRA hearing and the experts indicated they were using a cutoff score of 70 when making their statements. Id., at 48-49. As Miller allows an IQ score of 75 or below, he submits the statements do not establish he presented self-contradicting evidence, and emphasizes none of his experts discussed adaptive functioning since the hearing was not meant to determine intellectual disability. As to the Commonwealth‘s fraud allegations, appellee argues they are waived becаuse the Commonwealth did not raise them below. Moreover, he mentions even Dr. Spangler did not think he was malingering, the court rejected the Commonwealth‘s use of specific questions to demonstrate lack of effort, the reference to two medical journals does not establish fraud, and the attacks upon counsel‘s integrity are irrelevant and “in dispute.” Id., at 55-57.
Our task is more straightforward than a psychological evaluation. We need only determine whether the PCRA court‘s findings are supported by substantial evidence and its legal conclusions are free from error. See Hackett, at 26 (quoting Williams, at 981). Keeping in mind it was appellee‘s burden to prove each Miller prong by a preponderance of the evidence, see Miller, at 631 (citation omitted), we affirm the court‘s decision to vacate appellee‘s sentence of death.
Ultimately, the first prong turns on the inclusion of the 2011 test score; without it, appellee‘s IQ score averages 76.5. Here, the court chose to credit the testimony of Dr. Martell and Dr. Crown over Dr. Spangler. Specifically, it did not find Dr. Spangler‘s rationale for discarding the 2011 test score persuasive, concluding his first two reasons—presuming all post-Atkins tests to be unreliable and the references to depression and ADD—were speculative. The court noted he failed to cite to specific evidence to support his post-Atkins theory, he never met with appellee in person, and it did not think the ADD and depression references conclusively established appellee suffered from those conditions. PCRA Court Opinion, 4/7/14, at 34-35. Rather, the court mentioned appellee‘s perceptual-reasoning score, the fact appellee self-reported his depression, and that Dr. Spangler failed to raise the depression and ADD arguments about appellee‘s other tests. Id. Addressing Dr. Spangler‘s third reason, appellee‘s purported lack of effort, the court did not deem Dr. Spangler‘s reference to specific questions as symbolic of poor effort, instead citing appellee‘s digit-span score. Id., at 36. Overall, the court simply distrusted Dr. Spangler, criticizing his inter
With regard to the second prong, adaptive deficits, the court emphasized our language in Williams that deficits must be “major” where an IQ score falls within the SEM range, i.e., 71-75. PCRA Court Opinion, 4/7/14, at 36 (citing Williams, at 983). Curiously, the court took a numerical approach, observing the defendant in Williams was found to be significantly limited in seven of the 11 DSM-IV categories. Applying this logic, the court held appellee satisfied the “major” requirement because it found he was significantly limited in five areas: (1) communication, (2) functional academics, (3) self-direction, (4) social/interpersonal skills, and (5) leisure. First, the court cited appellee‘s pervasive use of the phrase “like this and like that[,]” and Dr. Martell‘s remark thаt appellee was one of the most communicatively deficient persons he ever interviewed. Id., at 37. Second, as to functional academics, it found appellee‘s academic ceiling commensurate with individuals with intellectual disability, stating he “plateaued at a sixth-grade level[,]” the time when learning shifts from concrete to abstract. Id., at 39. The court disregarded Grolnic‘s testimony that was specific to appellee, acknowledging the Commonwealth‘s impeachment of Grolnic‘s testimony. Id., at 39 n. 24. And, although the court recognized appellee‘s strength in word recognition, it emphasized the “weakness focus” of intellectual disability, further citing appellee‘s low GED score, poor writing ability, and the fact his younger sister would help him
Dr. Spangler appears to be correct that appellee‘s GED subtest percentile ranks do not align with a total score of 193, where the minimum total-passing score was 2250, see GED Transcript, 3/16/11; however, substantial evidence still supports the court‘s functional-academic finding. Namely, appellee was retained in seventh grade—around the time when schools shift to abstract learning, N.T. Hearing, 4/18/13, at 194-95; N.T. Hearing, 4/23/13, at 203-06—and despite the individual attention he received at New Life Boys’ Ranch, his scores still peaked at roughly a sixth-grade level, see N.T. Hearing, 4/18/13, at 68-69; Academic Record, 4/7/78, at 2.
