Lead Opinion
OPINION
Thе Commonwealth appeals from the order of the Philadelphia Court of Common Pleas granting appellee’s Post Conviction Relief Act (PCRA)
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 42 Pa.C.S. § 9711(d)(1), and appellee’s significant history of felony convictions involving the use or threat of violence, id., § 9711(d)(9). No mitigating circumstances were found, and the jury set the penalty at death; the trial court sentenced appellee to conseсutive imprisonment for the remaining convictions. This Court affirmed July 21, 1995. Commonwealth v. Bracey (Bracey I),
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 merit-less 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),
Upon the conclusion of the Atkins hearing, the PCRA court
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,
Although Atkins held the Eighth Amendment prohibits the execution of persons with intellectual disability, Atkins, at 321,
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),
Adaptive behavior is the “collection of conceptual, social, and practical skills that have been learned 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 signifiсant 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. Id., at 43.
The PCRA court held a four-day Atkins hearing in April, 2013. Appellee called two expert witnesses—Dr. Daniel Mar-tell 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. Id., at 186-88. The Commonwealth further underscored a statement within Dr. Andrews’ 1977 summary that she thought appellee’s true potential was even higher. See id., at 189. While disclosing he did not include the statement in his report, Dr. Martell disagreed the statement related to appellee’s effort. See id. Moreover, he acknowledged the location of the 1977 test, a juvenile detention center, was not ideal, conceded the “practice effect” would be irrelevant if the 1976 and 1977 tests were not both WISC-Rs, and agreed the score, a 78, fell outside the range of intellectual disability. See id., at 190-94, 199. Similarly, Dr. Martell admitted he failed to reference the 1992 test in his report, id., at 216, and indicated the 1996 test was administered in prison, id., at 204. As for the 1997 test, Dr. Martell revealed he did not verify Dr. Spangler’s calculations, which produced a prorated score of 81, id., at 223, 226, but reiterated his issue was with prorating scores for Atkins cases in general, see id., at 240. Although agreeing a Wechsler exam type, the Wechsler Abbreviated Scales of Intelligence (WASI), allows for proration, he stated
As for the second prong, adaptive deficits, Dr. Martell determined appellee was significantly limited in eight areas under the DSM-IV, id., at 97, 100, and all three AAIDD domains, id., at 99. In order of severity, he stated appellee was significantly limited in: (1) functional academics, (2) communication, (3) self-direction, (4) social/interpersonal skills, (5) self-care, (6) home-living, (7) work, and (8) leisure. Id., at 101-02. In his assessment, Dr. Martell reviewed appellee’s school, medical, and prison records, and interviewed appellee, his family members, one of his teachers, and Reverend Bruce Garver, a former principal of New Life Boys’ Ranch, a reform school appellee attended from 1977 to 1978. See Report of Dr. Daniel A. Martell, 1/30/13, at 5. Further, he explained he looked for “convergent validity[,]” i.e., “different people from different walks of life ... all describing the same phenomenon.” N.T. Hearing, 4/17/13, at 120-21.
Referencing a writing sample Dr. Armstrong administered for the 1997 test, Dr. Martell highlighted spelling errors such as “purson” instead of “person[,]” id., at 104, and quoted her statement that appellee wrote “worse than a third grader[,]” id., at 103. Citing a mental evaluation, part of a 1982 pre-sentence report, Dr. Martell noted the examining doctor described appellee as “barely litеrate[.]” Id., at 105. He labeled
Second, Dr. Martell addressed communication, remarking that appellee suffered from deficits in “both receptive and expressive language funetion[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 reсalled appellee would use the phrase “like this and like that” as a crutch. Id., at 116-17, 123-25. Further, he listened to prison recordings between appellee and his mother, observing appellee failed to reciprocate or understand the basis of conversations, often simply replying “uh-huh.” Id., at 94-95. Third, Dr. Martell defined self-direction as “the ability to carry through with projects or assignments independently without supervision[,]” id., at 130, noting appellee could not go to the store without forgetting what to buy or to get change, id. Eventually, appellee’s family sent him with a list and a store employee would gather the items and place the change in an envelope. Id., at 130-31. Moreover, appellee would often get lost in his own neighborhood and have to call his mother for directions. Id., at 131.
Appellee’s second expert witness was Dr. Barry Crown. A board-certified neuropsychologist, Dr. Crown concluded appel-lee 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,
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 id., at 200-02. Of note, Dr. Crown discussed functional academics in detail,
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. Id., at 218. In response to the Commonwealth’s suggestion that had Dr. Armstrong found evidence of intellectual disability she would have pursued it, Dr. Crown stated neuropsychol-ogists often give individual subtests because they are more interested in specific brain functions than an IQ score. See id., at 230, 232. He further characterized the WRAT as limited in scope, noting the latest WRAT was modified to measure comprehension, see id., at 239-45, and described the Commonwealth’s connection between appellee’s percentile ranks on the WRAT and 2011 test as “mixing apples and peanuts[.]” Id., at 259.