We also find substantial evidence supports the court‘s communication finding. While the Commonwealth cites a conversation appellee had with Judge Sarmina, see N.T. Hearing, 4/22/13, at 108, the court was free to credit Dr. Martell‘s assessment of appellee‘s speech, the basis of which included listening to prison recordings, interviewing appellee, and reviewing statements by those who knew appellee during his youth. See N.T. Hearing, 4/17/13, at 94-95, 116-17, 123-25. Substantial evidence is not an overwhelming burden. See Chapman v. Commonwealth, Pennsylvania Board of Probation & Parole, 86 Pa.Cmwlth. 49, 484 A.2d 413, 416 (1984) (“‘Substantial evidence’ has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (citations omitted)). Accordingly, it was not unreasonable for the court to deem Dr. Martell‘s detailed methods “adequate” to find appellee was significantly limited in communication. See id.
As for the remaining areas—self-direction, social skills, and leisure—the court relied heavily on the testimony of Whack and Fletcher, recalling appellee would get lost in his own neighborhood, was easily taken advantage of, could not complete basic tasks despite punishment from his stepfather, and could not play childhood games. Although a review of the record shows the hearing was not thoroughly focused on these witnesses’ credibility, see N.T. Hearing, 4/22/13, at 51-56, 95-128, 174-81, such determinations are strictly within the province of the PCRA court. See White, at 381 (“[I]t should be noted that in the past this Court has found that there is no justification for an appellate court, relying solely upon a cold record, to review the fact-finder‘s first-hand credibility determinations.” (citations omitted)). Furthermore, “less biased” accounts, e.g., Dr. Camiel diagnosing appellee with schizoid personality disorder, support the court‘s findings. Thus, we conclude the court‘s adaptive-deficit findings are supported by substantial evidence. Finally, as the record is replete with instances from appellee‘s youth, the court‘s age-of-onset determination is also supported by substantial evidence.
In regard to the court‘s disсussion of Williams’ “major” requirement, we did not intend for courts to apply a mathematical approach, and did not make such a suggestion in Williams. While five out of 11 areas may satisfy the second prong in some circumstances, the task of the PCRA court is to examine the areas in a qualitative, not quantitative manner, cognizant that the burden is on the individual to prove each prong by a preponderance of the evidence. Although some assessments attempt to quantify adaptive deficits, see AAIDD Manual, at 43, the trial court retains ultimate responsibility for ensuring one proves he is significantly limited in adaptive
We further agree the Commonwealth‘s Santana claim is not availing. Santana applies to “testimony [that] conflict[s] with ... incontrovertible physical facts and the laws of nature[.]” Santana, at 878 (citation omitted). Notably, that case arose from an officer‘s testimony that he witnessed the defendant leave a specific area, but “undisputed physical facts” refuted the officer‘s statement. Id. Far from being against the “laws of nature[,]” the testimony by appellee‘s witnesses at the first PCRA hearing reveals they made their intellectual-disability statements on the basis of an IQ score cutoff of 70. See, e.g., N.T. Hearing, 4/27/98, at 173 (stating “70 and below is [intellectually disabled]“). Accounting for the SEM, an IQ score between 70 and 75, or below, satisfies the first prong. See Miller, at 630-31. Thus, apрellee‘s expert witnesses’ testimonies, vis-à-vis the 1998 and 2013 hearings, do not establish he presented self-contradicting testimony on intellectual disability. We also deem it relevant that the 1998 hearing was not about intellectual disability; rather, it concerned appellee‘s ineffectiveness claims based on assertions of brain damage and mental illness. See PCRA Court Opinion, 7/28/98, at 24-25. Therefore, we cannot credit the Commonwealth‘s Santana claim.
The Commonwealth next asks us to alter Miller‘s framework to “protect the justice system from the risk of fraud and manipulation[.]” Commonwealth‘s Brief, at 43. Observing the medical definition of intellectual disability was designed for treatment, not capital litigation, and individuals have a strong incentive to testify favorably for those seeking Atkins relief, the Commonwealth requests we make application of the Briseno factors mandatory and prohibit intellectual disability claims by individuals who have a previous IQ score above 75. We rejected the identical arguments in Hackett. See Hackett, at 35-36. The Commonwealth criticizes the PCRA court‘s discussion of Briseno, arguing appellee‘s act of setting himself on fire was to prevent police from shooting him and the shooting was a “hastily devised criminal scheme[.]” Common
Appellee asserts the Commonwealth‘s requests to change the law are waived for failure to raise them below. Notwithstanding waiver, he argues the PCRA court‘s Briseno analysis is irrelevant because the Commonwealth did not allege he was malingering. Alternatively, he claims the Commonwealth has failed to prove the court‘s Briseno findings were not supported by the record and submits Briseno has largely been vitiated by Hall‘s emphasis on clinical definitions for determining intellectual disability. As for the Commonwealth‘s cutoff-score claim, appellee argues such a framework would violate Hall, observing the petitioner in Hall had previously scored above a 75 and the decision prohibits “standards that are contrary to accepted clinical practice.” Appellee‘s Brief, at 62-63. Because no clinical practice supports the proposed prohibition, appellee submits adopting the practice would conflict with Hall.