The Commonwealth concentrated its adaptive-deficits questioning on functional academies, stressing appellee was never placed in special-education classes and his behavior issues coincided with his decrease in academic performance. Id., at 247-52. In response, Dr. Crown reiterated the transition from concrete to abstract learning and stated boys, in particular, tend to act out when they struggle with the transition. Id., at 252. The Commonwealth also offered appellee’s excessive absences—61 times in seventh grade and 131 times in tenth grade—as a cause of his academic shortcomings. Id., at 254. Although suggesting appellee’s abusive stepfather may have contributed to the academic deficiencies during appellee’s childhood years, Dr. Crown was unsure what caused the issues during appellee’s teenaged years. See id., at 254-56.
Letitia Fletcher, a family friend, testified she lived with appellee on a sporadic basis when he was four to 11 years old. Id., at 146, 163. Fletcher echoed the accounts of appellee’s deficiencies, discussing his problems getting dressed, his quiet personality, his abusive stepfather, and his inability to complete chores or play games. Id., at 147-55, 157-59. On cross-examination, the Commonwealth used Fletcher’s testimony from the 1998 PCRA hearing to discredit her, noting she indicated she lived with appellee during his toddler years. See id., at 180-81. The Commonwealth also raised another statement from the 1998 heаring, wherein Fletcher recalled appel-lee struggled to write on a straight line while in middle school. Id., at 174-75. When asked how she was aware of issues
Appellee’s last witness was his fifth-grade teacher, Alan Grolnic, who described appellee as a “memorable” student, id., at 227, in a class he considered the “most difficult” of his 25 years at appellee’s elementary school, id., at 201, 203. Although appellee’s class was not a special-education class, it contained the lowest-performing students and used second- and third-grade materials. Id., at 204-06, 208. In an attempt to motivate students and their parents, Grolnic would annotate that students were performing below their capabilities. See id., at 213, 270. According to Grolnic, he did not seek intellectual-disability testing for appellee because the administration informed him it would be “useless” and school psychologists were chiefly reserved for younger children. See id., at 219-20, 223-24. Similarly, he did not consider holding appel-lee back, as school policy favored “social promotion[s].” See id., at 211.
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.” Id., at 227. Upon further questioning about the affidavit, Grolnic admitted counsel informed him appellee would not be executed if the court determined he suffered from intellectual disability. Id., at 231-32. Inquiring into specific phrases used in the affidavit, e.g., “intellectually impaired” and “intellectually slow,” the Commonwealth suggested he may have been prompted to use the phrases, id., at 235-39, and contrasted the statements with language he used in appellee’s school progress reports; Grolnic was unsure whether he stated the phrases organically. See id., at 240-54.
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. Id., at 28-33. As for the 1992 test, Dr. Spangler agreed using prorated scores is generally unacceptable for diagnostic purposes but maintained subtest scores were still important for comparison purposes. See id., at 38-40. He also underscored that appellee’s verbal score of 75 on the 1996 test was the same as the 1992 test. Id., at 43-45. Dr, Spangler divulged he prorated the 1997 test, which Dr. Armstrong proctored, because he wanted to compare the score to appellee’s other verbal scores. Id., at 45-47. Finally, Dr. Spangler did not consider the 2011 test reliable because (1) it was administered post-Atkins, (2) appel-lee’s depression and ADD may have depressed the score, and (3) he did not think appellee put forth adequate effort. Id., at 48-55. Unlike Dr. Crown and Dr. Martell, Dr. Spangler analyzed effort by citing appellee’s processing-speed score, one of the four factors on the WAIS-IV, and comparing various subtest scores between different tests. Id., at 68. Specifically, he mentioned appellee’s lowest scores on the 2011 test were processing-speed subtests, id., at 56, and appellee’s arithmetic score was a 7 on the 1996 test but a 4 on the 2011 test, id., at 57. Likewise, appellee scored a 7 and 9 on the similarities subtest, as part of the 1996 and 1997 tests, but a 5 on the 2011 test. Id., at 61. Dr. Spangler characterized appellee’s digit-span scores, a 5 on the 1996 test and a 6 on the 2011 test, as “mediocre” and stressed appellee received higher scores on other subtests. Id., at 66.