We decline to accept the invitation to revisit Miller. We denied the same request in Hackett because the request was moot since we reversed the court‘s decision tо vacate that appellee‘s death sentence, see Hackett, at 36, but do not think our affirmance here necessitates a different result. With regard to the Briseno argument, it is significant that the Commonwealth‘s own witness, Dr. Spangler, did not think appellee was malingering. N.T. Hearing, 4/23/13, at 156 (“I don‘t think he was malingering.“). In DeJesus, we welcomed the use of the Briseno factors after quoting the PCRA court‘s remark that it found the Commonwealth‘s malingering argument ” ‘compelling[,]“” noting the factors “appear to be partic
Likewise, we decline the Commonwealth‘s request to prohibit individuals with a prior IQ score of 76 or above from asserting intellectual disability. Although Hall does not foreclose such a framework, see Hall, at 1996 (noting opinion does not address cutoff scores “at 75 or greater“), the Oklahoma cutoff score, as well as those of many other states, see id., at 1996-97, is a creature of the legislature. As noted supra, we reluctantly waded into these waters because of the General Assembly‘s inaction. We have little doubt there is a significant concern that some individuals may malinger or put forth minimal effort, see DeJesus, at 85 (“The prospect of malingering and the incentive to slant evidence to influence a finding ... are relevant[.]“); however, by the Commonwealth‘s own admission, malingering was not a concern here. And, although references to subtest scores and depression notations essentially assert appellee was “not giving [his] best effort[,]” reasonable testimony allows a contrary conclusion. See N.T. Hearing, 4/17/13, at 83-84; N.T. Hearing, 4/18/13, at 173-75. Thus, while sympathetic to the Commonwealth‘s position, we believe the remedy sought must emanate from the General Assembly.
In sum, as the PCRA court‘s findings are supported by substantial evidence and its legal conclusions are free from error, we affirm the order vacating appellee‘s death sentence.
Order affirmed; jurisdiction relinquished.
Chief Justice SAYLOR, Justices BAER and TODD join the opinion.
Justice STEVENS files a dissenting opinion.
In my view, Appellee has failed to prove by a preponderance of the evidence that he suffers from an intellectual disability as this Court defined that term in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005)1 and the PCRA court abused its discretion in finding to the contrary. I would reverse the PCRA court‘s order vacating Appellee‘s original sentence of death; therefore, I respectfully dissent.
In Atkins v. Virginia, 536 U.S. 304, 318, 122 S.Ct. 2242, 2250, 153 L.Ed.2d 335 (2002) (emphasis added), our Supreme Court stated that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” In considering the impact of the then recent Atkins decision in Miller, this Court refused to adopt a cutoff IQ score for determining whether one is intellectually disabled and instead found such a designation flows from “the interaction between limited intellectual functioning and deficiencies in adaptive skills that establish mental retardation.” Miller, at 155, 888 A.2d at 631.
When considering Appellee‘s appeal from the PCRA court‘s order denying his first petition for relief under the PCRA, this Court considered, inter alia, Appellee‘s argument that trial counsel had been ineffective for failing to investigate thoroughly whether or not Appellee was either organically brain damaged or mentally ill and to present evidence to this effect at his penalty phase hearing. Commonwealth v. Bracey (Bracey II), 568 Pa. 264, 795 A.2d 935 (2001), reconsideration denied, April 18, 2002.
Appellee presented expert testimony at his first PCRA evidentiary hearing in 1998 from three mental health professionals, Drs. Carol Armstrong, Neil Blumberg and Barry
In a follow-up letter to trial counsel, Dr. Boxer revealed he would not offer any helpful testimony to establish any type of mental health mitigation evidence at the penalty phase hearing. In fact, Dr. Boxer remarked at the PCRA evidentiary hearing that Appellee had been responsive and articulate during his evaluation and exhibited no signs of suffering from organic brain damage or any major mental illness. Bracey II, at 278, 795 A.2d at 942. This Court noted Dr. Boxer‘s analysis was in line with prior, court-ordered mental health evaluations of Appellee by Dr. Edwin Camiel and Philadelphia court psychologist Lawrence Byrne conducted in the early 1980‘s and for the instant case, none of which suggested Appellee was brain damaged or mentally ill, but instead determined Appellee did not manifest any major mental illness which would interfere with the trial court‘s ability to sentence him to death. Bracey II, at 278, 795 A.2d at 943. Similarly, a board-certified neurologist Dr. Thomas Sacchetti testified for the Commonwealth at the PCRA evidentiary hearing that Appellee did not suffer from organic brain disease. Bracey II, at 279 n. 8, 795 A.2d at 943 n. 8.
Appellee further averred the PCRA court should have determined trial counsel had been ineffective for failing to
Yet, Dr. Daniel Martell, who did conduct some interviews, largely relied upon his review of Appellee‘s school, medical and prison records, interviews, and the notes of testimony from the 1998 evidentiary hearing when finding him intellectually deficient at 2013 evidentiary hearing. Moreover, Dr. Barry Crown, who administered Appellee‘s 2011 WAIS-IV test which rendered his significantly lowest IQ score, did not personally interview anyone before rendering his opinion Appellee had an intellectual disability, though he admitted he had
To the contrary, the evidence relied upon by the PCRA court in Miller included the testimony of all five experts who had testified during the appellee‘s penalty phase hearing and agreed that he was “borderline” or “mildly mentally retarded.” These opinions were supported by school records that evinced the appellee had been placed in special education classes for the “educable retarded” in first grade and described him as functioning within the “borderline retarded range of intelligence.” Miller, at 149, 888 A.2d at 627. Indeed, the Commonwealth‘s own witness therein repeatedly stated that the appellee functioned in the “borderline retarded” or “mentally retarded” range. Miller, at 158, 888 A.2d at 632.
Nevertheless in finding Appellee‘s experts herein did not present self-contradicting testimony at the evidentiary hearing in 2013, the Majority relies upon Miller and stresses the evidentiary hearing held in 1998 did not center around a determination of whether Appellee had an intellectual disability but rather concerned his ineffective assistance of counsel claims based upon assertions of brain damage and mental illness. Majority Opinion, at 100-02, 117 A.3d at 286-87 see also Miller, supra, (stating expert testimony which occurred in the context of a defendant‘s attempt to show organic brain damage, not intellectual disability, was not sufficient to establish an Atkins claim and the appellant was entitled to a hearing on the same).
While I recognize the expert findings discussed in Bracey II were garnered in the context of Appellee‘s ineffectiveness claims and a determination of intellectual disability stems from
The Federal Defender has a history of raising Atkins issues in serial PCRA petitions which oftentimes results in a creation of significant delays in capital appeals. Birdsong, at 256-57, 24 A.3d at 351 (Castille, C.J., concurring)3. Certainly, such delays are justified and, indeed, necessary where the petition raises a meritorious claim; however, in my view, the instant matter does not do so. While the Majority highlights Appellee‘s low test scores in school, difficulty playing age-appropriate games and socially relating to his peers as a child, trouble performing some simple tasks, and poor sense of direction in his neighborhood as support for the PCRA court‘s finding of intellectual disability, the factual accounts of his crime as set forth in our opinions on both direct appeal and in Bracey II evince otherwise. It is important to remember that when Appellee murdered Officer Boyle on February 4, 1991, he possessed the intellectual capacity to: arm himself in preparation of robbing and shooting some drug dealers; operate a stolen vehicle; brandish a 9 mm automatic handgun at Officer Boyle while standing on the hood and roof of the police cruiser; demand that the Officer not touch his own firearm; shoot Officer Boyle with no less than eight rounds, one of which struck him in the right temple; and evade police for several days. Such premeditative behavior indicates an individual who was more than capable of taking control of a deadly situation. As this Court noted on direct appeal, this violent incident was not Appellee‘s first, for the jury determined he had a significant history of felony convictions involving the use or threat of violence to others including two prior burglary convictions. Commonwealth v. Bracey, 541 Pa. 322, 349 n. 15, 662 A.2d 1062, 1076 n. 15 (1995).
Accordingly, I would vacate the PCRA court‘s decision and accompanying order of January 10, 2014, which found Appellee to be intellectually disabled and exempt from the death penalty and remand to the trial court for reinstatement of the death sentence.
117 A.3d 292
In re J.H.
Petition of J.E.O.
Supreme Court of Pennsylvania.
June 17, 2015.