Moreover, Dr. Spangler did not believe appellee suffered from significant limitations in adaptive functioning. See id., at 126. Primarily concentrating on functional academics, he explained his foсus was on whether an individual can do something as opposed to whether he simply does not want to do it. See id., at 91. Thus, Dr. Spangler referenced appel-
Appellee’s counsel initially questioned Dr. Spangler about appellee’s DOC records, emphasizing the absence of formal assessments or references to learning disabilities. Id., at 141-44. Rebutting Dr. Spangler’s processing-speed argument, counsel alluded to remarks by Dr. Andrews and Dr. Krop that appellee had issues with speed; Dr. Spangler responded that psychologists often couch statements in relative terms and suggested appellee’s performance-component
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. Id. Further, the court concluded appellee suffered from major deficiencies in adaptive functioning, finding he was significantly limited in: (1) communication, (2) functional academics, (3) self-direction, (4) social/interpersonal skills, and (5) leisure.
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,
The Commonwealth also claims appellee presented contradictory testimony concerning adaptive functioning, citing a discussion appellee had with Judge Sarmina, id., at 32-33 n. 9
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 present 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 appel-lee’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,
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. Specifiсally, 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 criticism 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 statеments 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 because 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 appel-lee’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, ie., 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 “mаjor” 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 that 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, appel-lee 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 Proba
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” accоunts, 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 discussion 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] conflicts] 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 tеstimony 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, appellee’s expert witnesses’ testimonies, vis-a-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 dеvised 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 decisiоn to 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.
Notes
. 42 Pa.C.S. §§ 9541-9545.
. Herein, we use "intellectual disability” to refer to the condition previously characterized as "mental retardation," as the latter has
. Judge Jones presided over the case since 1996, but was appointed to the federal bench; the case was reassigned to Judge Sarmina in 2010. See PCRA Court Opinion, 4/7/14, at 3.
. The DSM-IV and AAMR Manual use the term "mental retardation[,]” while the DSM-5 and AAIDD Manual use "intellectual disability.” As there is no substantive change to the definition of intellectual disability between die AAIDD and AAMR Manuals, see AAIDD Manual, at 6, we approve of the AAIDD Manual’s definition. However, because the DSM-5 had not been published at the time of appellee's Atkins hearing, and it altered the DSM-IV’s definition of adaptive functioning, compare DSM-IV, at 40, with DSM-5, at 37, we will evaluate the PCRA court’s conclusion under the definition in the DSM-IV.
. Published in 2000, the DSM-IV-TR is the text revision of the DSM-IV.
. SEM is " ‘a unit of measurement: 1 SEM equates to a confidence of 68% that the measured score falls within a given score range, while 2 SEM provides a 95% confidence level[.]”' Hall, at 1995 (citation omitted). The "given range” for 1 SEM is thus 5 points, within 2 ½ above or below the articulated IQ score; the range for 2 SEM is 10 points, within 5 above or below the IQ score. The larger range logically engenders more confidence that it encompasses the relevant IQ.
. Factorial design takes "the normative base and applies] it to individual behavior[,] ,.. looking] at the underlying factors that affect behav
. The perceptual-reasoning factor is one of four factors that make up the WAIS-IV; the other three are verbal comprehension, working memory, and processing speed. Id., at 176. Each factor contains two or three subtests. See id., at 172, 177.
. Per Dr. Crown, a confidence interval translates an SEM, which changes depending on age and other factors, into a constant number. Id., at 175-76; see also Hall, at 1995.
. The performance component is one of two componеnts on the WISC-R. See Psychological Summary, 2/24/77.
. A WAIS-IV subtest, visual puzzles fall under the perceptual-reasoning
. Although it also determined appellee satisfied the AAIDD Manual’s adaptive-deficit standard, the court, like the expert witnesses, primarily focused on the DSM-IV’s criteria.
. See Ex parte Briseno,
Dissenting Opinion
dissenting.
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,
In Atkins v. Virginia,
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),
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,
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 Ap-pellee 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,
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,
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,
Accordingly, I would vacate the PCRA court’s decision and accompanying order of January 10, 2014, which found Appel-lee to be intellectually disabled and exempt from the death penalty and remand to the trial court for reinstatement of the death sentence.
. As did the Majority, in light of Hall v. Florida, — U.S. -,
. See also, Commonwealth v. Birdsong,
. It should be noted that in Birdsong, the appellee's primaty counsel was the same Federal Defender primarily representing Appellee herein, and he also raised a claim that the appellant was not eligible for execution under Atkins due to his intellectual disability. In addition, Drs. Crown, Martell and Armstrong testified for the defense at the Atkins hearing held in the Hackett case.